Ex Parte Defoort et al

Patent Trial and Appeal Board

Dec 29, 2016

11574030 (P.T.A.B. Dec. 29, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/574,030 11/14/2008 Brigitte Defoort 1094-012783-US (PAR) 9526
2512 7590
Perman & Green, LLP
99 Hawley Lane
Stratford, CT 06614
12/30/2016 EXAMINER
FUNG, CHING-YIU
ART UNIT PAPER NUMBER
1787
MAIL DATE DELIVERY MODE
12/30/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIGITTE DEFOORT and DOMINIQUE LACOUR
Appeal 2015-006564
Application 11/574,030
Technology Center 1700
Before MICHAEL P. COLAIANNI, JAMES C. HOUSEL, and
LILAN REN, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-006564
Application 11/574,030
Appellants appeal under 35 U.S.C. § 134(a) the non-final rejection of
claims 1, 3—5, 7, 8, and 10-33. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is directed to structures, commonly called
Gossamer, which are ultralightweight deployable space structures (Spec. 1
1).
Claim 1 is illustrative:
1. A Gossamer inflatable structure multilayered wall comprising a
layer of composite material including a matrix which becomes
rigid by polymerization, flanked on an inside with a gastight
layer, and on an outside with at least one protective and anti-stick
layer, wherein said outer layer is joined to the layer of
composite material so that the outer layer is partially permeable
to gases and impermeable to liquid or viscous phases of a the
matrix of said composite material, said outer layer comprising a
protective layer comprising one or more vents, each of said vents
being made up of a hole created in said protective layer and
covered with a membrane permeable to the gases and impermeable to
the liquid or viscous phases of the matrix of said composite
material so that said outer layer is partially permeable to the
gases and impermeable to the liquid or viscous phases of the
matrix of said composite material, said membrane being joined
with the protective layer.
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Appeal 2015-006564
Application 11/574,030
Appellants appeal the following rejection:
Claims 1, 3—5, 7, 8, and 10-33 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gossamer Spacecraft (Membrane and Inflatable Structures
Technology for Space Applications, Volume 191, 2001) in view of Gore
(Membranes Vents Series HPM: High Protection Against Mechanical
Impact, W. L. Gore & Associates, 2002) as evidenced by Natarajan1 (US
6,533,888 B2; Mar. 18, 2003) and Cambridge Dictionary.
Appellants’ arguments focus on independent claims 1,14, and 25 only
(App. Br. 5—27). Because the arguments made regarding claims 1, 14, and
25 are identical, we select claim 1 as representative. Therefore, claims 3—5,
7, 8, and 10-33 will stand or fall with our analysis regarding claim 1.
FINDINGS OF FACT & ANALYSIS
The Examiner’s findings and conclusions regarding the combined
teachings of Gossamer, Gore as evidenced by Natarajan and Cambridge
Dictionary are located on pages 4—23 of the Final Action. The Examiner
finds in relevant part that Gossamer teaches a layer structure that includes a
multiple layer insulation (MLI) layer that corresponds to the at least one
protective and anti-stick layer (Non-Final Act. 4). The Examiner finds that
Gossamer teaches a composite layer made of epoxy/graphite and a gas-tight
inner layer made of Kapton (Non-Final Act. 4). The Examiner finds that
Gossamer teaches forming vent holes in the MLI layer to allow venting of
1 Appellants’ arguments focus on the combination of Gossamer and Gore
only (App. Br. 5—27). Appellants do not challenge or otherwise show
reversible error with the Examiner’s findings or conclusions regarding
Natarajan and Cambridge Dictionary. Id. Therefore, we do not address the
Examiner’s findings or conclusions regarding Natarajan or Cambridge
Dictionary.
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Appeal 2015-006564
Application 11/574,030
the gas during deployment (Non-Final Act. 5). With respect to claim 1, the
Examiner finds that Gossamer does not teach the vent is covered by a
membrane and the membrane is joined to the layer having the vent hole
formed into it. Id. The Examiner finds that Gore teaches using expanded
polytetrafluoroethylene film (GORE™) adhered with a silicon adhesive over
a vent hole which allows the diffusion of gases and is permeable to moisture
vapor but is impermeable to liquid or a viscous phase material (e.g., oil or
water) (Non-Final Act. 6). The Examiner concludes that it would have been
obvious to use Gore’s membrane vent cover to cover Gossamer’s vent in
order to provide protection, cost, and serviceability for the composite
laminate of Gossamer when used in a harsh environment (Non-Final Act. 7).
Appellants argue that Gossamer and Gore are directed to inventions
used in different environments and one of ordinary skill in the art would not
have used Gore’s membrane vent cover for terrestrial applications in
Gossamer’s inflatable structure used in space (App. Br. 6). Appellants argue
that Gore uses the expanded polytetrafluoroethylene membrane as a vent
cover for use in batteries, which are very different than the MLI film layer
with vent paths in Gossamer (App. Br. 6). Appellants contend that
Gossamer’s use of the film in space applications is vastly different than
Gore’s use in a wet, harsh environment of a terrestrial battery application
(App. Br. 6, 7). Appellants argue that the Examiner’s conclusion is based
upon impermissible hindsight (App. Br. 8).
The Examiner’s rejection is not based upon impermissible hindsight
but, rather, the teachings of Gossamer and Gore. Specifically, the Examiner
finds that Gore teaches that the expanded polytetrafluoroethylene (ePTFE) is
impermeable to water or oil, but permeable to moisture vapor to reduce
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Appeal 2015-006564
Application 11/574,030
fogging and is chemical and ultraviolet (UV) resistant to provide durability
to the film (Non-Final Act. 7). The Examiner finds that Gossamer device
requires material having these properties because Gossamer requires that the
vent should be strong enough to withstand the expansion of any trapped gas
and Gossamer requires the composite laminate having efficient venting such
that buildups in the vent should be eliminated. Id.
Appellants’ argument that Gossamer is directed to space applications
while Gore is directed to terrestrial applications is misplaced because
“common sense teaches . . . that familiar items may have obvious uses
beyond their primary purposes....” KSR Int 7 Co. v. Teleflex Inc., 550 US
398, 420 (2007). A person of ordinary skill is a person of ordinary
creativity, not an automaton. Id. at 421. Gossamer teaches an inflatable
composite structure having vent openings and that it is known to use PTFE
materials in spacecraft and space applications (Gossamer 21—23, 248). Gore
teaches that its expanded PTFE membrane functions as a vent cover that is
gas permeable and liquid (e.g., oil or water) impermeable. Accordingly, the
use of Gore’s expanded PTFE as a vent cover in Gossamer’s inflatable space
structures would have been the predictable use of prior art structures (vent
covers) according to their established function (i.e., providing gas
permeability and liquid impermeability). KSR, 550 US at 417. Gossamer’s
teachings that PTFE is commonly used in spacecraft provides a motivation
for using Gore’s expanded PTFE membrane vent cover as a vent cover in a
spacecraft application.
Appellants argue that Gossamer fails to teach a membrane that is
permeable to gases and impermeable to liquid or viscous phases and Gore
does not cure this deficiency (App. Br. 8, 9). Appellants contend that
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Appeal 2015-006564
Application 11/574,030
because Gossamer’s MLI layer permits the viscous liquid to enter the vent
holes it is not impermeable to liquid or viscous phases of the matrix of said
composite material (App. Br. 9).
Claim 1 recites
the outer layer is partially permeable to gases and impermeable
to liquid or viscous phases of a the [sic] matrix of said
composite material, said outer layer comprising a protective
layer comprising one or more vents, each of said vents being
made up of a hole created in said protective layer and covered
with a membrane permeable to gases and impermeable to the
liquid or viscous phases of the matrix of said composite
material so that said outer layer is partially permeable to gases
and impermeable to the liquid or viscous phases of the matrix
of said composite material
(emphasis added).
Claim 1 plainly recites that gas permeability and impermeability to
liquid and viscous phases imparted to the outer layer is achieved by using
the membrane covering the vent holes formed in the protective layer of the
outer layer. Our construction of the claim is supported by H 11 to 13 of the
Specification. In other words, Appellants’ argument that Gossamer’s MLI
layer permits liquid or viscous phases to enter the vent hole and thus is not
impermeable to liquids is no different than the impermeability of
Appellants’ layers without the vent cover membrane. Once Gossamer’s
device is modified to have Gore’s expanded PTFE vent cover, the desired
gas permeability and liquid impermeability would have been achieved.
Indeed, the Examiner finds that Gore’s expanded PTFE is the same material
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Appeal 2015-006564
Application 11/574,030
used by Appellants, so the properties of Gore’s membrane material must be
the same as those claimed by Appellants (Ans. 7, 30). Appellants do not
contest this finding of the Examiner.
Appellants argue that claim 1 requires that the outer layer is “joined
to” the layer of composite material, which requires that the outer layer be
directly joined to the composite layer (App. Br. 10). Appellants contend that
the intervening layers (e.g., the restraint layer) between the epoxy/graphite
layer (i.e., the composite layer) and the MLI layer (i.e., the outer layer)
precludes the MLI layer from being “joined to” the composite layer as
recited in the claims.
Contrary to Appellants’ arguments, the Examiner correctly finds that
the broadest reasonable interpretation of “joined to” does not exclude having
intervening layers between the composite layer and the MLI layer. As the
Examiner finds, Appellants have not provide a definition of “joined to” that
excludes having intervening layers. Appellants’ dictionary definition of
“joined” as meaning “to bring things together” does not require that the two
things being brought together are in direct contact (App. Br. 11, Ans. 33).
On this record, we affirm the Examiner’s § 103 rejection over
Gossamer in view of Gore as evidenced by Natarajan and Cambridge
Dictionary.
DECISION
The Examiner’s decision 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)(l)(iv).
AFFIRMED
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