Ex Parte Zajchowski et al

Patent Trial and Appeal Board

Feb 23, 2018

12638051 (P.T.A.B. Feb. 23, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
PA-0003042-US(07-421) 4388
EXAMINER
BAREFORD, KATHERINE A
ART UNIT PAPER NUMBER
1718
MAIL DATE DELIVERY MODE
12/638,051 12/15/2009
52237 7590
Bachman & LaPointe, P.C.
900 Chapel St., Suite 1201
New Haven, CT 06510
02/26/2018
Paul H. Zajchowski
02/26/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL H. ZAJCHOWSKI,
SUSAN M. MEIER,
and KEVIN W. SCHLICHTING
Appeal 2017-000473
Application 12/638,0511
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JULIA HEANEY, and
SHELDON M. McGEE, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134 from an Examiner’s
decision finally rejecting claims 1—3, 7, 9-11, and 13. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellants, the real party in interest is United Technologies
Corporation. Appeal Brief dated March 22, 2016 (“Br.”), at 2.
Appeal 2017-000473
Application 12/638,051
Independent claim 1 is reproduced below from the Claims Appendix of the
Appeal Brief.
1. A process for forming a thermal barrier coating comprising the
steps of:
providing a substrate;
depositing a ceramic interlayer on said substrate;
providing a gadolinia stabilized zirconia powder, wherein said
powder consists of from 3.0 to 3.5 wt% of at least one of yttria and
titania, from 15 to 20 wt% gadolinia, and the balance zirconia;
forming a non-segmented thermal barrier coating having
porosity in a range of from 5 to 20% over said ceramic interlayer on
said substrate; and
said thermal barrier coating forming step comprising supplying
the gadolinia stabilized powder to a spray gun and using an air plasma
spray technique which comprises using an amperage range of 350 to
825 amps, a voltage of 35 to 50 volts, an argon primary gas flow of 75
to 105 SCFH, at least one of a hydrogen secondary gas flow of 1.0 to
10 SCFH and a helium secondary gas flow of 45 to 75 SCFH, a
powder and a carrier gas flow exiting a spray gun of 4.0 to 20 SCFH,
a powder feed rate to the spray gun of 10 to 40 grams/min., and a gun
distance from a surface of the substrate being coated of from 3.0 to
5.0 inches.
Br. 22.
The claims on appeal stand rejected as follows:
(1) claims 1—3, 7, 9-11, and 13 under 35 U.S.C. § 112, first paragraph,
based on the written description requirement;
(2) claims 1—3, 7, 9-11, and 13 under 35 U.S.C. § 112, second paragraph,
as being indefinite;
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Application 12/638,051
(3) claims 1, 2, 7, 10, and 11 under 35 U.S.C. § 103(a) as unpatentable
over Bruce et al.2 in view of Spitsberg et al.,3 Wigren et al.,4 and Taylor et al.,5
either alone or optionally further in view of Zhu et al.,6 and as evidenced by
Periodic Table7 and Croat8;
(4) claim 3 under 35 U.S.C. § 103(a) as unpatentable over Bruce in view
of Spitsberg, Wigren, and Taylor, either alone or optionally further in view of Zhu,
and as evidenced by Periodic Table and Croat, and further in view of Cottom et
al.9;
(5) claims 9 and 13 under 35 U.S.C. § 103(a) as unpatentable over Bruce
in view of Spitsberg, Wigren, and Taylor, either alone or optionally further in view
of Zhu, and as evidenced by Periodic Table and Croat, and further in view of Ulion
et al.10;
(6) claims 1, 2, 7, 10, and 11 under 35 U.S.C. § 103(a) as unpatentable
over Rigney et al.11 in view of Huddleston et al.,12 Wigren, and Taylor, either alone
or optionally further in view of Zhu;
2 EP 1 400 611 Al, published March 24, 2004 (“Bruce”).
3 US 6,869,703 Bl, issued March 22, 2005 (“Spitsberg”).
4 US 7,258,934 B2, issued August 21, 2007 (“Wigren”).
5 US 2003/0138658 Al, published July 24, 2003 (“Taylor”).
6 US 2005/0026770 Al, published February 3, 2005 (“Zhu”).
7 Appendix VI Periodic Table, Plumbing Eng’g & Design Handbook of Tables
1989-93 (“Periodic Table”).
8 US 4,496,395, issued January 29, 1985 (“Croat”).
9 EP 1 642 993 Al, published April 5, 2006 (“Cottom”).
10 US 2005/0244663 Al, published November 3, 2005 (“Ulion”).
11 US 2002/0172838 Al, published November 21, 2002 (“Rigney”).
12 US 2007/0098987 Al, published May 3, 2007 (“Huddleston”).
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Application 12/638,051
(7) claim 3 under 35 U.S.C. § 103(a) as unpatentable over Rigney in view
of Huddleston, Wigren, and Taylor, either alone or optionally further in view of
Zhu, and further in view of Cottom; and
(8) claims 9 and 13 under 35 U.S.C. § 103(a) as unpatentable over Rigney
in view of Huddleston, Wigren, and Taylor, either alone or optionally further in
view of Zhu, and further in view of Ulion.
B. DISCUSSION
1. Rejection (2)
The Examiner concludes that it is unclear whether “a powder and a carrier
gas flow exiting a spray gun [of 4.0 to 20 SCFH13]” recited in claim 1 and “a
powder and a carrier gas flow from a spray gun [of 6 to 12 SCFH]” recited in claim
7 refer to (1) a carrier gas flow amount, where the powder is carried by the carrier
gas, or (2) a powder gas flow amount and a carrier gas flow amount. Final Act.
4.14
The Appellants argue that “one of ordinary skill in the art understands that
what comes out of the nozzle of the spray gun is a flow which contains powder and
gas.” Br. 13.
The Appellants’ argument is supported by the record. The phrases “a
powder and a carrier gas flow exiting a spray gun of 4.0 to 20 SCFH” and “a
powder and a carrier gas flow from a spray gun of 6 to 12 SCFH” are offset in
claims 1 and 7, respectively, by commas. Thus, it is clear from the language of
claims 1 and 7 that both a powder and its carrier gas exit or flow from a spray gun
at 4.0 to 20 SCFH and 6 to 12 SCFH, respectively. The Appellants’ Specification
13 Standard cubic feet per hour. Spec. 110.
14 Final Office Action dated October 30, 2015.
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Application 12/638,051
supports that conclusion. See Spec. 110 (disclosing that powders are fed along
with carrier gases into the plasma gas stream); Spec. 120 (describing “a powder
gas flow” exiting or flowing from a gun).
The § 112, second paragraph, rejection is not sustained.
2. Rejection (1)
The Examiner finds “a powder and a carrier gas flow exiting a spray gun of
4.0 to 20 SCFH” recited in claim 1 and “a powder and a carrier gas flow from a
spray gun of 6 to 12 SCFH” recited in claim 7 are not supported by the original
disclosure. Final Act. 3. In particular, the Examiner finds that “[t]he only
reference in the disclosure as filed is to a ‘powder gas flow’, and it is not indicated
that ‘carrier gas flow’ is necessarily included.” Final Act. 3.
The Appellants argue:
The specification at [0010] teaches “the powder or powders forming
the coating material are fed along with carrier gases into a high
temperature plasma gas stream. ...” The specification at [0020]
includes ... a powder gas flow exiting the gun of 4.0 to 20 SCFH.
Still further in the description ... a powder gas flow from the spray
gun of 6 to 12 SCFH. The claims of a powder and a carrier gas flow
exiting a spray gun of 4.0 to 20 SCFH of claim 1, and a powder and a
carrier gas flow from a spray gun of 6 to 12 SCFH of claim 7, when
read in light of the specification convey with reasonable clarity to
those skilled in the art that, as of the filing date sought, he or she was
in possession of the invention.
Br. 11 (emphasis added).
In response, the Examiner finds that paragraph 10 of the Specification
“refers to feed of powder and carrier gas INTO ... the plasma stream, not
EXITING or FROM a spray gun” and paragraph 20 of the Specification refers to
“‘powder gas flow’ EXITING or FROM the spray gun.” Ans. 2.15 The Examiner
15 Examiner’s Answer dated August 9, 2016.
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Application 12/638,051
finds that “[i]t is not indicated or taught that ‘powder gas flow’ and ‘a powder and
a carrier gas flow’ are the same.” Ans. 2.
We disagree. The Appellants disclose that powder is fed along with carrier
gases into a high temperature plasma gas stream and “a spray of powder particles
emanat[es] from the spray gun.” Spec. ]Hf 10, 12. Thus, it is reasonable to find that
one of ordinary skill in the art would have understood that the “powder gas flow,”
described in paragraph 20 of the Specification, which exits or flows from the spray
gun includes a carrier gas. For that reason, we find the original disclosure provides
written description support for “a powder and a carrier gas flow exiting a spray gun
of 4.0 to 20 SCFH” recited in claim 1 and “a powder and a carrier gas flow from a
spray gun of 6 to 12 SCFH” recited in claim 7.
The § 112, first paragraph, is not sustained.
3. Rejections 634—684
The Examiner finds Bruce discloses a method of forming a thermal barrier
coating comprising a gadolinia stabilized zirconia including up to five weight
percent yttria. Final Act. 6—7. The Examiner finds Bruce’s thermal barrier coating
is applied using air plasma spraying which forms a non-segmented structure, as
claimed. Final Act. 6.
The Examiner finds that the amount of gadolinia in Bruce’s gadolinia
stabilized zirconia is slightly above the claimed range. Final Act. 7. The
Examiner, however, finds that Spitsberg discloses a thermal barrier coating
comprising zirconia, gadolinia, and yttria in amounts within the claimed ranges.
Final Act. 7.
The Appellants do not direct us to any error in the Examiner’s finding that
Bruce discloses that the thermal barrier coating may be deposited using air plasma
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Application 12/638,051
spraying. See Bruce 13, 15. Rather, the Appellants argue that Bruce has a
preference for electron-beam physical vapor deposition (EBPVD). Br. 19.
It is well-settled that “all disclosures of the prior art, including unpreferred
embodiments, must be considered.” In re Lamberti, 545 F.2d 747, 750 (CCPA
1976). Therefore, the Appellants’ argument is not persuasive of reversible error.
The Appellants also argue that Croat, which is said to be relied on by the
Examiner to cure deficiencies in Bruce and Spitsberg, “is non-analogous” and “is
limited to rare earth-iron alloys with magnetic coercivities.” Br. 16.
In rejection (3), the Examiner explains that Croat is cited as an evidentiary
reference “to show how the mol% of Spitsberg would convert to wt% [i.e., the
claimed units],” and thereby compare the amounts of gadolinia, yttria, and zirconia
disclosed in Spitsberg with the amounts recited in claim 1. Ans. 9—10; see also
Final Act. 7—8. The Examiner explains that “[t]his factual teaching of Croat would
not be limited to only rare earth iron alloys with magnetic coercivities, because as
shown by [the] Periodic Table, each element has only one atomic mass/weight, and
thus the weights would apply to any use of the elements.” Ans. 10. The
Appellants have failed to establish otherwise.
In rejection (3), the Examiner also finds:
Wigren teaches that a desirable thermal barrier coating is provided for
turbine components, where a metallic bond coating is deposited, then
a first ceramic interlayer that is relatively dense is deposited, then a
further ceramic TBC layer that is relatively porous is desirably
deposited, where these layers are applied by plasma spraying, where
the TBC can be made from a gadolinia stabilized zirconia that can
also contain yttria, and where the porosity of the top TBC layer is
above 5 % ... .
Final Act. 9-10 (citations omitted; emphasis added).
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Application 12/638,051
The Appellants do not direct us to any error in the Examiner’s findings as to
Wigren. Rather, the Appellants argue that Zhu “does not state what the porosity
would be in a coating such as that shown in [Bruce].” Br. 18. Moreover, the
Appellants argue that Zhu discloses that coating conductivity will increase as the
porosity decreases, which would indicate to one of ordinary skill in the art that a
porosity greater than 20% would be desired.16 Br. 18.
The Examiner finds that the teachings in Zhu are cumulative of the teachings
in Wigren, and thus designates Zhu as an optional reference in rejection (3). See
Final Act. 6 (rejecting claims under § 103(a) as unpatentable over Bruce in view of
Spitsberg, Wigren, and Taylor, either alone or optionally further in view of Zhu,
and as evidenced by the Periodic Table and Croat); Final Act. 11 (finding Zhu
evinces that it was well known in the art to provide thermal barrier coatings of
zirconia having a porosity of 5—20% by plasma spraying). Because the Appellants
do not direct us to any error in the Examiner’s findings as to Wigren, it is not
necessary to address the Appellants’ arguments directed to Zhu.
As for the non-segmented thermal barrier coating recited in claim 1, the
Examiner finds Taylor teaches that it was conventional in the art to provide a
multilayer thermal barrier coating by applying a metallic bond coat, plasma
spraying a ceramic interlayer of a first zirconia coating, and plasma spraying a
non-segmented second zirconia coating. Final Act. 10.
The Appellants argue that Taylor teaches using an air plasma spray
technique to form a segmented coating. Br. 18. The Examiner appears to
recognize as much but finds that Taylor also discloses providing non-segmented
16 The Examiner finds that “[j]ust because Zhu says that conductivity will increase
with porosity decrease does not mean that porosity greater than 20% would be
desired.” Ans. 12. The Appellants do not address the Examiner’s finding.
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Application 12/638,051
coatings by plasma spraying.17 Ans. 13 (citing Taylor 139). The Examiner’s
finding is supported by the record. See Taylor 139 (disclosing that the second
zirconia layer “had no segmentation cracks”).
Finally, the Appellants argue that Ulion suffers from the same deficiencies
as Zhu. Br. 18.
The Examiner relies on Ulion in the rejections of claims 9 and 13 (i.e.,
rejections (5) and (8)), not the rejection of claim 1 (i.e., rejection (3)). See Ans.
12—13; Final Act. 15, 25. The Appellants do not direct us to any error in the
Examiner’s factual findings or legal conclusions in the rejections of claims 9 and
13. Therefore, the Appellants’ argument is not persuasive of reversible error.
For the reasons set forth above and the reasons provided by the Examiner in
the Final Office Action and the Examiner’s Answer, rejection (3) is sustained.
The Appellants do not present arguments in support of the separate
patentability of claim 1 in rejection (6) or present arguments in support of the
separate patentability of any of claims 2, 3, 7, 9-11, and 13. See Br. 14, 20-21.
Therefore, rejections (4)—(8) are also sustained.
C. DECISION
The Examiner’s decision rejecting claims 1—3, 7, 9-11, and 13 under 35
U.S.C. § 112, first paragraph, based on the written description requirement is
reversed.
The Examiner’s decision rejecting claims 1—3, 7, 9-11, and 13 under
35 U.S.C. § 112, second paragraph, as being indefinite is reversed.
17 The Examiner also finds that Bruce forms a non-segmented coating using air
plasma spraying. See Final Act. 6; Bruce 115 (disclosing that a noncolumnar
thermal barrier coating may be deposited by air plasma spraying). The Appellants
do not direct us to any error in the Examiner’s finding.
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Application 12/638,051
The Examiner’s decision rejecting claims 1, 2, 7, 10, and 11 under 35 U.S.C.
§ 103(a) as unpatentable over Bruce in view of Spitsberg, Wigren, and Taylor,
either alone or optionally further in view of Zhu, and as evidenced by Periodic
Table and Croat is affirmed.
The Examiner’s decision rejecting claim 3 under 35 U.S.C. § 103(a) as
unpatentable over Bruce in view of Spitsberg, Wigren, and Taylor, either alone or
optionally further in view of Zhu, and as evidenced by Periodic Table and Croat,
and further in view of Cottom is affirmed.
The Examiner’s decision rejecting claims 9 and 13 under 35 U.S.C. § 103(a)
as unpatentable over Bruce in view of Spitsberg, Wigren, and Taylor, either alone
or optionally further in view of Zhu, and as evidenced by Periodic Table and Croat,
and further in view of Ulion is affirmed.
The Examiner’s decision rejecting claims 1, 2, 7, 10, and 11 under 35 U.S.C.
§ 103(a) as unpatentable over Rigney in view of Huddleston, Wigren, and Taylor,
either alone or optionally further in view of Zhu is affirmed.
The Examiner’s decision rejecting claim 3 under 35 U.S.C. § 103(a) as
unpatentable over Rigney in view of Huddleston, Wigren, and Taylor, either alone
or optionally further in view of Zhu, and further in view of Cottom is affirmed.
The Examiner’s decision rejecting claims 9 and 13 under 35 U.S.C. § 103(a)
as unpatentable over Rigney in view of Huddleston, Wigren, and Taylor, either
alone or optionally further in view of Zhu, and further in view of Ulion is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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