Ex Parte Devlin et al

Patent Trial and Appeal Board

Feb 1, 2018

13832121 (P.T.A.B. Feb. 1, 2018)

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.
13/832,121 03/15/2013 Russell S. Devlin NSD 2010-020 8232
26353 7590 01/04/2018
WESTINGHOUSE ELECTRIC COMPANY, LLC
1000 Westinghouse Drive
Suite 141
Cranberry Township, PA 16066
EXAMINER
ROBERTS, HERBERT K
ART UNIT PAPER NUMBER
2855
NOTIFICATION DATE DELIVERY MODE
01/04/2018 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):
guerral @ wes tinghou se. com
spadacjc @ westinghouse.com
coldrerj @ westinghouse. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUSSELL S. DEVLIN, PATRICK M. MINOGUE, and
JOHN P. LAREAU
Appeal 2017-003148
Application 13/832,121
Technology Center 2800
Before TERRY J. OWENS, AVELYN M. ROSS, and JANE E. INGLESE,
Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1—5, 9, and 10. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is the Applicant, Westinghouse Electric Company LLC, which,
according to the Appeal Brief, is the real party in interest. Appeal Brief filed
January 22, 2016 (“App. Br.”), 2.
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Application 13/832,121
STATEMENT OF THE CASE
Appellant’s invention is generally directed to a method of
nondestructively examining a bolt through a recess in the bolt head having
varying or unknown surface geometry. Spec. Abstract. The method
involves performing a phased array ultrasonic scan of the bolt socket’s
surface geometry, and using the results of this scan to set the focal laws for a
second scan of the volume of the bolt to determine if any defects exist in the
bolt. Spec. 1 8, Abstract. Claim 1 illustrates the subject matter on appeal
and is reproduced below:
1. A method of nondestructively examining a bolt having a
recessed socket in a head of the bolt, the recessed socket having
an unknown or varying surface geometry in a bottom of the
recessed socket, with the bolt anchored in a fixture and with the
surface geometry covered by an ultrasonic coupling fluid,
comprising the steps of:
placing a phased array ultrasonic transducer, having a
plurality of transducer elements, within or on the ultrasonic
coupling fluid and over the head of the bolt with a beam
emitting end directed towards the head of the bolt;
scanning an ultrasonic beam of the phased array through
a plurality of combinations of control parameters that alters the
beam so that an incident angle of the beam on the surface
geometry in the bottom of the recessed socket is varied about a
centerline of the bolt;
monitoring a reflected or refracted beam;
determining the surface geometry of the bottom of the
recessed socket from the monitored strongest reflected or
refracted beam;
adjusting the phased array to operate at a combination of
control parameters that produces an optimized beam for the
surface geometry determined in the previous determining step
that produced the strongest reflected or refracted beam; and
performing a scan of a volume of the bolt employing the
optimized beam to determine any defects in the bolt.
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App. Br. 8 (Claims Appendix) (emphasis added).
The Examiner sets forth the rejection of claims 1—5, 9, and 10 under
35 U.S.C. § 103(a) as unpatentable over Batzinger (US 2004/0050166 Al,
published March 18, 2004) in view of Richardson (US 4,818,470, issued
April 4, 1989) and Moles (US 2004/0020296 Al, published February 5,
2004) in the Final Office Action entered September 8, 2015 (“Final Act.”),
and maintains the rejection in the Examiner’s Answer entered July 28, 2016
(“Ans.”).
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejection of
claims 1—5, 9, and 10 under 35 U.S.C. § 103(a) for the reasons set forth in
the Final Office Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the Appellant provides for each issue Appellant
identifies. 37 C.F.R. § 41.37(c)(l)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections”)).
Claims F 3, 4, and 10
Appellant presents arguments directed to the subject matter of claim
1, and relies on these arguments to address claims 3, 4, and 10. Br. 3—6.
Therefore, we select claim 1 as representative, and decide the appeal as to
claims 1, 3, 4, and 10 based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/832,121
Batzinger discloses an advanced phased array ultrasonic imaging
method for detecting defects in components and structures found in
industrial settings. Batzinger |1. Batzinger discloses that the method
includes exciting a number of transducers 12 that form an array 14 to
produce an ultrasonic transmission beam focused into a component 10 along
a selected ray path 16. Batzinger || 6, 23, Figs. 1, 2. Batzinger discloses
that the array 14 is separated from the component 10 by a standoff 18, which
may be water (ultrasonic coupling fluid). Id. Batzinger discloses that the
method further includes generating a number of echo signals using the
transducers 12 as receive elements 12, and processing the echo signals to
generate a focused echo signal. Batzinger | 6, Fig. 2.
Richardson discloses an ultrasonic method for detecting cracking
defects in bolts present in a steam separator in a boiling water nuclear
reactor without removing the bolts from the steam separator. Richardson
col. 1,11. 6—8; col. 2,11. 44-45; col 3,11. 22—24; col. 4,11. 6—10. Richardson
discloses that the method involves placing a shoe S with an upwardly-facing
piezoelectric device at the bottom end of (or underneath) a bolt, and
conducting an ultrasonic test from the bottom of the bolt toward the bolt’s
upper end (performing a scan of a volume of a bolt). Richardson col. 4,11.
36-45, Figs. 1, 5. The Examiner finds that one of ordinary skill in the art
would have been led to “scan the volume of a bolt, as taught by Richardson,
in the method of Batzinger, to increase safety and reduce cost” in light of
Richardson’s disclosure that removal and manipulation of bolts to examine
them for defects can be prohibitively expensive, and because it would have
been apparent to one of ordinary skill in the art that cracked bolts used in
nuclear reactors and other applications such as aircraft can present a
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Application 13/832,121
significant safety hazard, and a means for inexpensive inspection of the bolts
would thus increase safety. Final Act. 4 (citing Richardson col. 2,11. 60-63;
col. 4,11. 6-15).
Moles discloses non-destructive ultrasonic phased array testing of
material surrounding fastener holes, including fastener holes formed in
aircraft wing skin. Moles 1, 2; Fig. 1A. The Examiner finds that it was
common knowledge, and thus would have been apparent to those of ordinary
skill in the art at the time of Appellant’s invention, that the fasteners
disclosed in Moles would include common bolts, such as those with recessed
sockets. Ans. 2—3. Because this finding is reasonable and Appellant does
not challenge it, we accept it as fact. See In re Kunzmann, 326 F.2d 424,
425 n.3 (CCPA 1964). Based on this official notice and the relied-upon
disclosures in Moles, the Examiner finds that one of ordinary skill in the art
would have been led at the time of Appellant’s invention to examine a bolt
having a recessed socket using the method of Batzinger modified as
suggested by Richardson to increase safety (for the reasons discussed
above). Final Act. 4—5.
Appellant argues that Batzinger does not teach inspecting an interior
recessed socket of a bolt. Br. 4.
However, the Examiner acknowledges that Batzinger lacks this
disclosure, and relies on Richardson, Moles, and official notice to address
this feature, as discussed above. It follows that Appellant’s argument is
improperly based on Batzinger alone, and does not take into consideration
what the combined disclosures of Batzinger, Richardson, and Moles would
have suggested to one of ordinary skill in the art at the time of Appellant’s
invention. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-
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Application 13/832,121
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.”); In re Keller, 642 F.2d 413, 425 (CCPA 1981) (The test for
obviousness “is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.”) Therefore, Appellant’s
argument is unpersuasive of reversible error in the Examiner’s finding that
the combined disclosures of Batzinger, Richardson, and Moles, in view of
the state of the art at the time of Appellant’s invention, would have
suggested inspecting an interior recessed socket of a bolt (as discussed
above).
Appellant also argues that Batzinger does not teach varying the
incident angle of a beam about a centerline of the surface being scanned to
identify the strongest reflected or refracted signal. Br. 4. Nonetheless,
Appellant acknowledges that Batzinger discloses changing the relative
angular orientation of a transducer array and a component being inspected
around an axis. Id.
In response, the Examiner finds that Batzinger discloses that
ultrasound inspection systems provide dynamic focusing, dynamic aperture,
steering, and Doppler frequency shift. Final Act. 5 (citing Batzinger | 65).
The Examiner finds that such features serve to adjust array control
parameters to provide a full and thorough scan, even with unknown or
varying geometries, corresponding to “producing the strongest reflected or
refracted beam,” as recited in claim 1. Final Act. 5. The Examiner further
finds that this disclosure and Batzinger’s disclosure of changing the relative
angular orientation of a transducer array and a component being inspected
around an axis (1 8), in combination with Richardson’s disclosure of
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Application 13/832,121
performing a scan of a volume of a bolt to determine any defects in the bolt,
and Moles’ disclosure of non-destructive ultrasonic phased array testing of
material surrounding holes for bolts that include recessed sockets, would
have suggested varying the incident angle of a beam about the centerline of a
bolt, as recited in claim 1. Ans. 3.
Accordingly, the Examiner sets forth a reasoned explanation of why
the proposed combination of the relied-upon disclosures in the applied prior
art would have suggested varying the incident angle of a beam about a
centerline of a bolt to identify the strongest reflected or refracted signal.
Because Appellant’s conclusory argument does not identify any specific
error in the Examiner’s findings or reasoning, Appellant’s argument is
unpersuasive of reversible error.2 Jung, 637 F.3d at 1365; In re Baxter
TravenolLabs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of
this court to examine the claims in greater detail than argued by an appellant,
looking for nonobvious distinctions over the prior art.”).
Appellant also argues that Batzinger does not teach detecting the
strongest reflected or refracted signal to map the surface of the bottom of a
recessed socket before a scan is performed to identity any flaws. Br. 4—5.
However, as discussed above, Batzinger discloses using a phased
array ultrasound system to detect defects in industrial components. The
Examiner finds that paragraphs 45—47 of Batzinger disclose determining the
surface geometry of a component from the monitored strongest reflected or
refracted beam, adjusting the phased array to operate at a combination of
control parameters that produces an optimized beam for the determined
2 By declining to file a Reply Brief, Appellant does not challenge the factual
findings and reasoning provided by the Examiner in the Answer.
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Application 13/832,121
surface geometry, and performing a scan of a volume of the component
employing the optimized beam to determine any defects in the component.
Final Act. 3. The Examiner finds that these disclosures in Batzinger in
combination with Richardson’s disclosure of performing a scan of a volume
of a bolt to determine defects in the bolt, and Moles’ disclosure of non­
destructive ultrasonic phased array testing of material surrounding holes for
bolts that include recessed sockets, would have suggested determining the
surface geometry of the bottom of a recessed socket from the monitored
strongest reflected or refracted beam, adjusting the phased array to operate at
a combination of control parameters that produces an optimized beam for the
determined surface geometry, and performing a scan of a volume of the bolt
employing the optimized beam to determine any defects in the bolt, as
recited in claim 1. Final Act. 2—A.
Appellant’s conclusory argument does not identify any specific error
in the Examiner’s factual findings or reasoning. Nor does Appellant’s
argument explain why the proposed combination of the relied-upon
disclosures in Batzinger, Richardson, and Moles would not have suggested
the features of claim 1 that Appellant asserts are not disclosed in Batzinger.
Therefore, Appellant’s argument is unpersuasive of reversible error. Jung,
637 F.3d at 1365; Baxter, 952 F.2d at 391.
Appellant further argues Richardson does not teach inspecting a bolt
from a recess in a bolt head having an unknown geometry. Br. 5.
However, Appellant’s argument is improperly based on Richardson
alone, and does not take into consideration what the combined disclosures of
Batzinger, Richardson, and Moles would have suggested to one of ordinary
skill in the art at the time of Appellant’s invention. In response to
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Appellant’s argument, the Examiner finds that Richardson discloses that the
ultrasound entry point on a bolt being examined in Richardson’s method is
the accessible section L of the bolt. Ans. 3 (citing Richardson Fig. 4). The
Examiner further finds that, in view of this disclosure in Richardson, it
would have been apparent to one of ordinary skill in the art at the time of
Appellant’s invention to examine a bolt having a recessed socket (as
suggested by Moles) in the method of Batzinger modified as suggested by
Richardson at the recessed socket of the bolt, because this location would be
accessible. Ans. 4. The Examiner finds that in so doing, the ordinarily
skilled artisan would not need to remove the bolt, saving time and expense.
Ans. 4 (citing Richardson col. 2,11. 60-66; Moles 110). In addition, as
discussed above, the Examiner finds that Batzinger’s method adjusts array
control parameters to provide a full and thorough scan, even with unknown
or varying geometries. Final Act. 5. Appellant’s conclusory argument does
not identity any particular error in the Examiner’s factual findings or
reasoning, and is thus unpersuasive of reversible error. Jung, 637 F.3d at
1365; Baxter, 952 F.2d at 391.
Appellant also argues that Richardson does not teach “how the scan is
performed.” Br. 5. However, the Examiner relies on Batzinger—rather than
Richardson—for disclosing the features of an ultrasonic scanning process.
Final Act. 2—\\ Ans. Because Appellant’s argument does not address the
relied-upon disclosures in Batzinger regarding ultrasonic scanning, it is
unpersuasive of reversible error in the Examiner’s rejection.
Appellant also argues that Moles does not disclose scanning a
fastener, or interrogating an unknown or varying surface for flaws.
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Appellant further contends that Moles’ element 6 in Figure 1A refers to a
fastener head, rather than a recessed socket. Br. 5.
However, Appellant’s arguments are improperly based on Moles
alone, and do not take into consideration what the combined disclosures of
Batzinger, Richardson, and Moles would have suggested to one of ordinary
skill in the art at the time of Appellant’s invention. As discussed above, the
Examiner takes official notice that it was common knowledge at the time of
Appellant’s invention that the fasteners disclosed in Moles would include
common bolts, such as those with recessed sockets, which we accept as fact
because Appellant does not challenge it. Ans. 2—3. As also discussed
above, the Examiner finds that a combination of the relied-upon disclosures
in Batzinger, Richardson, and Moles would have suggested scanning the
recessed socket of a bolt having unknown or varying geometry to detect
defects in the bolt. Final Act. 3—5. Because Appellant’s conclusory
arguments do not identify any particular error in the Examiner’s factual
findings or reasoning, the arguments are unpersuasive of reversible error.
Jung, 637 F.3d at 1365; Baxter, 952 F.2d at 391.
Appellant further argues that Moles does not disclose varying the
incident angle of a beam, or determining the surface geometry from the
strongest reflected or refracted signals monitored. Br. 5.
However, Appellant’s argument is again improperly based on Moles
alone, and does not take into consideration what the combined disclosures of
Batzinger, Richardson, and Moles would have suggested to one of ordinary
skill in the art at the time of Appellant’s invention. The Examiner finds that
Batzinger discloses varying the incident angle of the beam (Ans. 5 (citing
Batzinger 132, which states that “[i]t is desirable to direct or steer the
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Application 13/832,121
ultrasonic beam to move the beam through a set of angles 0 to scan the
component 10.”)). The Examiner further finds that Moles also discloses
varying the incident angle of the beam (Ans. 4 citing Moles Fig. 2, | 56,
which describes Figure 2 and states that “[I]n this way, they can scan around
a fastener opening at the faying surface, using scan patterns that extend over
a variety of angles and spatial volumes surrounding the perimeter of the
hole.”)). As discussed above, the Examiner finds that the dynamic focusing,
dynamic aperture, steering, and Doppler frequency shift disclosed in
Batzinger serve to adjust array control parameters to provide a full and
thorough scan, even with unknown or varying geometries, corresponding to
“producing the strongest reflected or refracted beam” recited in claim 1.
Final Act. 5 (citing Batzinger | 65). As also discussed above, the Examiner
further finds that Batzinger discloses determining the surface geometry of a
component from the monitored strongest reflected or refracted beam. Final
Act. 3.
Thus, the Examiner finds that a combination of the relied-upon
disclosures in Batzinger, Richardson, and Moles would have suggested
varying the incident angle of a beam, and determining the surface geometry
from the strongest reflected or refracted signals monitored. Final Act. 3—5;
Ans. 4—5. Because Appellant does not identify any particular error in the
Examiner’s factual findings or reasoning, Appellant’s argument is
unpersuasive of reversible error. Jung, 637 F.3d at 1365; Baxter, 952 F.2d
at 391.
Appellant thus does not identify and adequately explain reversible
error in the Examiner’s finding that one of ordinary skill in the art, armed
with the disclosures of Batzinger, Richardson, and Moles, would have been
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led to the subject matter of claims 1—5, 9, and 10 within the meaning 35
U.S.C. § 103(a). We accordingly sustain the Examiner’s § 103(a) rejection
of these claims.
Claim 2
Claim 2 depends from claim 1 and recites that a sound entry point of
the beam on the bolt is in the recessed socket.
Appellant argues that Batzinger discloses that the entry point is on a
generic convex curved or flat surface, and Richardson discloses that the
entry point is on the bottom of a bolt shank. Br. 5. Appellant asserts that
Figures 3B and 15 of Moles show that the entry point is around the
periphery of an opening, and not a recess in a fastener. Br. 5—6. Appellant
contends that Batzinger, Richardson, and Moles, therefore, “do not teach
that their surfaces subject to the interrogation have any recess.” Br. 6.
However, as discussed above, the Examiner finds that Richardson
discloses that the ultrasound entry point on a bolt being examined in
Richardson’s method is the accessible section L of the bolt. Ans. 7 (citing
Richardson Fig. 4). The Examiner further finds that, in view of this
disclosure in Richardson, it would have been apparent to one of ordinary
skill in the art at the time of Appellant’s invention to examine a bolt having a
recessed socket (as suggested by Moles) in the method of Batzinger
modified as suggested by Richardson at the recessed socket of the bolt,
because this location would be accessible. Ans. 7. The Examiner finds that
in so doing, the ordinarily skilled artisan would not need to remove the bolt,
saving time and expense. Ans. 7 (citing Richardson col. 2,11. 60—66; Moles
110).
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Appellant’s arguments do not identify any error in the Examiner’s
factual findings and reasoning. Nor does Appellant adequately explain why
the proposed combination of the relied-upon disclosures in in Batzinger,
Richardson, and Moles, in view of the state of the art at the time of
Appellant’s invention, would not have suggested the features of claim 2.
Therefore, Appellant’s arguments are unpersuasive of reversible error in the
Examiner’s rejection of claim 2 under 35 U.S.C. § 103(a), and we
accordingly sustain this rejection. Jung, 637 F.3d at 1365; Baxter, 952 F.2d
at 391.
Claim 5
Claim 5 depends from claim 1 and recites that the scanning step
includes the step of varying an incident angle of the beam as the beam is
swept across a surface of the bolt.
Appellant argues that Batzinger “sweeps the beam but does not appear
to vary the incident angle, and Richardson [] do[es] not mention how the
interrogation is conducted.” Br. 6. Appellant further contends that Moles
does “not vary the incident angle of the beam, nor does the reference vary
the incident angle as the beam is swept across the surface of the bolt.” Id.
Appellant’s argument regarding Richardson is discussed above. In
addition, as also discussed above, the Examiner finds that Batzinger and
Moles both disclose varying the incident angle of the beam. Ans. 4 (citing
Moles Fig. 2, | 56); Ans. 5 (citing Batzinger 132). Appellant’s conclusory
argument does not identity any specific error in the Examiner’s factual
findings or reasoning. Jung, 637 F.3d at 1365; Baxter, 952 F.2d at 391.
Therefore, Batzinger’s admitted disclosure of sweeping the beam, in
combination with Batzinger and Moles’ disclosure of varying the incident
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angle of the beam, reasonably would have suggested varying an incident
angle of the beam as the beam is swept across a surface of the bolt, as recited
in claim 5.
Therefore, we sustain the Examiner’s rejection of claim 5 under 35
U.S.C. § 103(a).
Claim 9
Although Appellant separately addresses claim 9, Appellant’s
statements do not constitute substantive arguments as to the separate
patentability of this claim because Appellant merely asserts without further
explanation that Batzinger, Richardson, and Moles do not teach the claimed
subject matter. Br. 6. In reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011):
[T]he Board reasonably interpreted Rule 41.37 to require more
substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art.
Because Fovin did not provide such arguments, the Board did
not err in refusing to separately address claims 2—15, 17—24,
and 31—34.
We accordingly sustain the Examiner’s rejection of claim 9 under 35 U.S.C.
§ 103(a).
DECISION
We affirm the Examiner’s rejection of claims 1—5, 9, and 10 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).
AFFIRMED
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