Ex Parte Brennan et al

Patent Trial and Appeal Board

Feb 24, 2016

11751928 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111751,928 0512212007
63759 7590 02/26/2016
DUKEW. YEE
YEE & AS SOCIA TES, P.C.
P.O. BOX 802333
DALLAS, TX 75380
FIRST NAMED INVENTOR
Joseph D. Brennan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
06-0899-US-NP 2872
EXAMINER
BESLER, CHRISTOPHER JAMES
ART UNIT PAPER NUMBER
3726
NOTIFICATION DATE DELIVERY MODE
02/26/2016 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):
ptonotifs@yeeiplaw.com
mgamez@yeeiplaw.com
patentadmin@boeing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH D. BRENNAN,
GEORGE D. HEMPSTEAD, DARRELL D. JONES,
MATTHEW K. LUM, PETER D. MCCOWIN,
TERRENCE J. ROWE, and HUGH R. SCHLOSSTEIN
Appeal2013-005062
Application 11/7 51,928
Technology Center 3700
Before JAMES P. CAL VE, ANNETTE R. REIMERS, and
MARK A. GEIER, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2013-005062
Application 11/7 51,928
CLAIMED SUBJECT MATTER
Claims 1 and 9 are independent. Claim 1 is reproduced below.
1. A method for a placement of a composite material on an
airframe, comprising:
placing composite material on a saddle module; and
affixing a first side of the composite material to a
curvilinear surface of the airframe by progressively applying at
least one moving region of pressure to a second side of the
composite material along a curvilinear application path,
wherein the at least one moving region of pressure is applied
using at least one arm operably coupled to the saddle module,
and wherein the curvilinear application path follows a particular
portion of the curvilinear surface of the airframe.
REJECTIONS
Claim 9-19 are rejected under 35 U.S.C. § 112, second paragraph, for
indefiniteness.
Claims 1-19 are rejected under 35 U.S.C. 103(a) as unpatentable over
Lum (US 2006/0118235 Al; pub. June 8; 2006) and Clark (US 2;679;278;
iss. May 25, 1954).
ANALYSIS
Claim 9-19 for indefiniteness
The Examiner found that "the composite material" in claim 9 lacks an
antecedent basis. Ans. 3, 10. Appellants argue that the term "the composite
material" clearly and unambiguously refers to "the layup" recited earlier
because claim 9 recites "a second side" of the composite material and "a first
side" of the layup. Appeal Br. 7; Reply Br. 3. The Examiner responds that
claim 9 could be interpreted as reciting a layup with a first side and a
separate composite structure with a second side. Ans. 10-11.
2
Appeal2013-005062
Application 11/7 51,928
Appellants also argue that claim 9 may read better if it were amended
to replace "the composite material" with "the layup," but the claim is clearly
definite and a skilled artisan could understand the metes and bounds of the
claimed invention. Appeal Br. 7; Reply Br. 3.
We agree with the Examiner that claim 9 is indefinite, and a skilled
artisan would not necessarily understand that "the composite material" is the
same element as "the layup" just because claim 9 recites "the composite
material" as having "a second side" and "the layup" as having "a first side."
As the Examiner points out, another reasonable interpretation of claim 9 is
that a layup has a first side and a separate composite structure independent
of the layup has a second side. Ans. 10-11. Appellants have not persuaded
us that the Examiner's proposed interpretation is erroneous or that claim 9 is
not susceptible of such an interpretation in light of the Specification, which
discloses that a "layup" can include composite materials that have one layer
or multiple layers. Spec. i-fi-123, 4. We sustain the rejection of claims 9-19.
Claims 1-19 as unpatentable over Lum and Clark
Regarding claim 1, the Examiner found that Lum teaches a cylindrical
fuselage barrel formed of composite material in the shape of an airplane, but
does not teach the claimed method of forming the cylindrical fuselage barrel.
Ans. 4. The Examiner found that Clark teaches forming a cylindrical barrel
by placing material on a saddle and affixing a first side of the material to a
curvilinear surface of a tank end by progressively applying two moving
regions of pressure to a second side of the material along a curvilinear path.
Id. at 5. The Examiner determined it would have been obvious to form the
cylindrical fuselage barrel of Lum by applying progressive pressure along a
curvilinear application path of a tank end, as taught by Clark, because Clark
3
Appeal2013-005062
Application 11/7 51,928
teaches that this method can manufacture cylindrical barrels at low cost. Id.
The Examiner also determined that it would have been obvious to substitute
the metallic sheet material of Clark for a composite sheet material to form a
composite cylindrical barrel, as taught by Lum. Id. The Examiner found
that the tank end of Clark corresponds to the claimed airframe because claim
1 does not recite any structural limitations. Id. The Examiner reasoned that
a skilled artisan would look to Clark's method of forming a cylindrical tank
to form a fuselage barrel 50 of Lum in paragraph 40 because a definition of
"barrel" includes "a drum or cylindrical part" so Clark's tank is a cylindrical
part that is capable of use as a fuselage of Lum and a skilled artisan would
recognize that Clark's method would be an obvious method for forming the
"fuselage barrel" of Lum. Id. The Examiner also found that a skilled artisan
would know various molding techniques for graphite/epoxy mixtures and the
method of Clark could be used with the graphite/epoxy mixture of Lum. Id.
at 11-12. The Examiner made similar findings and determinations for claim
9. See Ans. 7-8.
Appellants argue that a skilled artisan would know that metal and
composite sheets are not interchangeable, especially in airframe construction
and therefore would not substitute a metallic sheet material of Clark for a
composite sheet in Lum. Appeal Br. 9-10. Appellants argue that Clark
teaches using arms to bend flat metal sheet into the shape of a cylinder and
weld the meeting edges of the sheet to form the tank and a skilled artisan
would know that such an action is impossible with composite materials and
methods of working sheet metal cannot be applied to methods of working
composites or airframes. Id. at 10; Reply Br. 4--5. Appellants argue that
Clark is not in the same field of endeavor as the claimed invention because it
4
Appeal2013-005062
Application 11/7 51,928
is directed towards a system for assembling tank bodies whereas claim 1 is
directed to a method of placing composite material on an airframe. Appeal
Br. 11-12; Reply Br. 7-8.
The Examiner has not established by a preponderance of evidence that
a skilled artisan would have combined the teachings of Clark and Lum to
render obvious the subject matter of claims 1 and 9. The Examiner's reason
for combining their teachings is not supported by a rational underpinning.
The Examiner has not explained how the proposed substitution of the metal
sheet material of Clark for a composite sheet material will form a composite
cylindrical barrel of Lum. See Ans. 5, 11. Nor has the Examiner explained
why it would have been obvious to use the sheet metal working method of
Clark to affix a first side of a composite material to a curvilinear surface of
an airframe, as claimed. The Examiner has not cited any evidence to support
the assertion that "various molding techniques of graphite/epoxy mixtures
are well known, and [a skilled artisan] would know that the method of Clark
would be possible with the graphite/epoxy mixture of Lum." Id. at 11-12. 1
1 We do not view this "finding" of the Examiner as taking Official Notice.
In any case, this matter is not appropriate for Official Notice as it relates to a
core issue in the case, rather than a peripheral issue that is capable of ready
and accurate verification. See KIS HIMPP v. Hear-Wear Techs., LLC, 751
F.3d 1362, 1366 (Fed. Cir. 2014) ("Board cannot accept general conclusions
about what is 'basic knowledge' or 'common sense' as a replacement for
documentary evidence for core factual findings in a determination of
patentability.") (citing In re Zurko, 258 F.3d 1379, 1385-86 (Fed. Cir.
2001)); see also Manual of Patent Examining Procedure§ 2144.03 (Rev. 7,
Nov. 2015) (discussing requirements for taking Official Notice).
5
Appeal2013-005062
Application 11/7 51,928
Nor has the Examiner established that it would have been obvious to
form Lum' s composite fuselage barrel using Clark's method of forming a
metal tank body simply because the definition of "tank" includes a "fuselage
barrel." Ans. 5, 12. Paragraph 40 of Lum, which the Examiner cites (id. at
5, 8, 12), does not teach forming a composite fuselage. Rather, it teaches a
system to stabilize a fuselage barrel that already is formed and cured. Lum
i-f 40. Lum discloses fixtures that support large, composite fuselage barrels
and methods of stabilizing cured composite fuselage barrels to prevent the
fuselages from collapsing under their own weight as they are moved and
joined with other fuselage sections. Id. n 2, 4, 5. The determination that it
would have been obvious to use Clark's method on Lum to save costs is not
supported by a rationale underpinning because the Examiner has not shown
that Clark's method of making metal sheet barrels can be used to make
Lum's composite structure. We do not sustain the rejection of claims 1-19.
DECISION
We affirm the rejections of claims 9-19 for indefiniteness.
We reverse the rejection of claims 1-19 under 35 U.S.C. § 103(a).
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
6