Appeal 2007-1529
Application 10/385,722
operations of EP ‘710. On the other hand, Appellants contend with respect
to claim 24, that an extra forging step of claim 1, from which claim 24
ultimately depends, is a process difference responsible for this dissolution in
Appellants process that is not present in EP ‘710. Thus, in Appellants, view,
it would not be expected that this phase dissolution phenomena would occur
during the heating and forging of the alloy in accordance with the EPO ‘710
process. With regard to claim 35, however, which depends from claim 8, and
not claim 1, Appellants seemingly assert that the argued non-calcium
containing AZ or AM alloy makes for a difference in dissolution
phenomena.
We do not find either of these argued theories persuasive of a
patentable distinction based on the dissolution called for in either of claims
24 or 35. In this regard, Bardi clearly indicates that beta phase dissolution
and a uniform grain structure results from solution heat treatment of
magnesium aluminum alloys (Bardi 337-339), when known thixoforming
techniques are used. Thus, it would have been obvious to one of ordinary
skill in the art to reasonably expect that such dissolution would also occur
during the heat treatment of the magnesium aluminum alloys of
EP ‘710, when known thixoforming techniques are used. See In re
Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980); In re Best, 562 F.2d
1252, 195 USPQ 430 (CCPA 1977). Appellants have not established
otherwise. Moreover, the dissolution is obviously not dependent on a further
forging step as evidenced by Bardi. Nor have Appellants fairly established
that a calcium free alloy is required for such dissolution effects. It follows
that, on this record, we shall also affirm the Examiner’s obviousness
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