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
Claims 1 and 3-7 are examined in this office action as claims 2 and 8-15 were canceled and claims 1 and 4-5 were amended in the reply dated 11/7/25.
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.
Claims 1 and 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over FR 3065178 A1 (with reference to English equivalent US 2020/0156154 A1) of Chehab in view of US 2010/0143185 A1 of Pandey.
Table A
Element
Claim 1 Limitation
Chehab range (claim 12 unless otherwise noted)
Cu
Present as part of 2000 series alloy
Claim 3: 4 to 6 wt%
Claim 4: 4.8 wt% to 5.5 wt%
3 wt. % to 7 wt. %
Zn
Present as part of 7000 series alloy
Optionally 0.1 wt. % to 0.8 wt. %
Si
Present as part of 6000 series alloy
Claim 5: 0.05 wt% to 0.15 wt%
at most 1 wt. %
(paragraph [0027])
Mg
Present as part of 6000 series alloy
Claim 3: 0.1 to 1.5 wt%
Claim 4: 0.3 wt% to 1.2 wt%
Claim 5: 0.2 wt% to 0.55 wt%
0.1 wt. % to 0.8 wt. %
Mo
Nb
at most 2 wt. %
(paragraph [0029])
Zr
Must be present as part of M1
0.05 wt. % to 2 wt. %
Fe
at most 0.8 wt. %
(paragraph [0026])
Ti
Must be present as part of M1
0.01 wt. % to 2 wt. %
Ta
at most 2 wt. %
(paragraph [0029])
V
0.05 wt. % to 2 wt. %
Lanthanides
Yb, Nd, Er, La, and Ce at most 2 wt% (paragraph [0029])
M1
2-5 wt%
0.11 to 8.8 wt%
Zr + Ti
1.0 to 2.8 wt%
0.06 to 4 wt%
Ag
Claim 3: 0.1 to 1.0 wt%
Claim 4: 0.2 wt% to 0.4 wt%
0.1 wt. % to 0.8 wt. %
O
0.05 to 0.15 wt%
Al
As this is a 2000, 6000, or 7000 series alloy, the balance is Al
aluminum alloy of the 2xxx group so balance
As to claims 1 and 3-5, Chehab discloses a metal powder comprising an aluminum alloy of the 2xxx group (Chehab, claim 12), meeting the claim limitation of a pulverulent aluminum alloy of the 2000, 6000, or 7000 series. Chehab discloses the composition of the alloy powder in comparison to the claimed composition in Table A above.
Thus, Chehab meets the claim limitation for aluminum and overlaps the claim limitations for Cu, Si, Mg, Zr, Ti, Zr + Ti, V, Ag and overlaps the combined amount for the group M1. As the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness is established as it 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 to select the claimed composition over the prior art disclosure since the prior art teaches high mechanical strength, elongation and fatigue properties (Chehab, paragraph [0085]) throughout the disclosed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) . See MPEP § 2144.05 I.
However, Chehab is silent concerning the amount of oxygen in the aluminum alloy powder.
Pandey relates to the same field of endeavor of high strength aluminum alloy powders (Pandey, paragraph [0003]). Pandey teaches where oxygen is intentionally added as a component in a range of 1ppm to 2000 ppm (0.0001 to 0.2 wt%) (Pandey, paragraph [0100]), overlapping the claimed range of 0.05 to 0.15 wt%. Pandey teaches that this results in an oxide coating that prevents agglomeration by contact sintering and inhibits the change of explosion of the powder and provides good ductility and fracture toughness in the final consolidated material (Pandey, paragraph [0100]).
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add oxygen and select within the claimed range of 0.05 to 0.15 wt% of oxygen as taught by Pandey into the aluminum alloy powder disclosed in Chehab, thereby preventing agglomeration by contact sintering and inhibiting the change of explosion of the powder and providing good ductility and fracture toughness in the final consolidated material (Pandey, paragraph [0100]).
As to claim 6, Chehab discloses where the d50 of the powder is 38.7 µm (Chehab, paragraph [0140]), meeting the claim limitation of d50 being in a range of 0.1 to 500 µm.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0156154 A1) of Chehab and US 2010/0143185 A1 of Pandey as applied to claim 1 above, and further in view of US 2013/0068411 A1 of Forde.
As to claim 7, Chehab in combination with Pandey discloses the pulverulent aluminum alloy according to claim 1, see claim 1 rejection above. However, Chehab does not disclose wherein a content of at least one of metal borides, metal nitrides and metal carbides is present in an amount of less than 0.2 wt. %.
Forde relates to the same field of endeavor of aluminum-copper alloys (Forde, paragraph [0001]). Forde teaches adding up to 10 wt% insoluble particles which include inter-metallics or ceramic materials such as titanium diboride or silicon carbide, zirconium diboride, boron nitride (Forde, claim 37 and paragraph [0075]). Forde teaches that this inclusion results in grain refinement and improvement in the physical properties of the ultimate part (Forde, paragraph [0004]).
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add up to 0.2 wt% of ceramic materials such as titanium diboride, silicon carbide, zirconium diboride, or boron nitride as taught by Forde into the aluminum composition disclosed by Chehab and Pandey, thereby resulting in grain refinement and improvement in the physical properties of the ultimate part (Forde, paragraph [0004]).
Response to Arguments
With respect to the 112(b) rejections, applicant’s amendment to claim 1 cures the previous issues and the rejection is withdrawn.
With respect to the 112(d) rejections, the cancelation of claim 2 renders that rejection moot. Further, the amendments to claims 4-5 to make those ranges from one number to another cures the previous issue where the claimed ranges did not further limit. Therefore those rejections are withdrawn.
With respect to the 103 rejection over Chehab, it is agreed that Chehab does not explicitly disclose an oxygen content of 0.05 to 0.15 wt%, however this is cured by Pandey in the rejection of claim 1 above.
Applicant also argues that the Zr + Ti content of 1.0 to 2.8 wt% differentiates the composition over Chehab as this reference only provides broad upper limits without any teaching or motivation to select a Zr+Ti content exceeding about 0.6 wt% as Chehab discloses a preferred ≤0.3 wt% per element (Applicant’s remarks, pg. 2, 2nd paragraph). Applicant also argues that as Chehab warns against cracking risks in paragraph [0022], this would deter a POSITA from selecting a combined Zr+Ti in the 1.0-2.8 wt% range (Applicant’s remarks, pg. 2, 2nd paragraph).
With respect to applicants argument that a person of ordinary skill would not select within Chehab’s broader ranges "the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004), see MPEP § 2141.02(VI). "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)), see MPEP § 2123(I). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971), see MPEP§ 2123(II). While Chehab discusses cracking, this is in relation to the magnesium content and why it is limited to a maximum of 0.8 wt% and not to the Ti and Zr amounts. A reference is good for all it teaches and a range of 0-2 wt% obviously includes all points within those ranges absent explicit exceptions. As these exceptions do not exist in Chehab, it is obvious to select within these disclosed overlapping ranges and this renders the claimed ranges obvious.
Applicant also argues that the data from the examples shows unexpected results as inventive examples shows enhanced processability and mechanical strength rather that embrittlement as would be expected from Chehab (Applicant’s remarks, pg. 2, 3rd paragraph). Applicant also argues that the improved mechanical performance represents a superiority of a property shared under the prior art as the inventive yield strengths are 40% higher than in Chehab (Applicant’s remarks, pg. 2, 4th paragraph). Applicant argues that while Chehab attributes its strength to traditional precipitation hardening, the claimed composition uses the high Zr/TI content to create nano-dispersoids that resist coarsening under laser melting (Applicant’s remarks, pg. 2, 4th paragraph – pg. 3, 1st paragraph).
Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range, see MPEP § 716.02(d). Further, to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960), see MPEP § 716.02(d)(II). In the instant case, applicant provides a single example within the claimed range two examples outside the claimed range. This data does not show that the differences in hardness, yield strength and tensile strength exist across the claimed ranges. Further, the comparative examples have significantly different amounts of Cu, Mg, and O that will also affect the strength and hardness of the finished material and therefore it is not clear that the larger amounts of Ti + Zr is causing the higher strengths. Thus, applicant’s arguments are not commensurate in scope with the claims.
Also, this result is not unexpected from the prior art. Chehab specifically teaches that increasing amounts of Ti and Zr “result in the formation of dispersoids or thin intermetallic phases enabling the hardness of the material obtained to be increased” (Chehab, paragraph [0023]). Thus, Chehab already recognizes that the addition of Ti and Zr increase the hardness of the finished material. Finally, while applicant asserts that the strengthening mechanisms are distinct, Chehab also discloses that the addition of Zr and Ti result in the formation of dispersoids increasing the hardness of the material obtained (Chehab, paragraph [0023]).
As applicant’s arguments are not commensurate in scope with the claims and the differences in results are not unexpected given the teachings in the art, applicant’s arguments are not persuasive and the rejection is maintained.
Conclusion
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/JOSHUA S CARPENTER/Examiner, Art Unit 1733
/JOPHY S. KOSHY/Primary Examiner, Art Unit 1733