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 .
Claim Objections
Claims 3 and 18 are objected to because of the following informalities:
In reference to claim 3, it is suggested to amend “the layer of Al” to “the aluminum alloy”, in order to ensure consistency and proper antecedent basis in the claim language. Appropriate correction is required.
In reference to claim 18, in line 3, amend “includes” to “include”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claims 6 and 17-18 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.
In reference to claim 6, the claim has been amended to recite “the VM portion is free of Ni and the BP portion is free of Bi” in lines 1-2. While the originally filed disclosure provides support for embodiments in which the VM layer and BP layer are separate layers and embodiments in which the VM layer and BP layer are mixed to form a single BPVM layer ([0023]; [0035]), however, there does not appear to be support for a BPVM layer having two distinct portions where the VM portion is free of Ni and the BP portion is free of Bi. The Specification discloses the BPVM layer is formed by co-depositing Bi and/or Ni to from the BPVM layer ([0041]). Therefore, it does not appear the original disclosure does not describe a BPVM as presently claimed.
Additionally, the cited phraseology clearly signifies a “negative” or “exclusionary” limitation for which the Applicants have no support in the original disclosure. Negative limitations in a claim which do not appear in the specification as filed introduce new concepts and violate the description requirement of 35 USC 112, first paragraph, Ex Parte Grasselli, Suresh, and Miller, 231 USPQ 393, 394 (Bd. Pat. App. and Inter. 1983); 783 F. 2d 453.
In reference to claim 17, the claim has been amended to recites “the BP layer does not comprise bismuth (Bi)” in lines 2-3. The cited phraseology clearly signifies a “negative” or “exclusionary” limitation for which the applicants have no support in the original disclosure. Negative limitations in a claim which do not appear in the specification as filed introduce new concepts and violate the description requirement of 35 USC 112, first paragraph, Ex Parte Grasselli, Suresh, and Miller, 231 USPQ 393, 394 (Bd. Pat. App. and Inter. 1983); 783 F. 2d 453.
In reference to claim 18, the clam has been amended to recite “the VM layer does not include nickel (Ni)” in line 3. The cited phraseology clearly signifies a “negative” or “exclusionary” limitation for which the applicants have no support in the original disclosure. Negative limitations in a claim which do not appear in the specification as filed introduce new concepts and violate the description requirement of 35 USC 112, first paragraph, Ex Parte Grasselli, Suresh, and Miller, 231 USPQ 393, 394 (Bd. Pat. App. and Inter. 1983); 783 F. 2d 453.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 19 is 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.
In reference to claim 19, claim 16 on which claim 19 depends has been amended to recite a BP layer is in face-sharing contact with the MPD layer and a VM layer is in face-sharing contact with the BP layer in lines 5-8. It is unclear how two distinct layer needing to be in face sharing contact with one another are also meant to be arranged in a single layer. For the purpose of compact prosecution, the limitations of claim 19 will be interpreted as the BP layer and the VM layer are in face-sharing contact with each other. However, clarification is requested.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5 and 7-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dockus et al. (US 2006/0027625) (Dockus).
In reference to claim 1¸ Dockus discloses a brazing product preform ([0037]) (corresponding to a system). The preform includes an aluminum or aluminum alloy core layer and temperature modifier layers on each side of the core layer ([0050]; [0054]) (corresponding to a process braze sheet comprising at least a layer of sheet material). The temperature modifier layer comprises a 4xxx-series aluminum cladding alloy ([0056]) (corresponding to a layer of aluminum (Al) sheet material cladded on a first surface with an aluminum alloy).
Braze-promoting layers are provided on top of the temperature modifier layers ([0050]). A copper-based layer is provided directly under a braze promoting layer ([0062]) (corresponding to a melting point depressant (MPD) layer comprising cooper (Cu) in face-sharing contact with the aluminum alloy; and a braze promoting viscosity modifying (BPVM) layer in face-sharing contact with the MPD layer). Copper is a melt depressant ([0039]).
The braze-promoting layer comprises one or more selected from the group comprising nickel, cobalt and iron and alloying element including the braze modifiers bismuth, lead, antimony and thallium ([0044]). Dockus further discloses the braze modifiers act as wetting agents which enhance the wetting and spreading characteristics of the filler metal ([0039]) (corresponding to viscosity modifying). The braze-promoting layer is nickel-bismuth, nickel-lead, nickel-bismuth-cobalt, nickel-lead-cobalt, nickel-lead-bismuth or nickel-bismuth-antimony ([0044]).
In reference to claim 2, Dockus discloses the limitations of claim 1, as discussed above. Dockus further discloses the core layer includes conventional aluminum alloys employed in brazing such as AA3xxx and AA6xxx-series alloys and is clad on each side with the temperature modifier layer ([0050];[0054]) (corresponding to the layer of Al sheet material is Al3000 or Al6000, and wherein the layer of Al sheet material is cladded on a second surface with the aluminum alloy). The braze-promoting layers are disposed on each of the temperature modifier layers and the copper-based layer is provided directly under a braze promoting layer ([0050]; [0062]). Therefore, it is clear there is a copper-based layer on each side of the core layer (corresponding to a second MPD layer in face-sharing contact with the aluminum alloy cladded on the second surface).
In reference to claim 3, Dockus discloses the limitations of claim 1, as discussed above The temperature modifier layer comprises a 4xxx-series aluminum cladding alloy ([0056]) (corresponding to the layer of Al is Al4000-series comprising an alloy of Al and silicon (Si)).
In reference to claim 4, Dockus discloses the limitations of claim 1, as discussed above. The braze-promoting layer comprises one or more selected from the group comprising nickel, cobalt and iron ([0044]) (corresponding to the MPD layer is coated with a braze promoting (BP) portion of the BPVM layer comprising one or more of nickel (Ni), cobalt (Co), and iron (Fe)).
In reference to claim 5, Dockus discloses the limitations of claim 4, as discussed above. The braze-promoting layer comprises alloying elements including the braze modifiers bismuth, lead, antimony and thallium ([0044]) (corresponding to the BP portion of the BPVM layer is coated with a viscosity modifying (VM) portion of the BPVM layer comprising one or more of bismuth (Bi), lead (Pb), tin (Sn), antimony (Sb), and thallium (Tl)).
In reference to claim 7, Dockus discloses the limitations of claim 4, as discussed above. Dockus discloses the braze-promoting layer is a nickel based alloy comprising nickel and braze modifiers such as bismuth, lead, antimony and thallium alloyed therein ([0044]) (corresponding to the BP portion further comprises a viscosity modifying (VM) portion integrally arranged therein).
In reference to claim 8, Dockus teaches the limitations of claim 1, as discussed above. Dockus teaches temperature modifier layers on each side of the core layer ([0050]; [0054]) (corresponding to the PBS is cladded on a second surface with a second aluminum alloy). Braze-promoting layers are provided on top of the temperature modifier layers ([0050]) (corresponding to further comprising a second BPVM layer in face-sharing contact with the second aluminum alloy). The braze-promoting layer comprises one or more selected from the group comprising nickel, cobalt and iron and alloying element including the braze modifiers bismuth, lead, antimony and thallium ([0044]). Dockus further discloses the braze modifiers act as wetting agents which enhance the wetting and spreading characteristics of the filler metal ([0039]). The braze-promoting layer is nickel-bismuth, nickel-lead, nickel-bismuth-cobalt, nickel-lead-cobalt, nickel-lead-bismuth or nickel-bismuth-antimony ([0044]).
Claims 1, 3-5 and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wittebrood et al. (US 2003/0064242) (Wittebrood) taken in view of evidence by Dockus.
In reference to claims 1, 4-5 and 7, Wittebrood discloses an aluminum brazing sheet product ([0017]) (corresponding to a system). The brazing sheet includes an aluminum core sheet and on an outer of the core sheet on both sides there is provided an aluminum clad layer of an aluminum alloy ([0048]) (corresponding to a processed braze sheet (PBS) comprising at least a layer of aluminum (Al) sheet material cladded on a first surface with an aluminum alloy).
A metal layer 8 comprising nickel and a further layer 7 comprising a metal are provided on the aluminum clad layer ([0048]). The sequence of the layers 7 and 8 may be changed ([0048]). The further layer 7 comprising a metal is a copper based metal ([0048]; [0047]; [0020]). Copper is a melting point depressant ([0022]) (corresponding to a melting point depressant (MPD) layer comprising copper (Cu) in face-sharing contact with the aluminum alloy).
Wittebrood discloses the metal layer comprising nickel further comprises bismuth as an alloying element ([0023]). In view of evidence by Dockus, nickel based layers are braze-prompting layers and bismuth acts as a wetting agent which enhances the wetting and spreading characteristics of the filler metal ([0039];[0044]). Therefore, it is clear the metal layer comprising the Ni-Bi alloy layer is a braze promoting viscosity modifying layer (corresponding to a braze promoting viscosity modifying (BPVM) layer in face-sharing contact with the MPD layer). The nickel in the Ni-Bi alloy is the braze promoting portion and the Bi is the viscosity modifying portion of the layer (corresponding to the MPD layer is coated with a braze promoting (BP) portion of the BPVM layer comprising one or more of nickel (Ni); the BP portion of the BPVM layer is coated with a viscosity modifying (VM) portion of the BPVM layer comprising one or more of bismuth (Bi); the BP portion comprises a viscosity modifying (VM) portion integrally arranged therein)
In reference to claim 3, Wittebrood discloses the limitations of claim 1, as discussed above. The aluminum clad layer is made of an aluminum alloy comprising silicon and is an AA4000-series alloy ([0017]) (corresponding to the layer of Al is Al4000-series comprising an alloy of Al and silicon (Si)).
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 (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Wittebrood.
In reference to claim 2, Wittebrood teaches the limitations of claim 1, as discussed above. The core sheet is an aluminum alloy core sheet ([0017]; [0048]). The aluminum alloy is selected from the group consisting of AA2000, AA3000, AA5000, AA6000 and AA7000-series aluminum alloys (claim 11; [0010]).
Given that Wittebrood discloses the core sheet that overlaps the presently claimed layer of Al sheet material, including AA3000 and AA6000-series alloys, it therefore would be obvious to one of ordinary skill in the art before the effective filing date of the presently claimed invention, to use the AA3000 or AA6000 as the aluminum alloy of the core sheet, which is both disclosed by Wittebrood and encompassed within the scope of the present claims and thereby arrive at the claimed invention.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Dockus.
In reference to claim 6, Dockus teaches the limitations of claim 5, as discussed above. The braze-promoting layer comprises one or more selected from the group comprising nickel, cobalt and iron and alloying element including the braze modifiers bismuth, lead, antimony and thallium ([0044]).
Given that Dockus teaches the braze-promoting layer that overlaps the presently claimed BPVM layer including nickel, cobalt, iron in combination with bismuth, lead, antimony and thallium, it therefore would be obvious to one of ordinary skill in the art before the effective filing date of the presently claimed invention, to have the braze-promoting layer include combination of cobalt and iron with lead, antimony and thallium, resulting in a VM portion free of nickel and a BP portion free of Bi, which is both disclosed by Dockus and encompassed within the scope of the present claims and thereby arrive at the claimed invention.
Claims 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Wittebrood in view of Dockus.
In reference to claims 16-20, Wittebrood teaches an aluminum brazing sheet product ([0017]) (corresponding to a system). The brazing sheet includes an aluminum core sheet and on an outer of the core sheet on both sides there is provided an aluminum clad layer of an aluminum alloy ([0048]) (corresponding to a processed braze sheet (PBS); the PBS comprising a core layer comprising aluminum (Al);a cladded side of the core layer, wherein the cladded side comprises an Al alloy; the core layer is cladded on both sides).
A metal layer 8 comprising nickel and a further layer 7 comprising a metal are provided on the aluminum clad layer ([0048]). The sequence of the layers 7 and 8 may be changed ([0048]). The further layer 7 comprising a metal is a copper based metal ([0048]; [0047]; [0020]). Copper is a melting point depressant ([0022]) (corresponding to a melting point depressant (MPD) layer comprising copper (Cu) in face-sharing contact with a cladded side of the core layer; the MPD layer is in face-sharing contact with both cladded sides).
Wittebrood teaches the metal layer comprises nickel ([0024]; [0048]). In view of evidence by Dockus, nickel based layers are braze-promoting layers ([0044]). Therefore, it is clear the metal layer comprising nickel is a braze promoting layer (corresponding to a braze promoting (BP) layer in face-sharing contact with the MPD layer; corresponding to the BP layer comprises one or more of nickel (Ni)).
The nickel layer optionally includes bismuth in a range of up to 5% by weight ([0023]-[0024]). Thus, it is clear bismuth is an optional element in the nickel layer and maybe included in an amount of 0% by mass (corresponding to the BP layer does not comprise bismuth (Bi)).
Wittebrood does not explicitly teach a viscosity modifying layer in face-sharing contact with the metal layer comprising nickel, as presently claimed.
Dockus teaches a brazing preform ([0037]). The preform includes an aluminum or aluminum alloy core layer and temperature modifier layers on each side of the core layer ([0050]; [0054]). A braze-promoting layer is on top of the temperature modifier layer ([0050]). The braze-promoting layer comprising nickel ([0044]).
Dockus further teaches a copper-tin layer directly on top of the braze-promoting layer ([0049]) (corresponding to a viscosity modifying (VM) layer in face-sharing contact with the BP layer; the VM layer comprising one or more of bismuth (Bi); the VM layer does not include nickel (Ni)). The layer acts as a temperature modifier and a barrier layer when the layer faces the surface of another contacting member to be brazed ([0049]).
In light of the motivation of Dockus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the presently claimed invention to include a copper-tin layer directly on top of the nickel comprising layer of Wittebrood, in order to provide a temperature modifier and barrier layer on the brazing product.
Given that Wittebrood in view of Dockus teaches the aluminum brazing sheet product includes the nickel comprising layer in face-sharing contact with the copper-tin layer, it is clear the nickel comprising layer is integral with the copper-tin layer (corresponding to the BP layer and the VM layer are combined and integrally formed in a single BPVM layer).
Wittebrood in view of Dockus teaches brazing aluminum are used in complex assemblies such as heat exchangers (Dockus, [0005]; [0008]) (corresponding to configured for use by a heat exchanger). However, the recitation that the PBS is configured for use by a heat exchanger is merely intended use. Applicants attention is drawn to MPEP 2111.02 which states that “if the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction”. Further, MPEP 2111.02 states that statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether the purpose or intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the preamble does not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. configured for use by a heat exchanger, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure which is identical to that set forth in the present claims is capable of performing the recited purpose or intended use.
Response to Arguments
In response to amended claims 1-2, 6 and 8, the previous Claim Objections of record are withdrawn. However, the amendment necessitates a new set of Claim Objections as set forth above.
In response to amended claim 1, which now requires an aluminum sheet material cladded on a first surface with an aluminum alloy, a melting point depressant (MPD) layer in face-sharing contact with the aluminum alloy and a braze promoting viscosity modifying layer in face-sharing contact with the MPD layer, it is noted that Wittebrood (US 2002/0086179) no longer anticipated the presently claimed limitations. Therefore, the previous 35 U.S.C. 102(a)(1) rejections over Wittebrood are withdrawn.
In response to amended claim 16 which no requires a MPD layer in face-sharing contact with a cladded side of the core layer, wherein the cladded side comprises an Al alloy, a BP layer in face sharing contact with the MPD layer and a VM layer in face-sharing contact with the BP layer, it is noted that Dockus no longer anticipates and Wittebrood (US 2002/0086179) no longer teaches the presently claimed limitations. Therefore, the previous 35 U.S.C. 102(a)(1) rejections over Dockus and 35 U.S.C. 103 rejections over Wittebrood are withdrawn.
The Applicant primarily argues:
“On page 15 of the Office action, the Office argues that Wittebrood teaches a BPVM layer. Wittebrood teaches a nickel layer comprising bismuth that allows it to be free of lead (see paragraph [0015] of Wittebrood). The assertion provided by the Office that the inclusion of bismuth in a nickel layer results in a layer including braze promoting and viscosity modifying is inconsistent with the disclosure of Wittebrood and the other cited reference, Dockus.
In paragraph [0044] of Dockus, which includes a shared inventor with the present application, Dockus discloses a braze promoting layer including nickel and further including bismuth. Therein, Dockus does not teach that the braze-promoting layer, in any of its embodiments, has the further feature of viscosity modification. Wittebrood fails to make a similar assertion and paragraph [0018] of Wittebrood makes it clear that the inclusion of the bismuth is to promote wetting during brazing. Thus, the Office's assertion errs in suggesting that the mere inclusion of bismuth into a braze-promoting layer comprising nickel results in a BPVM layer is inconsistent with the references cited by the Office. There is insufficient support in any of the references that merely including bismuth into a nickel layer is what results in a layer having both brake promoting and viscosity modifying properties.”
Remarks, p. 7
The examiner respectfully traverses as follows:
It is noted that Wittebrood (US 2002/0086179) is no longer used as prior art.
Dockus discloses the braze-promoting layer comprises one or more selected from the group comprising nickel, cobalt and iron and alloying element including the braze modifiers bismuth, lead, antimony and thallium ([0044]). Dockus further discloses the braze modifiers act as wetting agents which enhance the wetting and spreading characteristics of the filler metal ([0039]). The instant application’s Specification discloses the VM layer promotes the liquid metal flow at brazing temperatures ([0022]). Therefore, it is clear the inclusion of bismuth in would necessarily result in viscosity modifying properties.
Further, the instant application discloses bismuth, lead, tin, antimony and thallium as being suitable for the viscosity modify layer and thus would be considered viscosity modify materials ([0041]).
In light of the above, it is the examiner’s position, absent evidence to the contrary a layer comprising nickel and bismuth would necessarily include both braze promoting and viscosity modifying properties.
Therefore, Applicant's arguments filed 01/30/2026 have been fully considered but they are not persuasive.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Mary I Omori whose telephone number is (571)270-1203. The examiner can normally be reached M-F 8am-4pm.
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/MARY I OMORI/Primary Examiner, Art Unit 1784