Ex Parte Enevoldsen

Patent Trial and Appeal Board

Jan 17, 2018

13763786 (P.T.A.B. Jan. 17, 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.
13/763,786 02/11/2013 Peder Bay Enevoldsen 2011P29243US 4175
22116 7590 01/19/2018
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
EXAMINER
FLORES, JUAN G
Orlando, EL 32817 ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
01/19/2018 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):
IPDadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PENDER BAY ENEVOLDSEN
Appeal 2017-0050241
Application 13/763,7862
Technology Center 3700
Before MURRIEL E. CRAWFORD, KENNETH G. SCHOPFER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Oct. 3, 2016)
and Reply Brief (“Reply Br.,” filed Jan. 31, 2017), and the Examiner’s
Answer (“Ans.,” mailed Dec. 1, 2016) and Final Office Action (“Final Act.,”
mailed May 5, 2016).
2 According to Appellants, the real party in interest is Siemens
Aktiengesellschaft. Appeal Br. 3.
Appeal 2017-005024
Application 13/763,786
BACKGROUND
According to Appellant, the Specification “relates to a flap
arrangement for a wind turbine rotor blade, to a wind turbine rotor blade and
to a method for enhancing the aerodynamic performance of a wind turbine
rotor blade, for example at low wind speeds.” Spec. ^ 2.
REPRESENTATIVE CLAIM
Claim 1 is representative of the appealed claims and recites:
1. A flap arrangement for a wind turbine rotor blade,
comprising a leading edge, a trailing edge and a chord line
between the leading edge and the trailing edge, the flap
arrangement comprising:
a support portion adapted to prolong a suction side of the
wind turbine rotor blade; and
a flap portion adapted to prolong a pressure side of the
wind turbine rotor blade and passively moveable with respect to
an angle between a surface normal of a surface of the flap portion
and the chord line,
wherein the support portion and the flap portion are
positioned relative to each other such that the support portion
provides a limit to the movement of the flap portion.
Appeal Br. 14.
REJECTIONS
1. The Examiner rejects claims 1-5, 7, 9, 10, 12-20 under 35 U.S.C.
§ 102(b) as anticipated by Meldgaard.3
2. The Examiner rejects claim 6 under 35 U.S.C. § 103(a) as unpatentable
over Meldgaard in view of Tafoya.4
3 Meldgaard et al., US 2009/0028705 Al, pub. Jan. 29, 2009.
4 Tafoya, US 7,413,408 Bl, iss. Aug. 19, 2008.
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Appeal 2017-005024
Application 13/763,786
3. The Examiner rejects claims 8 and 11 under 35 U.S.C. § 103(a) as
unpatentable over Meldgaard in view of Godsk.5
DISCUSSION
Claim 1 requires, inter alia, that the support and flap portions are
arranged such that the support portion provides a limit to the movement of
the flap portion. Regarding this requirement, the Examiner identifies
Meldgaard’s fairing plate 17 in Figure 1 as the support portion and element
15 as the flap portion, and the Examiner further finds that the support
portion 17 and flap portion 15 are positioned such that the support portion
provides a limit to the movement of the flap portion. Final Act. 3 (citing
Meldgaard Fig. 1). In response to Appellant’s argument regarding this
limitation, the Examiner further finds that fairing plate 17 does not include
hinges “that allow [for] upward or downward movement of the fairing
[plate]” and that “[a] person of ordinary skills can clearly understand that a
fixed fairing... can limit [further] upward deflection of the flexible flap
when the flexible flap is in the solid line position in Figure 1.” Ans. 11. The
Examiner asserts that the “fixed fairing will come into contact and limit said
upward deflection as claimed.” Thus, the Examiner concludes that “it is
clear that the fairing (support) can limit an upward deflection of a flexible
flap when forced upwards from a solid line position in Figure 1.” Id.
As discussed below, we are persuaded of reversible error in the
rejection of claim 1 by Appellant’s argument that Meldgaard does not
disclose a support portion arranged to limit the movement of the flap
portion. See Appeal Br. 9-10.
5 Godsk, US 2010/0008787 Al, pub. Jan. 14, 2010.
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Appeal 2017-005024
Application 13/763,786
We have reviewed the Specification and Figures of Meldgaard and
can find no express indication that the fairing plate 17 provides a limit to the
movement of the flap 15. Rather, Meldgaard expressly discloses only that
the fairing plate 17 “covers flap 15 avoiding any air gap during its
deflection.” Meldgaard ^ 31; see also id. at 20, claim 4. Indeed, the
Examiner does not provide a citation to any portion of Meldgaard expressly
indicating that the fairing plate provides a limit to the movement of the flap
15. See Final Act. 3; see also Ans. 11. Thus, the Examiner must be relying
on a finding of inherency to support this anticipation rejection.
“Inherency, however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set
of circumstances is not sufficient.” In re Robertson, 169 F.3d 743, 745 (Fed.
Cir. 1999) (citations and internal quotation marks omitted). Here, the
Examiner states that one of ordinary skill in the art would understand that if
the flap 15 of Meldgaard’s Figure 1 were deflect upward, the fairing plate 17
would provide a limit to that upward deflection, presumably because the
fairing has no hinges to allow for upward or downward deflection. Ans. 11.
From this, the Examiner concludes that the fairing plate can limit the upward
deflection of the flap 15. Id. The fact that the fairing plate can or might
limit upward deflection of the flap is not sufficient to support a finding of
inherency with respect to the claim limitation at issue here. The Examiner
has not provided sufficient evidence, and such evidence is not readily
apparent in Meldgaard, to support the conclusion that Meldgaard’s fairing
plate 17 is necessarily arranged to limit the movement of the flap 15.
Based on the foregoing, we are persuaded of reversible error with
respect to the anticipation rejection of claim 1. Accordingly, we do not
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Appeal 2017-005024
Application 13/763,786
sustain the rejection of claim 1. We also do not sustain the rejection of
claims 2-5, 7, 9, 10, and 12-20 for the same reasons because those claims
either depend from claim 1 or include a substantially similar limitation to
that addressed with respect to claim 1. We also do not sustain the
obviousness rejections of claims 6, 8, and 11, because the Examiner has not
established, and it is not readily apparent in the record before us, how the art
of record cures the deficiency in the rejection of independent claim 1.
CONCLUSION
We REVERSE the rejections of claims 1-20.
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).
REVERSED
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