Appeal No. 2004-0109
Application 09/324,549
significantly increased tensile yield strengths are demonstrated in Fig. 1 for Alloy B and Alloy C
. . . in comparison for Alloy D in Aging Condition No. 1 (the ‘T3’ condition depicted by the
leftmost data points)” (brief, page 16).
In the answer, the examiner finds that Figure 1a fails to show the criticality of the claimed
Li weight percent range “because for T3 temper . . . [alloy A,] 0% Li has the highest TYS”
(Tensile Yield Strength) and for the T8 temper, “the TYS of . . . [alloy D] falls within the TYS
range” achieved by alloys B and C (page 7). Appellants reply that Figures 1 and 1a demonstrate
that the claimed alloys B and C “possess significantly higher tensile yield strengths in the T3
temper in comparison with” alloy D, pointing out that “[b]oth of the references . . . teach those
skilled in the art that alloys with greater amounts of lithium have better properties” (reply brief,
pages 3-4).
We find that alloys B (Ingot No. 2) and C (Ingot No. 3) differ from each other by 0.08 wt.
% Zn, 0.01 wt. % Zr, and Fe being present only in alloy C in the amount of 0.01 wt. %, wherein
alloy B contains 0.25 wt. % Li and alloy C contains 0.36 wt. % Li (specification, pages 7-8).
In contrast, alloy D (Ingot No. 4), now argued by appellants as representing the alloys of
Rioja ‘792 and ‘859, contains 0.62 wt. % Li, additionally significantly differs from alloys B and
C: 6.97 wt. % Zn which is a difference of 0.24 wt. % with B and 0.32 wt. % with C; 2.0 wt. %
Cu which is a difference of 0.09 wt. % with B and C; 1.8 wt. % Mg which is a difference of
0.07 wt. % with B and C; 0.02 wt. % Si which is a difference of 0.01 wt. % with B and C;
0.10 wt. % Zr which is a difference of 0.01 wt. % with B and the same amount as C; and 0.01 wt.
% Fe which is the same amount as C but absent from B.
We find that the results reported for specification FIG. 1 establish that in Aging
Condition 1, the so-called “T3 condition,” the TYS of alloy A is about 61 ksi, while that of alloys
B and C is a virtually identical ksi of between 60 and 61, and that of alloy D is a ksi of about 57.
Thus, the difference in TYS between alloys B and C and alloy D is about 3.5 ksi.
We further find that the examiner has correctly found that the results with the different
Aging Conditions Nos. 2 through 8 depicted in specification FIG. 1 establish that the TYS of
alloy D differs from alloys B and C by no more than several ksi, and generally at a ksi between B
and C. Indeed, it reasonably appears from the data as reported in specification FIG. 1 that the ksi
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