Ex Parte Lewke

Patent Trial and Appeal Board

Apr 11, 2013

11550942 (P.T.A.B. Apr. 11, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte BASTIAN LEWKE
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Appeal 2011-000782
Application 11/550,942
Technology Center 3700
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Before MURRIEL E. CRAWFORD, MEREDITH C. PETRAVICK, and
JAMES A. TARTAL, Administrative Patent Judges.

TARTAL, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE1
Bastian Lewke (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s final decision rejecting claims 1-20. We have jurisdiction
over the appeal pursuant to 35 U.S.C. § 6(b).
Appellant’s claimed invention relates to lightning protection of wind
turbines and lightning protection of rotor blades of wind turbines. Spec.
para. [0001].
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A rotor blade for a wind turbine comprising:
a rotor blade body;
at least one receptor adapted to be a location for lightning
impact;
an insulated down conductor element within the rotor
blade body, the insulated down conductor comprises:
a down conductor, wherein the down conductor and the
at least one receptor being connected; and
a dielectric sheet covering the down conductor as an
insulation with a dielectric strength of at least 10 kV/mm.
The Examiner relies upon the following evidence:
Olsen US 6,612,810 B1 Sep. 2, 2003
Hall US 7,120,004 B2 Oct. 10, 2006
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Olsen and Hall.

1 Our decision will make reference to Appellant’s Appeal Brief (“App. Br.,”
filed May 17, 2010) and Reply Brief (“Reply Br.,” filed Sep. 13, 2010), and
the Examiner’s Answer (“Ans.,” mailed Jul. 12, 2010).
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FINDINGS OF FACT
We find that the findings of fact which appear in the Analysis below
are supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
ANALYSIS
Appellant argues claims 1-20 as a group (App. Br. 5-8, Reply Br. 2-
4). We select claim 1 as the representative claim for this group, and the
remaining claims 2-20 each stand or fall with claim 1. 37 C.F.R. §
41.37(c)(1)(vii).
We find not persuasive Appellant’s contention that the Examiner
provided no objective rationale for the combination of Olsen and Hall. See
App. Br. 5-6. Olsen discloses the claimed elements of a rotor blade for a
wind turbine other than that the down conductor is insulated with a dielectric
sheet. See Olsen figs. 1, 3, and 6. Hall discloses a dielectric sheet (22)
covering a conductive segment (24) for use in a wind turbine blade. See
Hall figs. 2 and 12. Appellant argues without support that absent
recognition of a problem – here, the possibility that lightning could strike the
down conductor – there is no objective rationale for combining Olsen and
Hall. App. Br. 6.
The Examiner has articulated reasoning with some rational
underpinning to combine known elements from Olsen and Hall by stating
that the rotor blade body of Olsen would also benefit from the use of the
dielectric sheet disclosed in Hall to improve the ability of the rotor blade to
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Application 11/550,942

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withstand lightning strikes. The Examiner further explains the rationale for
combining Olsen and Hall, stating:
Hall’s adaptation of dielectric material to inhibit current from
traveling outside of conductive segments in a current diverter
strip of a wind turbine blade [column 7, lines 44-52] is exactly
the same motivation for use as the claimed invention (i.e.
controlling the electric field). As such, the disclosure of Hall
suggests that conductive elements in a wind turbine blade [as
disclosed by Olsen] can be improved by being insulated with a
dielectric sheet.
Ans. 6. Appellant has not shown that the Examiner’s reasoning was
irrational by merely asserting that the references cited do not disclose the
problem Appellant claims to address. Moreover, we do not agree that the
Examiner’s rejection is an improper hindsight reconstruction as it does not
include knowledge gleaned only from Appellant’s disclosure, but rather
takes into account the teachings of Olsen and Hall; i.e., knowledge which
was within the level of ordinary skill at the time the claimed invention was
made. See In re McLaughlin 443 F.2d 1392, 1395 (CCPA 1971) (“Any
judgment on obviousness is in a sense necessarily a reconstruction based on
hindsight reasoning, but so long as it takes into account only knowledge
which was within the level of ordinary skill in the art at the time the claimed
invention was made and does not include knowledge gleaned only from
applicant’s disclosure, such a reconstruction is proper.”).
We also find not persuasive Appellant’s contention that the
combination of Olsen and Hall would not result in the claimed invention.
See App. Br. 6-8. Nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097
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(Fed. Cir. 1986). Appellant’s argument that the conductor disclosed by Hall
is different from, or placed in a different location then, the conductor as
claimed has no bearing on the obviousness determination where the
Examiner relies on Olsen, not Hall, for the disclosure of a conductor within
the rotor blade body. “The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference. . . . Rather, the test is what the combined teachings of
those references would have suggested to those of ordinary skill in the art.”
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007). We find that Appellant has not
shown that the claimed combination of known elements yields anything but
predictable results.
CONCLUSIONS OF LAW
We conclude that Appellant has not overcome the Examiner’s
rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable over
Olsen and Hall.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).
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AFFIRMED

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