Ex Parte Aynsley et al

Patent Trial and Appeal Board

Dec 27, 2017

12730521 (P.T.A.B. Dec. 27, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/730,521 03/24/2010 Richard M. Aynsley 0013465.0556408 9336
1009 7590 12/29/2017
KING & SCHICKLI, PLLC
800 CORPORATE DRIVE, SUITE 200
LEXINGTON, KY 40503
EXAMINER
BROWN, ADAM WAYNE
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
12/29/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
u spto @ iplaw 1. net
laura @ iplaw 1. net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD M. AYNSLEY and RICHARD A. OLESON
Appeal 2017-000601
Application 12/730,521
Technology Center 3700
Before LISA M. GUIJT, GORDON D. KINDER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s decision2 rejecting claims 1—8, 10, 11, 14—31, 33, and 34. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify the real party in interest as Delta T Corporation.
Appeal Br. 2.
2 Appeal is taken from the Final Office Action dated July 17, 2015 (“Final
Act.”).
Appeal 2017-000601
Application 12/730,521
CLAIMED SUBJECT MATTER
Claims 1,19, and 20 are the independent claims on appeal. Claims 1
and 19, reproduced below, are illustrative of the subject matter on appeal,
with disputed limitations italicized for emphasis.
1. A fan assembly, comprising:
(a) a hub,
wherein the hub includes a plurality of
sockets,
wherein each socket has at least one tapered
sidewall,
wherein the hub is rotatable about a hub axis,
wherein each socket extends along a
direction that is substantially parallel to the hub
axis; and
(b) a plurality of fan blades,
wherein each fan blade includes a block,
wherein each block is inserted in a
corresponding socket of the plurality of sockets,
wherein each block has at least one tapered
portion,
wherein each fan blade extends along a
respective fan blade axis,
wherein the fan blade axes extend outwardly
from the hub axis;
wherein the at least one tapered sidewall of
each socket complements the at least one tapered
portion of each corresponding block,
wherein at least one of the sockets is adapted
for receiving the corresponding block upon
2
Appeal 2017-000601
Application 12/730,521
insertion along the tapered sidewall in a direction
that is substantially parallel to the hub axis[,]
wherein each block has a front face, a rear
face, two top faces, a bottom face, and two side
faces,
wherein each side face extends from the
bottom face to a corresponding top face of the two
top faces,
wherein each of the side faces are tapered
toward each other from the front face to the rear
face, and each of the side faces are further tapered
to provide a tilted orientation of the top faces of
each block such that the side faces tilt toward the
bottom face from the front face to the rear face of
each block.
19. A fan blade, the fan blade comprising:
(a) a blade portion;
(b) a rigid block portion having two side faces, wherein
the block portion is configured to removably secure the
blade portion to a fan hub,
wherein the blade portion and the block
portion together define a fan blade axis,
wherein each of the two side faces include
three distinct tapers.
REJECTIONS
I. Claims 1, 2, 4—8, 10, 19-21, 23—28, 31, 33, and 34 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Lopatinsky (US
6,139,277; issued Oct. 31, 2000), Chen (US 5,927,945; issued July 27,
3
Appeal 2017-000601
Application 12/730,521
1999), and Marshall (US 4,936,751; issued June 26, 1990).
II. Claims 3,11, 29, and 30 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Lopatinsky, Chen, and Newnham (US
2,183,891; issued Dec. 19, 1939).
III. Claims 1, 14, and 16—18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bede (US 4,657,483; issued Apr. 14, 1987),
Lopatinsky, and Chen.
IV. Claim 15 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Bede, Lopatinsky, Chen, and Koch (US 2,628,019; issued
Feb. 10, 1953).
V. Claim 22 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Lopatinsky, Chen, and Bede.
ANALYSIS
Rejection I
Independent claims 1 and 20, and dependent claims 2, 4—8, 10, 21, 23—28,
and 31
Regarding independent claim 1, the Examiner finds, inter alia, that
Lopatinsky discloses a fan assembly FA1 comprising a hub HU1 with
sockets (i.e., forwardly tapered recesses RE1) that each have at least one
tapered sidewall (i.e., wall UW1)3 4, and also blades BL1 with blocks (i.e.,
3 Appellants do not dispute that Lopatinsky’s upper wall UW1 corresponds
to a tapered side wall of recess REI. Notwithstanding, because the opposing,
parallel, side walls S W1, S W2 of recess REI are bounded by upper wall
UW1, side walls SW1, SW2 must also have a corresponding taper. See, e.g.,
4
Appeal 2017-000601
Application 12/730,521
shoes SHI) that each have at least one tapered portion (i.e., forward tapered
projection PR1). Final Act. 4—5; see, e.g., Lopatinsky 2:6—26, Figs. 1, 2, 4,
5. The Examiner also finds that Lopatinsky discloses that the tapered
sidewalls of the sockets complement corresponding tapered portions of the
blocks. Id. at 5. The Examiner further finds that Lopatinsky discloses a
tapered shoe SHI with front, rear, two top, bottom (axially extending lower
surface LF1 on tapered shoe SHI), and two side faces (SF1, SF2 (or face
UF1 as indicated in the Examiner’s annotated Lopatinsky Figure 1 infra)).
Id. (citing Lopatinsky Figs. 2, 5); see also Lopatinsky 2:50. The Examiner
identifies a specific taper with respect to the side faces (SF1, SF2, UF1) of
shoe SHI by determining that Lopatinsky discloses that “each of the side
faces are further tapered such that a height of each of the side faces at the
front face is greater than the height of each of the side faces at the rear face”
(Final Act. 5 (citing Lopatinsky, Fig. 4)). Notably, the decrease in height of
such side faces is a result of the tapered edge of face UF1. Appellants do not
dispute these findings. See Appeal Br. 8—16; Reply Br. 1—5.
The Examiner provides annotated Figures 1 and 5 of Lopatinsky,
which are reproduced below. Final Act. 27.
Lopatinsky 3:8—9, Fig. 5. Claim 1 does not specify which dimension of the
side wall of the socket tapers, and therefore, we determine that claim 1 reads
on a wall wherein the entire surface of the face of the wall tapers (i.e., wall
UW1) and a wall wherein an edge of surface of the face tapers (i.e., walls
SW1, SW2).
5
Appeal 2017-000601
Application 12/730,521
Bit
FA1
issr face of the
Kegfst of &i'M ■
face at the
NdgM ot'skte
fast* et ths
front fees
•MOf
Sfear foes of
the stock
2
frost facs of
fh«? hah
FIG, 1
'$W2
6
Appeal 2017-000601
Application 12/730,521
The Examiner’s annotated Figures 1 and 5 of Lopatinsky depict a partial
sectional and partial schematic representation of a motorized fan, and details
of the motorized fan, respectively, with the Examiner’s annotations
clarifying the Examiner’s findings as set forth supra. Lopatinsky 1:54—56,
61. For example, the Examiner’s annotated Figure 5 of Lopatinsky shows
side faces SF1, SF2 extending from the bottom face (i.e., lower face LF1 on
tapered shoe SHI) to a top face, as claimed, and the Examiner’s annotated
Figure 1 of Lopatinsky shows side face UF1 (i.e., SF1, SF2 as identified by
the Examiner) of shoe SHI as being tapered.
The Examiner determines that Lopatinsky does not disclose that the
tapered side faces (SF1, SF2, UF1) provide a “tilted orientation of the top
face such that the side faces tilt toward [the] bottom face from the front face
to [the] rear face,” as claimed. Final Act. 5—6 (emphasis added). The
Examiner relies on Chen for disclosing blocks (i.e., root part 21) of
corresponding fan blades (i.e., blade rack 2), wherein
Chen teaches the tapered side faces provide a tilted orientation of
the top faces [of the block or root part 21 ] such that the side faces
tilt toward the bottom face from front face to rear face. Since the
side faces are tapered toward the bottom face of the block and
the tapering of the side faces extend from the front face to the
rear face, the tapered side faces of Chen would provide a tilted
orientation of the top faces[,] as claimed . . . and represent an
additional taper not found in Lopatinsky.
Final Act. 6—7 (citing Chen 1:11—67, 2:1—55, Fig. 6); see, e.g., Chen 1:59-
2:17. The Examiner provides an annotated Figure 1 of Chen, which is
reproduced below. Final Act. 28.
7
Appeal 2017-000601
Application 12/730,521
? H i • h t .i
..$.....
x 1 <•" ...... '•••■•s.. "‘ s'1'
WftSerftttt* /t /• Vr \7vs.
top
face
): l>■*'7
Si4& fas# V/ f ^ ?■
l AT'-...........7
M ^
i f&ts v^ X^T"
It
JSKs^i c'*'' ,/ ^
k«n
&
'/ Vj
oi
\
BivHonifaca
FIG. I
The Examiner’s annotated Figure 1 of Chen depicts an exploded view of the
first embodiment of the fan assembly disclosed in Chen, with the
Examiner’s annotations clarifying the Examiner’s findings as set forth
supra. Chen 1:42-43.
Appellants argue that “Chen does not disclose that ‘the tapered side
faces provide a tilted orientation of the top faces,”’ but rather, that “Chen
discloses that: (1) the side faces taper downward from top to bottom; and (2)
the side faces taper inward from front to rear.” Appeal Br. 8—9. In other
words, Appellants submit that “Chen does not disclose a tilted orientation of
the top face as a result of these tapering side faces.” Id. at 9.
The Examiner responds that
[bjecause the claim does not provide a reference to another
structure or feature to determine what ‘tilted’ is in relation to, the
8
Appeal 2017-000601
Application 12/730,521
fact that two adjoining surfaces are not orthogonal to each other
means that either or both can be viewed as ‘tilted’ depending on
the viewer’s frame of reference. Such is the case here where the
side faces are tapered towards the bottom face with respect to the
top face of Chen, and the front face is tilted relative to the top
face. This means that the top face can also be viewed as being
tilted relative to the front face, which is due to the tapering of the
side faces.
Ans. 27—28.
Appellants reply that although Chen discloses two tapers, “Chen
discloses no further tapering of the side faces, especially tapering of the side
faces providing a tilted orientation of the top faces such that the side faces
tilt toward bottom face from the front face to rear face.” Reply Br. 3
(emphasis added). Appellants submit that Chen “clearly does not show any
tilted orientation, but simply a flat orientation of the single top face 21.” Id.
Although the Examiner notes that there is no frame of reference
provided for the tilted orientation of the top faces of each block, we
determine that the further recitation in the claim that it is the “further taper[]
[of the side faces] . . . such that that side faces tilt toward the bottom face
from the front face to the rear face” clarifies that the top faces also tilt
downwardly from the front face to rear face relative to a non-tilted
orientation defined by a side face having the same height at the front face as
at the rear face, wherein the side face is rectangular. Moreover, although an
ordinary meaning of the claim term face is “a front, upper or outer surface or
a surface presented to view or as or regarded as principal” (Webster’s
Third New Int’l Dictionary 811 (1993)), such that the claim language
9
Appeal 2017-000601
Application 12/730,521
“side faces tilt toward” would seem to require the entire surface of the
claimed side face to tilt, for example, to the left or right from vertical and
“toward the bottom face,” as depicted in Figure 9 of the Specification.
However, the claim also requires that such tilting is “from the front face to
the rear face” (i.e., indicating a direction of the tilt or slope), which is
contrary to an interpretation wherein the side face tilts to the left or right
from vertical, as depicted in Figure 9, and wherein the height of the side face
would be the same from the front face to back face without any indication of
a direction of a tilt or slope. Therefore, we are left to construe claim 1 to
require the side faces to tilt downwardly as defined by the downward taper
of the upper edge of the side face. Our interpretation of claim 1 is depicted
in our annotated Figure 7 of the Specification below.
bottom face froro the front face to
the rear face of each block
Figure 7 of the Specification depicts a partial side view of a fan blade 50 of
the fan of Figure 1. Figure 1 shows a side profile of a mounting block 100
10
Appeal 2017-000601
Application 12/730,521
of fan blade 50, including front 102, rear 104, one top 106, bottom 108, and
side 110 faces, and shows side face 100 that “tilt[s] toward the bottom face
from the front face to the rear face of each block,” as claimed. Spec. 118.
Notably, Figure 7 depicts two tilted orientations of top face 106
relative to a plane perpendicular to a plane of front face 102, as depicted in
Figure 7: (i) a tilted orientation that slopes from front face 102 to rear face
104 of block 100 due to the tapering of the upper edge of side face 110 from
the front to the rear of block 100, as the height of side face 110 decreases
from front face 102 to rear face 104; and (ii) a tilted orientation that slopes
downwardly from the edge of top surface 106 proximal to blade 50 to the
edge of top surface 106 distal to blade 50 (or downwardly out from the page
as depicted in Figure 7). We understand, in view of the Specification, that
the recitation at issue in claim 1 addresses the first of these tilted
orientations.
Chen discloses that
[e]ach blade rack 2 is inse[r]ted into the corresponding dovetail
groove 12 of the ring body 1 and dragged outward. Because the
blade rack 2 and the dovetail groove 12 are of taper shape with
wider top and inner side, the blade rack 2 will not release
downwardly o[r] outwardly from the dovetail groove 12.
Chen 2:28—33. Thus, as admitted by Appellants, a preponderance of the
evidence supports a finding that Chen discloses a block of a blade rack 2,
which corresponds to the dovetail groove 12, having side faces that taper
toward each other from a front face to a rear face, and also side faces that
taper inwardly from a top surface to a bottom surface.
11
Appeal 2017-000601
Application 12/730,521
However, as argued by Appellants, a preponderance of the evidence
does not support the Examiner’s finding that Chen discloses that each of the
side faces of the block of blade rack 2 tilt toward the bottom face from the
front face to the rear face, as claimed, and, thus, providing a tilted
orientation of the top surface of root part 21, as claimed. Rather, Chen is
silent with respect to the upper edges of the side faces of the block of blade
rack 2. Chen depicts the upper edge of the side face of the block of blade
rack 2 as orthogonal to rear face, as identified by the Examiner—not tilted
toward the bottom face, as identified by the Examiner. See, e.g., the
Examiner’s annotated Chen, Fig. 2, as set forth supra.
The Examiner’s reliance on Marshall for disclosing plastic as a rigid
material with respect to claim 2 does not cure the deficiencies in the
Examiner’s findings with respect to Lopatinsky and Chen.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1, and claims 2, 4—8, 10, 24—28, and 31 depending
therefrom. The Examiner relies on the same findings for similar limitations
recited in independent claim 20, and therefore, for the same reasons set forth
supra, we also do not sustain the Examiner’s rejection of independent claim
20 and claims 21 and 23 depending therefrom.
Independent claim 19 and dependent claim 33
The Examiner relies on the same findings as set forth supra, in the
rejection of claim 1 for the rejection of independent claim 19. However,
claim 19 differs significantly in scope from claim 1, requiring only, in
12
Appeal 2017-000601
Application 12/730,521
relevant part and as set forth supra, that “each of the two side faces include
three distinct tapers.” Final Act. 4—8.
Appellants submit that the Specification discloses that “two side faces
110 of the block portion 100 includes three distinct tapers,” without
specifying the tapers. Appeal Br. 5 (citing Spec. 1434, Fig. 6). The
Specification discloses that “block (100) and socket (200) are each tapered
along three dimensions,” such that “front face (102) has a larger footprint
than rear face (104).” Spec. 142 (emphasis added). With reference to
Figure 7, the Specification also discloses that “side faces (110) of each block
(100) are tapered such that their height at front face (102) is greater than
their height at rear face (104),” and Figure 7 of the Specification depicts
both the upper and lower edges of the side walls as tapering from front face
102 to rear face 104 to provide such a smaller height at rear face 104. With
reference to Figure 9, the Specification discloses that “side faces (110) also
tilt inwardly toward each other from front face (102) to rear face (104),” and
that “the taper of side faces (110) provides a tilted orientation of top faces
(206), such that side faces (110) tilt toward bottom face (108) from front
face (102) to rear face (104).” Id. (emphasis added).
Claim 19 does not specify the recited “three distinct tapers” of each
side faces. However, in view of the disclosures in the Specification, we
understand that such three distinct tapers are: (i) the downwardly tapering
upper edge of side face 110, which downwardly tapers from front face 102
4 We cannot find support in paragraph 43 of the Specification for
determining the claimed three distinct tapers.
13
Appeal 2017-000601
Application 12/730,521
toward rear face 104, and which bounds a top surface 106; (ii) the upwardly
tapering lower edge of side face 110, which upwardly tapers from the front
face 102 toward the rear face 104, and which bounds bottom surface 108;
and (iii) the inwardly tapering surface of side face 110, which tapers
inwardly from front face 102 toward rear face 104. Cf. Appeal Br. 34
(Claims App. 20) (claim 34).
We determine that Lopatinsky discloses a tapering of a portion of the
side of upper wall UW1, and that Chen discloses (as admitted by Appellants)
an upwardly tapering forward edge of the side surface of root part 21, and
side faces that taper toward each other from a front face to a rear face.
The Examiner determines that Lopatinsky provides general guidance
that although Lopatinsky discloses certain geometries with respect to the
recesses RE1 and tapered shoes SHI, “[i]t will be understood that other wall
and face configurations can be used as long as the cooperating wall and face
are congruent.” final Act. 5 (citing Lopatinsky 3:13—15). The Examiner
reasons that it would have been obvious to modify Lopatinsky’s side faces,
as taught by Chen, “for the purpose of ensuring the block of each of the
blade is securely placed and will not be released from the socket.” The
Examiner specifically refers to the shape of Chen’s blade rack 2 as
corresponding to dovetail grooves having a “taper shape” with a “wider top”
(i.e., such that Lopatinsky’s side face UL1 would taper downwardly and
inwardly from the top of shoe SHI toward lower wall LW1 sides) and a
“[wider] inner side” (i.e., such that Lopatinsky’s side faces UL1 would taper
14
Appeal 2017-000601
Application 12/730,521
toward each other)—two distinct tapers missing from Lopatinsky. Final
Act. 8 (citing Chen 2:30—33).
As argued supra, Appellants submit that “Chen does not disclose that
‘the tapered side faces provide a tilted orientation of the top faces,’”
however, this limitation is not recited in claim 19. Appeal Br. 8—10.
Unclaimed features cannot impart patentability to claims. In re Hiniker Co.,
150 F.3d 1362, 1369 (Fed. Cir. 1998). Arguments must be commensurate in
scope with the actual claim language. In re Self, 671 F.2d 1344, 1348
(CCPA 1982).
Appellants also argue that the Examiner’s reasoning is an
“unsupported conclusion” because “Lopatinsky already discloses a
configuration for ‘releasably hold[ing] tapered shoes SHI,”’ such that
Chen’s tapered side walls are not needed. Appeal Br. 10-11. In particular,
“[b]oth Chen and Lopatinsky also include retainers for retaining the blades
in place.” Id. at 11 (citing Chen’s cover 3 and Lopatinsky’s structure RI1);
see also Reply Br. 3.
The Examiner responds that “Chen clearly discloses the blade block is
tapered from the front face to the rear face so that the blade would not be
released downwardly,” and Lopatinsky’s fan assembly would benefit
accordingly. Ans. 28—29.
We are not persuaded by Appellants’ argument. As noted by the
Examiner, Lopatinsky specifically invites the use of other congruent wall
and face configurations, and as noted by Appellants, both references use
mating recesses and blocks to frictionally secure the blades to the hub, in
15
Appeal 2017-000601
Application 12/730,521
addition to covers and rings. Therefore, we are not apprised of error in the
Examiner’s reasoning.
Appellants further argue that the Examiner’s proposed modification
would change the principle of operation of Lopatinsky because modifying
Lopatinsky’s side walls SF1, SF2 to include the tapers taught in Chen
“would loosen the frictional fit” and “the shoes would be more likely to be
released from the hub.” Appeal Br. 12. We disagree, because as discussed
supra, Lopatinsky provides the guidance of maintaining other known wall
and face configurations congruent.
Accordingly, we sustain the Examiner’s rejection of independent
claim 19 and claim 33 depending therefrom.
Dependent claim 34
Claim 34, which depends from independent claim 19, recites, in
relevant part, “the side faces being . . . tapered to provide a tilted orientation
of the two top faces of each block such that the side faces tilt toward the
bottom face from the front face to the rear face of each block.” Appeal Br.
20 (Claims App.). For the reasons set forth with respect to independent
claim 1, we do not sustain the Examiner’s rejection of claim 34.
Rejection II
Claims 3, 11, 29, and 30 depend from independent claim 1. The
Examiner’s reliance on Newnham for disclosing the limitations of claims 3
and 11 (Final Act. 15) and the limitations of claims 29 and 30 {id. at 16)
does not cure the deficiencies in the Examiner’s findings with respect to
16
Appeal 2017-000601
Application 12/730,521
Lopatinsky and Chen as set forth supra, in Rejection I. Accordingly, we do
not sustain the Examiner’s rejection of claims 3,11, 29, and 30.
Rejection III
Regarding independent claim 1, Appellants correctly argue that the
Examiner’s reliance on Bede fails to cure the deficiencies in the Examiner’s
findings with respect to Lopatinsky and Chen, which are the same as stated
in Rejection I. See Final Act. 16—20; Appeal Br. 15—16; Ans. 32.
Accordingly, for the same reasons stated supra, in Rejection I, we do not
sustain the Examiner’s rejection of independent claim 1 and claims 14 and
16—18 depending therefrom.
Rejections IV and V
Claims 15 and 22 depend from independent claims 1 and 20,
respectively. The Examiner’s reliance on Koch and Bede for disclosing a
shroud does not cure the deficiencies in the Examiner’s findings with respect
to Lopatinsky and Chen as set forth supra, in Rejection I. Final Act. 22—23.
Accordingly, we do not sustain the Examiner’s rejection of claims 15 and
22.
DECISION
The Examiner’s decision to reject claims 1, 2, 4—8, 10, 20, 21, 23—28,
31, and 34 under 35 U.S.C. § 103(a) as unpatentable over Lopatinsky, Chen,
and Marshall is reversed.
The Examiner’s decision to reject claims 19 and 33 under 35 U.S.C.
§ 103(a) as unpatentable over Lopatinsky, Chen, and Marshall is affirmed.
The Examiner’s decision to reject claims 3,11, 29, and 30 under
17
Appeal 2017-000601
Application 12/730,521
35 U.S.C. § 103(a) as unpatentable over Lopatinsky, Chen, andNewnham is
reversed.
The Examiner’s decision to reject claims 1, 14, and 16—18 under
35 U.S.C. § 103(a) as unpatentable over Bede, Lopatinsky, and Chen is
reversed.
The Examiner’s decision to reject claim 15 under 35 U.S.C. § 103(a)
as unpatentable over Bede, Lopatinsky, Chen, and Koch is reversed.
The Examiner’s decision to reject claim 22 under 35 U.S.C. § 103(a)
as unpatentable over Lopatinsky, Chen, and Bede is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
18