Ex Parte Farmer et alDownload PDFPatent Trial and Appeal BoardFeb 1, 201612733181 (P.T.A.B. Feb. 1, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121733,181 02/16/2010 23117 7590 02/03/2016 NIXON & V ANDERHYE, PC 901 NORTH GLEBE ROAD, 11 TH FLOOR ARLINGTON, VA 22203 FIRST NAMED INVENTOR Benjamin Lionel Farmer 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. JHN-5065-0069 6470 EXAMINER PADGETT, MARIANNE L ART UNIT PAPER NUMBER 1717 NOTIFICATION DATE DELIVERY MODE 02/03/2016 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BENJAMIN LIONEL FARMER and DANIEL MARK JOHNS Appeal2014-004580 Application 12/733,181 1 Technology Center 1700 Before ROMULO H. DELMENDO, MARK NAGUMO, and CHRISTOPHER M. KAISER, Administrative Patent Judges. KAISER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the decision2 of the Primary Examiner rejecting claims 1-11. Final Act. 3-10. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. OPINION Appellants' invention "relates to a method and apparatus for manufacturing a component from a composite material." Spec. 1, 11. 4--5. Claim 1, reproduced below, is representative of the appealed subject matter: 1 According to Appellants, the Real Party in Interest is Airbus Operations Limited. Appeal Br. 4. 2 Final Office Action, mailed January 18, 2013 ("Final Act."). Appeal2014-004580 Application 12/733, 181 1. A method of additively manufacturing a component from a composite material, the composite material comprising a matrix and a plurality of reinforcement elements contained within the matrix, the method comprising: forming a series of layers of the composite material to form said component, each layer being formed on top of a previous layer; and applying an electromagnetic field to each layer of said layers of the composite material before a next layer of said layers of composite material is formed on top of said each layer, the electromagnetic field causing at least some of the reinforcement elements in said each layer to rotate. Appeal Br. 33. Rejection over Chopra The Examiner rejected claims 1 and 7-11under35 U.S.C. § 103(a) as obvious over Chopra. 3 Final Act. 3---6. Appellants argue that the Examiner erred in making this rejection in three respects. First, Appellants argue that Chopra fails to teach the "additive manufacturing" recited in these claims, because, although Chopra teaches manufacturing comprising laying down multiple layers, it does not teach or suggest "additive manufacturing," which, according to Appellants, requires successive layers to be of different shapes. Appeal Br. 17-18. Appellants' evidence for the different-shapes construction of "additive manufacturing" is the definition of "3D printing" from Wikipedia, of which Appellants suggest we should take official notice. Id. We decline to take such notice, and, accordingly, we find Appellants' argument unpersuasive. The Wikipedia 3 Chopra et al., WO 2005/028549 A2, published Mar. 31, 2005. 2 Appeal2014-004580 Application 12/733, 181 article in question was submitted for the first time with Appellants' Reply Brief and referred to for the first time in Appellants' Appeal Brief. Under 37 C.F.R. § 41.33(d), Appellants are not entitled to consideration of new evidence after appeal except under certain circumstances, none of which applies here. In addition, even if we were to consider the Wikipedia article, we would not find it to control the proper construction of "additive manufacturing." "[D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification." In re Translogic Tech., Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re Hyatt, 211F.3d1367, 1372 (Fed. Cir. 2000)). The mere fact that one source suggests that "additive manufacturing" may include laying down layers of different shapes does not demonstrate that the term "additive manufacturing" is generally understood by one skilled in the relevant art as being limited to applications in which all layers are different. Nor does Appellants' Specification limit "additive manufacturing" to processes in which every layer is a different shape. The Specification merely states that "each individual layer" has "a desired net-shape," without placing any restrictions on the shape of any layer vis-a-vis the shape of any other layers. Spec. 6, 11. 15-16. Thus, the fact that "additive manufacturing" may include the construction of layers of different shapes does not mean that processes in which some layers are or may be identical are something other than "additive manufacturing." To hold otherwise would be to limit the term "additive manufacturing" more than we are permitted to do. Appellants argue next that Chopra does not teach or suggest the recited layers of "composite material comprising a matrix and a plurality of 3 Appeal2014-004580 Application 12/733, 181 reinforcement elements contained within the matrix," Appeal Br. 33, because Chopra's disclosure is directed to "growing layers of nano-material and then layers of matrix, but never a layer which includes both nano- material and matrix material." Id. at 18 (italics added). This is unpersuasive. Although paragraph 52 of Chopra, cited by the Examiner, teaches alternating layers of matrix material and nanotubes, Chopra goes on to explain that this particular structure is not required. Other figures in Chopra, such as Figure 4A, as well as paragraphs 55 and 56, teach layers that have both matrix material and nanotubes. See Final Act. 4 (citing Chopra i-fi-151-59, Figs. 3-5). Because the evidence does not support Appellants' argument that Chopra "never [teaches] a layer which includes both nano-material and matrix material," that argument is unpersuasive. Finally,4 Appellants argue that Chopra does not teach or suggest the recited application of an electromagnetic field to each layer of composite material before the next layer is deposited in order to cause at least some of the reinforcement layers in the layer to rotate. Appeal Br. 19-20. Specifically, argue Appellants, Chopra teaches only growing reinforcement elements in an electromagnetic field so that they are aligned to begin with (rather than aligning them with an electromagnetic field after they are created), as well as aligning reinforcement elements using an electromagnetic field for the entire bulk object at once (rather than aligning them layer by layer). Id. The Examiner agreed that Chopra teaches these methods but concluded that the combination of these teachings would have 4 We need not address Appellants' arguments, Appeal Br. 20-22, regarding the limitations of claim 2, because the Examiner did not reject claim 2 over Chopra. 4 Appeal2014-004580 Application 12/733, 181 taught or suggested to a person of ordinary skill in the art that the reinforcement elements could be aligned using an electromagnetic field layer by layer. Specifically, the Examiner found that Chopra's teaching of "synthesiz[ing nanotubes] in the presence of an electric field" to align them layer-by-layer during the creation of those layers, Chopra i-f 47, could be combined with Chopra's teaching of "dispersing the nanotubes into the base material and applying an electric field" to align them "after synthesis," id., to suggest to a person of ordinary skill in the art that each layer of reinforcement elements could be created and then aligned using an electromagnetic field. Answer 8-9; Final Act. 3--4. Appellants have not provided any argument or evidence to contradict this conclusion. The mere fact that Chopra fails to disclose Appellants' precise claim limitation in a single embodiment is not sufficient to overcome an obviousness rejection. Because none of Appellants' arguments persuade us that the Examiner committed harmful error in rejecting claims 1 and 7-11 under 35 U.S.C. § 103(a) as obvious over Chopra, we affirm that rejection. Rejections over Barrera The Examiner rejected claims 1, 5, 7, 10, and 11under35 U.S.C. § 102(b) as anticipated by Barrera. 5 Final Act. 6-9. The Examiner also rejected claims 2--4 and 6 under 35 U.S.C. § 103(a) as obvious over Barrera. Id. Finally, the Examiner rejected claim 6 under 35 U.S.C. § 103(a) as 5 Barrera et al., WO 01/57284 Al, published Aug. 9, 2001. 5 Appeal2014-004580 Application 12/733, 181 obvious over the combination of Barrera and Camponeschi.6 Id. at 9-10. Appellants raise four arguments against these rejections, plus one additional argument relevant only to the rejection of claims 2--4. Appeal Br. 22-28. First, Appellants argue that these claims all require "additive manufacturing," which is not disclosed, taught, or suggested by Barrera, because "additive manufacturing" requires deposited layers to be of different shapes. Appeal Br. 22-23. As discussed above, we do not find Appellants' evidence and argument persuasive of any error in the Examiner's construction of "additive manufacturing," so we are not persuaded that the Examiner erred harmfully in finding that Barrera discloses "additive manufacturing." Second, Appellants appear to argue that Barrera does not disclose, teach, or suggest layers that have a plurality of reinforcement elements contained in a matrix.7 As the Examiner noted, though, Final Act. 6, Barrera's claim 1 discloses "forming a composite of dispersed fullerenes in a matrix" and "incorporating a plurality of fullerenes in a matrix." Barrera 15, 11. 6-8. In addition, Barrera discloses the use of nanotubes and nanofibers in addition to the use of fullerenes as materials to be mixed into matrix material 6 Erin Camponeschi, Richard Vance, Marwan Al-Haik, Hamid Garmestani, & Rina Tannenbaum, Properties of Carbon Nanotube-Polymer Composites Aligned in a Magnetic Field, 45 CARBON 2037--46 (2007). 7 The Appeal Brief is ambiguous on this point: Appellants argue that "just as in Chopra, this is shown in Barrera," Appeal Br. 23, but Appellants also argue that Chopra does not teach this limitation, id. at 18-19. It is unclear whether Appellants intend to argue that neither Chopra nor Barrera teaches layers made up of reinforcement elements contained in matrix material, or whether they intend to concede that both references do teach this. For the sake of completeness, we treat Appellants as having made the argument that neither reference teaches this limitation. 6 Appeal2014-004580 Application 12/733, 181 for enhancement of material properties. Barrera, Abstract; see Final Act. 6 (citing Barrera, Abstract). Accordingly, we are not persuaded by Appellants' argument that Barrera fails to disclose reinforcement elements contained in a matrix. Third, Appellants argue that Barrera does not teach the formation of a series of layers, because it is limited to containerless material processing. Appeal Br. 24. But Barrera does disclose "progressively recycling a work piece through the process to form an overcoated layered component." Barrera 18, 11. 14--15; see Answer 10; Final Act. 7. Accordingly, we are not persuaded that the Examiner committed harmful error in finding that Barrera discloses the formation of a series of layers. Fourth, Appellants argue that Barrera does not disclose rotating the reinforcement elements in each separate layer using an electromagnetic field, both because Barrera does not teach separate layers and because Barrera's electromagnetic field is of too high a frequency to rotate any of the reinforcement elements. Appeal Br. 24--26. As noted above, Barrera does disclose separate layers, so that portion of Appellants' argument is not persuasive. As to the question of whether Barrera's electromagnetic field would cause rotation of at least some reinforcement elements, the Examiner found that it would. Final Act. 7-8. This is because Barrera teaches that, in response to the the electromagnetic field, the reinforcement elements disentangle and disperse, which inherently includes some rotation. Id. As the Examiner noted, Appellants' claims require only some rotation, to any degree, of only some unspecified number of the reinforcement elements. Answer 11; Final Act. 7-8. Appellants' argument that not a single reinforcement element would be rotated to any degree by Barrera's 7 Appeal2014-004580 Application 12/733, 181 electromagnetic field is not supported by any evidence; accordingly, it is unpersuasive. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) ("Attorney's argument in a brief cannot take the place of evidence."). Moreover, Appellants' argument is undeveloped, amounting to nothing more than a statement disagreeing with the Examiner's finding, based on reorientation during disentanglement and dispersion, that Barrera's electromagnetic field would rotate at least some reinforcement elements at least to some degree; this also renders Appellants' argument unpersuasive. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) ("[M]ere statements of disagreement ... as to the existence of factual disputes do not amount to a developed argument."). Finally, with respect to claims 2--4, each of which requires "directing energy to selected parts of each layer before said next layer is formed, the energy curing and/or consolidating the selected parts of said each layer," Appeal Br. 33, Appellants argue that Barrera does not teach or suggest this directed-energy curing process. Id. at 26-27. As the Examiner notes, Final Act. 8-9, the application of Barrera's electromagnetic field is the direction of energy into a matrix material, and it melts the matrix material and disperses into that matrix material reinforcement elements that previously were separate from the so lid matrix material. Barrera 10-11. The combining of the two separate materials into a single composite material is consolidation, and it is accomplished in Barrera through the application of directed energy in the form of an applied electromagnetic field, as the Examiner found. Accordingly, we are not persuaded by Appellants' argument that Barrera fails to teach or suggest the recited curing or consolidation through the application of directed energy. 8 Appeal2014-004580 Application 12/733, 181 Because none of Appellants' arguments persuade us that the Examiner committed harmful error in rejecting claims 1, 5, 7, 10, and 11 under 35 U.S.C. § 102(b) as anticipated by Barrera, claims 2--4 and 6 under 35 U.S.C. § 103(a) as obvious over Barrera, or claim 6 under 35 U.S.C. § 103(a) as obvious over the combination of Barrera and Camponeschi, we affirm those rejections. ORDER The Examiner's rejection of claims 1 and 7-11 under 35 U.S.C. § 103(a) as obvious over Chopra is affirmed. The Examiner's rejections of claims 1, 5, 7, 10, and 11under35 U.S.C. § 102(b) as anticipated by Barrera; claims 2--4 and 6 under 35 U.S.C. § 103(a) as obvious over Barrera; and claim 6 under 35 U.S.C. § 103(a) as obvious over the combination of Barrera and Camponeschi also are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. AFFIRMED 9 Copy with citationCopy as parenthetical citation