Ex Parte Wusatowska-Sarnek et al

Patent Trial and Appeal Board

Aug 21, 2018

13563216 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/563,216 07/31/2012 Agnieszka M. Wusatowska-Sarnek
54549 7590 08/23/2018
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO.
PA11338US;
67097-1751PUS1
CONFIRMATION NO.
7017
EXAMINER
LIANG, ANTHONY M
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
08/23/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AGNIESZKA M. WUSATOWSKA-SARNEK
and RONALD S. MACE
Appeal2017-009757
Application 13/563,216
Technology Center 1700
Before TERRY J. OWENS, ROMULO H. DELMENDO, and
MICHAEL G. McMANUS, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-8, 16, 19, 20, and 22. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a powder metallurgy method and a superalloy
article. Claims 1 and 19 are illustrative:
1. A powder metallurgy method comprising:
(a) consolidating a metallic powder into a shape;
1 The real party in interest is United Technologies Corporation (App. Br. 2).
Appeal2017-009757
Application 13/563,216
(b) thermo-mechanically forging the shape into an article
having a polycrystalline micro structure;
( c) heat treating the article to cause coarsening of the
polycrystalline microstructure; and
( d) controlling the grain size homogeneity and
distribution in the article formed during coarsening in step ( c)
by selecting the metallic powder in step (a) to include a metallic
powder particle size distribution that is truncated on fine and
coarse particle size sides, the selected metallic powder particle
size distribution reducing abnormal grain growth such that
grains of the polycrystalline microstructure coarsen and are all
within an ASTM grain size number of 4-8.
19. An article comprising:
a superalloy composition having a polycrystalline
microstructure defining a uniform grain size such that the grains
of the polycrystalline microstructure are all within an ASTM
grain size number of 4-8.
Larson
Raymond
The References
us 3,976,482
us 5,584,947
Mesh to Micron Conversion Chart 1-2,
http://www.showmegold.org/news/Mesh.htm (undated).
The Rejections
Aug. 24, 1976
Dec. 17, 1996
The claims stand rejected as follows: claims 19 and 20 under
35 U.S.C. § 102(b) or, in the alternative, under 35 U.S.C. § 103(a) over
Raymond, and claims 1-8, 16, and 22 under 35 U.S.C. § 103(a) over
Raymond in view of Larson as evidenced by Mesh to Micron Conversion
Chart.
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Application 13/563,216
OPINION
We reverse the rejection under 35 U.S.C. § 102(b) over Raymond,
affirm the rejection under 35 U.S.C. § 103(a) over Raymond, and reverse the
rejection under 35 U.S.C. § 103(a) over Raymond in view of Larson as
evidenced by Mesh to Micron Conversion Chart.
Claims 19 and 20
Rejection under 35 US.C. § 102(b) over Raymond
"Anticipation requires that every limitation of the claim in issue be
disclosed, either expressly or under principles of inherency, in a single prior
art reference." Corning Glass Works v. Sumitomo Elec. US.A., Inc., 868
F.2d 1251, 1255-56 (Fed. Cir. 1989).
Raymond adds to a nickel-base superalloy an amount of carbon above
its solubility level to form a carbide phase within the alloy sufficient to pin
the grain boundaries to prevent localized abnormal excessive grain growth to
diameters exceeding a desired range, which preferably is between about
ASTM 7 and ASTM 8 for some gas turbine engine components, during
supersolvus heat treatment ( above the alloy's y' solvus temperature) ( col. 1,
11. 29-30, 36-40; col. 2, 11. 44--51 ). The supersolvus heat treatment "is
sufficient to uniformly coarsen the grains of the article to at least about
ASTM 9" (col. 7, 11. 66-67) and "can be performed to achieve a uniform
grain size within a range of about 2 or 3 ASTM units, such as about
ASTM 7-8 without grains larger than ASTM 4" (col. 8, 11. 1--4).
The Examiner finds (Ans. 2):
Regarding claim 19, Raymond et al. teaches an article
comprising a nickel superalloy composition having a uniform
grain size (i.e. having a polycrystalline, or multi-grain,
microstructure) within a range of about 2 or 3 ASTM units,
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Appeal2017-009757
Application 13/563,216
such as about ASTM 7-8 without grains larger than ASTM 4,
which satisfies the instantly limitation [sic] "defining a uniform
grain size such that the grains of the polycrystalline
microstructure are all within an ASTM grain size number
of 4-8." (col. 1 ln. 6, col. 7 ln. 61-67, col. 8 ln. 1-4).
The Examiner does not establish that Raymond's disclosure of an
article having a uniform grain size of ASTM 4 to "about ASTM 7-8" ( col. 8,
11. 3--4), which includes grain sizes smaller than ASTM 8, is a disclosure of
an article whose grains "all are within an ASTM grain size number of 4-8"
as required by the Appellants' claim 19 and its dependent claim 20.
Accordingly, we reverse the rejection under 35 U.S.C. § 102(b).
Rejection under 35 USC§ 103(a) over Raymond
Raymond's disclosure of an article having a uniform grain size of
ASTM 4 to about ASTM 7-8 (col. 8, 11. 3--4) would have led one of ordinary
skill in the art, through no more than ordinary creativity, to use any lower
grain size limit within that range, including ASTM 8, such that all grains are
within ASTM 4--8 as required by the Appellants' claim 19 and its dependent
claim 20. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) (in
making an obviousness determination one "can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ").
The Appellants assert that "[t]he phrase 'without grains larger than
ASTM 4' implies that not all of the grains are size 7-8" (Reply Br. 4) and
"[ c ]oupled with Raymond's silence on whether there are grains smaller than
size 8, one cannot say whether Raymond's grains meet the claim language"
(id.).
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Application 13/563,216
The Appellants' claims do not require that all grains are ASTM 7-8.
Raymond's grains can be ASTM 4 to about ASTM 7-8 (col. 8, 11. 3--4)
which, as pointed out above, would have suggested the Appellants' range of
ASTM 4--8.
We therefore are not persuaded of reversible error in the rejection of
claims 19 and 20 under 35 U.S.C. § 103(a).
Claims 1---8, 16 and 22
Larson discloses that subjecting IN-792 powder to one or more rolling
mill passes followed by hot isostatic pressing produces a duplex
microstructure with fine grains substantially surrounding large grains, but
subjecting screened IN-792 powder to one or more passes through a rolling
mill produces consolidated particles having a relatively uniform
ASTM 16-10 grain size and a true aspect ratio 2 of about 2 or more ( col. 4,
11. 20-24). An aspect ratio of 2.0 was obtained using a -200 + 325 mesh size
and one pass through the rolling mill ( col. 4, 11. 25-35).
The Examiner concludes (Ans. 4-5):
It would have been obvious to one of ordinary skill in the
art at the time of the invention to use a consolidation process
wherein nickel-based superalloy powder is screened using mesh
size -200 + 325, rolled, and subjected to hot isostatic pressing
consolidating in the method of Raymond et al., as taught by
Larson, in order to form a uniformly fine grain size of
AS TM 16-10 while avoiding the forming of a duplex
microstructure wherein large grains are surrounded by fine
grams.
2 "True aspect ratio is represented as the average diameter of the rolled
particles divided by average particle thickness" (col. 3, 11. 63---65).
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Appeal2017-009757
Application 13/563,216
The Examiner does not address the differences between Raymond's
method for obtaining a desired grain size range by using carbide particles to
pin grain boundaries and Larson's method for obtaining a desired grain size
range and aspect ratio by screening powder and then passing it through a
rolling mill, and establish that regardless of those differences, the references
would have provided one of ordinary skill in the art with an apparent reason
to combine their disclosures as proposed by the Examiner. See KSR, 550
U.S. at 418.
Thus, the Examiner's rejection of claims 1-8, 16 and 22 appears to be
based upon impermissible hindsight in view of the Appellants' disclosure.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) ("A rejection based on
section 103 clearly must rest on a factual basis, and these facts must be
interpreted without hindsight reconstruction of the invention from the prior
art"). Accordingly, we reverse the rejection.
DECISION
The rejection of claims 19 and 20 under 35 U.S.C. § 102(b) over
Raymond is reversed. The rejection of claims 19 and 20 under
35 U.S.C. § 103(a) over Raymond is affirmed. The rejection of claims 1-8,
16 and 22 under 35 U.S.C. § 103(a) over Raymond in view of Larson as
evidenced by Mesh to Micron Conversion Chart is reversed.
The Examiner's decision is affirmed-in-part.
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-IN-PART
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