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 .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. for the domestic priority of for the prior application 17024635 and US patent U.S. 11677254 as shown in the ADS dated on 02/12/2024, and the filling receipt dated on 02/28/2024 and 05/03/2025, as follows:
The disclosure of the prior-filed application, Application No. 17024635, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. This application number and the corresponding patent belongs to completely different subject matter “Automatic activation of continuous glucose monitoring (CGM) transmitter” and assigned to different Assignee.
Examiner interprets this as a typographical mistake and suggests that the correct Application No would be 17024625, which is a patented as U.S. Patent No. US11519063B2, as shown in the specification.
Appropriate correction is required.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/11/2025 and 09/14/2026 are being considered by the examiner.
Election/Restrictions
Applicant’s election of Group I: claims 1-14 in the reply filed on 08/04/2026 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)).
Newly submitted claim 32 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: although claim 32 depends from claim 29, the claim 32 is directed to an object manufactured by the method of claim 29, i.e. a product by process claim and is classified in B22F 2301/20 and therefore, belongs to previous Group IV, because, "[E]ven 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) [See MPEP § 2113]. Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 32 has been withdrawn from consideration as being directed to a non-elected invention. [See 37 CFR 1.142(b) and MPEP § 821.03].
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Newly added claims 24-31 belong to the Group I, therefore, claim 1-14 and 24-31 are under examination on merit.
Claim Rejections - 35 USC § 112 (a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 1, 3, 9 and 28 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Because claim recites “(d) introducing oxygen and/or nitrogen into the chamber to create a partial pressure of oxygen and/or nitrogen in the chamber to further pretreat the partially pretreated refractory alloy powder to provide a fully pretreated refractory alloy powder”, this limitation does not have support in the specification. The paragraph [0029] of the instant specification of the disclosure describes the basic steps of the process but does not describe any partially pretreatment step or fully pretreatment step. Then the partially pretreatment step as shown in the paragraph [0044] and [0045], and then the fully pretreatment step in paragraph [0046] of the instant specification of the disclosure, that describes “having been previously, externally, partially pretreated, i.e., is then charged or introduced into a controlled inert atmosphere chamber, which is preferably the chamber in which the additive manufacturing is to be conducted, is further pretreated therein, thereby rendering a fully pretreated quantity of powder.”, without describing any condition, specially about the partial pressure that is required for fully pretreating the powder “to create a partial pressure of oxygen and/or nitrogen in the chamber to further pretreat the partially pretreated refractory alloy powder to provide a fully pretreated refractory alloy powder”.
In addition, with respect to the claim 3, 9 and 28, the paragraph [0012] of the instant specification of the disclosure describes “After the powder pretreatment, a layer of the refractory alloy powder is created, the environmentally controlled inert gas chamber of an additive manufacturing machine and having a suitable quantity of oxygen and/or nitrogen introduced into the chamber by any suitable means and the environment is controlled in the chamber to be between 500 ppm and 2000 ppm oxygen. Then the layer is exposed to a transient moving or stationary energy source for melting and solidifying the layer”, and therefore, these conditions are for powder depositing and solidifying step, more specifically, conditions for the additive manufacturing of the object, but not for “fully pretreatment” and there is no support for “to create a partial pressure of oxygen and/or nitrogen in the chamber to further pretreat the partially pretreated refractory alloy powder to provide a fully pretreated refractory alloy powder”.
Appropriate correction is required.
Claims 2-14 and 24-27 are rejected by virtue of their dependency on claim 1.
Claim 29 and 31 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Because claim recites “to further pretreat the partially pretreated refractory alloy powder to provide a fully pretreated refractory alloy powder having an oxygen content greater than 250 ppm and/or has a nitrogen content greater than 125 ppm”, this limitation does not have any support in the specification. The paragraph [0029] of the instant specification of the disclosure describes the basic steps of the process but does not describe any partially pretreatment step or fully pretreatment step. Then from the paragraph [0040] to [0046] of the instant specification of the disclosure describes elemental oxygen content can be increased by partially pretreatment as shown in the paragraph [0044] and [0045], and then the paragraph [0046] of the instant specification of the disclosure describes “having been previously, externally, partially pretreated, i.e., is then charged or introduced into a controlled inert atmosphere chamber, which is preferably the chamber in which the additive manufacturing is to be conducted, is further pretreated therein, thereby rendering a fully pretreated quantity of powder.”, without describing how the fully pretreatment has been performed into a controlled inert atmosphere chamber, and does not provide any amount of oxygen and/or nitrogen content of as claimed. In addition, according to the paragraph [0044], partially pretreated powder contains from about 100 to about 1600 ppm of oxygen and/or nitrogen, which contains higher value than the claimed oxygen content greater than 250 ppm and/or has a nitrogen content greater than 125 ppm as recited in the claim 29 and the oxygen content between 1000 ppm and 2000 ppm and/or has the nitrogen content between 500 ppm and 1000 ppm in a fully pretreated powder as recited in the claim 31.
In addition, the paragraph [0012] of the instant specification of the disclosure describes “After the powder pretreatment, a layer of the refractory alloy powder is created, the environmentally controlled inert gas chamber of an additive manufacturing machine and having a suitable quantity of oxygen and/or nitrogen introduced into the chamber by any suitable means and the environment is controlled in the chamber to be between 500 ppm and 2000 ppm oxygen. Then the layer is exposed to a transient moving or stationary energy source for melting and solidifying the layer”, and therefore, these conditions are for powder depositing and solidifying step, more specifically, conditions for the additive manufacturing of the object, but not for “fully pretreatment” and there is no support for “to create a partial pressure of oxygen and/or nitrogen in the chamber to further pretreat the partially pretreated refractory alloy powder to provide a fully pretreated refractory alloy powder”.
Appropriate correction is required.
Claims 30-32 are rejected by virtue of their dependency on claim 29.
Claim Rejections - 35 USC § 112 (b)
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.
Claim 1-14 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 1, the term “partially” in line 6 and 9 is a relative term which renders the claim indefinite. The term “partially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. In this case, claim and specification does not provide which degree of pre-treatment would be considered partially treated, it is also not clear what kind of pretreating would be carried out.
Appropriate correction is required.
Claim 11 contains the trademark/trade name Nb C-103. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a niobium refractory alloy and, accordingly, the identification/description is indefinite. However, “Nb C103” will be considered to refer to any niobium alloy for the purposes of examination.
Appropriate correction is required.
Claims 2-14 and 24-27 are rejected by virtue of their dependency on claim 1.
Claim 29 contains the trademark/trade name Nb C-103. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a niobium refractory alloy and, accordingly, the identification/description is indefinite. However, “Nb C103” will be considered to refer to any niobium alloy for the purposes of examination.
Regarding claim 29, the term “partially” in line 2 and 4 is a relative term which renders the claim indefinite. The term “partially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. In this case, claim and specification does not provide which degree of pre-treatment would be considered partially treated. Claim also recites that the partially pretreating step is performed to have an oxygen content and/or a nitrogen content, and then fully pretreating step is performed to have an oxygen content greater than 250 ppm and/or a nitrogen content greater than 125 ppm. However, the paragraph [0036] of the instant specification of the disclosure describes “the standard process of gas atomization produced powders has 400 ppm-450 ppm oxygen or higher”, then the paragraph [0044] of the instant specification of the disclosure describes “typically, depending on the amount of powder to be pretreated according to the partial pretreatment, the powder will generally contain from about 100 to about 1600 ppm of oxygen and/or nitrogen” and then again the paragraph [0046] of the instant specification of the disclosure describes “having been previously, externally, partially pretreated, i.e., is then charged or introduced into a controlled inert atmosphere chamber, which is preferably the chamber in which the additive manufacturing is to be conducted, is further pretreated therein, thereby rendering a fully pretreated quantity of powder.” Therefore, according to all these paragraphs, it is not clear what would be the content of the oxygen and nitrogen in a partially pretreated powder or a fully pretreated powder. For example, a powder containing 400 ppm oxygen, would it be treated as conventional gas atomized powder, a partially pretreated powder or fully pretreated powder.
Appropriate correction is required.
Claims 30-32 are rejected by virtue of their dependency on claim 29.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-10, 11, 13-14, 24-25 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Xiaoyuan Lou [US20180193916A1] (provided in the IDS) in view of Dennis C Nagle [US4921531] (provided in the IDS), and further in view of Craig M. Sungail [US20220023942A1] (Sungail hereafter).
Regarding claim 1, 4-8, 10, 13-14 and 24-25, Lou discloses a method of fabricating an object using additive manufacturing comprising (a method of fabricating an object using additive manufactured precipitation dispersion strengthened alloy component, see Lou’s [0002]) comprising:
providing a quantity of refractory alloy powder from the group consisting of niobium alloy powder, rhenium alloy powder, tantalum refractory alloy powder, molybdenum refractory alloy powder and tungsten refractory alloy powder (selecting an alloy powder matrix comprises refractory metals, molybdenum, niobium, tungsten etc. and combinations thereof, see Lou’s [0019]-[0020]);
partially pretreating the refractory alloy powder by either exposing the refractory alloy powder to either the ambient air, or in exposing the refractory alloy powder to a controlled inert atmosphere and introducing oxygen and/or nitrogen thereinto to form a partially pretreated refractory alloy powder (a core-shell structured alloy powder comprises an alloy powder core and an oxygen or nitrogen rich shell disposed on at least a portion (partially) of the alloy powder core (see Lou’s [0014]), the alloy powder is enriched with oxygen, nitrogen, or both on a powder surface, a desired level of oxygen or nitrogen as a surface layer on the metal powder, and a desired level of oxygen, nitrogen, or both are introduced during producing the powder or may be introduced by post oxidization or nitridation of the alloy powder in a controlled oxygen atmosphere, nitrogen atmosphere, depending on the selected reactive metal elements, resultant oxygen, nitrogen, or combined oxygen and nitrogen concentration in the core-shell structured alloy powder may be in the range from about 100 ppm to about 5000 ppm (see Lou’s [0034]);
depositing the partially pretreated refractory alloy powder into a chamber for additive manufacturing, wherein the chamber has an environmentally controlled atmosphere of inert gas (a metal alloy component using laser or electron beam based powder bed additive manufacturing, wherein the metal powder deposited layer by layer in a specific pattern to create a three-dimensional geometry in a controlled atmosphere comprising a determined concentration of oxygen, nitrogen, nitrogen containing gases, or combinations thereof. see Lou’s [0037]),
introducing oxygen and/or nitrogen into the chamber to create a partial pressure of oxygen and/or nitrogen in the chamber to further pretreat the quantity partially pretreated refractory alloy powder to provide a fully pretreated refractory alloy powder (post oxidization or nitridation of the alloy powder in a controlled oxygen atmosphere is performed in an atmosphere, depending on the selected reactive metal elements, resultant oxygen, nitrogen, or combined oxygen and nitrogen concentration in the core-shell structured alloy powder may be in the range from about 100 ppm to about 5000 ppm (see Lou’s [0034]), Lou’s core-shell structured alloy reads on “fully pretreated”), the additive manufacturing performed in a controlled atmosphere comprising a determined concentration of oxygen, nitrogen, nitrogen containing gases, or combinations thereof and controlled atmosphere may comprises a protection shield gas, a mixture of argon, helium, nitrogen, or combi-nations thereof and up to about 20 volume percent of oxygen (20,0000 ppm), see Lou’s [section 0037-0038]);
fabricating the object within the chamber by exposing the fully pretreated refractory alloy powder in the chamber to an energy source to melt and solidify the fully pretreated refractory alloy powder to create a first plurality of layers of the object (during the melting and solidification processes of the laser or electron beam powder bed additive manufacturing, the nano-sized oxide or nitride precipitates are formed in-situ by reactions between oxygen and/or nitrogen content that is present in a powder surface layer (shell) and the reactive elements present in the alloy powder core (see Lou’s [0022]),
wherein dispersoids are formed in situ in the layers with the dispersoids (nano-size of the in-situ formed precipitates of the oxides, nitrides, or both formed during the laser powder bed process enhances mechanical properties of the resultant oxide or nitride dispersion strengthened alloys, the oxide or nitride dispersed alloys so formed also exhibit enhanced high temperature mechanical properties, see Lou’s [section 0021]);
Lou’s average size of the nanosized dispersoids range from about 0.5 - 500 nanometers (see Lou’s [ 0045], claim 8]) which is not within the range of instant claim. But Lou teaches to promote in situ uniform formation of dispersoids in the metal alloy matrix can be controlled by controlling the parameters including energy output of the laser or electron beam properties, protection shield gas flow, an amount of oxygen nitrogen, and/or reactive elements, and combinations thereof (see Lou’s [0039]) and the laser or electron beam power, scan speed in the laser powder bed additive manufacturing process may be controlled to produce a desired size, volume density, and distribution of the dispersoids (see Lou’s [0040]), wherein the scan speed is a speed at which the laser moves over the layer of metal powder, i.e. laser (energy source) can be movable or stationary (see Lou’s [0041]).
Lou is also silent about the duration of partial pretreatment for “a period about 20 to about 120 minutes”.
However, Nagle discloses a process whereby second phase-forming reactants forms the second phase particle by reacting in the presence of reactants in a metal matrix (see Nagle’s, Col 7, line 43-46). The size of Nagle’s dispersoids or second phase particles produced by this method range of 0.01 to 10 microns and more preferably from 0.1 to about 5 microns (see Nagle’s, Col, line 64-66) which meets the limitation of the instant claim. Nagle cites some examples of useful second phase forming reactants including oxygen, nitrogen, molybdenum, tungsten, niobium. tantalum etc. (see Nagle’s, Col 8, line 35-37) and teaches the formation of dispersoids is generally carried out in protective atmosphere, such as an inert gas or a vacuum, i.e. in controlled environment (see Nagle’s, Col 2 line 58-60).
Nagle’s disclosed size of dispersoids overlaps with the range as recited in the instant claim.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the present invention, to have selected the material and the size of the dispersoids from the teachings of Nagle that falls within the instantly-claimed ranges, because “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].
Nagle is directed to a process of treating refractory alloy powder in a protective environment, and therefore, analogous to the instant claim and Lou.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Lou to incorporate the teachings of Nagle for producing a desired size of dispersoids to achieve the required strength of materials for appropriate use.
But Nagle is also silent about the pretreatment time for “a period of about 20 to about 120 minutes”.
However, Sungail teaches methods to make the niobium alloy powder as well as methods to utilize in additive manufacturing processes (see Sungail’s Abstract), the niobium alloy powder can be a Nb-W alloy or Nb-Mo alloy or Nb-Re alloy or one or more metals can be part of the Nb alloy powder W, Mo, Re, Rh, Ta etc. (see Sungail’s [0028]).
Sungail discloses partially pretreating the refractory alloy powder by either exposing the refractory alloy powder to either the ambient air, or in exposing the refractory alloy powder to a controlled inert atmosphere and introducing oxygen and/or nitrogen thereinto for a period of about 20 to about 120 minutes, to form a partially pretreated refractory alloy powder (starting niobium alloy powder is plasma heat-treated to at least partially melt at least an outer surface (partially pretreated) of powder in an inert atmosphere to obtain a heat-treated niobium alloy powder, and cooling the heat-treated powder in an inert atmosphere to obtain the niobium alloy powder (see Sungail’s [0012], [0049]-[0050]), a passivation gas, oxygen, air, or a combination of air and oxygen can be used after the powder is quenched or after the powder begins to cool down (see Sungail’s [0057]), then the resulting recovered niobium alloy powder can be dried, under a protective gas, such as an inert gas, or 1 hour (60 minutes) to 5 hours (300 minutes) (see Sungail’s [0059]). The plasma-treated niobium alloy can be subjected to one or more heat treatment steps or annealing steps for at least 10 minutes, at least 30 minutes, from about 10 minutes to about 2 hours (120 minutes), or more (see Sungail’s [0070]), these plasma-treated niobium alloy can be used in additive manufacturing or processing, or 3-D printing to form an article or part of an article (see Sungail’s [0073]).
Sungail teaches a feature to provide a niobium alloy powder that can be very useful in additive manufacturing or 3D printing, specially to provide articles, products, and/or components containing the niobium alloy powder from additive manufacturing or 3D printing using niobium alloy powder, that is easier to use and/or provides one or more improved properties in such processes (see Sungail’s [0006]- [0009]).
Sungail’s disclosed pretreatment time overlaps with the range as recited in the instant claim.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the present invention, to have selected pretreatment time for refractory alloys from the teachings of Sungail that falls within the instantly claimed ranges, because “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].
Sungail is directed to a process of treating refractory alloy powder in a protective environment, and therefore, analogous to the instant claim and Lou as well as Nagle.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have Sungail’s teachings of pretreatment of the refractory alloy powder for making usable in an additive manufacturing to modify Lou’s process of fabricating an object using additive manufacturing, in view of Nagle, to have an alloy powder that is easier to use and/or provides one or more improved properties in the object made by such processes.
Regarding claim 2, all the above discussions regarding claim 1 are applicable to claim 2 in addition, Lou suggests depending on the selected reactive metal elements, resultant oxygen, nitrogen, or combined oxygen and nitrogen concentration in the alloy powder may be in the range from about 100 ppm to about 5000 ppm (see Lou’s [0034]).
Lou’s nitrogen concentration overlaps with the range as recited in the instant claim.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the present invention, to have selected the nitrogen concentration from Lou’s teaching that falls within the instantly claimed ranges, because “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 claims 3 and 9, all the above discussions regarding claim 1 are applicable to claim 3 and 9 in addition, Lou suggests depending on the selected reactive metal elements, resultant oxygen, nitrogen, or combined oxygen and nitrogen concentration in the alloy powder may be in the range from about 100 ppm to about 5000 ppm (see Lou’s [Section 0034].
Lou’s oxygen concentration overlaps with the range as recited in the instant claim.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the present invention, to have selected the oxygen concentration from Lou’s teaching that falls within the instantly claimed ranges, because “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 11, all the above discussions regarding claim 1 are applicable to claim 11, although, Lou and Nagle is silent about Nb C103, however, teaches niobium refractory alloy and thus, meet the claim limitations. Because in the rejection section of 112(b) it has been shown that the Nb C103 is considered as niobium alloy.
However, Sungail teaches methods to make the niobium alloy powder as well as methods to utilize in additive manufacturing processes (see Sungail’s Abstract), the niobium alloy powder can be a Nb-W alloy or Nb-Mo alloy or Nb-Re alloy or one or more metals can be part of the Nb alloy powder Ti, Si, W, Mo, Re, Rh, Ta, V, Th, Zr, Hf, Cr, Mn, Sc, Y, C, B, Ni, Fe, Co, Al, Sn, Au, Th, U, Pu etc. and a specific example of a Nb-alloy is C103 or C129Y. As an option, for the Nb-alloy (see Sungail’s [0028]).
Regarding claim 28, all the above discussions regarding claim 1 are applicable to claim 28 in addition, Lou suggests depending on the selected reactive metal elements, resultant oxygen, nitrogen, or combined oxygen and nitrogen concentration in the alloy powder may be in the range from about 100 ppm to about 5000 ppm (see Lou’s [Section 0034]).
Lou’s oxygen concentration overlaps with the range as recited in the instant claim.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the present invention, to have selected the oxygen concentration from Lou’s teaching that falls within the instantly claimed ranges, because “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].
Sungail also teaches niobium alloy powder can have various oxygen levels. For instance, the niobium alloy powder can have an oxygen level of 2,500 ppm or less, or 1,000 ppm or less, or less than 500 ppm, or less than 400 ppm, or less than 300 ppm, or less than 250 ppm, or less than 200 ppm, such as from about 100 ppm to 495 ppm, or from about 150 ppm to about 400 ppm etc. (see Sungail’s [0029]).
Sungail’s oxygen concentration overlaps with the range as recited in the instant claim.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the present invention, to have selected the oxygen concentration from Sungail’s teaching that falls within the instantly claimed ranges, because “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 12 is rejected under 35 U.S.C. 103 as being unpatentable over Xiaoyuan Lou [US20180193916A1] (provided in the IDS) in view of Dennis C Nagle [US4921531] (provided in the IDS), and further in view of Craig M. Sungail [US20220023942A1] (Sungail hereafter).
An evidentiary reference, Qilin Guo, et.al. [“Transient dynamics of powder spattering in laser powder bed fusion additive manufacturing process revealed by in-situ high-speed high energy x-ray imaging”, Acta Materialia 151 (2018) 169-180].
Regarding claim 12, all the above discussions regarding claim 1 are applicable to claim 12, although, Lou is silent regarding the limitation, “a transient moving energy source”, Lou teaches the laser or electron beam process parameters are set to promote in-situ uniform formation of nano-sized precipitates in the metal alloy based matrix, may including energy source properties, like an energy output of the laser or electron beam, a hatch spacing, a scan speed of the laser or electron beam, the protection shield gas flow, a scan strategy or scan pattern, and the like, and combinations thereof (see Lou’s [0039]) and the laser or electron beam power, scan speed in combination with the other parameters of the laser or electron beam powder bed additive manufacturing process may be controlled to produce a desired precipitates (see Lou’s [0040]), wherein the scan speed of the laser is a speed at which the laser moves over the layer of metal powder (see Lou’s [0041]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the present invention, to have Lou’s teaching of scan speed to have movable or stationary energy source with scan speed in combination for controlling to produce desired size.
Although Lou is silent about the word “transient”, however it would have been obvious to one of ordinary skill in the art before the effective filling date of the present invention, to have “transient” energy source, because using of transient dynamics in laser powder bed fusion additive manufacturing process is a conventional and known technology as evidenced in an evidentiary reference, wherein Guo reveals insights into the transient dynamics of powder spattering in the LPBF process that is observed with in-situ high-speed high energy x-ray imaging. Powder motion dynamics, as a function of time, environment pressure, and location, is being presented. The moving speed, acceleration, and driving force of powder motion that are induced by metal vapor jet/plume and argon gas flow are quantified (see Guo’s [Abstract]).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claim 29-31 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 10 of U.S. Patent No. US 11519063 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are drawn to overlapping subject matter, instant claim 29 reciting “a method of fabricating an object using additive manufacturing comprising: (a) partially pretreating a Nb C-103 refractory alloy powder by exposing the refractory alloy powder to an environment containing oxygen and/or nitrogen, at a temperature between 250°F and 750°F, for a period of about 20 to about 120 minutes, to form a partially pretreated refractory alloy powder having an oxygen content and/or a nitrogen content; (b) depositing the partially pretreated refractory alloy powder into a chamber for additive manufacturing, wherein the chamber has an environmentally controlled atmosphere of inert gas; (c) introducing oxygen and/or nitrogen into the chamber to create a partial pressure of oxygen and/or nitrogen in the chamber to further pretreat the partially pretreated refractory alloy powder to provide a fully pretreated refractory alloy powder having an oxygen content greater than 250 ppm and/or has a nitrogen content greater than 125 ppm; and (d) fabricating the object within the chamber by exposing the fully pretreated refractory alloy powder in the chamber to an energy source to melt and solidify the fully pretreated refractory alloy powder to create a plurality of layers of the object; wherein dispersoids are formed in situ in the layers, with the dispersoids containing oxides and/or nitrides and having diameters of between 1 micron and 10 microns.” with the preamble, step (a), step (b), step (c) and (d), step, (f) and step (g) of claim 1 and claim 10 of the U.S. Patent No. [US 11519063 B2].
Claim 30 and 31 depend on claim 29 and rejected for the same reason.
Allowable Subject Matter
Claim 26 and 27 are objected to as being dependent upon a rejected base claim but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 26 and 27 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 26, all the above discussions regarding claim 1 are applicable to claim 26, but both Lou and Nagle are silent about “partially pretreating the refractory alloy powder further comprises heating the refractory alloy powder to a temperature between 250°F and 750°F for the period of about 20 to about 120 minutes”.
However, Sungail discloses starting niobium alloy powder is plasma heat-treated in an inert atmosphere to obtain the niobium alloy powder (see Sungail’s [0012], [0049]-[0050]), a passivation gas, oxygen, air, or a combination of air and oxygen can be used after the powder is quenched or after the powder begins to cool down (see Sungail’s [0057]), then the resulting recovered niobium alloy powder can be dried, under a protective gas, such as an inert gas, or 1 to 5 hours (see Sungail’s [0059]). The plasma-treated niobium alloy can be subjected to one or more heat treatment steps or annealing steps for at least 10 minutes, at least 30 minutes, from about 10 minutes to about 2 hours, or more (see Sungail’s [0070]). Sungail’s disclosed different pretreatment times overlap with the range as recited in the instant claim.
But Sungail’s different pretreatment steps require different temperature, like,
in drying niobium alloy powder can be dried, at a temperature of 50°C to 100°C (see Sungail’s [0059]),
a deoxidation process to control oxygen, the plasma-treated niobium alloy is heated to a temperature of from about 500°C. to about 1,000°C,
heat treatment steps or annealing steps, in a conventional oven under vacuum or under inert, at a temperature is generally at least 800°C, or at least 1,000°C,
but all these Sungail’s temperature are different and out of the range than the claimed temperature.
Therefore, either of Lou, Nagle, and Sungail alone or in combination does not teach,
“partially pretreating the refractory alloy powder further comprises heating the refractory alloy powder to a temperature between 250°F and 750°F for the period of about 20 to about 120 minutes.”
Regarding claim 27, all the above discussions regarding claim 1 are applicable to claim 27, but both Lou and Sungail are silent about “wherein step (c) further comprises introducing hafnium powder into the chamber, and step (d) further comprises introducing carbon dioxide into the chamber to create a partial pressure of carbon dioxide in the chamber to react with the hafnium powder to form hafnium carbide and/or hafnium oxide, to thereby form hafnium-based dispersoids in situ in the layers”.
However, Nagle discloses exemplary of suitable second phase particles can be metal borides, carbides, oxides, nitrides, etc. and some preferred second phase particles include refractory carbides, nitrides, such as WC, HfC, and complex compounds may also be formed such are: TiHfC, etc. Particularly useful second phase forming reactants include carbon, oxygen, nitrogen, sulfur, molybdenum, tungsten, niobium, hafnium, and it should be particularly noted that apparently gaseous second phase forming reactants such as oxygen and nitrogen may thus be utilized without the use of gaseous starting materials. (see Nagle’s Col. 8, line 5-55).
But Nagle differs from the instant claim as Nagle uses solid carbon instead of carbon dioxide gas.
Therefore, either of Lou, Nagle, and Sungail alone or in combination does not teach,
“wherein step (c) further comprises introducing hafnium powder into the chamber, and step (d) further comprises introducing carbon dioxide into the chamber to create a partial pressure of carbon dioxide in the chamber to react with the hafnium powder to form hafnium carbide and/or hafnium oxide, to thereby form hafnium-based dispersoids in situ in the layers.”
Claim 29-31 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), 1st paragraph and 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 29, all the above discussions regarding claim 1 are applicable to claim 29, but both Lou and Nagle are silent about “partially pretreating the refractory alloy powder further comprises heating the refractory alloy powder to a temperature between 250°F and 750°F for the period of about 20 to about 120 minutes”.
However, Sungail discloses starting niobium alloy powder is plasma heat-treated in an inert atmosphere to obtain the niobium alloy powder (see Sungail’s [0012], [0049]-[0050]), a passivation gas, oxygen, air, or a combination of air and oxygen can be used after the powder is quenched or after the powder begins to cool down (see Sungail’s [0057]), then the resulting recovered niobium alloy powder can be dried, under a protective gas, such as an inert gas, or 1 to 5 hours (see Sungail’s [0059]). The plasma-treated niobium alloy can be subjected to one or more heat treatment steps or annealing steps for at least 10 minutes, at least 30 minutes, from about 10 minutes to about 2 hours, or more (see Sungail’s [0070]). Sungail’s disclosed different pretreatment times overlap with the range as recited in the instant claim.
But Sungail’s different pretreatment steps require different temperature, like,
in drying niobium alloy powder can be dried, at a temperature of 50°C to 100°C (see Sungail’s [0059]),
a deoxidation process to control oxygen, the plasma-treated niobium alloy is heated to a temperature of from about 500°C. to about 1,000°C,
heat treatment steps or annealing steps, in a conventional oven under vacuum or under inert, at a temperature is generally at least 800°C, or at least 1,000°C,
but all these Sungail’s temperature are different and out of the range than the claimed temperature.
Therefore, either of Lou, Nagle, and Sungail alone or in combination does not teach,
“partially pretreating the refractory alloy powder further comprises heating the refractory alloy powder to a temperature between 250°F and 750°F for the period of about 20 to about 120 minutes.”
Claims 30-31 depends from claim 29 and therefore, would be allowable for the same reason above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. R. P. Frankenthal et.al. [“Thermal Oxidation of Niobium Nitride Films at Temperatures from 20°-400°C”, J. Electrochem. Soc.: Solid-State Science and Technology, October, 1983] (Frankenthal hereafter).
Frankenthal teaches the air oxidation of cubic 6-NbN has been studied by Auger electron spectroscopy at temperatures from ambient (20°C) to 400°C, wherein at temperatures of 180°C or less, only the first one or two monolayers are oxidized, the reaction product being an oxynitride of niobium. Above 200°C, oxidation is not limited and obeys a linear rate law. At these higher temperatures, the reaction product initially is an oxynitride but, as the reaction proceeds, eventually becomes Nb2O5 The reaction proceeds by the diffusion of oxygen through the reaction product (see Frankenthal’s Abstract, Fig.1 ). Frankenthal teaches a gas mixture of nitrogen and argon for producing a NbN layer Nb2O5 layer in an O2 ambient condition (see Frankenthal’s page 2057, left col.).
Mohamed S. El-Genk et.al. [“A review of refractory metal alloys and mechanically alloyed-oxide dispersion strengthened steels for space nuclear power systems” Journal of Nuclear Materials 340 (2005) 93–112], Mohamed teaches Nb–1%Zr, PWC-11 (Nb–1%Zr–0.1%C), and C-103 (Nb–10%Hf–1%Ti–0.5%Zr) are being widely used in space industry, and studied their mechanical and thermo-physical properties of refractory metal alloys and mechanically alloyed (MA)-oxide dispersion strengthened (ODS) steels for their potential use in space nuclear reactors is examined (see Mohamed’s Abstract and Introduction).
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/NAZMUN NAHAR SHAMS/Examiner, Art Unit 1738
/SALLY A MERKLING/SPE, Art Unit 1738
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