Detailed Office Action
Notice of Pre-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 Amendments
The amendment filed on 05/29/26 has been entered. Claims 1 – 9 and 13 – 20 remain pending and under examination. The amendments find support in at least the original claim set.
Claim Interpretation
The term “about” is given its plain meaning and treated using the broadest reasonable interpretation.
Claim Rejections – U.S.C. § 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 4 – 9 and 18 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 claims 4 – 9, the phrase “comprises between about 0 percent” is indefinite in the claims. The phrase creates lack of clarity as to whether the particular element is required to be present (i.e., greater than 0%) or not. The phrase is interpreted as the latter (e.g., “comprises 0 to about 29 percent”, claim 4).
Regarding claim 18 is indefinite. Claim 18 requires the component to “exhibit increases in their respective figures of merit over a niobium-molybdenum-titanium alloy that comprises nitrogen in an amount greater or less than the percent recited herein” which renders the metes and bounds of the claim indefinite because the claim utilizes the open-ended language "comprising" for both the claimed alloy and comparison alloy and attempts to embrace all manner of 'improvements' in the performance of the alloy that is attributable to the claimed nitrogen content.
However, the public would not be reasonably apprised of when infringement of such a claim would begin because the subjective determination of “increases in their respective figures of merit” over any alloy (i.e., because of open ended language) having a differing N content is unclear. Additionally, a component's properties would not be solely determined by the composition itself but also the processing conditions to which the component is subjected, which are not claimed nor described in the specification in such a way that the limitation could be reasonably interpreted in light of the disclosure.
To specify, the “niobium-molybdenum-titanium alloy” claimed and compared against which comprises nitrogen and can include any other elements (beneficial or non-beneficial to the properties) and does not describe a production method is/are not clearly defined for purposes of comparison such that infringement upon the improved properties limitation could be determined. The comparison alloy could, by broadest reasonable interpretation, contain vastly different compositions and/or be produced in a different manner from the claimed alloy, and vice versa.
Therefore, the improvement limitation does not clearly set forth the metes and bounds of the claim such that the public would not be reasonably apprised of when infringement of such a claim would begin. For purposes of examination, any alloy overlapping or meeting the claimed composition is interpreted as meeting the claimed improvement limitation.
Claim Rejections – U.S.C. §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 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.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 – 9 and 13 – 18 are rejected under 35 U.S.C. 103 as being unpatentable over McNutt (US 3,230,119)
Regarding claims 1 – 9, McNutt teaches a columbium (i.e., niobium) based alloy [Title] with a composition of:
Element
Claimed Invention (wt%)
Prior art (wt%)
Reference
Relation
Molybdenum (Mo)
10 – 34%
About 14 – About 34% (claim 2)
Up to 25%
[Col 1, line 70 – 72]
Overlaps
Titanium (Ti)
About 2 – About 20%
About 2.7 – About 14.4% (claim 3)
Up to 10%
[Col 1, line 70 – 72]
Overlaps
Hafnium (Hf)
Up to 30%
0 – about 28% (claim 4)
Not present/included
-
Meets
Aluminum (Al)
Up to 10%
0 – about 6.8% (claim 5)
Not present/included
-
Meets
Chromium (Cr)
Up to 20%
0 – about 18.3% (claim 6)
Not present/included
-
Meets
Tantalum (Ta)
Up to 15%
0 – about 0.1% (claim 7)
Up to 25%
[Col 1, line 70 – 72]
Overlaps
Tungsten (W)
Up to 15%
0 – about 6.1% (claim 8)
Up to 35%
[Col 1, line 70 – 72]
Overlaps
Zirconium (Zr)
Up to 10%
0 – about 5% (claim 9)
About 0.5 – about 12%
[Col 1, line 62 – 63]
Overlaps
Nitrogen (N)
About 0.6 to about 1.3%
About 0.02 – about 0.5
[Col 1, line 65 – 67]
Overlaps*
Niobium (Nb)
Balance
At least 50% (Cb alloy)
[Col 1, line 62]
Meets
*Wherein the upper bound of “about 0.5%” and claimed lower bound of “about 0.6%” are interpreted to overlap by the plain meaning and broadest reasonable interpretation of “about”.
Carbon and/or oxygen can also be included [Col 1, line 65 – 67], meeting the claimed limitation.
With regards to the overlapping ranges taught, “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)”, absent evidence of criticality or unexpected results (MPEP 2144.05 I).
Regarding claim 13 – 14, McNutt teaches the invention as applied in claim 1. McNutt teaches that the nitrogen content is up to about 0.5 wt% [Col 1, line 65 – 67]. Wherein “about 0.5%” is interpreted to overlap with/share scope with the lower bounds of “about 0.7%” and “about 0.8” by the plain meaning and broadest reasonable interpretation of the term “about”. “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)”, absent evidence of criticality or unexpected results (MPEP 2144.05 I).
Alternatively, “[A] prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.").” (MPEP 2144.05 I) Any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986) (MPEP 716.02)
Regarding claim 15, McNutt teaches the invention as applied in claim 1. McNutt does not expressly disclose that titanium nitride precipitates are formed. However, McNutt teaches that titanium and nitrogen are present in the alloy (see comparison table above) and that precipitation of a secondary phase occurs during formation of the alloy that involves the interstitial elements (i.e., nitrogen) [Col 2, line 1 – 6]. As such, there is a reasonable expectation to an ordinarily skilled artisan that one or more precipitates of McNutt would comprise titanium nitride, meeting the claimed limitation.
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, in this case composition, a prima facie case of obviousness is established (In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP 2112.01 I)
Regarding claim 16, McNutt teaches the invention as applied in claim 1. The claimed invention does not require the presence of hafnium and McNutt does not teach that it is included. As such, McNutt meets the broadest reasonable interpretation of a portion of hafnium (i.e., 0%) is presence as a nitride precipitate.
Regarding claim 17, McNutt teaches the invention as applied in claim 1. McNutt does not expressly disclose that titanium nitride precipitates are formed. However, McNutt teaches that titanium and nitrogen are present in the alloy (see comparison table above) and that precipitation of a secondary phase occurs during formation of the alloy that involves the interstitial elements (i.e., nitrogen) [Col 2, line 1 – 6]. As such, there is a reasonable expectation to an ordinarily skilled artisan that one or more precipitates of McNutt would comprise titanium nitride, meeting the claimed limitation.
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, in this case composition, a prima facie case of obviousness is established (In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP 2112.01 I)
The claimed invention does not require the presence of hafnium and McNutt does not teach that it is included. As such, McNutt meets the broadest reasonable interpretation of a portion of hafnium (i.e., 0%) is presence as a nitride precipitate.
Regarding claim 18, McNutt teaches a columbium (i.e., niobium) based alloy [Title] with a composition of:
Element
Claimed Invention (wt%)
Prior art (wt%)
Reference
Relation
Molybdenum (Mo)
10 – 34%
Up to 25%
[Col 1, line 70 – 72]
Overlaps
Titanium (Ti)
About 2 – About 20%
Up to 10%
[Col 1, line 70 – 72]
Overlaps
Hafnium (Hf)
Up to 30%
Not present/included
-
Meets
Aluminum (Al)
Up to 10%
Not present/included
-
Meets
Chromium (Cr)
Up to 20%
Not present/included
-
Meets
Tantalum (Ta)
Up to 15%
Up to 25%
[Col 1, line 70 – 72]
Overlaps
Tungsten (W)
Up to 15%
Up to 35%
[Col 1, line 70 – 72]
Overlaps
Zirconium (Zr)
Up to 10%
About 0.5 – about 12%
[Col 1, line 62 – 63]
Overlaps
Nitrogen (N)
About 0.6 to about 1.3%
About 0.02 – about 0.5
[Col 1, line 65 – 67]
Overlaps*
Niobium (Nb)
Balance
At least 50% (Cb alloy)
[Col 1, line 62]
Meets
*Wherein the upper bound of “about 0.5%” and claimed lower bound of “about 0.6%” are interpreted to overlap by the plain meaning and broadest reasonable interpretation of “about”.
Carbon and/or oxygen can also be included [Col 1, line 65 – 67], meeting the claimed limitation.
With regards to the overlapping ranges taught, “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)”, absent evidence of criticality or unexpected results (MPEP 2144.05 I).
Moreover, as discussed above under the 112(b) section, the comparison of enhanced properties is indefinite as failing to set forth the metes and bounds of the claim limitation because the limitation is not closed to the testing bounds. By broadest reasonable interpretation of the limitation, there is a reasonable expectation to an ordinarily skilled artisan that the alloy of McNutt has an improved yield strength, true peak stress, and/or true fracture stress over at least one other Nb-Mo-Ti “open composition” alloy with a different content of nitrogen.
Claims 19 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over McNutt (US 3,230,119) in view of Argyriades (US 3,184,292)
Regarding claims 19 – 20, McNutt teaches a columbium (i.e., niobium) based alloy [Title] with a composition of:
Element
Claimed Invention (wt%)
Prior art (wt%)
Reference
Relation
Molybdenum (Mo)
10 – 34%
Up to 25%
[Col 1, line 70 – 72]
Overlaps
Titanium (Ti)
About 2 – About 20%
Up to 10%
[Col 1, line 70 – 72]
Overlaps
Hafnium (Hf)
Up to 30%
Not present/included
-
Meets
Aluminum (Al)
Up to 10%
Not present/included
-
Meets
Chromium (Cr)
Up to 20%
Not present/included
-
Meets
Tantalum (Ta)
Up to 15%
Up to 25%
[Col 1, line 70 – 72]
Overlaps
Tungsten (W)
Up to 15%
Up to 35%
[Col 1, line 70 – 72]
Overlaps
Zirconium (Zr)
Up to 10%
About 0.5 – about 12%
[Col 1, line 62 – 63]
Overlaps
Nitrogen (N)
About 0.6 to about 1.3%
About 0.02 – about 0.5
[Col 1, line 65 – 67]
Overlaps*
Niobium (Nb)
Balance
At least 50% (Cb alloy)
[Col 1, line 62]
Meets
*Wherein the upper bound of “about 0.5%” and claimed lower bound of “about 0.6%” are interpreted to overlap by the plain meaning and broadest reasonable interpretation of “about”.
Carbon and/or oxygen can also be included [Col 1, line 65 – 67], meeting the claimed limitation.
McNutt further teaches that the alloy has desirable combinations of improved strength and ductility characteristics so that their usefulness in service under relatively high temperature conditions becomes desirably enhanced [Col 1, lines 12 – 21]. However, McNutt does not teach a gas turbine engine component with a substrate comprising the alloy as well as a coating disposed over at least a portion of the substrate.
Argyriades teaches that alloys based on refractory metals, e.g., nickel, cobalt, niobium, molybdenum, tungsten, tantalum, and to a lesser extent, vanadium are used in a variety of applications where high temperatures are encountered. Specifically, turbine blades and buckets, furnace heating elements, jet and internal combustion engine parts of these metals and alloys thereof. However, it is necessary to protect the metal surfaces with oxidation resistant coatings" [Col 1, lines 20 – 33].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have used the niobium-based refractory alloy of McNutt for a turbine blade as taught by Argyriades because the niobium-based refractory alloy of McNutt has improved strength and ductility characteristics which impart enhanced usefulness in service under high temperature conditions, such as use as a turbine blade as taught by Argyriades. Given that Argyriades acknowledges that refractory metal alloys can be used, an ordinarily skilled artisan would have had a reasonable expectation of success. Moreover, Argyriades acknowledges that a protective coating is required for such products made from refractory alloys.
Therefore, it would have been obvious to use the McNutt alloy to form a turbine blade, i.e. a substrate, and dispose a coating over at least a portion of the substrate such that the refractory alloy does not oxidize during service at elevated temperatures [Argyriades, Col 1, lines 30]("prevent the oxidation of these metals at elevated temperatures").
With regards to the overlapping ranges taught, “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)”, absent evidence of criticality or unexpected results (MPEP 2144.05 I).
Claims 1 – 9 and 13 – 18 are rejected under 35 U.S.C. 103 as being unpatentable over Bewlay (US2006/0147335)
Regarding claims 1 – 9 and 13 – 14, Bewlay teaches a niobium-based alloy [title] with a composition of:
Element
Claimed Invention (wt%)
Prior art (at%)
Reference
Relation
Molybdenum (Mo)
10 – 34%
About 14 – About 34% (claim 2)
0% or 1 – 20%
[0022]
Overlaps
Titanium (Ti)
About 2 – About 20%
About 2.7 – About 14.4% (claim 3)
0% or 10 – 30%
[0013]
Overlaps
Hafnium (Hf)
Up to 30%
0 – about 28% (claim 4)
0% or 1 – 20%
[0014]
Falls within
Aluminum (Al)
Up to 10%
0 – about 6.8% (claim 5)
0% or 1 – 20%
[0017]
Overlaps
Chromium (Cr)
Up to 20%
0 – about 18.3% (claim 6)
0% or 1 – 25%
[0016]
Overlaps
Tantalum (Ta)
Up to 15%
0 – about 0.1% (claim 7)
0% or 1 – 20%
[0022]
Overlaps
Tungsten (W)
Up to 15%
0 – about 6.1% (claim 8)
0% or 1 – 20%
[0022]
Overlaps
Zirconium (Zr)
Up to 10%
0 – about 5% (claim 9)
Up to 15%
[0030]
Overlaps
Nitrogen (N)
About 0.6 to about 1.3%
About 0.7 to about 1.2% (claim 13)
About 0.8 to about 1.1% (claim 14)
Up to 10%
[0030]
Overlaps
Niobium (Nb)
Balance
Balance/Majority
[Table 1]
Meets
Carbon can also be included [0028], meeting the claimed limitation.
Wherein the atomic% ranges of Bewlay encompass/overlap with the claimed wt% ranges, as evidenced by the compositions of Fig 7b of the instant invention. Additionally, to show that the at% ranges of Bewlay and the wt% claimed composition disclose overlapping compositional scope, a composition of:
Nb: 33.5 at%, Mo: 15%, Cr: 12%, Ti: 15% Hf: 4%, Al: 8%, W: 1.5%, Zr: 2%, N: 5%, Ta: 0%, Si: 4.0% which is within the disclosed composition of Bewlay.
Would be:
Nb: 41.8 wt%, Mo: 19.3%, Cr: 8.4%, Ti: 9.6%, Hf: 9.4%, Al: 2.9%, W: 3.7%, Zr: 2.5%, N: 0.94%, Ta: 0%, Si: 1.5% which is within the claimed composition.
With regards to the overlapping ranges taught, “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)”, absent evidence of criticality or unexpected results (MPEP 2144.05 I).
Regarding claims 15 – 17, Bewlay teaches the invention as applied in claim 1. Bewlay does not expressly disclose that titanium nitride precipitates are formed. However, Bewlay teaches that titanium and/or hafnium as well as nitrogen can be present in the alloy (see comparison table above). As such, there is a reasonable expectation to an ordinarily skilled artisan that Bewlay would comprise precipitates with titanium nitride and/or hafnium nitride, meeting the claimed limitation.
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, in this case composition, a prima facie case of obviousness is established (In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP 2112.01 I)
Regarding claim 18, Bewlay teaches a niobium-based alloy [title] with a composition of:
Element
Claimed Invention (wt%)
Prior art (at%)
Reference
Relation
Molybdenum (Mo)
10 – 34%
0% or 1 – 20%
[0022]
Overlaps
Titanium (Ti)
About 2 – About 20%
0% or 10 – 30%
[0013]
Overlaps
Hafnium (Hf)
Up to 30%
0% or 1 – 20%
[0014]
Falls within
Aluminum (Al)
Up to 10%
0% or 1 – 20%
[0017]
Overlaps
Chromium (Cr)
Up to 20%
0% or 1 – 25%
[0016]
Overlaps
Tantalum (Ta)
Up to 15%
0% or 1 – 20%
[0022]
Overlaps
Tungsten (W)
Up to 15%
0% or 1 – 20%
[0022]
Overlaps
Zirconium (Zr)
Up to 10%
Up to 15%
[0030]
Overlaps
Nitrogen (N)
About 0.6 to about 1.3%
Up to 10%
[0030]
Overlaps
Niobium (Nb)
Balance
Balance/Majority
[Table 1]
Meets
Carbon can also be included [0028], meeting the claimed limitation.
Wherein the atomic% ranges of Bewlay encompass/overlap with the claimed wt% ranges, as evidenced by the compositions of Fig 7b of the instant invention. Additionally, to show that at% ranges of Bewlay and the wt% claimed composition disclose overlapping compositional scope, a composition of:
Nb: 33.5 at%, Mo: 15%, Cr: 12%, Ti: 15% Hf: 4%, Al: 8%, W: 1.5%, Zr: 2%, N: 5%, Ta: 0%, Si: 4.0% which is within the disclosed composition of Bewlay.
Would be:
Nb: 41.8 wt%, Mo: 19.3%, Cr: 8.4%, Ti: 9.6%, Hf: 9.4%, Al: 2.9%, W: 3.7%, Zr: 2.5%, N: 0.94%, Ta: 0%, Si: 1.5% which is within the claimed composition.
With regards to the overlapping ranges taught, “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)”, absent evidence of criticality or unexpected results (MPEP 2144.05 I).
Moreover, as discussed above under the 112(b) section, the comparison of enhanced properties is indefinite as failing to set forth the metes and bounds of the claim limitation because the limitation is not closed to the testing bounds. By broadest reasonable interpretation of the limitation, there is a reasonable expectation to an ordinarily skilled artisan that the alloy of Bewlay has an improved yield strength, true peak stress, and/or true fracture stress over at least one other Nb-Mo-Ti “open composition” alloy with a different content of nitrogen.
Claims 19 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over Bewlay (US2006/0147335) in view of Argyriades (US 3,184,292)
Regarding claims 19 – 20, Bewlay teaches a niobium-based alloy [title] with a composition of:
Element
Claimed Invention (wt%)
Prior art (at%)
Reference
Relation
Molybdenum (Mo)
10 – 34%
0% or 1 – 20%
[0022]
Overlaps
Titanium (Ti)
About 2 – About 20%
0% or 10 – 30%
[0013]
Overlaps
Hafnium (Hf)
Up to 30%
0% or 1 – 20%
[0014]
Falls within
Aluminum (Al)
Up to 10%
0% or 1 – 20%
[0017]
Overlaps
Chromium (Cr)
Up to 20%
0% or 1 – 25%
[0016]
Overlaps
Tantalum (Ta)
Up to 15%
0% or 1 – 20%
[0022]
Overlaps
Tungsten (W)
Up to 15%
0% or 1 – 20%
[0022]
Overlaps
Zirconium (Zr)
Up to 10%
Up to 15%
[0030]
Overlaps
Nitrogen (N)
About 0.6 to about 1.3%
Up to 10%
[0030]
Overlaps
Niobium (Nb)
Balance
Balance/Majority
[Table 1]
Meets
Carbon can also be included [0028], meeting the claimed limitation.
Wherein the atomic% ranges of Bewlay encompass/overlap with the claimed wt% ranges, as evidenced by the compositions of Fig 7b of the instant invention. Additionally, to show that at% ranges of Bewlay and the wt% claimed composition disclose overlapping compositional scope, a composition of:
Nb: 33.5 at%, Mo: 15%, Cr: 12%, Ti: 15% Hf: 4%, Al: 8%, W: 1.5%, Zr: 2%, N: 5%, Ta: 0%, Si: 4.0% which is within the disclosed composition of Bewlay.
Would be:
Nb: 41.8 wt%, Mo: 19.3%, Cr: 8.4%, Ti: 9.6%, Hf: 9.4%, Al: 2.9%, W: 3.7%, Zr: 2.5%, N: 0.94%, Ta: 0%, Si: 1.5% which is within the claimed composition.
Bewlay teaches that the alloy can be used to produce turbine components such as blades and vanes [0042], meeting the limitation of a gas turbine component with a substrate and the component being a blade or vane of claim 20. Bewlay does not expressly disclose an overlay on the component.
Argyriades teaches that alloys based on refractory metals, e.g., nickel, cobalt, niobium, molybdenum, tungsten, tantalum, and to a lesser extent, vanadium are used in a variety of applications where high temperatures are encountered. Specifically, turbine blades and buckets, furnace heating elements, jet and internal combustion engine parts of these metals and alloys thereof. However, it is necessary to protect the metal surfaces with oxidation resistant coatings" [Col 1, lines 20 – 33].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to dispose a coating over at least a portion of the substrate/component of Bewlay such that the refractory alloy does not oxidize during service at elevated temperatures [Argyriades, Col 1, lines 30]("prevent the oxidation of these metals at elevated temperatures"). Given that Argyriades acknowledges that refractory metal alloys can be used and that protective coatings are required for such products made from a refractory alloy, an ordinarily skilled artisan would have had a reasonable expectation of success and motivation.
With regards to the overlapping ranges taught, “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)”, absent evidence of criticality or unexpected results (MPEP 2144.05 I).
Response to Arguments
Applicant's arguments filed 05/29/26 have been fully considered. Applicant arguments regarding improper markush grouping has been found persuasive and the rejection withdrawn.
Applicant arguments regarding the metes and bounds of claim 18 has been fully considered but is not persuasive. As discussed above, the limitation does not clearly set forth the metes and bounds as to how improved figures are merit are compared because the compositions and methods for each alloy are not clearly set forth/defined such that metes and bounds of infringement can be determined. The rejection is maintained.
Applicants argue that the now claimed narrower range of nitrogen produces unexpected results/is critical over the prior art for improved yield stress, peak stress. This is not found persuasive because applicant has not established unexpected results/criticality of the full scope of the claimed composition over the prior art.
First, "The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims. . . . In such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range." In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP 2144.05 III A). That is, applicant must provide evidence to show criticality/unexpected results.
Moreover, “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).(MPEP 716.02(d) II) and “The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992) (MPEP 716.02(b) I)
Lastly, “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. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)(MPEP 716.02(d) I). That is, the establishment of unexpected results of the nitrogen content range must be shown to occur over claimed composition scope sought, and not merely a narrower subset of compositions.
Relevant Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US2022/0023942 – Producing a niobium alloy powder and component including plasma nitriding to nitrogen dope the alloy. The nitrogen content can be up to 20,000 ppm (2 wt%). The niobium alloy can be any alloy including refractory metal alloys and it can be used in a variety of industries
US 6,323,849 – NbTiZrMo alloy with overlapping compositon for medical components and disclosure that oxygen, nitrogen, and or carbon can be used for interstitial strengthening of the alloy.
US 3,701,655 – Nb(Cb)MoTi with nitriding treatment
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Austin M Pollock whose telephone number is (571)272-5602. The examiner can normally be reached M - F (11 - 8 ET).
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/AUSTIN POLLOCK/Examiner, Art Unit 1738
/SALLY A MERKLING/SPE, Art Unit 1738
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