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 .
Response to Arguments
Applicant’s arguments with respect to claims 1-3 have been considered but are not persuasive.
Regarding the argument that Yamashita does not disclose claim 1, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In this case, the only claimed property is that the material would perform in a certain way in the heat test. The composition of Yamashita reads on the claimed composition and therefore would be expected to perform in the same way. The claims makes no mention of specific heat treatment or extrusion conditions for the actual tube produced from the material, only that the tube is extruded from such material.
Additionally, even if the claims disclose a 500 degree C extrusion temperature, which Yamashita did not disclose, this temperature is a well-known extrusion temperature (page 325, section 5.16.2.2, the temperature of hot extrusion for aluminum alloy tubes is about 400–500 °C, Comprehensive Materials Processing, Volume 5, 2014, Pages 321-350).
Claim Rejections - 35 USC § 103
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 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (EP 2447662 A10).
Regarding claim 1, Yamashita discloses an aluminum alloy extruded multi-hole tube for a heat exchanger (paragraph 0003, Yamashita), the tube being formed of an aluminum alloy comprising Mn of 0.60 to 1.80 mass % (abstract, 0.5%-1.7% Mn by weight, Yamashita. 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)) and Si of more than 0.00 mass % and less than 0.20 mass % (abstract, less than 0.1% Si by weight, Yamashita. 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)), with the balance being Al and inevitable impurities (abstract, Yamashita), the aluminum alloy having a ratio (Mn/Si) of Mn content to Si content being 15.0 or more (from the abstract, the ratio of Mn to Si can be 1.7% to 0.1%, which is a ratio of 17. Yamashita),
Yamashita does not disclose wherein strength change (tensile strength (A) of the aluminum alloy after heating test - tensile strength (B) of the aluminum alloy before heating test) in a heating test at 600°C+10°C for 3 minutes is -5 MPa or more. However, since Yamashita discloses an alloy of the same composition, and is produced by a very similar process, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Additionally, "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the aluminum alloy of Yamashita should have the same physical properties as the claimed invention.
Regarding claim 2, Yamashita discloses the aluminum alloy extruded multi-hole tube for a heat exchanger according to claim 1, further comprising one or two kinds selected from Ti of 0.10 mass % or less (including 0.00 mass %) (table 1, 0.0% Ti for alloy C, Yamashita) and Cu of 0.05 mass % or less (including 0.00 mass %) (table 1, 0% Cu for alloy C, Yamashita).
Regarding claim 3, Yamashita discloses the aluminum alloy extruded multi-hole tube for a heat exchanger according to claim 1, but does not disclose wherein the strength change in the heating test is -5 to +10 MPa. However, since Yamashita discloses an alloy of the same composition, and is produced by a very similar process, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Additionally, "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the aluminum alloy of Yamashita should have the same physical properties as the claimed invention.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Kano (US 20160298914 A1) discloses an aluminum heat exchanger extruded at temperature of 400-550 degrees C.
Suzuki (US 20200190635 A1) discloses a tube for heat exchange that was extruded at 450 C after heat treatment at 500C for eight hours.
THIS ACTION IS MADE FINAL. 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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/H.L./Examiner, Art Unit 3753
/KENNETH RINEHART/Supervisory Patent Examiner, Art Unit 3753
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