Ex Parte Fisher

Patent Trial and Appeal Board

May 31, 2018

12553529 (P.T.A.B. May. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/553,529 09/03/2009
7590 06/01/2018
RayL. Weber
106 S. Main Street, 4th Floor
Akron, OH 44308
FIRST NAMED INVENTOR
Martin James Fisher
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.
ABR.P.21 6739
EXAMINER
BELLINGER, JASON R
ART UNIT PAPER NUMBER
3617
MAIL DATE DELIVERY MODE
06/01/2018 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
Exparte MARTIN JAMES FISHER
Appeal 2016-004179
Application 12/553,529
Technology Center 3600
Before STEVEND.A. McCARTHY, MICHELLE R. OSINSKI, and
NATHAN A. ENGELS, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Martin James Fisher ("Appellant") 1 appeals under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1--4 and 6-24, which are all
of the pending claims. An oral hearing was held on May 9, 2018. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant identifies the real party in interest as Meggitt Aerospace
Limited. Br. 1.
Appeal 2016-004179
Application 12/553,529
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter on appeal.
1. An aircraft wheel fitted with a hubcap, said hubcap
comprising a generally cup-like body covering a free end of an
axle, the cup-like body having an end wall, a side wall and an
open end opposite the end wall, the hubcap further comprising
one or more elongate formations protruding from an outer
surface of the side wall and extending from the end wall towards
the open end of the body, wherein the height of elongate
formation varies or tapers between a closed end and the open end
of the cup-like body, said configuration of said aircraft wheel
hubcap attenuating noise otherwise generated by said hubcap
when exposed to an airstream when said aircraft wheel is lowered
from a storage bay of an aircraft during final approach to a
runway.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Abbate Daga
Gorges
Johnson
Mackness
us 4,547,021
us 5,020,861
US 6,447,072 Bl
US 2004/0124307 Al
THE REJECTIONS
Oct. 15, 1985
June 4, 1991
Sept. 10, 2002
July 1, 2004
I. Claims 1--4, 6-8, 10-14, 16, 17, and 19--23 stand rejected under
35 U.S.C. § I03(a) as unpatentable over Mackness, Johnson, and
Gorges. Final Act. 2-3.
II. Claims 9, 15, 18, and 24 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Mackness, Johnson, Gorges, and Abbate Daga.
Id. at 3--4.
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Appeal 2016-004179
Application 12/553,529
OPINION
The Examiner relies on Mackness for the general teachings of an
aircraft wheel fitted with a hubcap, the hubcap comprising a generally cup-
like body covering a free end of an axle and having an end wall, a side wall,
and an open end opposite the end wall. Final Act. 2. The Examiner
acknowledges that Mackness fails to teach elongate formations protruding
from an outer surface of the side wall and extending from the end wall
towards the open end of the body. Id. The Examiner finds that "Johnson
teaches the use of a hubcap 20 having a plurality of equidistantly spaced ribs
28 on a side wall of the hubcap 20." Id. The Examiner concludes that it
would have been obvious "to provide the cap of Mackness with ribs for the
purpose of increasing heat transfer, thus cooling the hubcap and wheel
components[,] thereby preventing undue damage." Id. 2
Appellant argues that "a person skilled in the art of aircraft landing
gear and components associated therewith would never combine the
teachings of Mackness and Gorges with the teaching of Johnson." Br. 5.
Appellant explains that "the end cap of Johnson is necessarily solid to ensure
2 As to the height of the elongate formation varying or tapering between the
closed and open ends of the body, the Examiner finds that "Gorges teaches
the use of a hubcap 60 having a radially outwardly tapered body." Final
Act. 3. The Examiner concludes that it would have been obvious "to form
the cap of Mackness as modified by Johnson with a tapered body, as a
substitute equivalent shape, dependent upon the aesthetic appearance
desired" (id.) and "to provide tapered ribs on a tapered surface in order to
preserve the tapered shape" (Ans. 7). As to the configuration of the aircraft
wheel hubcap attenuating noise when exposed to an airstream when the
aircraft wheel is lowered from a storage bay of an aircraft during final
approach to a runway, the Examiner finds that "the ribs taught by Johnson
are capable of influencing the flow of air around the cap, which could reduce
noise generated by air flowing around the wheel assembly." Final Act. 2.
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Appeal 2016-004179
Application 12/553,529
adequate heat conduction," but "[p ]lacing such an end cap on an aircraft
would add weight----diametrically contrary to aircraft design goals." Id. at 8;
see also Declaration Under Rule 37 C.F.R. § 1.132 ("Deel.") ,r 7( d)
( explaining that Johnson's end cap 20 is a solid, heavy material to facilitate
its function as a heat sink, and it would be undesirable to make aircraft
industry components heavier).
Appellant's Specification explains that reducing aircraft weight is of
major concern to the aircraft industry and "gives benefits in performance and
cost of operation." Spec. 1: 16-17. Appellant's Specification further
explains that "wheel and brake components ... are only used during ground
based maneuvers, such as during the take-off and landing cycles." Id. at
1: 18-19. In contrast to the more limited use of aircraft wheel and brake
components, Johnson is concerned with wheel spindle and hub assemblies
used on trailers that are prone to heat build-up because of extended travel
over hot roadways and continuous braking. Johnson 1 :8-14, 32--40; 2:9-17.
The Examiner has failed to adequately consider the differences
between aircraft on one hand and trailers on the other hand, including for
example, differences in the conditions to which the wheels for the respective
means of transportation would be exposed. The Examiner has also failed to
balance the potential increase in heat transfer that might be achieved through
the use of ribs (as identified in the rejection) against the disadvantageous
increase in weight, especially considering the importance given to reducing
the weight of an aircraft as evidenced by Appellant's Declaration evidence.
See Deel. ,r 7 ( d).
Given this disadvantage, the weakness of the stated advantage in light
of, for example, the differences between aircraft and trailers, and the absence
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Appeal 2016-004179
Application 12/553,529
in the rejection of a balancing of the purported increase in heat transfer
against the detrimental increase in weight, we find that the Examiner's stated
reasoning lacks a rational underpinning. See In re Kahn, 441 F .3d 977, 988
(Fed. Cir. 2006), cited with approval in KSR Int'! Co. v. Teleflex, Inc., 550
U.S. 398,418 (2007) ("[R]ejections on obviousness grounds ... [require]
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness."). That is, the Examiner's articulated
reasoning for modifying Mackness to add ribs in accordance with the
teachings of Johnson (e.g., in order to increase heat transfer) fails to
adequately take into account how the proposed modification affects aircraft,
as compared to the land trailers with which Johnson was concerned, so as to
be persuasive of the obviousness of the subject matter of the independent
claims.
For the foregoing reasons, we find that the Examiner erred in
concluding that Mackness, Johnson, and Gorges render obvious the subject
matter of the independent claims, as well as those claims that depend
therefrom. Accordingly, we do not sustain the Examiner's rejection of
claims 1--4, 6-8, 10-14, 16, 17, and 19--23 under 35 U.S.C. § 103(a) as
unpatentable over Mackness, Johnson, and Gorges.
Rejection II
Claims 9, 15, 18, and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Mackness, Johnson, Gorges, and Abbate Daga. Final Act.
3--4. The rejection of these claims rely on the Examiner's erroneous
conclusion that Mackness, Johnson, and Gorges render obvious the subject
matter of claims 1 and 14, from which claims 9, 15, 18, and 24 depend. Id.
at 3. The Examiner does not explain how Abbate Daga cures this underlying
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Appeal 2016-004179
Application 12/553,529
deficiency. Accordingly, we do not sustain the Examiner's rejection of
claims 9, 15, 18, and 24 under 35 U.S.C. § 103(a) as unpatentable over
Mackness, Johnson, Gorges, and Abbate Daga.
DECISION
The Examiner's decision to reject claims 1--4, 6-8, 10-14, 16, 17, and
19--23 under 35 U.S.C. § 103(a) as unpatentable over Mackness, Johnson,
and Gorges is reversed.
The Examiner's decision to reject claims 9, 15, 18, and 24 under 35
U.S.C. § 103(a) as unpatentable over Mackness, Johnson, Gorges, and
Abbate Daga is reversed.
REVERSED
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