Ex Parte Lengers et al

Patent Trial and Appeal Board

Jan 19, 2018

13851656 (P.T.A.B. Jan. 19, 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.
13/851,656 03/27/2013 Matthias Lengers 3019/64 PCT/US 1477
25297 7590 01/23/2018
Jenkins, Wilson, Taylor & Hunt, P.A.
3015 Carrington Mill Boulevard
Suite 550
Morrisville, NC 27560
EXAMINER
LE, MINH Q
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
01/23/2018 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):
u sptomail @ j wth. com
wehmig@jwth.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHIAS LENGERS and ULRICH SCHOLZ1
Appeal 2016-007204
Application 13/851,656
Technology Center 3700
Before DANIEL S. SONG, WILLIAM A. CAPP, and
ARTHUR M. PESLAK, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1—4 and 6—13 in the present application, claim 5
having been objected to and claim 14 having been allowed (App. Br. 1; Final
Office Action (hereinafter “Final Act.”), PTOL-326). We have jurisdiction
under 35 U.S.C. §§ 6(b) and 134.
We REVERSE.
1 Collectively referred to as “Appellant” herein. The applicant and real party
in interest is Airbus Operations GmbH (Appeal Brief (hereinafter “App.
Br.”) 2).
Appeal 2016-007204
Application 13/851,656
The claimed invention is directed to a fluid actuator that ejects a fluid
(Abstract). The sole independent claim 1 reads as follows (App. Br. 14,
Claims App’x., emphasis added):
1. A fluid actuator for influencing a flow along a flow
surface by ejection of a fluid flowing through the fluid actuator,
the fluid actuator comprising:
an outlet device equipped with at least two outlet openings
and at least two outlet lines merging into the outlet openings;
an interaction chamber which is in fluid-communicating
connection via a respective flow line via a respective outlet line
with one outlet opening each and which comprises a flow
dividing device arranged at the inlet of the outlet lines;
a feed line routed to the interaction chamber for supplying
fluid at a feed pressure into the interaction chamber; and
at least two control lines for supplying fluid at respective
different control pressures into the interaction chamber via at
least one respective control opening;
wherein the interaction chamber is realized such that due
to supplying fluid through one of the control lines in a higher
degree than through the other control lines, the fluid flowing
through the feed line in the interaction chamber may
correspondingly be deflected in an alternating majoritary manner
into one respective outlet line associated to this control line; and
wherein the fluid actuator is equipped with a control
pressure varying device comprising a control feed line and a
control flow dividing device which connects the feed line to the
control lines in a fluid-communicating manner, and a flow body
arranged in the control feed line which is realized such that upon
application of a flow by the control feed line by flowing around
the flow body, vortices alternatingly detach from the latter when
viewed transversely to a direction offlow, whereby the flow from
the control feed line alternatingly arrives majoritarily in a
respective one of the control lines so as to alternatingly create
different control pressures at the control openings.
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Appeal 2016-007204
Application 13/851,656
The Examiner rejects various claims under 35 U.S.C. § 103(a) as
follows:
1. Claims 1, 2, 7, and 10-12 as obvious over Miller et al. (US
2010/0084514 Al, pub. April 8, 2010) in view of Stouffer (US
4,151,955, iss. May 1, 1979) (Final Act. 4).
2. Claims 3 and 4 as obvious over Miller and Stouffer as applied to
claim 1, and further in view of Boothe (US 3,442,280, iss. May 6,
1969), and Marchal et al. (US 3,904,514, iss. Sep. 9, 1975) (Final Act.
7).
3. Claims 6, 8, and 13 as obvious over Miller and Stouffer as applied to
claims 1 and 7, and further in view of Blackwell (US 3,788,141, iss.
Jan. 29, 1974), and Nilsen et al. (US 2007/0095032 Al, pub. May 3,
2007) (Final Act. 9).
4. Claim 9 as obvious over Miller and Stouffer as applied to claim 1, and
further in view of Firey (US 6,263,860 Bl, iss. Jul. 24) (Final Act.
11).
ANAFYSIS
In rejecting claim 1, the Examiner finds that Miller discloses a fluid
actuator including the recited outlet device, interaction chamber, feed line,
control lines, and:
a control flow dividing device (TORQUE MOTOR) which
connects the feed line to the control lines in a fluid­
communicating manner, whereby the flow from the control feed
line altematingly arrives majoritarily in a respective one of the
control lines so as to altematingly create different control
pressures at the control openings.
(Final Act. 4—5; see also Miller, Fig. 1).
The Examiner concedes that Milller fails to disclose the “flow body
arranged in the control feed line,” which generates alternating vortices
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Appeal 2016-007204
Application 13/851,656
provided to the control lines “so as to altematingly create different control
pressures at the control openings,” as required by claim 1 (Final Act. 5).
To address this deficiency, the Examiner relies on Stouffer for disclosing:
a fluidic oscillating device using the Karma[n] Vortex street
phenomenon to cyclically oscillating a fluid stream. The device
includes an inlet and outlet with an obstacle (flow body) or island
disposed therebetween to establish the vortex street (abstract).
The effect of the obstacle (A) on a fluid stream is
diagrammatically illustrated in [] Fig. 2. Specially, in the wake
of the obstacle, the vortices being formed in periodic alternation
on different sides of the obstacle center line.
(Final Act. 6; see also Stouffer Fig. 2).
The Examiner concludes that claim 1 is unpatentable because:
It would have been obvious to one having ordinary skill in the art
at the time of the invention was made to use the fluidic oscillating
device as disclosed by Stouffer as an alternating for the control
pressure varying device (1) of the fluid actuator of Miller et al.
(since both of them perform the same purpose of alternating the
flow from the fluid stream into different outlets in a periodic
cycle) to provide the simple, low maintenance and less expensive
fluid actuator that has no moving parts and can operating [sic]
without electricity.
(Final Act. 6).
The Appellant disagrees and only submits arguments with respect to
independent claim 1, relying on dependency on claim 1 for patentability of
the remaining dependent claims (App. Br. 12). The Appellant initially
points out that Stouffer discloses a spray dispersal device having a single
outlet, where the fluid exits the device in the form of uniformly sized and
distributed small droplets, and thus, fails to disclose a flow body arranged in
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Appeal 2016-007204
Application 13/851,656
the control feed line that results in the claimed alternating flow to the control
lines (App. Br. 9-10). Accordingly, the Appellant argues, inter alia, that:
one of ordinary skill in the art would not look toward Stouffer
for a possible replacement for the torque motor of the control
pressure varying device of the fluid actuator of Miller. This is
because Stouffer discloses a fluid dispersal device adapted to
generate specific spray patterns, including dispersal over an area,
where the fluid exits the device in the form of uniformly sized
and distributed small droplets. (See, col. 1, lines 5—9, line 65 to
col. 2, line 12, and lines 29-34 of Stouffer). However, fluid
dispersal in a spray pattern, as disclosed in Stouffer, is wholly
different than switching fluid flow between two control lines, as
disclosed in Miller.
(App. Br. 11).
The Appellant further argues, inter alia, that the rejection is based on
“impermissible hindsight bias since the reasoning includes knowledge that
would only be gleaned from Appellant’s disclosure.” (App. Br. 11). We
generally agree with the Appellant that the rejection is based on
impermissible hindsight.
“[Fjactfmder should be aware ... of the distortion caused by
hindsight bias and must be cautious of arguments reliant upon ex post
reasoning.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
“[Pjatent composed of several elements is not proved obvious merely by
demonstrating that each of its elements was, independently, known in the
prior art. Although common sense directs one to look with care at a patent
application that claims as innovation the combination of two known devices
according to their established functions, it can be important to identify a
reason that would have prompted a person of ordinary skill in the relevant
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Application 13/851,656
field to combine the elements in the way the claimed new invention does.”
Id. at 418.
While the Examiner states that the combination of Miller and Stouffer
would have been obvious because the combination would result in “simple,
low maintenance and less expensive fluid actuator that has no moving parts
and can operat[e] without electricity” (Final Act. 6), there is no indication in
the record that devices such as that of Stouffer, or an obstacle in a flow
stream that generates Karman Vortex street generally, has been utilized to
provide alternating fluid flow between two control lines. In other words,
there is no evidence of record that providing such alternating periodic flow
of a flow stream into different fluid lines or passages was an “established
function” of an obstacle in a flow stream that generates Karman Vortex
street. In that regard, we disagree with the Examiner’s assertion that the
Torque Motor of Miller and the obstacle of Stouffer “perform the same
purpose of alternating the flow from the fluid stream into different outlets in
a periodic cycle,” because no such different outlets are disclosed in Stouffer.
While the record establishes that generating Karman Vortex street with
an obstacle in a fluid stream such that vortices are formed in periodic
alternation on different sides of the obstacle center line was known in the
art of fluid mechanics, that does not necessarily mean that all applications
thereof would have been obvious.
Thus, based on the limited record before us, with respect to using an
obstacle in a fluid stream to provide alternating flow to different control
lines, it is not apparent that such use is merely “the predictable use of prior
art elements according to their established functions.” KSR, 550 U.S. at 418.
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Appeal 2016-007204
Application 13/851,656
Accordingly, we agree that the rejection of claim 1 was based on
impermissible hindsight and reverse the rejection as to claim 1, as well as to
claims 2, 7, and 10—12 that ultimately depend from claim 1. In re Fine, 837
F.2d 1071, 1075 (Fed. Cir. 1988) (We “cannot use hindsight reconstruction
to pick and choose among isolated disclosures in the prior art to deprecate
the claimed invention.”). The remaining arguments of the Appellant as to
claim 1 are moot and we decline to reach them. The Examiner’s application
of various tertiary references in Rejections 2-4 that reached the remaining
claims on appeal does not remedy the deficiency of the combination of
Miller and Stouffer as applied to rejection of claim 1. Hence, those
rejections are reversed as well.
CONCLUSION
The Examiner’s rejections of claims 1—4 and 6—13 is REVERSED.
REVERSED
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