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 .
Status of Claims
Pending:
1-12, 14-21
Withdrawn:
1-6
Rejected:
7-12, 14-21
Amended:
4, 7
New:
NONE
Independent:
1, 7
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 7-12, 14-21 are rejected under 35 U.S.C. 103 as being unpatentable over Bray (US 8,673,209) in view of Dumont (US 7,520,945, cited on the IDS received 12/16/21).
Bray teaches a process for manufacturing a thick plate product from 7xxx series aluminum alloy by DC casting an ingot, homogenizing 800-900°F (430-480°C), hot rolling into a plate ≤4 inches thick (≤102 mm), solution heating 850-900°F (450-480°C), quenching, stress relieving 1-3% and artificial aging (column 6 lines 57-column 7 line 20), which meets the claimed processing steps of casting, homogenizing, hot rolling, solution heating, stress relieving, and artificially aging. Bray touches the boundary of the claimed thickness minimum of 102 mm, and therefore suggests hot rolling to form a product that meets said limitation. Bray teaches applying said process to a 7xxx alloy with a composition:6.8-8.5% Zn, 1.5-2.00% Mg, 1.75-2.3% Cu, 0.05-0.3% Zr, balance aluminum (abstract), which overlaps the claimed alloying ranges (independent claim 7, dependent claims 16-19, 21). Concerning the amendment to independent claim 7 of “the sum Cu+ Mg is between 3.8 and 4.2”, example B of Bray teaches a Cu+Mg amount of 2.15(Cu)+1.65(Mg)=3.8, which meets the instant limitation. Though the Zn amount of said example B does not meet the claimed range of Zn, Bray teaches motivation to increase/optimize both Cu and Mg at column 6 line 24, that is, to provide ranges of Mg and Cu sufficient for high strength. It would have been within the level of one of ordinary skill in the art, given the disclosure of Bray, to have increased/optimized both Cu and Mg (such as within the amended Cu+Mg =3.8 to 4.2) for the predictable purpose of providing high strength (which is also exemplified by example B at Table 3, see strength properties).
Bray does not teach a) hot rolling at a starting temperature controlled to ensure recrystallization is ≥75% at mid-thickness, b) minimum hot rolling starting temperature within the claimed expressions of claim 7, or c) maximum hot rolling starting temperature within the claimed expressions of claim 7.
Concerning a), secondary reference Dumont (who is drawn to 7xxx series alloys rolled sheet products with improved fatigue properties) teaches low Zr (0.04-0.09%, column 2 line 18) enables a high recrystallization rate 35-90% (column 2 line 44), which is beneficial for low fatigue crack growth rate (abstract, Fig. 2). Further, Dumont teaches low hot rolling at starting temperatures ≤420°C (column 3 line 50) additionally effects the recrystallization rate (see Dumont ex. #859198). Though Dumont does not teach an example of the combination of low hot rolling starting temperature together with low Zr amount, the examples along with the disclosure of Dumont clearly suggest the additive effect of both low Zr and low hot rolling starting temperature. Further, the broad disclosure of Dumont directly suggests combining both low Zr and low hot rolling starting temperature (see Dumont at claim 13).
Concerning b), neither Bray nor Dumont specify relating the Zr to the minimum hot rolling starting temperature. However, the hot rolling starting temperatures taught by Dumont (≤420°C) together with the preferred low Zr content of 0.05-0.09% taught by Dumont meets the instant limitation. For instance, for Zr=0.05%:
≥145*Zr-0.313 -20
≥ 145*0.05-0.313-20 = ≥350°C
and wherein ≥ 350°C is within Dumont’s hot rolling start temperature range of ≤420°C, and therefore Dumont meets said limitation.
Concerning c), neither Bray nor Dumont specify relating the Zr to the maximum hot rolling starting temperature. However, concerning independent claim 7’s limitation relating the Zr to the maximum hot rolling starting temperature, the hot rolling starting temperatures taught by Dumont (≤420°C) together with the preferred low Zr content of 0.05-0.09% taught by Dumont meets the instant limitation. For instance, for Zr=0.05%:
≤145*Zr-0.313 +20
≤ 145*0.05-0.313+20 ≤ 390°C
and wherein ≤ 390°C is within Dumont’s hot rolling start temperature range of ≤420°C, and therefore Dumont meets said limitation.
It would have been obvious to one of ordinary skill in the art to have performed the process of manufacturing an 7xxx alloy thick plate taught by Bray, together with a low hot rolling starting temperature and low Zr (as taught by Dumont) in order to recrystallize the grain structure (within the claimed ≥75% at mid thickness) and thereby achieve the predictable result of improving the fatigue crack growth resistance (by virtue of critical low Zr, as taught by Dumont column 3 line 31). Therefore, it is held that Bray together with Dumont have created a prima facie case of obviousness of the presently claimed invention.
Concerning claim 8, which relates the hot rolling starting temperature to the Zr amount, the hot rolling starting temperatures taught by Dumont (≤420°C) together with the preferred low Zr content of 0.05-0.09% taught by Dumont meets the instant limitation. For instance, for Zr=0.05%:
≥145*Zr-0.313 -10
≥ 145*0.05-0.313-10 = ≥360°C
and wherein ≥ 360°C is within Dumont’s hot rolling start temperature range of ≤420°C, and therefore Dumont meets said limitation.
Concerning claim 9, which relates the hot rolling starting temperature to the Zr amount, the hot rolling starting temperatures taught by Dumont (≤420°C) together the preferred low Zr content of 0.05-0.09% meet the instant limitation. For instance, for Zr=0.05%:
≤145*Zr-0.313 +10
≤ 145*0.05-0.313+10 ≤ 380°C
and wherein ≤ 380°C is within Dumont’s hot rolling start temperature range of ≤420°C, and therefore Dumont meets said limitation.
Concerning claim 10, which mentions the equivalent aging time at 155°C for 8-30 hrs, the aging taught by Bray (example 1) of 121°C for 6 hrs, 153°C for 7 hrs, and 121°C for 6 hrs meets the instant equivalent time.
Concerning claim 11, Bray teaches solution heating 850-900°F (450-480°C), which overlaps the claimed range of 460 to about 510°C.
Concerning claim 12, Bray broadly teaches 2 step aging or 3 step aging processes (column 7 line 36-column 8 line 9). Bray teaches an example (example 2) with aging steps of: 250°F (121°C) for 6 hrs, followed by 308°F (153°C) for 7 hrs, which falls within the instant aging steps, and therefore meets the instant limitation.
Concerning claim 14, Bray teaches homogenizing at 800-900°F (430-480°C) (column 6 lines 63-64), but does not specify a holding time. However, it is held to be within the level of one of ordinary skill in the art to homogenize an Al alloy ingot, such as the Al-Zn ingot taught by Bray, by holding the Al-Zn alloy ingot at the temperature taught therein of 430-480°C for a time period sufficient to create a homogeneous structure for a given workpiece size (such as within the claimed 5-30 hrs). In other words, the use of the word “homogenizing” in Bray implies holding the alloy at a high temperature for a time necessary to eliminate or decrease chemical segregation in the alloy.
Concerning claim 15, as set forth above, Dumont teaches low hot rolling at starting temperatures ≤420°C (column 3 line 50), which overlaps the claimed hot rolling entry temperature range and therefore meets the instant limitation.
Concerning claims 16-19, and claim 21, Bray teaches applying said process to a 7xxx alloy with a composition: 6.8-8.5% Zn, 1.5-2.00% Mg, 1.75-2.3% Cu, balance aluminum (abstract), which overlaps the claimed alloying ranges (Zn, Mg, Cu, and Cu+Mg). Secondary reference of Dumont teaches 0.05-0.09% Zr is preferable, which encompasses the narrowly claimed range of 0.05-0.08% Zr (cl. 19), and therefore meets the instant limitation.
Concerning claim 20, Bray teaches conventional grain refiners such as Ti (or Ti together with B) can be added to his Al-Zn alloy (column 6 lines 58-60), but does not specify a typical amount of Ti. It would have been obvious to one of ordinary skill in the art, to have added small amounts of Ti to the Al-Zn alloy of Bray and processed as set forth above, because Bray teaches it is beneficial to include Ti as a grain refining addition, and because Dumont teaches Al-Zn alloys with low amounts of Ti such as: 0.039% Ti, 0.021% Ti, and 0.038% Ti (Table 1) achieve a good combination of properties (Table 2). Therefore, given the teachings of Bray and Dumont, it would have been prima facie obvious to have added Ti in the amounts of 0.02-0.04% (see Table 1 of Dumont) to the Al-Zn alloy of Bray for the predictable purpose of grain refining/optimizing mechanical properties.
Response to Amendment/Arguments
In the response filed 6/9/26 applicant amended claims 4 and 7, submitted various arguments traversing the rejections of record, and submitted a declaration. No new matter has been added.
The declaration under 37 CFR 1.132 filed 6/9/26 is insufficient to overcome the rejection of claims 7-12,14-21 based upon Bray and Dumont as set forth in the last Office action because: declarant has not clearly compared the instantly claimed invention to the closest prior art.
An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979), see also MPEP 716.02(e). “A comparison of the claimed invention with the disclosure of each cited reference to determine the number of claim limitations in common with each reference, bearing in mind the relative importance of particular limitations, will usually yield the closest single prior art reference.” In re Merchant, 575 F.2d 865, 868, 197 USPQ 785, 787 (CCPA 1978) (emphasis in original). Where the comparison is not identical with the reference disclosure, deviations therefrom should be explained, In re Finley, 174 F.2d 130, 81 USPQ 383 (CCPA 1949), and if not explained should be noted and evaluated, and if significant, explanation should be required. In re Armstrong, 280 F.2d 132, 126 USPQ 281 (CCPA 1960).
In the instant case, declarant has compared a plate alloy product example of Dumont with a Cu+Mg content of 3.46 (outside the amended amount of Cu+Mg of 3.8-4.2) to Alloy A of the invention. However, Dumont is the secondary reference used above, and is not identified as the closest prior art, nor has declarant set forth that Dumont is closer to the instantly claimed invention than the closest applied prior art of Bray. Additionally, it is unclear that declarant has shown unexpected results fully commensurate in scope with the claimed process and parameters set forth in the instant claim, as applied to the claimed Al-Zn-Mg-Cu alloy composition; compared to the closest prior art of Bray.
Applicants may compare the claimed invention with prior art that is more closely related to the invention than the prior art relied upon by the examiner. In re Holladay, 584 F.2d 384, 199 USPQ 516 (CCPA 1978); Ex parte Humber, 217 USPQ 265 (Bd. App. 1961), MPEP 716.02( e).
Applicant’s argument that the instant invention is allowable because the prior art does not teach or suggest the amended Cu+Mg amount, or that the prior art does not recognize Cu+Mg as a result effective variable, has not been found persuasive. As set forth above, example B of Bray teaches a Cu+Mg amount of 2.15(Cu)+1.65(Mg)=3.8, which meets the instant limitation. Though the Zn amount of said example B does not meet the claimed range of Zn, Bray teaches motivation to increase/optimize both Cu and Mg at column 6 line 24, that is, to provide ranges of Mg and Cu sufficient for high strength. It would have been within the level of one of ordinary skill in the art, given the disclosure of Bray, to have increased/optimized both Cu and Mg (such as within the amended Cu+Mg =3.8 to 4.2) for the predictable purpose of providing high strength (which is also exemplified by example B, see strength properties at Table 3).
Applicant has not clearly shown specific unexpected results with respect to the prior art of record or criticality of the instant claimed range (wherein said results must be fully commensurate in scope with the instantly claimed ranges, etc. see MPEP 716.02 d).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/Keith D. Hendricks/Supervisory Patent Examiner, Art Unit 1733
/J.C.M/Examiner, Art Unit 1733
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