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 the Claims
Claim 14 is pending and currently under examination wherein claims 1-13 and 15-21 are canceled.
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.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Anyalebechi et al. (Effects of Cooling Rate and Grain Refining on Constituent Phase Particle Size in As-Cast 3004 Alloy).
In regard to claim 14, Anyalebechi et al. discloses continuous casting aluminum base alloys to a thickness of 6 to 12 mm thick strips, which overlaps the range of the instant invention thereby establishing prima facie obviousness (page 482, right column). MPEP 2144.05 I.
With respect to the recitation “primary phase of solid aluminum” in claim 14, the matrix phase in Anyalebechi et al. would be aluminum and thus would read on this limitation as being the “primary phase”.
With respect to the recitation “a secondary phase including an alloying element” in claim 14, Anyalebechi et al. teaches that as the cooling rate is increased more of the Al6(Fe,Mn) phase is formed (Table IV). The secondary phase would include alloy elements manganese and iron.
With respect to the recitation “wherein the alloying element is supersaturated in the primary phase by fast cooling freshly-solidified metal to a temperature at or below 100°C within ten seconds” in claim 14, Anyalebechi et al. teaches cooling immediately prior to pouring (page 484, left column) and as the rate of cooling is increased, the average constituent particle length, µm would decrease (Figure 27). It would have been obvious to one having ordinary skill in the art prior to the filing of the instant invention to modify the cooling rate in order to achieve the desired average particle size. MPEP 2144.05 II. Additionally, dendrite arm spacing is reduced by higher cooling rates and it would have been obvious to one having ordinary skill in the art prior to the filing of the instant invention to modify the cooling rate in order to achieve the desired dendrite arm spacing (page 485, right column and Figure 7). MPEP 2144.05 II. Further, aluminum melts at approximately 660°C and Anyalebechi et al. teaches forming fine intermetallic particles with diameter or length of 0.5 to 2 micrometers by cooling at a rate of 300 to 2000°C/second (page 482, right column). Thus, it would take no more than 2 seconds to achieve a temperature of at or below 100°C.
With respect to the recitation “intermediate metal product” in claim 14, Anyalebechi et al. teaches sectioning and polishing the castings (page 484, left column). Thus, castings that have not been sectioned and polished would be considered intermediate products whereas the sectioned and polished samples would be final products.
Response to Declaration under 37 CFR §1.132
The Declaration under 37 CFR 1.132 filed June 12, 2026 is insufficient to overcome the rejection of claim 14 based upon Anyalebechi et al. as set forth in the last Office action because:
First, the Applicant primarily argues that as stated in the previous declaration, Figure 16 of the Application compares two continuous cast metal strips, one of which has had a post-cast quench and the other which was cast without a post-cast quench and as explained in the application dispersoid arrangement of the metal strip shows only a few desirably sized dispersoids with most being to large or too small but by contrast the dispersoid arrangement of metal strip shows a well distributed arrangement of desirably sized dispersoids because of the immediate quenching after continuous casting and because of the immediate quenching after continuous casting, the precursor metal strip to metal strip 1600 included many small and well-dispersed dispersoid-forming elements held in supersaturation within the aluminum matrix but by contrast without the post-cast quench, the dispersoid arrangement of the metal strip is not as well distributed and includes undesirably large dispersoids.
In response, the Examiner notes that Anyalebechi et al. teaches cooling immediately prior to pouring (page 484, left column) and as the rate of cooling is increased, the average constituent particle length, µm would decrease (Figure 27). It would have been obvious to one having ordinary skill in the art prior to the filing of the instant invention to modify the cooling rate in order to achieve the desired average particle size. MPEP 2144.05 II. Additionally, dendrite arm spacing is reduced by higher cooling rates and it would have been obvious to one having ordinary skill in the art prior to the filing of the instant invention to modify the cooling rate in order to achieve the desired dendrite arm spacing (page 485, right column and Figure 7). MPEP 2144.05 II. Further, aluminum melts at approximately 660°C and Anyalebechi et al. teaches forming fine intermetallic particles with diameter or length of 0.5 to 2 micrometers by cooling at a rate of 300 to 2000°C/second (page 482, right column). Thus, it would take no more than 2 seconds to achieve a temperature of at or below 100°C.
Second, the Applicant primarily argues that Anyalebechi et al. is primarily directed to a form of directional solidification in which metal is poured into a mold and cooled using water-cooled copper plating, then subsequently solidified within the mold by direct exposure to water. The Applicant further argues that this is a part of the directional solidification process and not a post-solidification quenching and Anyalebechi et al. does not mention any quenching of the metal after leaving a caster and instead teaches cooling during the caster process.
In response, the Examiner notes that Applicant is arguing about the processing whereas the claim is drawn to a product. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113. Additionally, the Examiner notes that Anyalebechi et al. suggests continuous casting as it is indicated “This effect is expected to be more dramatic in sheet products produced with a continuous casting process since the as-cast materials are not subsequently homogenized to modify the cast microstructural characteristics (page 508, right column). Thus, one having ordinary skill in the art would apply the quenching process discussed in Anyalebechi et al. to a continuous casting process for better effects. Regardless, Applicant has failed to demonstrate a patentable distinction of the instant invention from Anyalebechi et al.
Third, the Applicant primarily argues that Anyaleechi et al. is not directed to continuous casting and while it mentions continuous casting in the introduction section, this is in reference to conventional methods for alloy 3004 aluminum casting; the experimental procedure mentioned later is not continuous casting because it is being conducted in a mold. The Applicant further argues that a skilled person would understand that directional solidification of metals is a well-established technique in other forms of casting, but not in continuous casting and therefore the metal product produced by Anyalebechi et al. is not “an intermediate metal product with a primary phase of solid aluminum formed by cooling liquid in a continuous casting device” as stated in claim 14.
In response, the Examiner notes that what must be demonstrated here is that there is an intermediate product with a primary phase of solid aluminum. The matrix phase in Anyalebechi et al. would be aluminum and thus would read on this limitation as being the “primary phase”. Demonstrating that it is formed by cooling liquid in a continuous casting device need not be demonstrated since this is a processing limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113. Additionally, the Examiner notes that Anyalebechi et al. suggests continuous casting as it is indicated “This effect is expected to be more dramatic in sheet products produced with a continuous casting process since the as-cast materials are not subsequently homogenized to modify the cast microstructural characteristics (page 508, right column). Thus, one having ordinary skill in the art would apply the quenching discussed in Anyalebechi et al. to a continuous casting process for better effects. Regardless, Applicant has failed to demonstrate a patentable distinction of the instant invention from Anyalebechi et al. Finally, Anyalebechi et al. teaches sectioning and polishing the castings (page 484, left column). Thus, castings that have not been sectioned and polished would be considered intermediate products whereas the sectioned and polished samples would be final products.
Response to Arguments
Applicant's arguments filed June 12, 2026 have been fully considered but they are not persuasive.
First, the Applicant primarily argues that Anyalebechi et al. fails to teach or suggest at least an intermediate having a primary phase and a secondary phase wherein “a primary phase of solid aluminum [is] formed by cooling liquid metal in a continuous casting device…[with] a secondary phase including an alloy element, wherein the alloy element is supersaturated in the primary phase by fast cooling freshly-solidified metal to a temperature at or below 100°C within ten seconds” as required by claim 14. Applicant further argues that the disclosure in Anyalebechi et al. is to a directional solidification technique and not a continuous casting process.
In response, the Examiner notes that Anyalebechi et al. discloses continuous casting aluminum base alloys to a thickness of 6 to 12 mm thick strips, which overlaps the range of the instant invention thereby establishing prima facie obviousness (page 482, right column). The matrix phase in Anyalebechi et al. would be aluminum and thus would read on this limitation as being the “primary phase”. With respect to the recitation “a secondary phase including an alloying element” in claim 14, Anyalebechi et al. teaches that as the cooling rate is increased more of the Al6(Fe,Mn) phase is formed (Table IV). The secondary phase would include alloy elements manganese and iron. With respect to the recitation “wherein the alloying element is supersaturated in the primary phase by fast cooling freshly-solidified metal to a temperature at or below 100°C within ten seconds” in claim 14, Anyalebechi et al. teaches cooling immediately prior to pouring (page 484, left column) and as the rate of cooling is increased, the average constituent particle length, µm would decrease (Figure 27). It would have been obvious to one having ordinary skill in the art prior to the filing of the instant invention to modify the cooling rate in order to achieve the desired average particle size. MPEP 2144.05 II. Additionally, dendrite arm spacing is reduced by higher cooling rates and it would have been obvious to one having ordinary skill in the art prior to the filing of the instant invention to modify the cooling rate in order to achieve the desired dendrite arm spacing (page 485, right column and Figure 7). MPEP 2144.05 II. Further, aluminum melts at approximately 660°C and Anyalebechi et al. teaches forming fine intermetallic particles with diameter or length of 0.5 to 2 micrometers by cooling at a rate of 300 to 2000°C/second (page 482, right column). Thus, it would take no more than 2 seconds to achieve a temperature of at or below 100°C. Anyalebechi et al. does not have to necessarily teach a continuous casting device to read on the claim since the claim is drawn to a product and not a process. MPEP 2113. Anyalebechi et al. teaches cooling immediately prior to pouring (page 484, left column) and as the rate of cooling is increased, the average constituent particle length, µm would decrease (Figure 27). It would have been obvious to one having ordinary skill in the art prior to the filing of the instant invention to modify the cooling rate in order to achieve the desired average particle size. MPEP 2144.05 II. Finally, Anyalebechi et al. suggests continuous casting as it is indicated “This effect is expected to be more dramatic in sheet products produced with a continuous casting process since the as-cast materials are not subsequently homogenized to modify the cast microstructural characteristics (page 508, right column). Thus, one having ordinary skill in the art would apply the quenching process discussed in Anyalebechi et al. to a continuous casting process for better effects. Regardless, Applicant has failed to demonstrate a patentable distinction of the instant invention from Anyalebechi et al.
Second, the Applicant primarily argues that Anyalebechi et al. is drawn to directional solidification and not a continuous casting process and cooling immediately prior to is not cooling freshly-solidified metal. The Applicant further argues that the rejection conflates two distinct disclosures in Anyalebechi et al. and Anyalebechi et al. does not teach that its direction solidification experiment is a continuous casting process and a skilled person would not understand it to be a continuous casting process.
In response, the Examiner notes that Applicant again is arguing about processing steps where the claim is drawn to a product. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113. Finally, Anyalebechi et al. suggests continuous casting as it is indicated “This effect is expected to be more dramatic in sheet products produced with a continuous casting process since the as-cast materials are not subsequently homogenized to modify the cast microstructural characteristics (page 508, right column). Applicant has failed to demonstrate the difference in the resulting products.
Conclusion
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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/JESSEE R ROE/Primary Examiner, Art Unit 1759
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