DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 51-66 and 68-77 are pending wherein claims 51, 58, 68 and 77 are amended and claims 1-50 and 67 are canceled.
Status of Previous Rejections
The previous rejection of claims 51-77 under 35 U.S.C. 112(a) has been withdrawn in view of the Applicant’s amendment to claim 51. The previous rejection of claims 51-54, 56-57, 62-63, 72 and 74-75 under 35 U.S.C. 102(a)(1) as being anticipated by Tsantrizo et al. (US 5,707,419) is withdrawn in view of the Applicant’s amendment to claims 51 and 58. The previous rejection of claims 55, 61, 64-65 and 70 under 35 U.S.C. 103 as being unpatentable over Tsantrizos et al. (US 5,707,419) is withdrawn in view of the Applicant’s amendment to claim 51. The previous rejection of claim 66 under 35 U.S.C. 103 as being unpatentable over Tsantrizos et al. (US 5,707,419), and further in view of Witherspoon et al. (US 5,935,461) is withdrawn in view of the Applicant’s amendment to claim 51. The previous rejection of claim 73 under 35 U.S.C. 103 as being unpatentable over Tsantrizos et al. (US 5,707,419), and further in view of Liezers et al. (US 2015/0343411) is withdrawn in view of the Applicant’s amendment to claim 51.
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 51-52, 56-66 and 68-73 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 11,951,549. Although the claims at issue are not identical, they are not patentably distinct from each other because:
In regard to instant claim 51, claim 1 of U.S. Patent No. 11,951,549 discloses an apparatus for producing powder particles by plasma atomization of a feed material, comprising: a plasma atomization section including an enclosure in which plasma is generated, the enclosure including: an upper portion for receiving the feed material; a lower portion having a nozzle, the nozzle comprising a nozzle body having an inlet and an outlet, the nozzle body defining a passageway extending between the inlet and the outlet, the passageway being configured for conveying a stream of droplets produced by progressive break down of the feed material by the plasma generated in the enclosure, the passageway comprising in a direction from the inlet of the nozzle to the outlet: a) a first section of decreasing cross-sectional width; b) a second section of increasing cross-sectional width; and c) an intermediate section between the first section and the second section; the nozzle body including an inert gas inlet configured to introduce an inert gas to the stream of droplets; and a cooling section including a cooling chamber, wherein the enclosure is in communication with the cooling chamber via the outlet of the nozzle and the cooling chamber is configured to receive the droplets and permit solidification of the droplets into powder particles. Instant claim 51 differs from claim 1 of U.S. Patent No. 11,951,549 in that instant claim 51 is broader since the source of plasma would not necessarily be generated in the enclosure, but regardless the plasma and enclosure are both present in the sense that both enclosures would be capable of handling such matter; the recitation “a converging section” in instant claim 51 corresponds to “a first section of decreasing cross-sectional width” in U.S. Patent No. 11,951,549; “a diverging section” in instant claim 51 corresponds to “a second section of increasing cross-sectional width” in U.S. Patent No. 11,951,549; and in U.S. Patent No. 11,951,549, the plasma atomization section includes an enclosure that is in communication with the cooling chamber via the outlet of the nozzle whereas in instant claim 51, the plasma atomization section is in communication with the cooling chamber via the outlet of the nozzle, but regardless both have the plasma atomization section in communication with the cooling chamber via the outlet of the nozzle.
Still regarding instant claim 51, claim 20 of U.S. Patent No. 11.951,549 discloses wherein the nozzle body further comprises a cooling channel to convey a cooling fluid.
In regard to instant claim 52, claim 2 of U.S. Patent No. 11,951,549 also discloses wherein the inlet of nozzle body is configured for receiving the feed material.
In regard to instant claim 56, claim 3 of U.S. Patent No. 11,951,549 also discloses wherein the feed material is in the form of an elongated member.
In regard to instant claim 57, claim 4 of U.S. Patent No. 11,951,549 also discloses wherein the elongated member is a rod, a wire, or a filled tube.
In regard to instant claim 58, claim 5 of U.S. Patent No. 11,951,549 also discloses wherein the stream of droplets is a stream of molten droplets.
In regard to instant claim 59, claim 8 of U.S. Patent No. 11,951,549 also discloses wherein the plasma is formed of a plasma gas.
In regard to instant claim 60, claim 10 of U.S. Patent No. 11,951,549 also discloses wherein there would be a channel for conveying a cooling medium adjacent the inlet.
In regard to instant claim 61, claim 11 of U.S. Patent No. 11,951,549 also discloses wherein the apparatus would be configured for producing the powder particles at a rate of at least 1.7 kg/hour.
In regard to instant claim 62, claim 12 of U.S. Patent No. 11,951,549 also discloses wherein the apparatus would be configured for producing spherical powder particles.
In regard to instant claim 63, claim 13 of U.S. Patent No. 11,951,549 discloses wherein the powder particles are spherical, with no contamination with satellites.
In regard to instant claim 64, claim 14 of U.S. Patent No. 11,951,549 discloses wherein the cooling chamber is configured to produce in-flight freezing of the droplets.
In regard to instant claim 65, claim 15 of U.S. Patent No. 11,951,549 discloses wherein the apparatus further comprises a powder collector configured such that the powder particles are collected from the cooling chamber into the powder collector.
In regard to instant claim 66, claim 17 of U.S. Patent No. 11,951,549 discloses wherein the powder collector is in fluid communication with the cooling chamber by a conduit thorugh which the powder particles travel from the cooling chamber toward the powder collector.
In regard to instant claim 68, claim 1 of U.S. Patent No. 11,951,549 discloses an apparatus for producing powder particles by plasma atomization of a feed material, comprising: a plasma atomization section including an enclosure in which plasma is generated, the enclosure including: an upper portion for receiving the feed material; a lower portion having a nozzle, the nozzle comprising a nozzle body having an inlet and an outlet, the nozzle body defining a passageway extending between the inlet and the outlet, the passageway being configured for conveying a stream of droplets produced by progressive break down of the feed material by the plasma generated in the enclosure, the passageway comprising in a direction from the inlet of the nozzle to the outlet: a) a first section of decreasing cross-sectional width; b) a second section of increasing cross-sectional width; and c) an intermediate section between the first section and the second section; the nozzle body including an inert gas inlet configured to introduce an inert gas to the stream of droplets; and a cooling section including a cooling chamber, wherein the enclosure is in communication with the cooling chamber via the outlet of the nozzle and the cooling chamber is configured to receive the droplets and permit solidification of the droplets into powder particles. Instant claim 51 differs from claim 1 of U.S. Patent No. 11,951,549 in that instant claim 51 is broader since the source of plasma would not necessarily be generated in the enclosure, but regardless the plasma and enclosure are both present in the sense that both enclosures would be capable of handling such matter; the recitation “a converging section” in instant claim 51 corresponds to “a first section of decreasing cross-sectional width” in U.S. Patent No. 11,951,549; “a diverging section” in instant claim 51 corresponds to “a second section of increasing cross-sectional width” in U.S. Patent No. 11,951,549; and in U.S. Patent No. 11,951,549, the plasma atomization section includes an enclosure that is in communication with the cooling chamber via the outlet of the nozzle whereas in instant claim 51, the plasma atomization section is in communication with the cooling chamber via the outlet of the nozzle, but regardless both have the plasma atomization section in communication with the cooling chamber via the outlet of the nozzle.
Still regarding instant claim 68, claim 21 of U.S. Patent No. 11,951,549 discloses wherein the apparatus further comprises an injection probe configured to direct the feed material toward an impinging point at which the plasma generated in the enclosures impinges on the feed material.
Still regarding instant claim 68, claim 20 of U.S. Patent No. 11.951,549 discloses wherein the nozzle body further comprises a cooling channel to convey a cooling fluid.
In regard to instant claim 69, claim 22 of U.S. Patent No. 11,951,549 discloses wherein the injection probe includes a tubular structure though which the feed material is linearly fed.
In regard to instant claim 70, claim 23 of U.S. Patent No. 11,951,549 discloses wherein the apparatus is configured for feeding the feed material linearly at a speed between 40 mm/s and 60 mm/s.
In regard to instant claim 71, claim 24 of U.S. Patent No. 11,951,549 discloses wherein the feed material feed rate is at least 4.5 kg/hour.
In regard to instant claims 72-73, claim 25 of U.S. Patent No. 11,951,549 discloses wherein the plasma is generated with an inductively coupled plasma torch.
Allowable Subject Matter
Claim 77 is allowed.
The following is a statement of reasons for the indication of allowable subject matter:
In regard to claim 77, neither U.S. Patent No. 11,951,549 nor the remainder of the prior art fail to disclose or adequately suggest an apparatus for producing powder particles by plasma atomization of a feed material, comprising: a) a source of plasma; b) a plasma atomization section including:
an upper portion for receiving the feed material and the plasma;
a lower portion having a nozzle, the nozzle comprising a nozzle body having an inlet and an outlet, the nozzle body defining a passageway extending between the inlet and the outlet, the passageway being configured for conveying droplets produced by stripping away of the feed material by the plasma, the passageway comprising, in a direction from the inlet of the nozzle to the outlet, at least:
a first section of decreasing cross-sectional width; and
a second section of increasing cross-sectional width; and
a cooling section including a cooling chamber, wherein plasma atomization sectionis in communication with the cooling chamber via the outlet of the nozzle and the cooling chamber is configured to permit solidification of the droplets into powder particles, and wherein the stripping away of the feed material is caused by the plasma traveling at supersonic velocity.
Claims 53-55 and 74-76 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.
In regard to claim 53, the claims in U.S. Patent No. 11,951,549 fail to specify wherein the inlet of nozzle body would be configured for receiving the feed material in a molten form.
In regard to claim 54, the claims of U.S. Patent No. 11,951,549 fail to specify wherein the inlet of the nozzle body is configured for receiving the droplets.
In regard to claim 55, the claims of U.S. Patent No. 11,951,549 fail to specify wherein the outlet of the nozzle body is configured for expelling the droplets.
In regard to claim 74, the claims of U.S. Patent No. 11,951,549 fail to specify wherein the plasm comprises at least one plasma jet.
In regard to claim 75, the claims of U.S. Patent No. 11,951,549 fail to specify wherein the stripping away of the feed material is caused by a plurality of plasma jets impinging on the feed material.
In regard to claim 76, the claims of U.S. Patent No. 11,951,549 fail to specify wherein the plasma jets are each angled with respect to a central geometrical axis.
Response to Arguments
Applicant's arguments filed August 6, 2026 have been fully considered but they are not persuasive.
Applicant argues that provisional, non-statutory double patenting rejections be held in abeyance until the claims are otherwise in condition for allowance.
In response, the Examiner notes that 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.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JESSEE R ROE/Primary Examiner, Art Unit 1759
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