Ex Parte Healey et al

Board of Patent Appeals and Interferences

Nov 18, 2008

10466673 (B.P.A.I. Nov. 18, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL J. HEALEY
and RAYMOND JOHNSEN
____________

Appeal 2008-2262
Application 10/466,673
Technology Center 1700
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Decided: November 18, 2008
____________

Before CHARLES F. WARREN, PETER F. KRATZ, and
CATHERINE Q. TIMM, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON REQUEST FOR HEARING
Appellants request rehearing of our Decision of June 19, 2008. In
that Decision, we sustained the Examiner’s rejection of claims 1-24 under
35 U.S.C. § 102(b) as anticipated by Vane, and the Examiner’s rejection of
claims 1-24 under 35 U.S.C. § 103(a) over either Vane or Harpell.
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In their Request, “Appellants contend that, in sustaining these
rejections, the Board has made unsupported findings of fact both with
respect to the scope of Appellants’ claims and the teachings of the Vane and
Harpell references and therefore has committed reversible error.” (Request
2.)
The Definition of “Fusible”
With regard to the scope of Appellants’ claims, Appellants contend
that we misapprehended the definition of “fusible” in Appellants’
Specification (Request 2). In this regard, Appellants agree that page 2, lines
15-16 of their Specification defines fusible as meaning “that the thread not
only melts by itself when heated, but may also dissolve into a resin during
processing at temperature” as we noted in our Decision (Decision 11).
Appellants however, argue that we ignored the portion of the definition
stating “into a resin during processing at temperature.” (Request 3.)
According to Appellants:
The specification definition is characterized in the
subsequent sentence [of the Specification] which states
"[t]herefore, by using a fusible thread, the stitched plies can be
heated so as to soften or melt the fusible thread so as to improve
the drape of the fabric" (emphasis added). These two sentences
together define the fusible thread as a thread which melts by
itself when heated or dissolves into resin "during processing at
temperature." The processing is clearly a reference to the
draping process which cannot be the "resin" curing temperature
because, as the Board and the Examiner admit a cured
composite doesn't "drape."
(Request 2-3.)
We agree with Appellants that the Specification defines “fusible” as
meaning "that the thread not only melts by itself when heated, but may also
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dissolve into a resin during processing at temperature." (Decision 11.)
However, we cannot agree that “processing at temperature” is defined in the
Specification in such a way as to exclude temperatures at which the resin
also cures. The Specification does not provide any sufficiently clear
guidance on the meaning of “processing at temperature.” The full paragraph
of the Specification including the definition of “fusible” states as follows:
In use, the primary function of the stitch is to hold the
fibres together during the non-crimp fabric manufacture and to
aid resin infusion. Whilst the stitch initially restricts drape, the
eventual fusion of the stitch overcomes that restriction. In the
present application, the term fusible means that the thread not
only melts by itself when heated, but may also dissolve into a
resin during processing at temperature. Therefore, by using a
fusible thread, the stitched plies can be heated so as to soften or
melt the fusible thread so as to improve the drape of the fabric.
(Spec. 2:12-18.) Appellants have not pointed to any definition for
“processing at temperature,” nor do we find any definition excluding
temperatures at which the resin will cure. In fact, the Specification does not
define the curing temperatures at all, but instead it indicates that different
process routes are encompassed, and resin can be present or not during
draping. (See, e.g., Spec 2:30-33; 3:7-11; 3:24-31; 4:1-7)
Appellants state that “[t]he processing is clearly a reference to the
draping process which cannot be the ‘resin’ curing temperature because, as
the Board and the Examiner admit a cured composite doesn’t ‘drape.’”
(Request 2-3.) But the fact that a cured resin cannot drape is immaterial to
the question of whether “processing at temperature” must necessarily be
different than the curing temperature: heating to cure takes place before
curing is accomplished. In other words, to perform the process one must
first heat a fabric impregnated with the uncured resin to the curing
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temperature. The resin is cured only after the heating step. Heating to cure
can also cause draping as the heating takes place before curing. The words
“processing at temperature” as recited in the Specification does not exclude
temperatures at which the resin also cures.
Vane
Appellants also contend we ignored the Specification’s definition of
“fusible’ in considering the Vane reference (Request 3). We did not. What
we stated was:
In fact, "fusible" is defined more broadly in the Specification to
mean "that the thread not only melts by itself when heated, but
may also dissolve into a resin during processing at
temperature." (Specification 2:15-16). The stitching of Vane
meets this definition because the stitching is thermoplastic.
Thermoplastic, by definition, melts when heated past its
melting temperature. Moreover, the thread of Vane becomes "a
part of the matrix" during the heating and pressurizing of the
composite consolidation. The stitching is fusible as claimed.
(Decision 11.) What the claim requires is a step of “providing a non crimp
fabric comprising a layup of plies stitched together using a thread at least
part of which is fusible.” (Claim 1.) Vane teaches such a non crimp fabric
with a fusible thread. Vane’s fabric contains a thermoplastic thread that
“will become part of the matrix,” (Vane, col. 3, ll. 41-44), i.e., melts, when
the composite material is formed under heat and pressure, i.e., during
processing at temperature (Decision 11).
Appellants also contend we did not adequately support our finding
that Vane describes to one of ordinary skill in the art placing the non crimp
fabric on a forming tool and heating to drape. (Request 3-9.) Appellants
have not convinced us of a reversible error with regard to the forming tool
limitation or heating step.
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With regard to the step of placing the fabric on a forming tool, while
Vane does not expressly disclose using a forming tool, our subsidiary
finding of fact that Vane describes forming complex shapes under heat and
pressure (Decision 11), a finding Appellants do not dispute, adequately
supports our ultimate finding with regard to the forming tool. Forming a
complex shape under heat and pressure necessarily requires a forming tool
of some sort, it cannot be done in midair. Appellants’ claims encompass any
and all forming tools.
As we explained in our Decision, the teaching in Vane of forming a
complex shape under heat and pressure requires one to place the non crimp
fabric of Vane on the forming tool and heat the fabric while applying
pressure so that the fabric conforms to the complex shape of the tool
(Decision 11). During this process, as described by Vane, the stitching
“becomes a part of the matrix,” i.e., it softens or melts and any restriction to
drape is necessarily reduced (Decision 12).
Appellants contend that we selectively ignored the specific teaching in
Vane that the stitching must “firmly hold” the different fabric layers together
(Request 7). According to Appellants, this “clearly provides a ‘restriction to
drape’ which is the direct opposite of the independent claim 1 (and all claims
dependent thereon).” (Request 7; see also 8-9.) But this contention
ignores Vane’s teaching of heating under pressure to form a complex shape
during which the thermoplastic thread “will become part of the matrix.”
(Vane, col. 3, ll. 41-44.) What happens in Vane’s process is no different
than what happens in Appellants’ process: the threads hold the fabric
together until heat is applied at which time the threads soften and melt and
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thus no longer hold the fabric, i.e., movement of the fabric is no longer
restricted by the threads (Spec. 2:12-14).
Appellants have not convinced us of a reversible error in our findings
as they apply to the rejection over Vane.
Harpell
Turning to the obviousness rejection over Harpell, Appellants contend
that our finding that “[o]ne of ordinary skill in the art would have recognized
that forming such complex articles [such as helmets] requires draping over a
forming tool and applying heat and pressure to shape the impregnated
fabric” is unsupported by any evidence of record (Request 13 discussing our
finding at Decision 13). Appellants offer the example of a football helmet as
evidence that Harpell doesn’t teach using a forming tool (Request 13).
According to Appellants, “as will be readily apparent from looking at a
helmet such as a football helmet, the lower portion of the helmet is sized to
be narrower than the diameter of the helmet. While deformation of the
helmet and the internal padding make it possible for a use [sic, user] to pull
it on over his or her head, the sizing would make it impossible to remove
such a helmet from a ‘forming tool’ if one had been used.” (Request 13).
First, Harpell is directed to forming ballistic articles such as helmets
for military use, not football helmets (Harpell, col. 1, ll. 7-10). Appellants
point to no evidence that football helmets are formed by the same process as
fiber reinforced composite ballistic helmets and armor. Second, Harpell
describes using “forming tools” even when describing forming the planar
ballistic targets of the Examples (see, e.g., col. 9, ll. 7-12 describing
sandwiching the prepreg sheets between two Apollo plates and applying heat
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and pressure to mold). Again, forming the prepregs (fabrics impregnated
with resin matrix) under heat and pressure requires a forming tool of some
kind, it does not happen in midair. Appellants’ claims are not limited to any
particular type of forming tool. Some type of forming tool would have to be
used to mold the prepreg into the shape of a ballistic helmet using heat and
pressure.
Appellants have not convinced us of any reversible error in our
Decision.

IV. DECISION
Appellants request for rehearing is denied.

DENIED

cam

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