Ex Parte Gigas et al

Board of Patent Appeals and Interferences

Jul 26, 2011

11169618 (B.P.A.I. Jul. 26, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte BERND GIGAS, FREDERICK W. KEHR III,
and THOMAS A. TAYLOR
______________

Appeal 2010-002200
Application 11/169,618
Technology Center 1700
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Before CHARLES F. WARREN, JEFFREY T. SMITH, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board from the decision of the Primary
Examiner finally rejecting claims 23-30, 32-36, and 38 in the Office Action
mailed October 9, 2008, and refusing to allow these claims as amended in
the Amendment filed February 9, 2009, entered in the Examiner’s Answer.
35 U.S.C. §§ 6 and 134(a) (2002); 37 C.F.R. § 41.31(a) (2008).
We affirm the decision of the Primary Examiner.
Claims 23 and 33, illustrating Appellants’ invention of a blade for an
impeller assembly with a top and bottom skin element, and a rear weld joint
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attaching the two skin elements at the trailing edge of the blade, wherein the
top skin element has a flat rear surface that forms an entire flat trailing edge
of the blade, are representative of the claims on appeal:
23. A blade for use in an impeller assembly, the blade having a
leading edge and a trailing edge, the blade comprising:
a top skin element;
a bottom skin element; and
a rear weld joint attaching the top skin element to the bottom skin
element at the trailing edge of the blade, wherein the rear weld joint has a
substantially triangular cross section shape, wherein the bottom skin element
has a rear edge and a reduced thickness proximate the rear edge of the
bottom skin element that forms a tapered surface on the top of the bottom
skin element at the rear edge of the bottom skin element, with the tapered
surface abutting a lower surface of the upper skin element, wherein the top
skin element has a flat rear surface that forms an entire flat trailing edge of
the blade.
33. A blade for use in an impeller assembly, the blade having a
leading edge and a trailing edge, the blade comprising:
a top skin element;
a bottom skin element; and
a rear attaching means for attaching the top skin element to the bottom
skin element at the trailing edge of the blade, wherein the rear attaching
means has a substantially triangular cross section shape, wherein the bottom
skin element has a rear edge and a reduced thickness proximate the rear edge
of the bottom skin element that forms a tapered surface on the top of the
bottom skin element at the rear edge of the bottom skin element, with the
tapered surface abutting a lower surface of the upper skin element, wherein
the top skin element has a flat rear surface that forms an entire flat trailing
edge of the blade.
Appellants request review of the ground of rejection under 35 U.S.C.
§ 103(a) advanced on appeal by the Examiner: claims 23-30, 32-36 and 38
over Weetman ‘235 (US 5,344,235) in view of Weetman ‘090 (US
Appeal 2010-002200
Application 11/169,618
3
4,571,090). App. Br. 6; Ans. 4.
Appellants submit the same arguments for both representative claims
23 and 33. App. Br. 7. Accordingly, we decide this appeal based on claim
23. See generally Br. See 37 C.F.R. § 41.37(c)(1)(vii) (2008).
Opinion
We are of the opinion Appellants’ arguments do not establish that the
evidence in the totality of the record weighs in favor of the nonobviousness
of the claimed invention of a blade for use in an impeller assembly
encompassed by independent claim 23. In this respect, we are in agreement
with the Examiner’s analysis of the evidence in the references and the
findings of fact and conclusions of law stated in the Answer, to which we
add the following for emphasis with respect to Appellants’ arguments.
I.
Appellants submit that some features of the claimed invention are not
taught or suggested by the Weetman references including, among other
things, the lower plate being tapered such that the upper plate can entirely
overlap the weld at the trailing edge, and the top skin element having a flat
rear surface that forms the entire flat trailing edge of the blade. Br. 7-8.
Appellants contend that Weetman ‘235 shows a “radiused rear
surface” and not the “flat trailing edge” in the claims. Br. 7.1 The Examiner
concedes that Weetman ‘235 “does not disclose the top skin element having
a flat rear surface that forms an entire trailing edge of the blade,” turning to

1 Appellants refer to arguments with respect to Weetman ‘235 submitted in
a prior paper. Br. 8. We have not considered the arguments. 37 C.F.R.
§ 41.37(c)(1)(vii) (2008) (“Any arguments or authorities not included in the
brief or a reply brief filed pursuant to § 41.41 will be refused consideration
by the Board unless good cause is shown.”).
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Figure 4 of Weetman ‘090 as evidence that impeller blade 32, having top
and bottom skin elements 46 and 48 welded together near the trailing edge,
can have top skin element 46 that with “a flat rear surface that forms the
entire trailing edge [40] of the blade [32].” Ans. 9 and 11, citing Weetman
’90, e.g., col. 3, ll. 47-50, and Fig. 4. The Examiner further states that
combining the references would be obvious, citing language in Weetman
‘235 stating that the edges of the blades can be “radiused or machined to a
desired shape to the exterior surface 40 to define the leading and trailing
edges of the blade.” Ans. 11 (original emphasis deleted), citing Weetman
‘235 col. 5 ll. 50-52.
In this respect, Appellants argue that Figure 4 of Weetman ‘090 shows
that “both a top plate and a bottom plate each appear to have ends that
together form the trailing edge of the blade.” Br. 7 (original emphasis
deleted). Appellants contend that in Figure 4 of Weetman ‘090, the trailing
edge of the blade “is made by two plates stacked on top of each other, and
thus neither plate forms the entire trailing edge of the blade.” Br. 8 (original
emphasis deleted). Appellants argue that the arrangement of the claimed
blade is “more erosion-resistant than the stacked plate arrangement of
Weetman ‘090.” Br. 8. Therefore, Appellants submit the claim elements of
“the upper plate forming the entire flat trailing edge . . . [and] the tapered top
surface of the bottom skin element, all work together to provide desirable
performance.” Br. 8 (original emphasis deleted).
Appellants argue with respect to Figure 10 of Weetman ‘235, that the
“drawings should be read in combination with the specification and . . . that
drawings should not be interpreted inconsistently with the specification.”
Br. 9 (original emphasis deleted), citing Hockerson-Halberstadt, Inc. v. Avia
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Group Int’l, 222 F.3d 951, 956 (Fed. Cir. 2000). Appellants contend that the
Examiner’s reliance on Figure 10 of Weetman ‘235 to show the rear
attaching means being tapered such that the upper plate can entirely overlap
the trailing edge, is inaccurate because the Figure 10 of Weetman ‘235 is
“quite small” and “enlarging it . . . while not a modification of the drawing --
does impart some potential exaggeration of the content and scope of
disclosure of the original drawings by giving larger significance to a tiny
portion of the drawing than it had in the actual original form.” Br. 9-10.
II.
We find that Weetman ‘235 would have disclosed to one of ordinary
skill in the art, as illustrated in Figure 10, blade 22 for mixing impeller 20
having, among other things, curved top skin plate or element 58, bottom skin
plate or element 60, and trailing edge 46, wherein curved top skin element or
plate 58 “defines a nest in which the blade 60 is located” and defines wedge
shaped notch 64, which is filled with weld, at trailing edge 46. Weetmen
‘235 col. 4, l. 65 to col. 5, l. 60, and Fig. 10; see also col. 3, ll. 9-14.
Weetman ‘235 discloses that the blades are designed to provide a suitable
service life before penetration by erosion.” Weetman ‘235 col. 4, l. 67 to
col. 5, l. 2; see also abstract. Weetman ‘235 further discloses that the
trailing edge of top skin element or plate 58 “are radiused or machined to a
desired shape to the exterior surface 40 to define” trailing edge 46 of blade
22. Weetman ‘235 col. 5, ll. 49-52.
We find that Weetman ‘090 would have disclosed to one of ordinary
skill in the art, as illustrated in Figure 4, impeller blade 32 having upper and
lower skin elements or plates 46 and 48 welded together near trailing edge
40. Weetman ’90 col. 3, ll. 47-50. We further that Figure 4 of Weetman
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‘090 would have disclosed to one of ordinary skill in the art an “entirely
straight” or flat rear surface at trailing edge 40. Weetman ’90 col. 4, ll. 5-6,
and Fig. 4.
III.
On this record, we cannot agree with Appellants’ position. We
determine it would have been obvious to a person of ordinary skill in the art
to routinely combine the Weetman references, thus reasonably arriving at the
claimed blade encompassed by claim 23, including all of the limitations
thereof, without recourse to Appellants’ Specification. We disagree with
Appellants’ contention that the Weetman references would not have
disclosed or suggested the features being claimed. “To reach a non-
hindsight driven conclusion as to whether a person having ordinary skill in
the art at the time of the invention would have viewed the subject matter as a
whole to have been obvious in view of multiple references, the Board must
provide some rationale, articulation, or reasoned basis to explain why the
conclusion of obviousness is correct.” In re Kahn, 441 F.3d 977, 987 (Fed.
Cir. 2006). In this respect, the disclosures of the Weetman references
explicitly address Appellants’ claim limitations as both of the references
disclose impeller blades with top and bottom skin elements welded together
and designed to be resistant to corrosion. Thus, one of ordinary skill in the
art following the combined teachings of the Weetman references would have
reasonably arrived at the claimed lower plate being tapered such that the
upper plate can entirely overlap the weld at the trailing edge, and the top
skin element having a flat rear surface that forms the entire flat trailing edge
of the blade back. Indeed, this person would have recognized that Weetman
‘235 discloses that the trailing edge of the blade can be “radiused or
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machined to a desired shape,” and that Weetman ‘090 discloses that the
trailing edge can be curved or flat. Accordingly, we determine that one of
ordinary skill in the art would have been led to incorporate the flat rear
surface forming the trailing edge of the blade in Weetman ‘090 into the
trailing edge of the blade of Weetman ‘235 to facilitate mixing and resist
corrosion.
We are not persuaded by Appellants’ unsupported contention that
Figure 10 and the specification of Weetman ‘235 are inconsistent. Indeed,
we found above that Weetman ‘235 describes the blade illustrated in Figure
10, and Appellants have not established that the Examiner’s enlargement
results in an illustration that is contrary to the disclosure of the reference.
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Weetman ‘235 and Weetman ‘090, with Appellants’
countervailing evidence of and argument for nonobviousness and conclude,
by a preponderance of the evidence and weight of argument, that the claimed
invention encompassed by appealed claims 23-30, 32-36 and 38 would have
been obvious as a matter of law under 35 U.S.C. § 103(a).
The Primary 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)(1)(iv).
AFFIRMED

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