Ex Parte Lussier et al

Patent Trial and Appeal Board

Jun 9, 2017

14161860 (P.T.A.B. Jun. 9, 2017)

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.
14/161,860 01/23/2014 Darin S. Lussier 67097-1433PUS2;57970US02 1915
54549 7590 06/13/2017
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
LEE JR, WOODY A
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
06/13/2017 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):
ptodocket @ cgolaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DARIN S. LUSSIER, THOMAS J. ROBERTSON JR.,
MARK W. COSTA, SREENIVASA R. VOLETI, and RAJIV A. NAIK
Appeal 2015-006871
Application 14/161,860
Technology Center 3700
Before WILLIAM A. CAPP, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1 and 3—7 as unpatentable under 35 U.S.C. § 103(a) over
Xie (US 8,021,102 B2, iss. Sept. 20, 2011), Blanton (US 8,079,773 B2, iss.
Dec. 20, 2011), and Stevenson (US 2010/0078259 Al, pub. Apr. 1, 2010),
and of claim 2 over Xie and Udall (US 7,845,158 B2, iss. Dec. 7, 2010). We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-006871
Application 14/161,860
THE INVENTION
Appellants’ invention relates to a fan containment case for a gas
turbine engine. Spec. 12. Claim 1, reproduced below, is illustrative of the
subject matter on appeal.
1. A fan case for a gas turbine engine comprising:
a composite fan containment case including an outer
surface, the composite fan containment case includes multiple
composite layers defining a generally cylindrical case, an
attachment flange extending radially outward from the
cylindrical case, the attachment flange comprising a portion of
the composite layers, and a metallic backing ring secured to the
attachment flange by rivets.
OPINION
Unpatentability of Claims 1 and 3—7 over
Xie, Blanton, and Stevenson
Claim 1
The Examiner finds that Xie discloses all of the elements of claim 1
except for a metallic backing ring and rivets. Final Action 5—6. The
Examiner relies on Blanton for the metallic backing ring and Stevenson for
the use of rivets. Id. The Examiner concludes that it would have been
obvious to a person of ordinary skill in the art at the time of the invention to
modify Xie with the teachings of Blanton and Stevenson to achieve the
claimed invention. Id. According to the Examiner, a person of ordinary
skill in the art would have used a metal backing ring to equally distribute the
load across the flange and would have used rivets as a mere substitution of
one known fastener for another to yield a predictable result. Id.
Appellants argue that a person of ordinary skill in the art would not
have used rivets because Blanton’s threaded fasteners are superior to rivets.
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Application 14/161,860
Appeal Br. 3^4. Appellants assert that a rivet would “permanently secure
the flanges at the joint to one another” thereby complicating engine
overhauls, and is inherently less precise that a threaded fastener because it
generates an undetermined clamping load. Id.
The Examiner does not disagree that threaded fasteners may provide
certain advantages over rivets, nevertheless, the Examiner maintains that a
person of ordinary skill in the art would have recognized that design
constraints such as cost, weight, or strength may drive the choice of fastener
to an alternative to threaded fasteners. Ans. 2—3. We agree as “a given
course of action often has simultaneous advantages and disadvantages, and
this does not necessarily obviate motivation to combine.” Medichem, S.A. v.
Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006).
Furthermore, the Examiner directs our attention to three additional
prior art references to bolster the case that a person of ordinary skill in the
art would have had a general understanding that flanges in gas turbine
engines could be fastened using rivets. Ans. 3 (citing Porte (US
2013/0032669, pub. Feb 7, 2013); Adamson (US 4,149,824, iss. Apr. 17,
1979); and Chelin (US 2012/0048389 Al, pub. Mar. 1, 2012)). In their
reply, Appellants argue that the Examiner’s reliance on Porte, Adamson, and
Chelin in the Answer constitutes a new ground of rejection requiring the
reopening of prosecution. Reply Br. 1. We disagree. Appellants waived the
right to petition for reopening of prosecution by filing a reply brief. See 37
C.F.R. §§ 41.39(b) & 41.40(a). Moreover, we do not view the Examiner’s
reliance on Porte, Adamson, and Chelin as a new ground of rejection.
Rather, the newly cited references merely serve as evidence of background
knowledge of a person of ordinary skill in the art. See Randall Mfg. v. Rea,
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Application 14/161,860
733 F.3d 1355, 1361—63 (Fed. Cir. 2013). The Federal Circuit encourages
Examiners and the Board to consider such evidence, even if the art is not
otherwise applied in the rejection. Id.
Next, Appellants contend that Blanton teaches away from the use of
rivets. Reply Br. 2.
Blanton explains that threaded fasteners are desirable to spread
the load induced by the fasteners . . . Upon reading
Blanton, a skilled worker would be led to use threaded
fasteners, and would have no motivation to combine the
modified structure of Xie with a rivet fastener.
Id.
Appellants’ “teaching away” argument is not persuasive. While
Blanton teaches toward the use of threaded fasteners, such is not construed
as a teaching away from other fasteners. It is well settled that a reference
does not teach away if it merely discloses an alternative invention, but does
not “criticize, discredit, or otherwise discourage” investigation into the
invention claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Appellants have not directed us to any language in Blanton that criticizes,
discredits, or otherwise discourages investigation into the use of rivets.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner's unpatentability rejection of claim 1.
Claim 3
Claim 3 depends from claim 1 and adds the limitation: “wherein the
rivets include heads that do not protrude from the metallic backing ring.”
Claims App. The Examiner relies on Stevenson as disclosing flush rivets.
Final Action 6. Appellants argue that Blanton and Stevenson fail to disclose
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Appeal 2015-006871
Application 14/161,860
flush rivets. Appeal Br. 4, Reply Br. 2. We are not persuaded by
Appellants’ argument. Figure 5 of Stevenson, reasonably construed,
illustrates a flush rivet head. See Stevenson, Fig. 5. We further note that
flush rivets have been known and used in the aviation industry for decades.1
Adamson, issued in 1979, discloses the use of flush rivets. Adamson, col. 3,
1. 57. The Examiner’s rejection is supported by a preponderance of the
evidence. We sustain the rejection of claim 3.
Claim 4
Claim 4 depends from claim 1 and adds the limitation: “wherein the
attachment flange and metallic backing ring respectively include a first and
second sides, and each rivet includes first and second heads respectively
engaging the first and second sides and clamping the metallic backing ring
to the attachment flange.” Claims App. The Examiner finds that Blanton
teaches this limitation. Final Action 6.
Appellants argue that that claim 4 is distinguishable from Blanton
because Blanton secures “another” flange in the joint. Appeal Br. 5. The
Examiner responds by stating that, under the broadest reasonable
construction, Appellants’ claim language does not exclude a second flange.
Ans. 5. The Examiner states that nothing in the claim language requires the
fastener to engage the flange sides directly. Id. (citing Blanton Figs. 1—4).
The Examiner interprets the term “engaging” as broad enough to encompass
configurations where there is no direct, physical touching of the
1 See Eric Simonsen, Howard Hughes, Aviation Legend, Boeing Frontiers,
Volume 3, Issue 9, Feb. 2005. This article attributes the invention of use of
flush riveting in aircraft manufacture to Howard Hughes. Hughes is
reported in Wikipedia as having died in 1976.
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Application 14/161,860
components. Id. In reply, Appellants merely reiterate the argument
advanced in their Appeal Brief. Reply Br. 2.
Figure 1 of Blanton exhibits a flange 20 of component 12 abutting a
first surface of flange 22 of component 14. Blanton, Fig. 1. On the side
opposite the first surface of flange 22 is a second surface that abuts a surface
of load spreader 70. Id. Fastener 71 is a threaded bolt and nut assembly that
is inserted through an opening in load-spreader 70 as well as flange
openings 36 and 38 of first flange 20 and second flange 22, respectively. Id.
Blanton further discloses that:
As fastener 71 is tightened, component 12 is securely coupled
to component 14, such that load-spreader load bearing
surface 72 is substantially parallel to flange mating surfaces 28
and 30. More specifically, the partial dovetail shape of flange
outer end portion 60 in combination with the complimentary
shape of load-spreader 70 facilitates distributing loading
induced by fastener 71 substantially evenly across load-
spreader 70. Thus loading induced to flange 22 is also
facilitated to be distributed substantially evenly across
flange 22.
Blanton, col. 4,11. 30-39. The quoted language above is reasonably
interpreted as a relationship between fastener 71 and components 12, 14,
and 70 that may be described as “engaging.” Appellants do not provide us
with a proposed construction of rivet heads “engaging the first and second
sides and clamping the metallic backing ring to the attachment flange” that
reasonably excludes the embodiment described above in Blanton.
Appellants do not otherwise rebut the Examiner’s proposed construction of
the quoted claim language, which we consider to be reasonable in light of
Appellants’ disclosure. Consequently, we are not apprised of error and we
sustain the Examiner's unpatentability rejection of claim 4.
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Appeal 2015-006871
Application 14/161,860
Claims 5—7
Appellants argue claims 5—7 under a single heading and in a cursory
four line paragraph that merely recites claim limitations accompanied by a
naked conclusion that the claimed features are not disclosed in the prior art.
This is insufficient to set forth arguments for the separate patentability of
these claims. See 37 C.F.R. § 41.37(c)(iv) (“A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim”); In reLovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) (Rule 41.37 requires more than recitation of the claim elements
and a naked assertion that the elements are not found in the prior art).
Unpatentability of Claim 2 over
Xie and Udall
Claim 2 is an independent claim that is narrower than claim 1 in that it
recites the use of failsafe and primary lugs and fan exit guide vanes. Claims
App. The Examiner relies on Udall as disclosing the claimed lugs and exit
guide vanes. Final Action 8. The Examiner concludes that it would have
been obvious to a person of ordinary skill in the art at the time the invention
was made as such would merely entail using a known fan case mounting
structure in accordance with its intended use to yield a predictable result. Id.
Appellants challenge the Examiner’s rationale for modifying Xie by
Udall as conclusory. Appeal Br. 5—6. Appellants argue that the Examiner
fails to adequately explain why a skilled worker would modify Xie to locate
a flow exit guide vane in the manner claimed based on the teaching of Udall.
Id. at 5. Appellants further argue that Udall fails to disclose fasteners
securing flow exit guide vanes to lugs. Id.
In response, the Examiner explains that Xie is directed to a composite
containment casing and the scope of Xie’s disclosure does not extend to
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Application 14/161,860
mounting structures, whereas Udall is direct to mounting aircraft engines to
their associated airframes. Ans. 6. The Examiner further explains that a
person of ordinary skill in the art would, under the circumstances, look to the
prior art to determine known and obvious mounting structures for
containment casings. Id. This is sufficient articulated reasoning with
rational underpinning to support the rejection. See In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006) (requiring an obviousness conclusion to be
based on explicit articulated reasoning with rational underpinning), cited
with approval mKSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
With respect to Appellants’ argument that Udall does not disclose
fasteners securing flow exit guide vanes to the lugs, the Examiner points out
that claim 2 merely requires that the fasteners are located on either axial side
of the lug. Ans. 7. The Examiner directs our attention to specific features
depicted in Figure 3A of Udall as supporting the Examiner’s findings of fact.
Id. The Examiner’s findings of fact in this regard are not persuasively
controverted by Appellants.
In view of the foregoing, we are not apprised of error and we sustain
the rejection of claim 2.
DECISION
The decision of the Examiner to reject claims 1—7 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)(l)(iv).
AFFIRMED
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