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 .
Response to Election/Restrictions, Amendments and Status of Claims
Applicant’s timely election of Invention II, Claims 5-15 and newly added Claims 33-47 (see below), directed to a method, is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Non-elected Invention I, Claims 1-4 and 16-32, directed to a product, are cancelled (see below).
Applicant’s amendments to the claims, filed December 16, 2025, is acknowledged. Claims 1-4 and 16-32 are cancelled. Claim 11 is amended, and Claims 33-47 are newly added.
Claims 5-15 and 33-47 are currently pending and considered in this office action.
Priority
Applicant’s claim to priority in provisional application no.’s 63/226,270, 63/247,540, 63/316,077 and 63/389,267, filed July 28, 2021, September 23, 2021, March 3, 2022, and July 14, 2022, respectively, are acknowledged.
Claim Objections
Claim 33 and Claim 43 are objected to because of the following informalities:
“pressing together metal alloy powder at a pressure of 1-300 tsi to formed pressed metal powdered in a net shape” should be “pressing together metal alloy powder at a pressure of 1-300 tsi to form pressed metal powder in a net shape”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8-11 and 13-14, Claim 35 and dependent Claims 36-42, and Claim 43 and dependent Claims 44-47, are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Claim 8, the claim recites wherein the final heat treatment temperature is at least 100C; however, Claim 5, from which Claim 8 depends, recites wherein there may be multiple (different) final heat treatment temperatures (see option I). It is unclear if all final heat treatment temperatures in this instance are required to be at least 100C or only one of the final heat treatments for a particular portion. Examiner interprets wherein this condition is only required for one of the final heat treatment temperatures in a particular portion, and other final heat treatment temperatures for other portions may be outside the claimed range.
Regarding Claim 9, the claim recites wherein the final heat treatment temperature is 500-1000C; however, Claim 5, from which Claim 9 depends, recites wherein there may be multiple (different) final heat treatment temperatures (see option I). It is unclear if all final heat treatment temperatures in this instance are required to be 500-1000C or only one of the final heat treatments for a particular portion. Examiner interprets wherein this condition is only required for one of the final heat treatment temperatures in a particular portion, and other final heat treatment temperatures for other portions may be outside the claimed range.
Regarding Claim 10, the claim recites wherein the final heat treatment time period is 0.5-25 hours; however, Claim 5, from which Claim 10 depends, recites wherein there may be multiple (different) final heat treatment times (see option II). It is unclear if all final heat treatment times in this instance are required to be 0.5-25 hours or only one of the final heat treatments for a particular portion. Examiner interprets wherein this condition is only required for one of the final heat treatment times in a particular portion, and other final heat treatment times for other portions may be outside the claimed range.
Regarding Claim 11, the claim recites wherein the final heat treatment cooling rate is 100C/s or less; however, Claim 5, from which Claim 11 depends, recites wherein there may be multiple (different) final heat treatment cooling rates (see option III). It is unclear if all final heat treatment rates in this instance are required to be 100C/s or only one of the final heat treatments for a particular portion. Examiner interprets wherein this condition is only required for one of the final heat treatment cooling rates in a particular portion, and other final heat treatment cooling rates for other portions may be outside the claimed range.
Regarding Claim 13, the claim recites wherein maximum temperature for final heat treatment is 500-1000C and wherein a duration at the maximum temperature is 0.01-15 hours; however, Claim 5, from which Claim 12 and therefore Claim 13 depends, recites wherein there may be multiple (different) final heat treatment temperatures and/or times (see option I and option II). It is unclear if all final heat treatment temperatures and times in this instance are required for each different heat treatment process (all heat treatment processes are 500-1000C and 0.01-15 hours), or only one of the final heat treatments for a particular portion. Examiner interprets wherein this set of conditions is only required for one of the final heat treatments in a particular portion, and other final heat treatment temperatures and times for other portions may be outside the claimed range.
Claim 14 recites the limitation "said step of cooling"; however, a step of cooling is not necessarily required by Claim 5 if option (i) or option (ii) (different heat treatment temperatures and times) have been met (see Claim 5 limitations, option (iii) cooling step with different cooling rates is optional feature if option (i) or option (ii) are met). It is therefore unclear if cooling is now required in Claim 14, and if the limitations of option (III) from Claim 5 are required. Additionally, if option (III) is not required by Claim 14, there is insufficient antecedent basis for ‘said step of cooling’ limitation in the claim.
Regarding Claim 35, the claim recites wherein the final heat treatment temperature is at least 100C; however, Claim 33, from which Claim 34 and therefore Claim 35 depends, recites wherein there may be multiple (different) final heat treatment temperatures (see option I). It is unclear if all final heat treatment temperatures in this instance are required to be at least 100C or only one of the final heat treatments for a particular portion. Examiner interprets wherein this condition is only required for one of the final heat treatment temperatures in a particular portion, and other final heat treatment temperatures for other portions may be outside the claimed range.
Regarding Claim 36, the claim recites wherein the final heat treatment temperature is 500-1000C; however, Claim 33, from which Claim 34, 35 and therefore Claim 36 depends, recites wherein there may be multiple (different) final heat treatment temperatures (see option I). It is unclear if all final heat treatment temperatures in this instance are required to be 500-1000C or only one of the final heat treatments for a particular portion. Additionally, it is unclear if said final heat treatment temperature is referring to the final heat treatment temperature recited in Claim 35 or not. Examiner interprets wherein the claimed condition is only required for one of the final heat treatment temperatures in a particular portion, may be a different heat treatment temperature and portion than that of Claim 35, and wherein other final heat treatment temperatures for other portions may be outside the claimed range.
Regarding Claim 37, the claim recites wherein the final heat treatment time period is 0.5-25 hours; however, Claim 33, from which Claim 34, 35, 36 and therefore Claim 37 depends, recites wherein there may be multiple (different) final heat treatment times (see option II). It is unclear if all final heat treatment times in this instance are required to be 0.5-25 hours, or only one of the final heat treatments for a particular portion. Additionally, it is unclear if said final heat treatment temperature and heat treatment process is referring to the final heat treatment temperature recited in Claim 36 and/or Claim 35 or not. Examiner interprets wherein the claimed condition is only required for one of the final heat treatment processes of a particular portion, may be a different heat treatment process, temperature and portion than that of Claim 36 and/or Claim 35, and wherein other final heat treatment times and temperatures for other portions may be outside the claimed range.
Claim 38 recites the limitation "said step of cooling"; however, a step of cooling is not necessarily required by Claim 33 if option (i) or option (ii) (different heat treatment temperatures and times) have been met (see Claim 33 limitations, option (iii) cooling step with different cooling rates is optional feature if option (i) or option (ii) are met). It is therefore unclear if cooling is now required in Claim 38, and if the limitations of option (III) from Claim 33 are required. Additionally, if option (III) is not required by Claim 33, there is insufficient antecedent basis for ‘said step of cooling’ limitation in the claim.
Regarding Claim 38, the claim recites wherein the final heat treatment cooling rate is 100C/s or less; however, Claim 33, from which Claim 34, 35, 36 , 37 and therefore Claim 8 depends, recites wherein there may be multiple (different) final heat treatment cooling rates (see option III). It is unclear if all final heat treatment rates in this instance are required to be 100C/s or only one of the final heat treatments for a particular portion. Examiner interprets wherein this condition is only required for one of the final heat treatment cooling rates in a particular portion, and other final heat treatment cooling rates for other portions may be outside the claimed range.
Regarding Claim 40, the claim recites wherein maximum temperature for final heat treatment is 500-1000C and wherein a duration at the maximum temperature is 0.01-15 hours; however, Claim 33, from which Claim 34, 35, 36, 37, 38, 39 and therefore Claim 40 depends, recites wherein there may be multiple (different) final heat treatment temperatures and/or times (see option I and option II). It is unclear if all final heat treatment temperatures and times in this instance are required for each different heat treatment process (all heat treatment processes are 500-1000C and 0.01-15 hours), or only one of the final heat treatments for a particular portion. Additionally, it is unclear if said final heat treatment temperature and times refer to the final heat treatment temperature, time or process recited in Claim 37 or not. Examiner interprets wherein the claimed conditions are only required for one of the final heat treatment processes of a particular portion, may be a different heat treatment process, time or temperature and portion than that of Claim 37, Claim 36 and/or Claim 35, and wherein other final heat treatment times and temperatures for other portions may be outside the claimed range.
Regarding Claim 43, the claim recites wherein the final heat treatment temperature is at least 100C and also 500-1000C; however, Claim 43 also recites wherein there may be multiple (different) final heat treatment temperatures (see option I). It is unclear if all final heat treatment temperatures in this instance are required to be at least 100C and/or 500-1000C or only one of the final heat treatments for a particular portion. Examiner interprets wherein the claimed condition is only required for one of the final heat treatment temperatures in a particular portion, and wherein other final heat treatment temperatures for other portions may be outside the claimed range.
Regarding Claim 43, the claim recites the limitation "said step of cooling"; however, a step of cooling is not necessarily required if option (i) or option (ii) (different heat treatment temperatures and times) have been met (see option (iii) cooling step with different cooling rates is optional feature if option (i) or option (ii) are met). It is therefore unclear if cooling is required and if the limitations of option (III) are required.
Regarding Claim 43, the claim further recites wherein the final heat treatment cooling rate is 100C/s or less; however, Claim 43 also recites wherein there may be multiple (different) final heat treatment cooling rates (see option III). It is unclear if all final heat treatment rates in this instance are required to be 100C/s or only one of the final heat treatments for a particular portion. Examiner interprets wherein this condition is only required for one of the final heat treatment cooling rates in a particular portion, and other final heat treatment cooling rates for other portions may be outside the claimed range.
Regarding Claim 43, the claim recites wherein the final heat treatment temperature is at least 100C, and also wherein the final heat treatment temperature is 500-1000C. It is unclear if the two limitations are referring to the same final heat treatment temperature, as Claim 43 recites wherein there may be different final heat treatment temperatures. In the case that the final heat treatment temperatures referred to are the same, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 43 recites the broad recitation at least 100C, and the claim also recites 500-1000C which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding Claim 44, the claim recites wherein maximum temperature for final heat treatment is 500-1000C and wherein a duration at the maximum temperature is 0.01-15 hours; however, Claim 43, from which Claim 44 depends, recites wherein there may be multiple (different) final heat treatment temperatures and/or times (see option I and option II). It is unclear if all final heat treatment temperatures and times in this instance are required for each different heat treatment process (all heat treatment processes are 500-1000C and 0.01-15 hours), or only one of the final heat treatments for a particular portion. Examiner interprets wherein the claimed conditions are only required for one of the final heat treatment processes of a particular portion, and wherein other final heat treatment times and temperatures for other portions may be outside the claimed range.
Regarding Claim 47, the claim recites multiple alloys, including a stainless steel, a Co-Cr alloy, TiNi alloy, TiAlV alloy, Al alloy, Ni alloy, Ti alloy, Cu alloy, Be-Cu alloy, an alloy with 30wt% of one of Nb, Ti, Co, Cr, or Zr, an alloy with 50wt% of Nb, Ti, Co, Cr, Zr and 1-40wt% of Al, Bi, Ca, C, CeO2, Cu, Au, Hf, Ir, Fe, La, La2O3, Pb, Mg, Mn, Ni, Os, RE, Si, Ag, Tc, Sn, Ti, V, Y, Y2O3, Zn, and Zr2O3 comprising at least 15at% Re. One of ordinary skill in the art would appreciate that these alloys would not be the described alloys, but would be Re-based alloys, as Re is substantially the heavier element. One of ordinary skill in the art would appreciate for example that a TINi alloy with 15at% Re would necessarily be a Re alloy with Ti and Ni. Further, it is unclear what the composition of most of the claimed alloys would be or if they are even capable of existing. For example, a stainless steel with at least 15at% Re would cease to be a stainless steel, and it is unclear what composition this alloy, if capable of existing, would be.
Regarding Claim 47, the claim recites an alloy of 50wt% Re, 20wt%, and up to 80wt% of Nb, Ti, Co, Cr, or Zr, and an alloy with 50wt% of Nb, Ti, Co, Cr, Zr and 1-40wt% of Al, Bi, Ca, C, CeO2, Cu, Au, Hf, Ir, Fe, La, La2O3, Pb, Mg, Mn, Ni, Os, RE, Si, Ag, Tc, Sn, Ti, V, Y, Y2O3, Zn, Zr2O3, and further alloy compositions p)-u). Claim 47 also depends from Claim 43 which requires at least 15at% Re. It is unclear what the composition of these alloys could possibly be to satisfy the claimed ranges of each of the alloys of Claim 47 and further the claimed ranges of both Claim 43 and Claim 47. It is unclear if most of these alloys are even capable of existing in nature.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 5, 7, 9, 12 and 14-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rafiee (US 20060074403 A1).
Regarding Claim 5, Rafiee discloses a method for forming a metal rod or tube that has different physical properties along a longitudinal length of said metal rod or tube (Abstract), comprising the steps of:
a) providing said metal rod or tube; said metal rod or tube is formed of a metal alloy (Abstract; para. [0006]) and
b) subjecting different portions of said metal rod or tube to a different final heat treatment process along a longitudinal length of said metal rod or tube such that different portions of said metal rod or tube at different longitudinal locations of said metal rod or tube have one or more different physical properties selected from the group consisting of:
a) a different flexibility or bendability
b) a different yield strength
c) a different ultimate tensile strength, and
d) a different metal alloy crystalline structure (Abstract, flexibility; para. [0007]); and
wherein said different final heat treatment process includes:
I) subjecting said metal alloy to a different final heat treatment temperature,
II) exposing said metal alloy to said final heat treatment temperature for different time periods, and/or
III) cooling said metal rod or tube after subjecting said metal rod or tube to said final heat treatment temperature at different cooling rates (Abstract, different temperatures; para. [0019]).
Regarding Claim 7, Rafiee discloses wherein said metal rod or tube has a constant cross-sectional shape and size along 80%-100% of said longitudinal length of said metal rod or tube (para. [0018]).
Regarding Claim 9, Rafiee discloses wherein said maximum temperature of said final heat treatment temperature is 510C, which reads on the claimed 500-1000°C (para. [0019]).
Regarding Claim 12, Rafiee discloses heating a portion of the tube from a minimum (room) temperature to a maximum temperature (heat treatment temperature) at a heating rate (within a period of time, i.e., not instantaneous), which reads on the claim language ‘a) initially increasing a temperature about said metal rod or tube from a minimum temperature to maximum temperature for a first period of time’ (para. [0019]-[0020], increase from room temperature to 450-480C or to 510C depending on portion).
Rafiee further discloses holding the portion of the tube for a duration of time, which reads on the claimed ‘b) maintaining said maximum temperature about said metal rod or tube for a second period of time’ (para. [0019]-[0020], hold for about 5 minutes).
Regarding Claim 14, Rafiee discloses wherein said step of cooling occurs a) in non-oxidizing gas environment at a temperature of 10-100°C, b) an inert gas environment at a temperature of 10-100°C, or c) an air environment at a temperature of 10-100°C (para. [0019], nitrogen gas at 21-23C, reads on a) non-oxidizing gas and b) inert gas). Additionally, different cooling rates (see option III) in Claim 5 above, are not necessarily required, and the claim limitations have been met by heat treating at different temperatures (see option I) above in Claim 5).
Regarding Claim 15, Rafiee discloses marking said metal rod or tube to indicate a relatively degree of flexibility of said metal rod or tube (Fig. 1 and para. [0019]-[0020], wherein distal region 150 is designated (see dotted line) to be more flexible, which reads on marking to indicate a relative degree of flexibility).
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.
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 6 is rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 20060074403 A1), as applied to Claim 5 above, in further view of Roth995 (US 20190008995 A).
Regarding Claim 6, Rafiee discloses wherein any metal may be used which may be heat-treated to vary its physical properties (para. [0006]), but fails to disclose using a metal alloy including at least 15 at.% rhenium.
Roth995 discloses wherein a molybdenum-rhenium metal alloy is suitable for a catheter (para. [0005]; [0011], Claim 2-3; para. [0074]; MoRe alloy with 40-99wt% Mo (up to 60 wt% Re) reads on at least 15at% Re). Roth995 teaches wherein heat treating may vary the physical properties by final annealing and/or by a softening treatment (para. [0052], final annealing generally at 900-1600; para. [0017], softening after forming, prior to machining; additionally, one of ordinary skill in the art would appreciate the softening treatment is final if no further heat treatments are applied).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a MoRe alloy with up to 60wt% Re, which reads on the claimed 15at% Re, for the invention disclosed by Rafiee, because Roth995 teaches wherein MoRe is an appropriate material for a catheter tube, as desired by Rafiee, and because MoRe alloy physical properties may be changed by heat treatment, as taught by Roth995 and as required by Rafiee (see teachings above). Additionally, it has been held to be within general skill of one of routine skill in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (see MPEP 2144.07).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 20060074403 A1), as applied to Claim 5 above.
Regarding Claim 8, Rafiee fails to discloses wherein at least a portion of said metal rod or tube is not subjected to a quench process after subjecting said metal rod or tube to said final heat treatment temperature.
However, Rafiee discloses wherein a metal alloy such as an age-hardenable nickel-cobalt alloy may be used and different heating temperatures/cycles of aging may create different portions of hardness and flexibility (para. [0022]). One of ordinary skill in the art would appreciate that cooling after aging would be air cooling or furnace cooling, and therefore not quenching, unless otherwise specified.
Rafiee further discloses where said final heat treatment temperature is at least 100C (para. [0019], 510C).
Claim 8 is alternatively rejected, and Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 20060074403 A1), as applied to Claim 5 above, in further view of Liu (CN 110743933 B, English Machine Translation provided).
Regarding Claim 8, Rafiee fails to discloses wherein at least a portion of said metal rod or tube is not subjected to a quench process after subjecting said metal rod or tube to said final heat treatment temperature.
However, Rafiee discloses where the metal alloy may be an age-hardenable superalloy such as MP35N (para. [0022]).
Liu teaches wherein aging (strengthening) of medical grade superalloys such as MP35N is performed by heating to 400-650C for 3-8 hours followed by air cooling (para. [0014] and para. [0031]; para. [0012], 400-650C for 3-8hours, air cooling).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have heat treated the MP35N alloy by heating to 400-650C for 3-8 hours followed by air cooling, as taught by Liu, for the invention disclosed by Rafiee, in order to properly strengthen different portions of the tube.
Thus, Rafiee and Liu disclose wherein the alloy after final heat treatment is not quenched (air cooling) and wherein the maximum temperature is at least 100C (400-650C), as claimed.
Regarding Claim 10, Rafiee fails to disclose a final heat treatment time of 0.5-25 hours.
However, Rafiee discloses where the metal alloy may be an age-hardenable superalloy such as MP35N (para. [0022]).
Liu teaches wherein aging (strengthening) of medical grade superalloys such as MP35N is performed by heating to 400-650C for 3-8 hours followed by air cooling (para. [0014] and para. [0031]; para. [0012], 400-650C for 3-8hours, air cooling).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have heat treated the MP35N alloy by heating to 400-650C for 3-8 hours, which reads on the claimed range of 0.5-25 hours, followed by air cooling, as taught by Liu, for the invention disclosed by Rafiee, in order to properly strengthen different portions of the tube.
Regarding Claim 11, Rafiee fails to discloses the claimed cooling rate of 100C/s or less.
Rafiee discloses where the metal alloy may be an age-hardenable superalloy such as MP35N (para. [0022]).
Liu teaches wherein aging (strengthening) of medical grade superalloys such as MP35N is performed by heating to 400-650C for 3-8 hours followed by air cooling (para. [0014] and para. [0031]; para. [0012], 400-650C for 3-8hours, air cooling).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have heat treated the MP35N alloy by heating to 400-650C for 3-8 hours followed by air cooling, as taught by Liu, for the invention disclosed by Rafiee, in order to properly strengthen different portions of the tube.
One of ordinary and routine skill in the art would appreciate that air cooling after the aging would comprise a cooling rate within the claimed range of 100C/s or less. Additionally, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05.I.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 20060074403 A1), as applied to Claim 5 above, in further view of Roth827 (US 20190117827 A) and Jiang (CN 109680173 B, English Machine Translation provided).
Regarding Claim 13, Rafiee fails to disclose the claimed heating schedule. However, Rafiee discloses wherein any metal alloy may be used which may be heat-treated to vary its physical properties (para. [0006]).
Roth827 discloses wherein a tungsten-rhenium metal alloy is suitable for a catheter (para. [0008]-[0009], 1-40wt% Re and 60-99wt% W reads on at least 15at% Re; para. [0074]). Roth827 teaches wherein heat treating may vary the physical properties by strengthening a worked alloy in a final annealing, or by softening the raw material in an as-formed (raw) piece (para. [0062], final annealing for final strengthening; para. [0026], softening after forming, prior to machining; additionally, one of ordinary skill in the art would appreciate the softening treatment is final if no further heat treatments are applied).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a WRe alloy with up to 40wt% Re, which reads on the claimed 15at% Re, for the invention disclosed by Rafiee, because Roth827 teaches wherein WRe is an appropriate material for a catheter tube, as desired by Rafiee, and because WRe alloy physical properties may be changed by heat treatment, as taught by Roth827 and as required by Rafiee (see teachings above). Additionally, it has been held to be within general skill of one of routine skill in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (see MPEP 2144.07).
Roth827 further teaches a maximum heat treatment temperature (900-1300C) and duration (5 minutes) in order to properly heat treat and strengthen the WRe alloy. Thus, Rafiee and Roth827 disclose heating from a minimum temperature (room temperature), which reads on the claimed 10-250C, to a maximum temperature of 900-1300C, which reads on the claimed 500-1000C, within a period of time, and holding at the maximum temperature for 5 minutes (0.083 hours), which reads on the claimed 0.01-15 hours.
Rafiee and Roth827 fail to disclose the heating rate, and therefore do not disclose heating from room temperature to at least 900C in a time period of 0.5-10 hours.
Jiang teaches a heating rate for annealing a W-Re alloy from room temperature to 900C by heating to 600C within 50-60 minutes, holding for 30-40 minutes, and then heating to 900C within 45-50 minutes (total duration from room temperature to 900C of 125-150 minutes, or 2.08-2.5 hours) in order to perform stress relief annealing (para. [0019]). Reaching 900C from room temperature in 2.08-2.5 hours reads on the claimed ‘first time period’ of 0.5-10 hours.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have heated to the maximum heat treatment temperature of 900C from room temperature within 2.08-2.5 hours, as taught by Jiang, for the WRe alloy and invention of Rafiee and Roth827, in order to successfully reach the heat treatment temperature required by Roth827 while also acquiring stress relief (see teaching above by Jiang).
Claims 33-36, 43 and 45-47 is rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 20060074403 A1) in view of Roth827 (US 20190117827 A).
Regarding Claim 33, Rafiee discloses a method for forming a metal rod or tube that has different physical properties along a longitudinal length of said metal rod or tube (Abstract), comprising the steps of:
a) providing said metal rod or tube; said metal rod or tube is formed of a metal alloy (Abstract; para. [0006]) and
b) subjecting different portions of said metal rod or tube to a different final heat treatment process along a longitudinal length of said metal rod or tube such that different portions of said metal rod or tube at different longitudinal locations of said metal rod or tube have one or more different physical properties selected from the group consisting of:
a) a different flexibility or bendability
b) a different yield strength
c) a different ultimate tensile strength, and
d) a different metal alloy crystalline structure (Abstract, flexibility; para. [0007]); and
wherein said different final heat treatment process includes:
I) subjecting said metal alloy to a different final heat treatment temperature,
II) exposing said metal alloy to said final heat treatment temperature for different time periods, and/or
III) cooling said metal rod or tube after subjecting said metal rod or tube to said final heat treatment temperature at different cooling rates (Abstract, different (final) heat treatment temperatures; para. [0019]).
Rafiee discloses wherein any metal alloy may be used which may be heat-treated to vary its physical properties (para. [0006]), but fails to disclose using a metal alloy including at least 15 at.% rhenium.
Roth827 discloses wherein a tungsten-rhenium metal alloy is suitable for a catheter (para. [0008]-[0009], 1-40wt% Re and 60-99wt% W reads on at least 15at% Re; para. [0074]). Roth827 teaches wherein heat treating may vary the physical properties by strengthening a worked alloy in a final annealing, or by softening the raw material in an as-formed (raw) piece (para. [0062], final annealing for final strengthening; para. [0026], softening after forming, prior to machining; additionally, one of ordinary skill in the art would appreciate the softening treatment is final if no further heat treatments are applied).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a WRe alloy with up to 40wt% Re, which reads on the claimed 15at% Re, for the invention disclosed by Rafiee, because Roth827 teaches wherein WRe is an appropriate material for a catheter tube, as desired by Rafiee, and because WRe alloy physical properties may be changed by heat treatment, as taught by Roth827 and as required by Rafiee (see teachings above). Additionally, it has been held to be within general skill of one of routine skill in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (see MPEP 2144.07).
Rafiee and Roth827 therefore further disclose wherein one or more different physical properties selected from the claimed group consisting of a) a different flexibility or bendability (softening), and b) a different yield strength and/or c) a different ultimate tensile strength (strengthening) (see Roth827, para. [0026], para. [0062] and teachings above).
Rafiee fails to disclose wherein the metal tube is formed by i) pressing together metal alloy powder at a pressure of 1-300 tsi to form pressed metal powder in a net shape of a tube, and ii) thereafter sintering the pressed metal powder at a temperature of at least 1600C.
Roth827 further teaches wherein the WRe alloy may be formed by pressing powder with a pressure of 10-300 tsi, sintering at 1600-2600C and post-sinter pressing at 10-300 tsi at a temperature of 20-40C, in order to form a near net shape by sintering powder while still obtaining increased mechanical strength from cold work (para. [0074]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the WRe alloy tube by pressing powder with a pressure of 10-300 tsi, sintering at 1600-2600C and post-sinter pressing at 10-300 tsi at a temperature of 20-40C, as taught by Roth827, for the invention of Rafiee in view of Roth827, in order to form a near net shape by sintering powder while still obtaining increased mechanical strength from cold work (see teaching above).
Regarding Claim 34, Rafiee discloses wherein said metal rod or tube has a constant cross-sectional shape and size along 80%-100% of said longitudinal length of said metal rod or tube (para. [0018]).
Regarding Claim 35, Rafiee fails to discloses wherein at least a portion of said metal rod or tube is not subjected to a quench process after subjecting said metal rod or tube to said final heat treatment temperature.
Roth827 teaches that for a WRe alloy, cooling rates are at least 50-500 C/minute (0.83-8.3 C/s) in order to prevent the formation of sigma phase. One of ordinary skill in the art would appreciate these cooling rates to not be considered quenching (see also para. [0093]-[0094] and [0171] of instant specification wherein cooling rates are 100C/s or less).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a cooling rate of 50-500C/minute, and therefore not subjecting the metal tube to quenching, as taught by Roth827, for the invention disclosed by Rafiee and Roth827, in order to prevent the formation of sigma phase (see teaching above).
Roth827 further discloses where said final heat treatment temperature is at least 100C, as claimed (para. [0062], 900-1300C).
Regarding Claim 36, Roth827 discloses wherein said maximum temperature of said final heat treatment temperature is 900-1300C, which reads on the claimed 500-1000°C (para. [0062]). 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.
Regarding Claim 43, Rafiee discloses a method for forming a metal rod or tube that has different physical properties along a longitudinal length of said metal rod or tube (Abstract), comprising the steps of:
providing said metal rod or tube; said metal rod or tube is formed of a metal alloy (Abstract; para. [0006]), wherein said metal tube has a constant cross-sectional shape and size along 80-100% of said longitudinal length of said metal tube (para. [0018]); and
b) subjecting different portions of said metal rod or tube to a different final heat treatment process along a longitudinal length of said metal rod or tube such that different portions of said metal rod or tube at different longitudinal locations of said metal rod or tube have one or more different physical properties selected from the group consisting of:
a) a different flexibility or bendability
b) a different yield strength
c) a different ultimate tensile strength, and
d) a different metal alloy crystalline structure (Abstract, flexibility; para. [0007]); and
wherein said different final heat treatment process includes:
I) subjecting said metal alloy to a different final heat treatment temperature,
II) exposing said metal alloy to said final heat treatment temperature for different time periods, and/or
III) cooling said metal rod or tube after subjecting said metal rod or tube to said final heat treatment temperature at different cooling rates (Abstract, different (final) heat treatment temperatures; para. [0019]).
Rafiee discloses wherein any metal alloy may be used which may be heat-treated to vary its physical properties (para. [0006]), but fails to disclose using a metal alloy including at least 15 at.% rhenium.
Roth827 discloses wherein a tungsten-rhenium metal alloy is suitable for a catheter (para. [0008]-[0009], 1-40wt% Re and 60-99wt% W reads on at least 15at% Re; para. [0074]). Roth827 teaches wherein heat treating may vary the physical properties by strengthening a worked alloy in a final annealing, or by softening the raw material in an as-formed (raw) piece (para. [0062], final annealing for final strengthening; para. [0026], softening after forming, prior to machining; additionally, one of ordinary skill in the art would appreciate the softening treatment is final if no further heat treatments are applied).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a WRe alloy with up to 40wt% Re, which reads on the claimed 15at% Re, for the invention disclosed by Rafiee, because Roth827 teaches wherein WRe is an appropriate material for a catheter tube, as desired by Rafiee, and because WRe alloy physical properties may be changed by heat treatment, as taught by Roth827 and as required by Rafiee (see teachings above). Additionally, it has been held to be within general skill of one of routine skill in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (see MPEP 2144.07).
Rafiee and Roth827 therefore further disclose wherein one or more different physical properties selected from the claimed group consisting of a) a different flexibility or bendability (softening), and b) a different yield strength and/or c) a different ultimate tensile strength (strengthening) (see Roth827, para. [0026], para. [0062] and teachings above).
Rafiee fails to disclose wherein the metal tube is formed by i) pressing together metal alloy powder at a pressure of 1-300 tsi at a temperature of at least 20C to form pressed metal powder in a net shape of a tube, and ii) thereafter sintering the pressed metal powder at a temperature of at least 1600C, and iii) thereafter pressing said tube after sintering at a temperature of at least 20C.
Roth827 further teaches wherein the WRe alloy may be formed by pressing powder with a pressure of 10-300 tsi, sintering at 1600-2600C and post-sinter pressing at 10-300 tsi at a temperature of 20-40C, in order to form a near net shape by sintering powder while still obtaining increased mechanical strength from cold work (para. [0074]). One of ordinary skill in the art would appreciate that the pressing prior to sintering to occur at room temperature unless otherwise specified, and therefore within the claimed temperature range of at least 20C.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the WRe alloy tube by pressing powder with a pressure of 10-300 tsi at room temperature, sintering at 1600-2600C and post-sinter pressing at 10-300 tsi at a temperature of 20-40C, as taught by Roth827, for the invention of Rafiee in view of Roth827, in order to form a near net shape by sintering powder while still obtaining increased mechanical strength from cold work (see teaching above).
Rafiee fails to disclose cooling rates or wherein at least a portion of said metal rod or tube is not subjected to a quench process after subjecting said metal rod or tube to said final heat treatment temperature.
Roth827 teaches that for a WRe alloy, cooling rates are at least 50-500 C/minute (0.83-8.3 C/s) in order to prevent the formation of sigma phase. One of ordinary skill in the art would appreciate these cooling rates to not be considered quenching (see also para. [0093]-[0094] and [0171] of instant specification wherein cooling rates are 100C/s or less).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a cooling rate of 50-500C/minute, and therefore not subjected the metal tube to quenching, as taught by Roth827, for the invention disclosed by Rafiee and Roth827, in order to prevent the formation of sigma phase (see teaching above).
Roth827 further discloses where said final heat treatment temperature is at least 100C, and further 500-1000C, as claimed (para. [0062], 900-1300C). 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.
Regarding Claim 45, Rafiee discloses wherein said step of cooling occurs a) in non-oxidizing gas environment at a temperature of 10-100°C, b) an inert gas environment at a temperature of 10-100°C, or c) an air environment at a temperature of 10-100°C (para. [0019], nitrogen gas at 21-23C, reads on a) non-oxidizing gas and b) inert gas). Additionally, different cooling rates (see option III) in Claim 32 above, are not necessarily required, and the claim limitations have been met by heat treating at different temperatures (see option I) above in Claim 32).
Regarding Claim 46, Rafiee discloses marking said metal rod or tube to indicate a relatively degree of flexibility of said metal rod or tube (Fig. 1 and para. [0019]-[0020], wherein distal region 150 is designated (see dotted line) to be more flexible, which reads on marking to indicate a relative degree of flexibility).
Regarding Claim 47, Roth827 discloses wherein said metal alloy includes h) W alloy that includes at least 15 at% rhenium (para. [0008]-[0009], 1-40wt% Re and 60-99wt% W reads on at least 15at% Re). 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.
Claims 37-39 are rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 20060074403 A1) and Roth827 (US 20190117827 A), as applied to Claim 36 above, in further view of Bergeron (US 3399981 A).
Regarding Claim 37, Roth827 discloses final annealing for about 5 minutes, and fails to disclose the claimed 0.5-25 hours, but teaches wherein other durations may be used (para. [0062]).
Bergeron teaches wherein tungsten-rhenium alloys are annealed for 1 hour in order to strengthen the alloy (see Table 1, annealing at 1 hour).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a heat treatment time of 1 hour, as taught by Bergeron, for the invention disclosed Rafiee and Roth827, in order to strengthen the WRe alloy (see teaching above).
Regarding Claim 38, Roth827 further teaches that for a WRe alloy, cooling rates are at least 50-500 C/minute (0.83-8.3 C/s) in order to prevent the formation of sigma phase. One of ordinary skill in the art would appreciate these cooling rates to not be considered quenching (see also para. [0093]-[0094] and [0171] of instant specification wherein cooling rates are 100C/s or less).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a cooling rate of 50-500C/minute (0.8-8.3 C/s), which reads on the claimed 100C/s or less, as taught by Roth827, for the invention disclosed by Rafiee and Roth827, in order to prevent the formation of sigma phase (see teaching above).
Regarding Claim 39, Rafiee discloses heating a portion of the tube from a minimum (room) temperature to a maximum temperature (heat treatment temperature) at a heating rate (within a first period of time, i.e., not instantaneous), and maintaining said maximum temperature (heat treatment temperature) for a (second) duration of time, which reads on the claim language ‘a) initially increasing a temperature about said metal rod or tube from a minimum temperature to maximum temperature for a first period of time’ and ‘b) maintaining said maximum temperature about said metal rod or tube for a second period of time’ (para. [0019]-[0020], increase from room temperature to 450-480C or to 510C depending on portion).
Further, it would have been obvious to have applied the maximum heat treatment temperature (900-1300C) and duration (5 minutes) taught by Roth827, in order to properly heat treat the WRe alloy. Thus, Rafiee and Roth827 disclose heating from a minimum temperature (room temperature) to a maximum temperature of 900-1300C within a period of time, and holding at the maximum temperature for 5 minutes, which reads on the claimed limitations.
Claims 40-42 is rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 200600744 03 A1) in view of Roth827 (US 20190117827 A) and Bergeron (US 3399981 A), as applied to Claim 39 above, in further view of Jiang (CN 109680173 B, English Machine Translation provided).
Regarding Claim 40, Rafiee and Roth827 disclose heating from a minimum temperature (room temperature), which reads on the claimed range 10-250C, to a maximum temperature of 900-1300C, which reads on the claimed 500-1000C, and holding at the maximum temperature for 5 minutes (0.083 hours), which reads on the claimed second period of time of 0.01-15 hours.
Rafiee and Roth827 fail to disclose the heating rate, and therefore do not disclose heating from room temperature to at least 900C in a time period of 0.5-10 hours.
Jiang teaches a heating rate for annealing a W-Re alloy from room temperature to 900C by heating to 600C within 50-60 minutes, holding for 30-40 minutes, and then heating to 900C within 45-50 minutes (total duration from room temperature to 900C of 125-150 minutes, or 2.08-2.5 hours) in order to perform stress relief annealing (para. [0019]). Reaching 900C from room temperature in 2.08-2.5 hours reads on the claimed ‘first time period’ of 0.5-10 hours.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have heated to the maximum heat treatment temperature of 900C from room temperature within 2.08-2.5 hours, as taught by Jiang, for the WRe alloy and invention of Rafiee and Roth827, in order to successfully reach the heat treatment temperature required by Roth827 while also acquiring stress relief (see teaching above by Jiang).
Regarding Claim 41, Rafiee discloses wherein said step of cooling occurs a) in non-oxidizing gas environment at a temperature of 10-100°C, b) an inert gas environment at a temperature of 10-100°C, or c) an air environment at a temperature of 10-100°C (para. [0019], nitrogen gas at 21-23C, reads on a) non-oxidizing gas and b) inert gas). Additionally, different cooling rates (see option III) in Claim 32 above, are not necessarily required, and the claim limitations have been met by heat treating at different temperatures (see option I) above in Claim 32).
Regarding Claim 42, Rafiee discloses marking said metal rod or tube to indicate a relatively degree of flexibility of said metal rod or tube (Fig. 1 and para. [0019]-[0020], wherein distal region 150 is designated (see dotted line) to be more flexible, which reads on marking to indicate a relative degree of flexibility).
Claim 44 is rejected under 35 U.S.C. 103 as being unpatentable over Rafiee (US 20060074403 A1) and Roth827 (US 20190117827 A), as applied to Claim 43 above, in further view of Jiang (CN 109680173 B, English Machine Translation provided).
Regarding Claim 44, Rafiee discloses heating a portion of the tube from a minimum (room) temperature to a maximum temperature (heat treatment temperature) at a heating rate (within a first period of time, i.e., not instantaneous), and maintaining said maximum temperature (heat treatment temperature) for a (second) duration of time, which reads on the claim language ‘a) initially increasing a temperature about said metal rod or tube from a minimum temperature to maximum temperature for a first period of time’ and ‘b) maintaining said maximum temperature about said metal rod or tube for a second period of time’ (para. [0019]-[0020], increase from room temperature to 450-480C or to 510C depending on portion).
Further, it would have been obvious to have applied the maximum heat treatment temperature (900-1300C) and (second) duration (about 5 minutes or more; 0.083 hours) taught by Roth, in order to properly heat treat the WRe alloy. Thus, Rafiee and Roth827 disclose heating from a minimum temperature (room temperature), which reads on the claimed range 10-250C, to a maximum temperature of 900-1300C, which reads on the claimed 500-1000C, and holding at the maximum temperature for 5 minutes (0.083 hours), which reads on the claimed second period of time of 0.01-15 hours.
Rafiee and Roth827 fail to disclose the heating rate, and therefore do not disclose heating from room temperature to at least 900C in a time period of 0.5-10 hours.
Jiang teaches a heating rate for annealing a W-Re alloy from room temperature to 900C by heating to 600C within 50-60 minutes, holding for 30-40 minutes, and then heating to 900C within 45-50 minutes (total duration from room temperature to 900C of 125-150 minutes, or 2.08-2.5 hours) in order to perform stress relief annealing (para. [0019]). Reaching 900C from room temperature in 2.08-2.5 hours reads on the claimed ‘first time period’ of 0.5-10 hours.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have heated to the maximum heat treatment temperature of 900C from room temperature within 2.08-2.5 hours, as taught by Jiang, for the WRe alloy and invention of Rafiee and Roth827, in order to successfully reach the heat treatment temperature required by Roth827 while also acquiring stress relief (see teaching above by Jiang).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Matsuo (US 6573738 B1): teaches wherein Re-W alloys are softened by annealing 500-600C and hardened through working (Col. 5, lines 10-13).
Roth995 (US 20190008995 A, applied and cited above, further teachings): teaches wherein a molybdenum-rhenium metal alloy is suitable for a catheter (para. [0005]; [0011], Claim 2-3; para. [0074]; MoRe alloy with 40-99wt% Mo (up to 60 wt% Re) reads on at least 15at% Re). Roth995 teaches wherein heat treating may vary the physical properties by final annealing and/or by a softening treatment (para. [0057], final annealing generally at 900-1600; para. [0019], softening after forming, prior to machining; additionally, one of ordinary skill in the art would appreciate the softening treatment is final if no further heat treatments are applied).
Paliwal (US 20150078950 A1): teaches applying a final stress relief anneal to a Mo-Re alloy with up to 50wt% Re using a temperature of 800-1200C, thereby reducing strength and hardness without significantly changing the microstructure (para. [0024]; Table 1; Claim 6). Paliwal teaches stress annealing for 0.5 hours (para. [0034]).
Shields (“The Effect of Annealing on the Structure and Mechanical Properties of Mo – 47.5 Wt. % Re Alloy Sheet”): teaches wherein cold-worked Mo-Re alloys comprising 47.5% Re are softened by stress-relief annealing at 1173-1573K (900-1300C) for 1 hour in hydrogen, and wherein softening onset temperature is further dependent on thickness (Fig. 2; Pg. 836, Para. 3; Tables 3-4, total elongation).
Sakai (US 20040048218 A1): discloses a method for forming a metal piece that has different physical properties along a longitudinal length (Abstract; para. [0010]; Fig. 2), comprising the steps of subjecting the different portions of the wheel to different heat treatment temperatures and times along the longitudinal length such that different portions comprise different mechanical properties including different tensile strengths, proof (yield) strength and elongation (flexibility) and different crystal structures (para. [0003]; para. [0009]; Fig. 3-4; para. [0039]-[0040]; para. [0054]; one of ordinary skill in the art would appreciate that different heat treatments and age hardening creates different crystal structures; Fig. 7).
Sakai teaches wherein said maximum temperature of said final heat treatment temperature is 500-1000°C (para. [0035], 540-550C; final heat treatment includes both solution heat treatment and aging) and occurs for 60 minutes (para. [0054], 60 minutes).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE P SMITH whose telephone number is (303)297-4428. The examiner can normally be reached Monday - Friday 9:00-4:00 MT.
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CATHERINE P. SMITH
Patent Examiner
Art Unit 1735
/CATHERINE P SMITH/ Examiner, Art Unit 1735
/KEITH WALKER/Supervisory Patent Examiner, Art Unit 1735