Ex Parte BECK et al

Patent Trial and Appeal Board

Dec 28, 2016

13081156 (P.T.A.B. Dec. 28, 2016)

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.
13/081,156 04/06/2011 Carl W. BECK 5013899.114US2 3331
102112 7590 12/30/2016
SMTTH MOORF T F ATHFRWOOD - ROFTNO
EXAMINER
2 WEST WASHINGTON STREET WECKER, JENNIFER
SUITE 1100
GREENVILLE, SC 29601 ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
12/30/2016 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):
tom. epting @ smithmoorelaw. com
patentadmin @ boeing. com
michelle. du vail @ smithmoorelaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARL W. BECK and REBECCA L. STOREY
Appeal 2016-001145
Application 13/081,156
Technology Center 1700
Before GEORGE C. BEST, DONNA M. PRAISS, and
ELIZABETH M. ROESEL, Administrative Patent Judges.
ROESEL, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 24-44. We have jurisdiction under 35 U.S.C.
§ 6(b).2
We AFFIRM.
1 The Boeing Company is identified as the real party in interest. App. Br. 4.
2 In our opinion below, we reference the Specification filed April 6, 2011
(Spec.), the Final Office Action mailed January 5, 2015 (Final Action), the
Appeal Brief filed June 25, 2015 (App. Br.), the Examiner’s Answer mailed
August 31, 2015 (Ans.), and the Reply Brief filed October 29, 2015 (Reply
Br.).
Appeal 2016-001145
Application 13/081,156
STATEMENT OF THE CASE
Claimed Invention
Appellants claim a method of monitoring the exposure of a metallic
structure to a chemical compound that degrades the metallic structure, where
the method includes attaching a chemical exposure indication device to the
metallic structure. App. Br. 13 (claim 24). The method may be used in
military or industrial settings. Spec. H 3, 38. In one embodiment, the
device is attached to an exterior surface of an aircraft. App. Br. 14 (claim
30); Spec. 130.
Claim 24 is illustrative of the subject matter on appeal and is
reproduced below from Appellants’ Claims Appendix:
24. A method of monitoring the exposure of a metallic
structure to a chemical compound that degrades the metallic
structure, the method comprising:
(a) attaching a chemical exposure indication device to the
metallic structure, the device comprising:
a substrate having a first surface and a second
surface;
an indicating layer overlying the first substrate
surface; and
means for removably attaching the device to the
metallic structure on the second surface,
wherein the indicating layer comprises a chemically
reactive coating material reactive with the chemical compound
that degrades the metallic structure;
wherein the chemically reactive coating material
provides a visual indication of the presence of the chemical
compound at the metallic structure; and
wherein the chemical exposure indication device is non-
analytical; and
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Application 13/081,156
(b) observing the visual indication of the presence of the
chemical compound at the metallic structure before damage to
the metallic structure occurs.
App. Br. 13.
References
Sekikawa et al. US 5,198,335
(hereinafter “Sekikawa”)
Patel US 5,254,473
(hereinafter “Patel ’473”)
Kirollos et al. US 6,284,198 B1
(hereinafter “Kirollos”)
Reimer et al. US 2004/0258561 Al
(hereinafter “Reimer”)
Osborne et al. US 2007/0044704 Al
(hereinafter “Osborne”)
Farmer US 2007/0048867 Al
Carpenter et al. US 7,185,601 B2
(hereinafter “Carpenter”)
Haas US 2008/0044310 Al
Patel WO 00/61200
(hereinafter “Patel ’200”)
Mar. 30, 1993
Oct. 19, 1993
Sept. 4, 2001
Dec. 23, 2004
Mar. 1,2007
Mar. 1,2007
Mar. 6, 2007
Feb. 21,2008
Oct. 19, 2000
Rejections
The Examiner maintains the following rejections under 35 U.S.C.
§ 103(a):
1. Claims 24—26, 28—31, 35, 36, and 38-40 as unpatentable over
Farmer in view of Haas. Final Action 3—5.
2. Claims 24—26, 28—31, 33, 34, 36, and 38-41 as unpatentable over
Farmer in view of Patel ’200. Id. at 6—9.
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3. Claims 24—26, 28—31, 33, 34, 36, and 38—41 as unpatentable over
Farmer in view of Patel ’473. Id. at 9—17.
4. Claim 27 as unpatentable over Farmer and Haas (or Patel ’200 or
Patel ’473) in view of Osborne. Id. at 18.
5. Claim 32 as unpatentable over Farmer and Haas (or Patel ’200 or
Patel ’473) in view of Sekikawa. Id. at 18.
6. Claim 33 as unpatentable over Farmer and Haas (or Patel ’200 or
Patel ’473) in view of Reimer. Id. at 19.
7. Claim 35 as unpatentable over Farmer and Haas (or Patel ’200) in
view of Carpenter. Id. at 20.
8. Claims 37 and 43 as unpatentable over Farmer and Patel ’200 (or
Haas) in view of Patel ’473. Id. at 20-21.
9. Claim 42 as unpatentable over Farmer and Haas (or Patel ’200) in
view of Kirollos. Id. at 21—22.
ANALYSIS
Appellants’ arguments are directed to independent claim 24 only. No
separate substantive arguments are presented concerning the other appealed
claims, including those that are separately rejected. See App. Br. 4—12. We,
therefore, limit our discussion to claim 24 and decide the appeal as to all
claims on the basis of claim 24. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Farmer teaches a method of monitoring the
exposure of a metallic structure to a chemical compound that is known to
degrade the metallic structure, where the method includes attaching a
chemical exposure indication device to a structure. Final Action 3; Ans. 2.
The Examiner finds that Farmer teaches all limitations of claim 24, except
for means on a second surface of the device for removably attaching the
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Application 13/081,156
device to the metallic structure. Final Action 3; Ans. 2—3 (citing Farmer
8, 11, 20-24, 51, Fig. 1). The Examiner finds that this feature is taught
by Haas and concludes that it would have been obvious to a person of
ordinary skill in the art to modify Farmer’s chemical exposure device to
include this feature. Final Action 4; Ans. 3.
Appellants argue that Farmer does not teach observing the visual
indication of the presence of a corrosive chemical compound at the metallic
structure before damage to the metallic structure occurs. App. Br. 5—6.
According to Appellants, Farmer does not teach detection of corrosive
agents prior to the occurrence of corrosion. Id. Additionally, Appellants
argue that Farmer does not teach detection of corrosive agents. Id. at 6—8;
Reply Br. 2.
Appellants do not challenge the Examiner’s findings regarding the
cited references, other than Farmer. Nor do Appellants challenge the
sufficiency of the Examiner’s findings regarding whether, how, or why a
person of ordinary skill in the art would have combined the teachings of the
cited references. See App. Br. 4—12.
After reviewing Appellants’ arguments in the Briefs, the Examiner’s
Answer, and the sole reference substantively argued by Appellants (Farmer),
we are not persuaded that Appellants identify reversible error in the
Examiner’s rejection of claim 24. We sustain the rejection based on the
Examiner’s findings of fact, conclusions of law, and rebuttals to Appellants’
arguments, as expressed in the Final Action and the Answer. We add the
following for emphasis.
The Examiner construes the last step of claim 24 to mean that the
visual indication of the chemical compound must occur before complete
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damage to and/or failure of the metallic structure. Ans. 23—24. Appellants
do not challenge the Examiner’s construction, which we determine is
supported by the record.3 The Examiner is correct that claim 24 does not
explicitly recite the level of damage that may occur before a visual
indication of the chemical compound is observed. Id. at 23. The
Examiner’s construction is supported by the Specification, which explains
that a chemical compound that “degrades” a metallic structure includes one
that is “corrosive to the structure” or that “accelerates environmentally
assisted cracking of the structure, either of which can lead to premature
failure of the structure.” Spec. 123. This explanation shows that cracking
(i.e., damage) may begin to occur before a chemical compound that degrades
the metallic structure is detected and a visual indication of its presence is
observed. Accordingly, we agree with the Examiner that the phrase, “before
damage to the metallic structure occurs,” in the last step of claim 24 does not
exclude methods in which a visual indication is first observed after some
level of corrosion has occurred.
Applying this claim construction, we are not persuaded that the
Examiner reversibly errs in finding that Farmer’s disclosed method includes
“observing the visual indication of the presence of the chemical compound
at the metallic structure before damage to the metallic structure occurs,” as
recited in the last step of claim 24. The Examiner correctly finds that
Farmer discloses a chemical exposure indication device (system 100,
3 Appellants argue that the Examiner’s claim construction is “new” and
“articulated for the first time in the Examiner’s Answer.” Reply Br. 2. That
argument should have been raised by petition to the Director under
37 C.F.R. § 1.181 and is outside the jurisdiction of the Board. 37 C.F.R.
§ 41.40(a).
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including indicator paint 103) that provides a visual indication of the
presence of a chemical compound at structure 101, which can be a metallic
structure, such as an aircraft. Final Action 3; Ans. 2—3; Farmer || 8, 20—22;
see also id. 112 (“The paints or coatings provide warning of corrosion,
chemical, or radiological substances through direct or instrument-assisted
visual inspection.”).
We are not persuaded that Farmer’s disclosure is limited to detection
of corrosion that has already occurred, as argued by Appellants. App. Br. 5—
6. Farmer discloses a “system for warning of corrosion, chemical, or
radiological substances.” Farmer, Abstract, 111. The disclosed system
provides an “early warning of imminent failure through visual inspection”
and “can be used as early indicators of corrosion.” Id. Tflf 22, 23. According
to Farmer, an early warning system saves cost because “[t]he earlier
problems are found, the less expensive the repair.” Id. 121. In view of
these disclosures, we find that Farmer discloses the same goal as expressed
in the last step of claim 24: providing an early visual indicator of corrosion
that has begun to occur or is about to occur. Accordingly, the Examiner
does not err in finding that Farmer teaches “alert[ing] a user to corrosion
damage before it causes permanent damage.” Ans. 23.
We are also not persuaded by Appellants’ argument that the method
of claim 24 and the method of Farmer detect “completely different
analytes.” App. Br. 6; Reply Br. 2. Farmer discloses an indicator paint 103
containing a material 104, which “fall[s] into three broad classes,” one of
which is: “chemically-sensitive additives to the coating, including pH
sensitive indicators.” Farmer 124. Farmer discloses the following additives
as examples of material 104: “Fluorescent Molecules & Particles (sensitive
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to pH & chloride)” and “Electroactive Redox Couples (sensitive to
electrochemical potential and oxidation state).” Id. Appellants do not
challenge the Examiner’s finding that factors such as pH, chloride,
electrochemical potential, and oxidation state “would occur when the
metallic structure was exposed to corrosion substances such [as] chlorine or
hydrogen peroxide.” Ans. 24. Chlorine and hydrogen peroxide are
examples of chemical compounds that degrade a metallic structure. Spec.
126; App. Br. 14 (claim 29). By disclosing coatings containing chemically-
sensitive additives that are sensitive to changes in pH, chloride,
electrochemical potential, and oxidation state, Farmer 124, Farmer teaches a
chemically reactive coating material reactive with a corrosive substance,
such as chlorine or hydrogen peroxide.
Appellants direct us to Farmer’s teaching that the disclosed additives
“can be utilized for detecting corrosion damage” and that at least one of
them is sensitive to change that occurs “due to corrosion.” App. Br. 7—8
(quoting Farmer 124). Appellants’ arguments are not, however, sufficient
to identify error in the Examiner’s finding that some of Farmer’s disclosed
additives would be sensitive to (i.e., reactive with) chemical compounds that
cause corrosion, such as chlorine or hydrogen peroxide. Ans. 24. Farmer
expressly discloses a coating containing “chemically-sensitive additives . . .
including pH sensitive indicators.” Farmer 124. Farmer’s disclosure is
indistinguishable from one of Appellants’ disclosed embodiments, namely a
paint that incorporates a pH indicator. Spec. 127.
Accordingly, the weight of the evidence supports the Examiner’s
conclusion of obviousness. Therefore, the § 103(a) rejections are sustained.
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CONCLUSION OF LAW AND DECISION
The decision of the Examiner rejecting claims 24-44 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (1).
AFFIRMED
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