Ex Parte White

Board of Patent Appeals and Interferences

Apr 23, 2010

10640089 (B.P.A.I. Apr. 23, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte DAWN WHITE
____________________

Appeal 2009-013887
Application 10/640,089
Technology Center 1700
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Decided: April 23, 2010
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Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
LINDA M. GAUDETTE, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL
I. STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1-4, 10-15, 22-31, 34-37, 39, and 43 under
35 U.S.C. § 102(e) as anticipated by Doumanidis (US 6,450,393 B1, issued
September 17, 2002) and claims 5-9, 16-21, 32, 33, 38, and 40-42 under
35 U.S.C. § 103(a) as obvious over Doumanidis. We have jurisdiction under
35 U.S.C. § 6(b).
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We AFFIRM.
Appellant’s invention relates to the control of bond-zone parameters
in ultrasonic object consolidation and similar processes (Spec. 1:6-8).
Claims 1 and 5 are illustrative:
1. An improved additive manufacturing process,
comprising the steps of:
providing a computer-aided design (CAD) description of
a part to be fabricated;
providing a feedstock of material increments, each
having a peripheral shape and a bonding surface;
consolidating the increments at a bond zone associated
with their respective bonding surfaces in accordance with the
CAD description to produce the part without melting the
increments in bulk; and
performing the following steps, alone or in combination,
to improve uniformity in fabrication:
maintaining consistent energy delivery to the bond
zone;
maintaining consistent stiffness and mechanical
resistance to vibration in the bond zone; and
maintaining uniform thermal conditions in the
bond zone.
5. The method of claim 3, further including the use of
a look-up table containing previously identified weld
parameters.
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II. DISCUSSION
A. CLAIM 1
Regarding the first rejection, Appellants present arguments with
respect to only independent claim 1 (Br. 3-4). Accordingly, we decide the
issue presented below with respect to independent claim 1 as representative
of the entire group of claims rejected under 35 U.S.C. § 102(e).
1. ISSUE ON APPEAL
The Examiner asserts, and Appellant does not contest, that claim 1
encompasses processes including only one of the three recited “maintaining”
steps (Ans. 4). Accordingly, the first issue arising from the contentions of
Appellant and the Examiner is: has Appellant identified a reversible error in
the Examiner’s finding that Doumanidis teaches the claimed step of
“maintaining uniform thermal conditions in the bond zone”? We answer this
question in the negative.
2. FACTUAL FINDINGS
1. Appellant’s Specification states that “[b]roadly, control of the local
thermal history in the bond zone region(s) may take advantage of process
parameter control, the use of supplementary thermal control methods or a
combination thereof” (Spec. 14:20-22).
2. Appellant’s Specification states that “temperature is maintained constant
by changing the consolidation pressure applied, the speed at which
bonding is performed, the amplitude, and the frequency of vibration”
(Spec. 15:11-13; see also Spec. 15:21-22).
3. Appellant’s Specification also states that the bond zone is heated to a
temperature near to the temperature of the feedstock, preferably between
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20% and 80% of the melting temperature of the feedstock material (Spec.
14:18-20).
4. Doumanidis teaches that “[t]he temperature rise of the material is a
function of the process settings, and its maximum range is between 35%
and 50% of the material melting temperature” (Doumanidis, col. 9, ll. 51-
54).
5. According to Doumanidis, the “process settings” are vertical pressure,
vibration amplitude, and welding time (Doumanidis, col. 9, ll. 58-59).
6. Doumanidis teaches keeping vertical pressure (or clamping pressure),
vibration amplitude and vibration frequency constant during welding
(Doumanidis, col. 5, ll. 54-56; col. 9, ll. 66-67; and col. 10, ll. 2-6).
7. Doumanidis teaches that the welding time parameter can be adjusted
between 0.1 to 1 second and automatically adjusted online by quality
control devices as to produce an optimum weld (Doumanidis, col. 10, ll.
7-10). Doumanidis teaches that if the welding time is too large, melting
could occur (Doumanidis, col. 10, ll. 12-13).
3. PRINCIPLES OF LAW
During examination, “claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d
831, 833 (Fed. Cir. 1990)).
The claims must be read in view of the specification, of which they
are a part. The specification “is always highly relevant to the claim
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construction analysis. Usually, it is dispositive; it is the single best guide to
the meaning of a disputed term.” Phillips v. AWH Corp., 415 F.3d 1303,
1315 (Fed. Cir. 2005) (quoting Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576, 1582 (Fed. Cir. 1996)). Absent claim language carrying a
narrow meaning, we only limit the claim based on the specification when
those sources expressly disclaim the broader definition. In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004).
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
4. ANALYSIS
Appellant argues that the step of “maintaining uniform thermal
conditions in the bond zone” is not taught since Doumanidis does not
“control the process” (Br. 3). According to Appellant, a step of
“maintaining” requires some form of monitoring and feedback (Br. 4). We
disagree.
Claim 1 recites “maintaining” thermal conditions, and does not
expressly require monitoring and feedback, or control. Appellant’s
Specification broadly describes taking advantage of process parameter
control and, more specifically, describes maintaining a constant temperature
by changing the consolidation pressure applied, the speed at which bonding
is performed, the amplitude, and/or the frequency of vibration (FF 1 and 2).
Appellant’s Specification states that temperature can be held between 20%
and 80% of the melting temperature by the manipulation of these parameters
(FF 3). There is no indication that the manipulation of these parameters
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requires any temperature monitoring or feedback, and we decline to read
into the claim any such requirement.
Appellant also asserts that Doumanidis does not consider maintaining
the temperature because temperature is disclosed only as a byproduct or
function of the process settings (Br. 3). We disagree. Under a proper claim
interpretation, controlling the temperature indirectly by directly controlling
other process settings is one method of “maintaining the thermal
conditions.” According to Doumanidis, the temperature is maintained
between 35% and 50% as a function of holding the pressure, amplitude and
frequency constant and manipulating the welding time (FF 4-7).
Doumanidis effectively states that welding for too long might raise the
temperature above the melting point of the material (FF 7). Thus,
Doumanidis teaches “maintaining uniform thermal conditions in the bond
zone” within the broadest reasonable meaning given the limitation.
B. CLAIM 5
For the second rejection, Appellant argues the rejected claims as a
group. Accordingly, we decide the issue presented below with respect to
dependent claim 5 as representative of the entire group of claims rejected
under 35 U.S.C. § 103(a).
1. ISSUE ON APPEAL
The second issue on appeal arising from the contentions of Appellant
and the Examiner is: has Appellant identified reversible error in the
Examiner’s finding that “the use of a look-up table containing previously
identified weld parameters” recited in claim 5 was well known and
conventional in the art? We answer this question in the negative.
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2. FACTUAL FINDING
8. The Examiner found that the use of a look up table and various
adaptive control methods are well known and conventional in the art (Ans.
5).
9. There is nothing in Appellant’s Specification to suggest that the use of
look up tables and the other control strategies described therein are not
known in the art. To the contrary, Appellant’s disclosure suggests that it is
the application of these control strategies for the particular uses disclosed in
ultrasonic object consolidation that is unique to the present invention (Spec.
10:1-20; 16:4-21).
10. Appellant provides no argument or evidence to support a rationale that
the Examiner’s statements are not true (Br. 4-5).
3. PRINCIPLES OF LAW
The Board may affirm a rejection under 35 U.S.C. § 103 based on the
Examiner’s official notice of facts, without citation of references, where
Appellant was sufficiently put on notice of the basis of the rejection and did
not challenge the truth of the Examiner’s assertion. See In re Lundberg,
244 F.2d 543, 551 (CCPA 1957) (examiner’s statement accepted as true in
light of appellant’s failure to question its accuracy or to present contradicting
evidence); In re Fox, 471 F.2d 1405, 1406-07 (CCPA 1973) (affirming
rejection under 35 U.S.C. § 103 without citation of any prior art based on
facts that were unchallenged by the appellant); In re Boon, 439 F.2d 724,
727 (CCPA 1971) (the appellants failed to rebut a finding of official notice
when they offered only a bald challenge to the Examiner’s findings without
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presenting the requisite information or argument that creates, on its face, a
reasonable doubt regarding the validity of the Examiner’s findings).
4. ANALYSIS
An articulated finding is required so that the applicant is presented
with a basis on which to traverse the rejection. The Examiner has made such
a finding (FF 8). This finding, alone, provided a sufficient basis for the
Appellant to traverse the rejection by establishing that the finding was
erroneous. While Appellant points out that the Examiner has provided no
evidence to support the finding, Appellant failed to challenge the accuracy
or truth of the finding (Br. 4-5). Thus, the Examiner’s finding has not been
rebutted. We also note that Appellant has not asserted that the Examiner’s
obviousness conclusion based on the finding is erroneous (Br. 4-5). In light
of the evidence as a whole, we cannot say that Appellant has identified an
error in the Examiner’s rejection.
III. CONCLUSION
On the record before us1 and for the reasons discussed above, we
cannot sustain the rejections maintained by the Examiner.
IV. DECISION
We affirm the Examiner’s decision.

1Only those arguments actually made by Appellant have been considered in
this decision. Arguments which Appellant could have made but chose not to
make have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2008).
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V. TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cam
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