Appeal No. 1999-0130
Application No. 08/439,035
Concerning the rejection based on Nishikawa in view of
either Habu or Erickson, the examiner admits that Nishikawa's
process differs from the invention recited in the appealed
claims in three respects. (Id. at page 4.) One of these
differences is said to be that Nishikawa does not describe the
specific alloys recited in appealed claims 1 and 14, the only
independent claims in the application. To account for this
difference, the examiner takes the following position:
With respect to the alloy compositions, appellant
does [sic, appellants do] not allege any novelty of
the compositions recited in the process of the
appealed claims, and the Erickson and Habu references,
respectively, recite performing their disclosed
processes upon 2XXX and 5XXX compositions. See the
examples of Erickson or Table 1 of Habu. (It is the
examiner's understanding that 2XXX alloys are those
which contain copper as a significant alloying
element, 3XXX alloys contain manganese as a
significant alloying element, 5XXX alloys contain
magnesium, and 6XXX alloys contain both magnesium and
silicon). [Id. at pp. 4-5.]
In response to the appellants' arguments that Nishikawa
teaches the use of a different type of alloy for a different
purpose and that one of ordinary skill in the art would have
been led away from using the here claimed alloys in Nishikawa
(appeal brief, pages 5-6), the examiner states:
Admittedly, the Nishikawa process is not drawn to
a process involving the 2XXX, 3XXX, 5XXX, or 6XXX
alloy families specified in the appealed claims.
However, it should be noted that the appealed claims
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