Appeal No. 1999-0978 Page 5
Application No. 08/533,944
temperature, merely referring to methods proposed in other Japanese patent applications (page 12,
lines 11-15) which have not been relied upon by the Examiner. Iwasaki does refer to the
transformation temperature as a “cooling stop temperature” (page 11, lines 2-3), but the intent is to hold
the temperature constant not necessarily stop cooling agent application. Appellants argue that the lack
of temperature increase between 5-15 seconds in the Figure 1 transformation profile of Iwasaki
supports the assertion that the rail remains in the cooling bath during isothermal transformation (Reply
Brief, pages 5-6). We would not go that far. However, that is one possible scenario. Suffice it to say
that the Examiner has not provided a supported explanation of what, in fact, Iwasaki contemplated with
respect to the means used for isothermal transformation. We note that Iwasaski indicates that the two
Japanese Patent Applications referred to by Iwasaki on page 12, lines 13-14 discuss the means for
isothermal transformation. Yet fact finding with regard to these Japanese Applications is absent from
the record.
The Examiner has also failed to appreciate, presumably due to the lack of a timely translation,
that Iwasaki uses an entirely different heating method than the present invention. Instead of the entire
rail being heated, Iwasaki heats only the surface of the rail to at least a prescribed depth up to the
austenite (translation page 12, lines 3-9). Iwasaki then cools this heated surface using a mist or air
coolant and holds the surface being treated at an isothermal temperature for, possibly, 5 minutes or
more (page 12, lines 9-17). The non-uniformity in hardness is not, in this case, an indication that the rail
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