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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 November 17, 2025 has been entered.
Response to Amendment
Applicant’s amendment has been entered. Claims 1, 3-4, 6-14, 16, 19-24, and 26-27 are pending, of which claims 12-14, 16 and 19-24 remain withdrawn from consideration. Claims 2, 5, 15, 17-18, and 25 are cancelled.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 3-4, 6-10, and 26-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Alcan (WO2004057261A1). Alcan is cited in the IDS filed October 4, 2023.
Regarding claims 1, 3-4, 6-9, and 27, Alcan discloses an extruded and brazed product (brazed extruded aluminum alloy tubing page 5 lines 1-6). Alcan discloses that the product comprises an aluminum alloy (page 5 lines 14-16) comprising amounts listed in the table below. Values are provided in weight percent:
Alloying Element (wt%)
Alcan (wt%)
Present Invention (wt%)
Mn
0.4 to 1.1 (page 5 line 16)
0.6-0.75 (claim 1)
0.64-0.72 (claim 6)
Fe
up to 0.2 (page 5 lines 18-19)
0.11-0.16 (claim 1)
0.13-0.16 (claim 4)
0.12-0.16 (claim 8)
Si
up to 0.2 (page 5 line 19)
0.13-0.19 (claim 1)
0.10-0.14 (claim 7)
Cu
up to 0.01 (page 5 line 17-18)
<0.01 (claim 1)
Zn
up to 0.05 (page 5 line 18)
<0.05 (claim 1)
≤
0.015
(claim 27)
Ti
up to 0.05 (page 5 line 20)
<0.05 (claim 1)
0.011-0.024 (claim 9)
grain refiner
—
Optional (claim 1)
Ni
Up to 0.01 (page 5 lines 19-20)
Optionally <0.01 (claim 1)
Less 0.01 (claim 3 alternative with Mg, Cr)
Al and impurities
Impurities
Balance Aluminum and impurities (page 5 line 21)
Balance (claim 1)
Impurities: each 0.05, and total less than 0.10
Mg
<0.001-0.001 (Table 1, Note that Alcan only identifies the compositions of alloys F, G, I, and J as inventive page 12 lines 23-27)
less than 0.05 (claim 3 and alternative with Ni, Cr)
Cr
—
less than 0.05 (claim 3 alternative with Ni, Mg)
The composition of the aluminum alloy disclosed by Alcan (page 5 lines 16-21) overlaps the aluminum alloy composition recited in claims 1, 3-4, 6-9, and 27. When claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists, and generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05(I-II).
Alcan is silent on the amounts of individual impurities; however, in example compositions, Alcan reports the amounts of elements which are present to values as low as “<0.001%” (Table 1). Alcan considers alloys F, G, I, and J to have compositions within the inventive disclosure (page 12 lines 23-27). Mg is the only element in alloys F, G, I, and J which is not among those Alcan considers in the disclosed composition (page 5 lines 16-21), and Mg amounts are 0.001% for alloy G and “<0.001”% for alloys F, I, and J (Table 1). Given the composition amount for the inventive alloys which Alcan considers constituents of the inventive alloy is at most 0.001% (Table 1, page 12 lines 23-27), one of ordinary skill in the art, at the time of filing, would expect each impurity in the alloy of the product disclosed by Alcan (page 5 lines 16-21) to be present in 0.05, and total impurities of the alloy of the product (page 5 lines 16-21) to be less than 0.10 because 0.001 is significantly less than both 0.05 and 0.10.
Alcan discloses that time and temperature of brazing cycle is usually carried out between 595 and 610 °C for 1 to 30 minutes (page 2 lines 2-5). Alcan discloses that the product is brazed (page 5 lines 22-23). Alcan does not specify brazing temperature and duration for the specifically disclosed composition; therefore, in order to form the brazed product disclosed by Alcan (page 5 lines 22-23), it is necessary to braze at some temperature and for some duration suitable for such brazing; therefore, it would have been obvious for one of ordinary skill in the art to braze at a temperature between 595 and 610 °C for 1 to 30 minutes, which Alcan discloses as usual (page 2 lines 2-5).
Alcan is silent on the proportion of coarse recrystallized grains in the brazed product; however, Alcan discloses homogenizing the aluminum alloy at 580-620°C (page 10 lines 1-5), and Alcan does not disclose a recrystallization step. Alloy grain size is a material property that is inseparable from the chemical composition of the material. See MPEP2112.01(II). When the claimed and prior art products are substantially identical in structure or composition, or are produced by substantially identical processes, a prima facie case of obviousness has been established. See MPEP.2112.01(I). The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer See MPEP2112(I). Within the present disclosure, all examples which were subjected to a simulated brazing cycles of 2.5 min at 605° C. (cycle 1) yielded a product wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains (Table 2, Example I starting page 8 line 7), regardless of composition (Table 1). Example VI of the present disclosure only tested one chemical composition, and yielded a product wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains under all brazing conditions (page 13 of the present disclosure). Examples III, IV, and V of the present disclosure do not report a percentage of a width of the extruded and brazed product includes coarse recrystallized grains. Every example in Example II is subjected to a simulated braze at 2.5 min at 625° C, which the present disclosure identifies as “extreme” (page 10 lines 4-12). Every comparative example of Example I of the present disclosure which yields a product wherein greater than or equal to 15% of a width of the extruded and brazed product includes coarse recrystallized grains is subjected to a simulated braze for 2.5 min. at 625° C. (cycle 2) (Table 2, Example I starting page 8 line 7). Every example within the present disclosure, for which brazing was performed or simulated within a temperature range of between 595 and 610 °C meets the limitation wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains regardless of composition, and every example which fails to meet the limitation wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains is subjected to a simulated brazing at a temperature which the present disclosure admits is “extreme”. Considering the chemical composition disclosed by Alcan (page 5 lines 16-21) and the brazing temperature between 595 and 610 °C, rendered obvious by Alcan (page 2 lines 2-5), Alcan establishes a sound basis for believing that the brazed product comprising the composition disclosed by Alcan (page 5 lines 16-21) brazed at a temperature within the range rendered obvious by Alcan (page 2 lines 2-5) would have a microstructure wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains.
Regarding claim 10, Alcan discloses that the extruded and brazed product is an extruded and brazed tubing (page 5 lines 21-26).
Regarding claim 26, Alcan is silent on the proportion of coarse recrystallized grains in the brazed product, which includes the ends of the tubing disclosed by Alcan (page 5 lines 21-26). Alcan discloses homogenizing the aluminum alloy at 580-620°C (page 10 lines 1-5), and Alcan does not disclose a recrystallization step. Alloy grain size is a material property that is inseparable from the chemical composition of the material. See MPEP2112.01(II). When the claimed and prior art products are substantially identical in structure or composition, or are produced by substantially identical processes, a prima facie case of obviousness has been established. See MPEP.2112.01(I). The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer See MPEP2112(I). The present disclosure indicates that the reported precent recrystallisation “represents formation of single coarse recrystallized grains at the tube nose (ends) where the strain is more concentrated during sizing (page 9 lines 14-16) and does not specifically mention tube ends elsewhere in the specification. Within the present disclosure, all examples which were subjected to a simulated brazing cycles of 2.5 min at 605°C. (cycle 1) yielded a product wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains (Table 2, Example I starting page 8 line 7), regardless of composition (Table 1). Example VI of the present disclosure only tested one chemical composition, and yielded a product wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains under all brazing conditions (page 13 of the present disclosure). Examples III, IV, and V of the present disclosure do not report a percentage of a width of the extruded and brazed product includes coarse recrystallized grains. Every example in Example II is subjected to a simulated braze at 2.5 min at 625°C, which the present disclosure identifies as “extreme” (page 10 lines 4-12). Every comparative example of Example I of the present disclosure which yields a product wherein greater than or equal to 15% of a width of the extruded and brazed product includes coarse recrystallized grains is subjected to a simulated braze for 2.5 min. at 625° C. (cycle 2) (Table 2, Example I starting page 8 line 7). Every example within the present disclosure, for which brazing was performed or simulated within a temperature range of between 595 and 610 °C meets the limitation wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains regardless of composition, and every example which fails to meet the limitation wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains is subjected to a simulated brazing at a temperature which the present disclosure admits is “extreme”. Considering the chemical composition disclosed by Alcan (page 5 lines 16-21) and the brazing temperature between 595 and 610 °C, rendered obvious by Alcan (page 2 lines 2-5), Alcan establishes a sound basis for believing that the brazed product comprising the composition disclosed by Alcan (page 5 lines 16-21) brazed at a temperature within the range rendered obvious by Alcan (page 2 lines 2-5) would have a microstructure wherein less than 15% of a width of the extruded and brazed tubing, located at an end of the extruded and brazed tubing, includes coarse recrystallized grains.
Claim(s) 1, 3-4, 6-10, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Daaland (US 20020007881). Daaland is cited in prior office action(s).
Regarding claims 1, 3-4, and 6-9, Daaland discloses an extruded product ([0013], [0017], claim 10). Daaland discloses that the product comprises an aluminum alloy [0004] comprising amounts listed in the table below. Values are provided in weight percent:
Alloying Element (wt%)
Alcan (wt%)
Present Invention (wt%)
Mn
0.01-1.0 [0004]
0.6-0.75 (claim 1)
0.64-0.72 (claim 6)
Fe
0.06-0.35 [0004]
0.11-0.16 (claim 1)
0.13-0.16 (claim 4)
0.12-0.16 (claim 8)
Si
0.05-0.15 [0004]
0.13-0.19 (claim 1)
0.13-0.14 (claim 7)
Cu
up to a maximum of 1.30 one or more of Zr, Ti, Cr, or Cu [0004]
<0.01 (claim 1)
Zn
0.05-0.70 [0004]
<0.05 (claim 1)
Ti
up to a maximum of 1.30 one or more of Zr, Ti, Cr, or Cu [0004]
<0.05 (claim 1)
0.011-0.024 (claim 9)
grain refiner
—
Optional (claim 1)
Ni
—
Optionally <0.01 (claim 1)
Less 0.01 (claim 3 alternative with Mg, Cr)
Al
Balance Aluminum [0004]
Balance (claim 1)
Impurities
Each no greater than 0.03, and total up to 0.15 [0004]
Each maximum 0.05, and total less than 0.10
Mg
0.02-0.60 [0004]
less than 0.05 (claim 3 alternative with Ni, Cr)
Cr
up to a maximum of 1.30 one or more of Zr, Ti, Cr, or Cu [0004]
less than 0.05 (claim 3 alternative with Ni, Mg)
Amounts of Mn, Fe, Si, Cu, Ti, Al, Mg, Cr, and impurities disclosed by Daaland [0004] overlap or encompass amounts recited in claims 1, 3-4 and 6-9. When claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists, and generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05(I-II). The amount of Zn disclosed by Daaland of 0.05-0.70% [0004] infinitesimally approaches the claimed range of <0.05% Zn at the endpoint of 0.05%. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05(I).
Daaland discloses that the objective of the disclosure is to provide a brazeable alloy [0003]; therefore, it would have been obvious for one of ordinary skill in the art to attempt to braze the extruded product disclosed by Daaland, as applied above, thereby providing an extruded and brazed product.
Daaland discloses that an object of the invention is “to provide an aluminium alloy with improved formability (including grain size) [emphasis added] during bending and end-forming operations” [0003]. Daaland disclose grain coarsening (nucleation) as undesirable [0005], and Daaland discloses selecting alloying elements to refine grains [0005-06]. Inventive alloy examples (AC1-AC9) disclosed by Daaland have grain size of 56-102 µm (Table 3), and even the two reference alloys disclosed by Daaland have grain sizes of 70 and 140 µm (Table 3). Daaland is silent on the percentage of a width of the extruded and brazed product which includes coarse recrystallized grains. Alloy grain size is a material property that is inseparable from the chemical composition of the material. See MPEP2112.01(II). When the claimed and prior art products are substantially identical in structure or composition, or are produced by substantially identical processes, a prima facie case of obviousness has been established. See MPEP.2112.01(I). The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer See MPEP2112(I). Considering Daaland’s grain size objective [0003], Daaland’s chemical composition [0004], Daaland’s selection of elements to control grains [0005-06], and considering the grain sizes which Daaland exemplifies (Table 3) are well below the 200 micron threshold structure which the present disclosure establishes for coarse grains (page 3 lines 19-23 of the present disclosure), Daaland establishes a sound basis for believing that less than 15% of a width of the extruded product disclosed by Daaland, applied above, includes coarse recrystallized grains.
Regarding claim 10, Daaland discloses that the extruded product is an extruded tubing ([0001], claim 1). Daaland disclose using the extruded product “for manufacture of automotive air conditioning tubes for applications as heat exchanger tubing or refrigerant carrying tube lines, or generally fluid carrying tube tines” [0001], and any of the disclosed applications would require attaching the tubing as a component of an assembly. Daaland discloses developing a brazeable alloy as an objective [0003]; therefore, it would have been obvious for one of ordinary skill in the art to attach the tubing disclosed by Daaland ([0001], claim 10), thereby providing an extruded and brazed tubing.
Regarding claim 26, Daaland discloses that an object of the invention is “to provide an aluminium alloy with improved formability (including grain size) [emphasis added] during bending and end-forming operations” [0003]. Daaland disclose grain coarsening (nucleation) as undesirable [0005], and Daaland discloses selecting alloying elements to refine grains [0005-06]. Inventive alloy examples (AC1-AC9) disclosed by Daaland have grain size of 56-102 µm (Table 3), and even the two reference alloys disclosed by Daaland have grain sizes of 70 and 140 µm (Table 3). Daaland is silent on the percentage of a width of the extruded and brazed product, which includes coarse recrystallized grains in the ends of the product. Alloy grain size is a material property that is inseparable from the chemical composition of the material. See MPEP2112.01(II). When the claimed and prior art products are substantially identical in structure or composition, or are produced by substantially identical processes, a prima facie case of obviousness has been established. See MPEP.2112.01(I). The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer See MPEP2112(I). The present disclosure indicates that the reported precent recrystallisation “represents formation of single coarse recrystallized grains at the tube nose (ends) where the strain is more concentrated during sizing (page 9 lines 14-16) and does not specifically mention tube ends elsewhere in the specification. Considering Daaland’s grain size objective [0003], Daaland’s chemical composition [0004], Daaland’s selection of elements to control grains [0005-06], and considering the grain sizes which Daaland exemplifies (Table 3) are well below the 200 micron threshold structure which the present disclosure establishes for coarse grains (page 3 lines 19-23 of the present disclosure), Daaland establishes a sound basis for believing that less than 15% of a width of the extruded product, located at an end of the extruded and brazed tubing rendered obvious by Daaland, applied above, includes coarse recrystallized grains.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Alcan (WO2004057261A1) as applied to claims 1 and 10 above, and further in view of Kraft (US6536255). Kraft is cited in prior office action(s).
Alcan discloses a brazed heat exchanger comprising joined heat exchanger tubes and, where the tubes are extruded tubes made from a first alloy comprising the aluminum alloy (page 5 lines 21-26). Alcan does not disclose that the tubes of the heat exchanger comprise micro-multiport tubing.
Kraft teaches making micro-multiport tubing for use in heat exchangers (abstract, Fig. 1, column 2 lines 6-14). Kraft teaches extruding and brazing an aluminum alloy tubing (column 2 lines 32-44, 59-61). Kraft teaches brazing at 600-605
°
C (column 2 lines 59-61). Kraft teaches that the tubing is generally made from 1XXX or 3XXX Al alloys (column 1 lines 10-13).
Both Kraft and Alcan, as applied above teach extruded and brazed aluminum alloy product that is heat exchanger tubing. The 600-605
°
C brazing temperature taught by Kraft (column 2 lines 59-61) is within the range of between 595 and 610 °C, which Alcan discloses as usual (page 2 lines 2-5), and Alcan discloses the 3xxx alloys 3102 and 3003 as a basis for comparison (page 10 lines 1-3).
It would have been obvious for one of ordinary skill in the art to provide the product disclosed by Alcan as applied above as an extruded and brazed tubing in a micro-multiport tubing because Kraft teaches the same type of alloy at the same brazing temperatures for extruded and brazed tubing in a micro-multiport heat exchanger (column 1 lines 10-13, column 2 lines 6-14, 32-44, 59-61). Such application would facilitate Alcan’s general disclosure of the extruded and brazed product as tubing in a heat exchanger (page 5 lines 21-26).
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Daaland (US 20020007881) as applied to claims 1 and 10 above, and further in view of Kraft (US6536255).
Daaland discloses using the extruded product “for manufacture of automotive air conditioning tubes for applications as heat exchanger tubing or refrigerant carrying tube lines, or generally fluid carrying tube tines” [0001]. Daaland does not disclose that the tubing of any of the disclosed applications comprise micro-multiport tubing.
Kraft teaches making micro-multiport tubing for use in heat exchangers (abstract, Fig. 1, column 2 lines 6-14). Kraft teaches extruding and brazing an aluminum alloy tubing (column 2 lines 32-44, 59-61). Kraft teaches processing the extruded structure to maintain smaller grain size (column 2 lines 59-67). Kraft teaches that the tubing is generally made from 1XXX or 3XXX Al alloys (column 1 lines 10-13).
Both Kraft and Daaland, as applied above suggest extruded and brazed aluminum alloy heat exchanger tubing. Daaland discloses the 3xxx alloys 3103 and 3003 as a basis for comparison [0013].
It would have been obvious for one of ordinary skill in the art to provide the product disclosed by Daaland as applied above as an extruded and brazed tubing in a micro-multiport tubing because Kraft teaches the same type of alloy for extruded and brazed tubing in a micro-multiport heat exchanger (column 1 lines 10-13, column 2 lines 6-14, 32-44, 59-61). Such application would facilitate Daaland’s general disclosure of the extruded and brazed product as tubing in a heat exchanger [0001].
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
Regarding rejections under 35 USC 103 over Alcan (WO2004057261A1), applicant argues that the claimed Si range of 0.13 - 0.19 wt.% is critical to achieving the recited grain characteristics of "less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains," over some entire temperature range for brazing. This argument is largely not persuasive because claim 1 is directed to an extruded and brazed product, and achieving grain characteristics of "less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains," over some entire temperature range for brazing is not a result of the extruded and brazed product because the product is already brazed. Applicant’s arguments do not show that the claimed extruded and brazed product comprising: an aluminum alloy comprising in weight percent: Si: 0.13-0.19 yield different, let alone unexpected, results over the extruded and brazed product comprising: an aluminum alloy comprising in weight percent: up to 0.2, rendered obvious by Alcan, applied above, a product which is brazed at the conditions which Alcan discloses as usual.
An argument that a Si range of 0.13-.019% allows the claimed product to be brazed at a wider temperature range, does not show that the structure of the claimed product differ to a statistical and practical significance, from a prior art structure brazed at an established narrower temperature range. If the structure does not differ to a statistical and practical significance, the results from that structure do not differ to a statistical and practical significance.
Claim 1 is directed to an already brazed and extruded product. Alcan discloses that time and temperature of brazing cycle is usually carried out between 595 and 610 °C for 1 to 30 minutes (page 2 lines 2-5), and Alcan, as presently applied to claim 1, renders obvious a brazed product wherein brazing is carried out between 595 and 610 °C for 1 to 30 minutes. Every example within the present disclosure, for which brazing was performed or simulated within a temperature range of between 595 and 610°C meets the limitation wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains regardless of composition, and every example in the present disclosure which fails to meet the limitation wherein less than 15% of a width of the extruded and brazed product includes coarse recrystallized grains is subjected to a simulated brazing at a 625
°
C which the present disclosure admits is “extreme”. (Tables 1-2, example starting page 8 line 7, page 10 lines 4-12, example on page 13 of the present disclosure). MPEP 2144.05(III)(A), which discuses rebutting rejections under 35 USC 103 over overlapping ranges by showing criticality of a claimed range, stresses showing unexpected results of the claimed ranges. The present disclosure shows that an extruded and brazed product brazed at the conditions rendered obvious by Alcan, applied above, will meet the <15% coarse grain results regardless of composition; therefore, applicant’s arguments are not sufficient in showing that an extruded and brazed product comprising: an aluminum alloy comprising in weight percent: Si: 0.13-0.19 are critical to different, let alone unexpected, results over an extruded and brazed product comprising: an aluminum alloy comprising in weight percent: up to 0.2, brazed at known, usual brazing conditions. As all examples yield the particular grain structure when brazed at the conditions which the prior art establishes as usual, regardless of Si content, the presently claimed Si content cannot be critical to that result. The arguments, therefore, are insufficient in showing that the claimed product [emphasis added] is to results which differ from results of the product rendered obvious by Alcan to a statistical and practical significance.
Arguments directed to the extrudability of the composition to make the extruded and brazed product similarly are not persuasive in showing that claimed already extruded product differs from the already extruded product rendered obvious by Alcan, applied above because this is not a result of the extruded product.
Arguments that comparative examples in the present disclosure cannot meet the claimed grain structure when brazed at 625
°
C are not persuasive in showing that the Si content range of the claimed brazed product is critical over the Si content range of the brazed product rendered obvious by Alcan because the brazed product, rendered obvious by Alcan, brazed at a temperature between 595 and 610 °C for 1 to 30 minutes (page 2 lines 2-5) would have the structure of a product brazed at a temperature between 595 and 610 °C for 1 to 30 minutes. Examples which were brazed at temperatures outside prior art temperature range with compositions outside the presently claimed temperature range do not amount to a comparison of the presently claimed brazed product to the prior art brazed product. Arguing that the presently claimed grain structure can be attained when the brazed product is produced by brazing at 625
°
C is not persuasive in showing criticality of the claimed brazed product over a prior art brazed product brazed at temperatures which the present disclosure establishes attain the grain structure regardless of composition.
Applicant’s arguments that Daaland (US 20020007881) “does not recognize any factors affecting Al-Mn-Fe-Si dispersoid formation and the resultant inhibition of recrystallization, including composition, homogenization practice, location on the extruded product, etc.” are not persuasive because the grain size disclosed by Daaland, even in comparative examples in view of the grain size teachings disclosed by Daaland ([0003-06], Table 3) consistently teach a fine grain structure in the alloy disclosed and processed by Daaland. The present disclosure establishes 200 microns as the threshold above which grains are considered coarse (page 3 lines 19-23 of the present disclosure), and the grain sizes shown in Table 3 of Daaland are below this coarse grain limit. Aluminum alloy structures that do not comprise coarse grains, meet a range of <15% coarse grains. As the brazed, extruded product rendered obvious by Daaland would appear to meet this grain structure limitations, the results of those grain structure limitations are not sufficiently different to a statistical and practical significance to render the presently claimed amount of Si of 0.13-0.19 critical over the 0.05-0.15% Si disclosed by Daaland [0004].
Arguments that Daaland does not disclose any example compositions within the claimed range are not persuasive because Daaland is relevant prior art for all that the reference discloses including the overall composition ranges which overlap and/or approach the composition ranges recited in claim 1. [0004-05]. Daaland is not limited to the composition specifically set forth in the examples. See MPEP 2123.
Applicant’s statements that the claimed amount of Si is necessary to produce the claimed gran structure are not persuasive because none of the compositions shown in Table 1 meet the presently claimed amount of Si, yet all of the compositions shown in Table 1 meet the presently claimed grain structure limitation when subjected to braze cycle 1 (Table 2), and Alloys C and E meet the claimed grain structure when subjected to all heat treatments and braze cycle 2 (Table 2). The data in the present disclosure directly contradicts applicant’s arguments. If a structure attains the argued result regardless of whether or not the that structure meets the composition alleged to be critical to that result, then the differences are not sufficient to show that the result differ to a statistical and practical significance as described in MPEP 716.02 and therefore are not sufficient to amount to unexpected results supporting the criticality as described in MPEP 2144.05(III)(A).
Further, considering every example which brazes at a temperature less than 625
°
C can attain this grain structure, specific processing does not appear necessary in order to meet the particular grain structure provided that the braze temperature is less than 625
°
C, a temperature which the present disclosure identifies as “extreme” and which is greater than the temperature range which Alcan discloses as usual (page 2 lines 2-5). Applicant argues that if “proving criticality would require that a composition produces benefits under any processing parameters, then it would be practically impossible to ever prove criticality of an alloy composition”; however, all of MPEP 716 and 2144 suggest that a structure which is the same or similar as structure produced by established prior art conditions is obvious over that prior art structure. All data of record suggests that an extruded aluminum product will attain this grain structure when brazed under usual, established brazing conditions regardless of composition.
It is not clear why applicant believed examiner “taking results in Daaland that are achieved after 36% cold drawing and annealing at 420°C, and extrapolating those results to tubing subjected to 4% sizing and short-time, high-temperature (e.g., 625°C) brazing” as rejection over Daaland did not mention brazing at 625
°
C, examiner never limited claimed brazed product to products brazed at
625
°
C, and in over Alcan, even explicitly relied on a brazing temperature between 595
°
C and
625
°
C. Claim 1 is not limited to an extruded and brazed product brazed at
625
°
C, and even if claim 1 were limited to an extruded and brazed product brazed at
625
°
C, in a product-by-process capacity, the examples in the present disclosure show that the structure implied by brazing the alloy of the claimed product at
625
°
C is also the structure implied by brazing at usual brazing temperatures. Applicant is cautioned that an argument that a prior art reference requires extrapolation to brazing at
625
°
C in order to meet the claimed extruded and brazed product, could be misinterpreted as an admission that the claimed extruded and brazed product is limited to extruded and brazed product brazed at
625
°
C. As of now the claims are not so limited, and such limitation would amount to improperly incorporating limitations from the specification, as described in MPEP 2111.01(II).
Further, applicant’s remarks that “the purpose of the anneal after a heavy cold draw as in Daaland is to deliberately recrystallize the material to remove the effects of cold work. The goal in extrusion, sizing and brazing of MMP tube as disclosed in the present application is to prevent recrystallisation and retain the fine as-extruded grain structure” actually supports the position that the brazed and extruded product rendered obvious by Daaland would meet the claimed grain structure because the grain size values in Table 3 of Daaland for the material subjected to these steps are all below the 200 microns as the threshold above which grains are considered coarse (page 3 lines 19-23 of the present disclosure). As the alloy disclosed by Daaland maintains a fine grain structure after recrystallization, the recrystallized grains are not coarse, in view of the definition of coarse provided in the present disclosure. A process which recrystallizes does not teach away from the product of claim 1, as claim 1 is open to some amount of recrystallized grains, and claim 1 is open to any amount of recrystallized grains provided the size of those grains remain fine. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., absence of recrystallization) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See MPEP 2145(VI).
Applicant argues the dependent claims over the prior art by reference to their dependence on claim 1. This argument is not persuasive for the reasons given above with respect to claim 1.
Regarding new claim 26, applicant argues that the composition recited in claim 1 provides a technical solution, through the Si content, to avoid having more than 15% coarse grains across the width of a brazed tube, even in the tube nose. This is not persuasive because the present disclosure indicates that the reported precent recrystallisation “represents formation of single coarse recrystallized grains at the tube nose (ends) where the strain is more concentrated during sizing (page 9 lines 14-16); therefore, the results which the present disclosure shows for usual brazing conditions, regardless of composition, would be present at the tube ends.
Applicant’s arguments regarding new claim 27 over Daaland would have been persuasive if the limitations of new claim 27 were rejected over Daaland as a primary reference.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN P O'KEEFE whose telephone number is (571)272-7647. The examiner can normally be reached MR 8:00-6:30.
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/SEAN P. O'KEEFE/ Examiner, Art Unit 1738
/SALLY A MERKLING/ SPE, Art Unit 1738