DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/8/2025 has been entered.
Response to Arguments
Applicant's arguments filed 9/8/2025 with respect to the 35 U.S.C. 112 rejections have been fully considered and are persuasive in view of Applicant’s amendments and arguments. The rejections have been withdrawn. The specification and claim objections are withdrawn in view of Applicant’s amendment.
Applicant's arguments filed 9/8/2025 with respect to the 35 U.S.C. 103 rejections have been fully considered but are not persuasive. Applicant makes the following arguments with respect to the 35 U.S.C. 103 rejection over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675):
A) There is no motivation to modify Weinmann to have the composition of Lohwongwatana. This argument is not persuasive. Applicant does not identify any teaching in Weinmann which would indicate the alloy composition must contain 50%-75% Ti, or that this amount is otherwise critical. Instead, Weinmann states: “The composition of the powder may be adapted according to the requirements of the specific case. In an embodiment, the inventive metal powder can, for example, comprise an alloy powder which comprises Ti in an amount of 50 to 75 wt.-%” (¶ 36). This indicates 50%-75% Ti is one embodiment of the claimed invention, and furthermore, the alloy composition can be varied so long as it contains Nb, Ti, and optionally Ta (see ¶ 35). The alloy of Lohwongwatana is a Nb-Ti alloy, and the substitution for this alloy is both envisioned and suggested by Weinmann.
B) Lohwongwatana discloses an alloy TixCuyZrzQa where Nb is present at a maximum of 16.29%. This argument is not persuasive. Lohwongwatana clearly discloses an alloy composition containing 5%-30% at. Cu, 0%-50% a transition metal which is one or more of Zr, Nb, Ta, Pd, and Co, and a remainder Ti (¶ 14). The alloy represented by the formula TixCuyZrzQa is simply the preferred embodiment of Lohwongwatana. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. See MPEP 2123. Lohwongwatana is not limited to an alloy composition represented by the formula TixCuyZrzQa, nor did this composition serve as the basis of the prior art rejection. Accordingly, Applicant’s arguments, which concern the preferred embodiment of Lohwongwatana, are not persuasive and the rejection is maintained.
Applicant’s arguments with respect to the 35 U.S.C. 103 rejection over Qin et al. (CN 106868370) have been fully considered and are persuasive in view of Applicant’s amendments and arguments. Specifically, the non-Nb metal constituents of the Nb alloy in Qin are less than 0.1 wt%. The rejections of claims 1 and 42 are withdrawn.
Claim Objections
Claim 47 is objected to because of the following informalities: Claim 47 should recite that the “two or more other metals are selected from”, which is consistent with the language used for claims 45 and 50. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 49 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 49 recites: “the two or more other metals is from 0.1 wt% to 70 wt%, based on the total weight of the niobium alloy powder”. However, claim 48, from which claim 49 depends, requires the niobium alloy powder to contain at least 65.5 wt% Nb. Therefore, it is impossible for the two or more other metals to comprise more than 34.5 wt% of the niobium alloy powder. Thus, claim 49 fails to include all the limitations of claim 48. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4, 6, 9, 13-15, 23, 36-37, 42 and 45-46 are rejected under 35 U.S.C. 103 as being unpatentable over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675).
Regarding claims 1, 6, 9, 13, 36, Weinmann discloses a metal powder having an average aspect ratio of 0.7 to 1, preferably 0.95-1, which is equivalent to 1.0-1.43, preferably 1.0-1.05 (¶ 13-14). The particles have a D50 of 20-50 μm, 40-90 μm or 60-150 μm, depending on application (¶¶ 46-48). Weinmann teaches the content of non-gas impurities is less than 80 ppm (¶¶ 39-41) giving a purity rate for the alloy of at least 99.992%. Weinmann teaches a tap density of 1.8-13.3 g/cc (¶ 43), which is intrinsically more than an apparent density, absent objective evidence to the contrary. Weinmann also teaches the tap density is 40%-80% of the theoretical density (presumed equivalent to true density) of the powder (¶ 43), which corresponds to 2.5-33.25 g/cc. Weinmann discloses a powder flow rate of 25 s / 50 g or less, preferably 15 seconds or less, according to ASTM B213 (¶ 44), which is the same standard used for determining the claimed Hall flow rate (see Spec., ¶ 25). The prior art ranges overlap the claimed ranges, creating a prima facie case of obviousness. See MPEP 2144.05 I.
Weinmann teaches a Nb-Ti or Nb-Ti-Ta alloy (¶ 39) for production of orthopedic implants (¶ 35) but does not expressly teach Nb represents the highest content of a metal in the alloy powder. Weinmann teaches adapting the composition of the powder according to the requirements of the specific case, and does not limit it to the exemplary percentages described therein (see ¶¶ 35-36). Lohwongwatana teaches a biocompatible metal alloy powder for additive manufacturing (¶ 1). The powder is pre-alloyed (¶ 50). This alloy contains 5-30 at% Cu, 0-50 at% a transition metal such as Nb, and a balance of Ti (¶ 14). This corresponds to a wt% of Nb of up to 65.3%. It would have been obvious at the effective time of filing for the claimed invention for one of ordinary skill in the art to replace the Nb-Ti alloy of Weinmann with the alloy of Lohwongwatana because Lohwongwatana teaches an alloy which is biocompatible and has antimicrobial properties (¶ 1), which makes it ideal for medical implants to prevent infection (¶¶ 2-3).
Regarding claim 14, Weinmann teaches the particles have a D10 greater than 2 μm, a D90 less than 80 μm (¶ 46), and an oxygen content of less than 1000 ppm (¶ 40). The prior art ranges overlap the claimed ranges, creating a prima facie case of obviousness. See MPEP 2144.05 I.
Regarding claim 15, Weinmann teaches the powder is used to make various articles (¶¶ 64, 73).
Regarding claim 23, Weinmann teaches using additive manufacturing to make articles with the metal powder (¶ 64).
Regarding claim 37, any article made of metal can be considered a radiation shielding component.
Regarding claim 42, Weinmann discloses a metal powder having an average aspect ratio of 0.7 to 1, preferably 0.95-1, which is equivalent to 1.0-1.43, preferably 1.0-1.05 (¶ 13-14). The particles have a D50 of 20-50 μm, 40-90 μm or 60-150 μm, depending on application (¶¶ 46-48). Weinmann teaches the content of non-gas impurities is less than 80 ppm (¶¶ 39-41) giving a purity rate for the alloy of at least 99.992%. Weinmann teaches a tap density of 1.8-13.3 g/cc (¶ 43), which is intrinsically more than an apparent density, absent objective evidence to the contrary. Weinmann also teaches the tap density is 40%-80% of the theoretical density (presumed equivalent to true density) of the powder (¶ 43), which corresponds to 2.5-33.25 g/cc. Weinmann discloses a powder flow rate of 25 s / 50 g or less, preferably 15 seconds or less, according to ASTM B213 (¶ 44), which is the same standard used for determining the claimed Hall flow rate (see Spec., ¶ 25). The prior art ranges overlap the claimed ranges, creating a prima facie case of obviousness. See MPEP 2144.05 I.
Weinmann teaches a Nb-Ti or Nb-Ti-Ta alloy (¶ 39) for production of orthopedic implants (¶ 35) but does not expressly teach Nb represents the highest content of a metal in the alloy powder. Weinmann teaches adapting the composition of the powder according to the requirements of the specific case, and does not limit it to the exemplary percentages described therein (see ¶¶ 35-36). Lohwongwatana teaches a biocompatible metal alloy powder for additive manufacturing (¶ 1). The powder is pre-alloyed (¶ 50). This alloy contains 5-30 at% Cu, 0-50 at% a transition metal such as Nb, and a balance of Ti (¶ 14). This corresponds to a wt% of Nb of up to 65.3%. It would have been obvious at the effective time of filing for the claimed invention for one of ordinary skill in the art to replace the Nb-Ti alloy of Weinmann with the alloy of Lohwongwatana because Lohwongwatana teaches an alloy which is biocompatible and has antimicrobial properties (¶ 1), which makes it ideal for medical implants to prevent infection (¶¶ 2-3).
Regarding claims 45 and 4, Weinmann teaches an oxygen content of the powder is less than 3000 ppm, most preferably less than 300 ppm (¶ 40). Weinmann does not expressly teach an oxygen to BET ratio. However, given that the powder of Weinmann has a substantially similar aspect ratio, composition, density, particle size, and Hall flow rate, one of ordinary skill in the art would expect the BET surface area of the prior art powder to be similar to that of the claimed powder absent objective evidence to the contrary. Accordingly, one of ordinary skill in the art would expect the claimed ranges to overlap the ranges of the prior art powder, absent objective evidence to the contrary. See MPEP 2144.05 I and 2112. The alloy composition of the prior art combination includes at least 34.7% other metals such as Ti and Cu (see ¶ 14 of Lohwongwatana).
Regarding claim 46, Lohwongwatana teaches the pre-alloyed powder has chemical homogeneity (¶ 50), which is taken to imply a single phase microstructure, absent objective evidence to the contrary. See MPEP 2112.
Claims 2, 4 and 44-45 are rejected under 35 U.S.C. 103 as being unpatentable over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675), as applied to claim 1, further in view of Yang et al. (CN 108500281).
Regarding claim 2, the limitations of claim 1 have been addressed above. Modified Weinmann does not expressly teach the spherical powder is plasma heat treated. Yang teaches a niobium powder is subjected to high frequency thermal plasma in order to spheroidize the powder (p. 3, ¶ 6). It would have been obvious at the effective time of filing for the claimed invention to use a plasma treatment, as taught by Yang, on the metal powder of Modified Weinmann, because this increases the efficiency of the spherical processing of the metal powder while simultaneously removing impurities and controlling BET specific surface area (p. 4, ¶¶ 9-10).
Regarding claim 44, the limitations of claim 1 have been addressed above. Modified Weinmann does not expressly disclose a Fe content. Yang teaches a high purity niobium powder comprising 10ppm or less Fe (p. 3, ¶ 2). It would have been obvious at the effective time of filing for the claimed invention to control an impurity level of Fe to less than 10 ppm, as taught by Yang, because Modified Weinmann seeks to control impurities in the metal powder as low as possible (see ¶ 40).
Regarding claims 45 and 4, the limitations of claim 1 have been addressed above. Modified Weinmann teaches an oxygen content of the powder is less than 3000 ppm, most preferably less than 300 ppm (¶ 40), and the metal alloy powder may contain 25%-50% Nb, with the remainder being Ti and Ta (¶ 39). Modified Weinmann does not expressly teach an oxygen to BET ratio. Yang teaches the BET of the metal powder is 0.1-2 m2/g (p. 5, ¶ 1). This implies an oxygen to BET ratio of at least 15. It would have been obvious at the effective time of filing for one of ordinary skill in the art to modify the surface area of the metal powder of Modified Weinmann to be between 0.1-2 m2/g, as taught by Yang, because this eliminates voids and increases powder compactness (Yang p. 5, ¶ 1). The prior art ranges overlap the claimed ranges, creating a prima facie case of obviousness. See MPEP 2144.05 I.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675), as applied to claim 1, further in view of Chen et al. (CN 103121105).
Regarding claims 8-9, the limitations of claim 1 have been addressed above. Modified Weinmann does not expressly disclose the claimed ranges for average particle size. Modified Weinmann does teach changing the D50 of the metal powder depending on application (see ¶¶ 46-48). Chen teaches niobium powders having a particle size of 20 microns or less (p. 1, ¶ 5). It would have been obvious at the effective time of filing for the claimed invention for one of ordinary skill in the art to modify the particles of Modified Weinmann according to the teachings of Chen because the powders having a size of 20 microns or less are more suitable for injection molding (p. 1, ¶ 5).
Claims 16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675), as applied to claim 15, further in view of Mize et al. (US 2006/0124634).
Regarding claims 16 and 18, the limitations of claim 15 have been addressed above. Modified Weinmann does not teach a boss for a coil set or a coil set for a physical vapor deposition process made from the metal powder, but does teach articles made from the metal powder may be used in high temperature applications. Mize et al. discloses a coil construction for use in a physical vapor deposition chamber made out of niobium and other metals (¶ 47), which is a high temperature application. Mize et al. also discloses a powder as a starting material for making the coil construction (¶ 62). It would have been obvious at the effective time of filing for the claimed invention for one of ordinary skill in the art to use the niobium alloy powder of Weinmann to make the coil construction of Mize et al. with an expectation of success because one of ordinary skill in the art would expect the niobium alloy powder of Weinmann to be suitable for making the physical vapor deposition apparatus of Mize.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675) and Mize et al. (US 2006/0124634), as applied to claim 16, further in view of Mize (US 2007/0012658).
Regarding claim 17, the limitations of claim 16 have been addressed above. Modified Weinmann does not disclose the boss comprising open cellular structures and solid structures. Mize discloses a PVD coil (¶ 18) including a boss (¶ 19). The boss contains labyrinthine passageways (¶ 19), which correspond to open cellular structures and solid structures. It would have been obvious at the effective time of filing for the claimed invention for one of ordinary skill in the art to make a boss having labyrinthine passageways, as taught by Mize, in the coil construction of Modified Weinmann because these labyrinthine passageways assist in maintaining electrical isolation of the coil from mounting surfaces and avoid short circuits after deposition of conductive materials (¶ 19).
Claims 19 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675), as applied to claim 15, further in view of Sharp et al. (US 2012/0232654).
Regarding claims 19 and 21, the limitations of claim 15 have been addressed above. Modified Weinmann teaches the metal powder can be used to make dental implants and various orthopedic implants (¶ 73), but does not expressly teach an implant comprising open cellular structures and solid structures. Sharp teaches dental or orthopedic implants (¶ 32) made from niobium alloy powder (¶¶ 30-31). These implants have a porous structure (¶ 32) and therefore include open cellular structures and solid structures. It would have been obvious at the effective time of filing for the claimed invention for one of ordinary skill in the art to use the niobium alloy powder of Modified Weinmann to make the dental and orthopedic implants comprising open cellular structures and solid structures because porous structures facilitate bone in-growth during healing (Sharp, ¶ 3).
Claim 38 is rejected under 35 U.S.C. 103 as being unpatentable over Weinmann et al. (US 2022/0023941) in view of Lohwongwatana et al. (US 2022/0088675), as applied to claim 15, further in view of Saito et al. (US 2011/0130294).
Regarding claim 38, the limitations of claim 15 have been addressed above. Modified Weinmann does not teach a superconducting cavity article made from niobium alloy powder. Saito discloses a niobium superconducting cavity (¶ 11) made from niobium powder as starting material (¶ 31). It would have been obvious at the effective time of filing for the claimed invention to use the niobium alloy powder of Modified Weinmann to make the superconducting cavity of Saito with an expectation of success because one of ordinary skill in the art would expect the niobium alloy powder to be interchangeable for any purpose known in the art absent express teaching to the contrary.
Claim 48 is rejected under 35 U.S.C. 103 as being unpatentable over Qin et al. (CN 106868370).
Regarding claim 48, Qin teaches a niobium alloy powder (p. 1, ¶ 6). The powder has a sphericity of at least 95% (aspect ratio corresponds to 1.0 – 1.05), a particle size that reaches 45-75 μm, and a bulk density that is up to 70% (understood to mean 70% of theoretical density) (p. 2, ¶ 3). Since the particle size reaches 45-75 μm, the average particle size must be less than 75 μm. The niobium alloy contains at least 99.8% Nb, with at least two other metals such as Fe, Cr, Ni, Mn, W, and Mo making part of the remainder (p. 1, ¶ 8). Qin teaches up to 700 ppm oxygen (p. 2, ¶ 3), so the amount of non-gas impurities is much less than 0.1192%. Considering the niobium alloy powder composition is ≥99.8% Nb (p. 1, ¶ 8), the theoretical density (which should approximate the true density) of the alloy powder should approximate the density of Nb (8.58 g/cm3), which means Qin teaches a bulk density (i.e., apparent density) of up to 6 g/cc. Qin does not expressly teach a Hall flow rate besides stating the powder has good fluidity (p. 2, ¶ 3). However, given the same sphericity, composition, and density as that claimed, and given that the powder of Qin has a low surface area of 0.102 cm2/g (see p. 2, ¶ 3), which is lower than that of the claimed invention (see Spec., ¶ 96), one of ordinary skill in the art would expect a Hall flow rate of the prior art to fall within the claimed Hall flow rate, absent objective evidence to the contrary. See MPEP 2112. The prior art ranges overlap the claimed ranges, creating a prima facie case of obviousness. See MPEP 2144.05 I.
Allowable Subject Matter
Claims 47 and 50 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Regarding claim 47, the prior art of record does not teach or suggest a Nb powder alloy having the claimed properties and composition. Regarding claim 50, the prior art of record does not teach or suggest a Nb powder alloy having the claimed composition and oxygen to BET ratio.
Conclusion
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/XIAOBEI WANG/Primary Examiner, Art Unit 1784