Ex Parte Nieuwenhuizen

Patent Trial and Appeal Board

Jul 14, 2017

13709871 (P.T.A.B. Jul. 14, 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.
13/709,871 12/10/2012 John Johannes Mathias Hubertus Nieuwenhuizen VEST/0179US (060616) 8526
13923 7590 07/18/2017
Patterson Rr SheriHan T T P / Vesitas;
EXAMINER
24 Greenway Plaza, Suite 1600
Houston, TX 77046
WHITE, DWAYNE J
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
07/18/2017 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN JOHANNES MATHIAS HUBERTUS
NIEUWENHUIZEN
(Applicant: VESTAS WIND SYSTEMS A/S)
Appeal 2015-006006
Application 13/709,871
Technology Center 3700
Before JENNIFER D. BAHR, JAMES P. CALVE, and
ANTHONY KNIGHT, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Vestas Wind Systems A/S (Appellant) appeals under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1—19. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM, and designate the affirmed rejections as NEW
GROUNDS OF REJECTION pursuant to 37 C.F.R. § 41.50(b).
Appeal 2015-006006
Application 13/709,871
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A wind turbine blade, comprising:
a blade body including a lightning protection system
including a lightning down conductor that extends to electrical
ground;
a light source located external to the blade body;
at least one electric powered module and a power supply
coupled to the blade body, the at least one module containing a
device requiring electrical power to operate, the power supply
configured for converting light beams from the light source to
electrical power for operating the at least one electric powered
module;
a first optical waveguide between the light source and the
power supply, the first optical waveguide transmitting the light
beams from the light source to the power supply to provide
power to the device of the at least one electric powered module
during operation of the at least one electric powered module; and
a galvanic separation formed between the at least one
module and both of the lightning protection system and any
electrical ground located external to the blade, the galvanic
separation operating to prevent any lightning strikes from being
transmitted through the at least one electric powered module and
then to electrical ground.
REJECTIONS
I. Claims 1, 2, 4—8, 10-14, and 16—18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Mortensen (US 7,726,942 B2, issued
June 1, 2010), Thompson (US 7,549,803 B2, issued June 23,
2009), and Johansen (US 7,040,864 B2, issued May 9, 2006).
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II. Claims 3, 15, and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Mortensen, Thompson, Johansen, and Riesberg
(US 7,348,683 B2, issued Mar. 25, 2008).
III. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Mortensen, Thompson, Johansen, and Hickey (US 5,254,876,
issued Oct. 19, 1993).
DISCUSSION
Rejection I
In contesting this rejection, Appellant presents arguments for
independent claim 1, and relies on the arguments presented for claim 1 in
asserting the patentability of independent claims 13 and 14. Appeal Br. 15—
18. For patentability of dependent claims 2, 4—8, 10-12, and 16—18,
Appellant relies solely on their dependency from claim 1 or claim 14. Id. at
18. Accordingly, we decide the appeal of this rejection on the basis of claim
1, and claims 2, 4—8, 10—14, and 16—18 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(l)(vii) (providing that when multiple claims subject to
the same ground of rejection are argued as a group by the appellant, the
Board may select a single claim from the group to decide the appeal with
respect to the group as to the ground of rejection on the basis of the selected
claim alone).
The Examiner finds that Mortensen discloses a wind turbine blade as
recited in claim 1, including, in pertinent part, “a light source (107),” “at
least one electric powered module (connector box 103 and col. 4, lines 41-
49),” and “a fiber optic line (104).” Ans. 2. The Examiner finds that
Mortensen fails to teach a lightning protection system with a lightning down
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Application 13/709,871
connector extending to ground, a power supply coupled to the blade and
configured for converting light beams from a light source external to the
blade to electrical power, and an optical waveguide between the light source
and the power supply for transmitting light beams from the light source to
the power supply. Id. at 3.
The Examiner finds that Johansen teaches a lightning protection
system with a lightning down conductor extending to ground, and
determines that it would have been obvious to modify Mortensen’s wind
turbine blade “by constructing it with a lightning protection system as taught
by Johansen for the purpose of directing lightning strikes to ground so that
the wind turbine is not harmed.” Id. at 4. Appellant does not contest either
the Examiner’s findings with respect to the teachings of Johansen or the
Examiner’s determination that it would have been obvious to modify
Mortensen to provide a lightning protection system as taught by Johansen.
See Appeal Br. 14 (discussing Johansen), 15—18 (presenting arguments
directed to Mortensen and Thompson).
The Examiner finds that “Thompson teaches using a light source to
power a sensor.” Ans. 3. More specifically, the Examiner finds that
Thompson teaches “[a]t least one electric powered module (detector 26)”
and conversion cell 42 for converting energy from a light source to electrical
energy for powering the at least one module. Id. The Examiner determines
that it would have been obvious to modify Mortensen’s blade and sensor “by
constructing them with a solar cell that is powered by a light source to run
the sensor as taught by Thompson for the purpose of providing a system that
needs only light to operate and does not require complex connections
between the power source and the sensor.” Id. at 4. The Examiner reasons
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that powering the sensor with a light source facilitates integration of the
power source (the light source) into a system, such as that of Mortensen,
having components that move relative to one another, because “the power
connection does not need to span between the moving components.” Id.
According to the Examiner, “[t]his is because the light can be located
adjacent the moving parts and provide power without a direct connection to
the fiber optic cable.” Id. (emphasis added).
The Examiner clarifies that the “solar cell” in the rejection refers to
Thompson’s energy conversion device 32 (an example of which is
conversion cell 42). Ans. 17; see Appeal Br. 15—16 (observing that
“[n]either Mortensen nor Thompson discuss[es] a ‘solar cell’” and
interpreting the Examiner’s use of “solar cell” in the rejection as a reference
to Mortensen’s energy conversion device 32). As such, we understand the
modification of Mortensen in view of Thompson set forth in the rejection to
entail providing Mortensen’s sensor (provided at connector box 103) with an
energy conversion device for converting light energy to electrical power and
powering the sensor from Mortensen’s light source (light emission and/or
light receiving means 107) via an optical fiber (such as Mortensen’s optical
fiber 104) that transmits light from the light source to the sensor.
Appellant criticizes the rejection as being unclear as to whether the
combination of the rejection employs Thompson’s light source 50 or
Mortensen’s light emission and/or light receiving means 107 for providing
optical power to the energy conversion device. Appeal Br. 16. Appellant
adds that modifying Mortensen’s blade to replace light emission and/or light
receiving means 107 with Thompson’s light source 50 would render Bragg
gratings 106 of Mortensen’s optical fiber 104 “unsatisfactory for [their]
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intended purpose of facilitating the determination of ‘strains and
temperatures’” because Thompson does not disclose that the light energy of
its light source 50 “is compatible with determining ‘strains and
temperatures’ using a number of ‘Bragg gratings 106’” as taught in
Mortensen. Id. at 19.
Appellant also argues that, even if Mortensen’s light emission and/or
light receiving means 107, and not Thompson’s light source 50, were used to
supply light beams to the energy conversion device, the combination would
still be improper. Appeal Br. 20. Specifically, Appellant contends that this
is the case because Mortensen provides no teaching that light emission
and/or light receiving means 107 could both support operation of Bragg
gratings 106 of Mortensen’s optical fiber and provide energy consistent with
a tungsten or halogen lamp to the energy conversion device taught by
Thompson to power the sensor. Id.
In response, the Examiner clarifies that Mortensen’s light emission
and/or light receiving means 107 is used as the light source for powering the
sensor. Ans. 17. In other words, the Examiner does not propose replacing
Mortensen’s light source with that of Thompson. The Examiner also notes
“that Thompson mentions that no specific light source is needed so long as it
provides light energy to the optical fiber . . . and therefore the light source of
Mortensen would work with the conversion system of Thompson since it
provides light and therefore energy.” Id. (citing Thompson, col. 4,11. 38—
40). In particular, Thompson teaches that “light source 50 may be a tungsten
lamp or a halogen lamp, or may be any other light source for providing a
source of light energy to the optical fiber conduit 44.” Thompson, col. 4,
11. 38-40. Thus, a preponderance of the evidence supports the Examiner’s
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finding that Mortensen’s light emission and/or light receiving means 107
would be suitable for use with an energy converter as taught by Thompson.
Moreover, the Examiner emphasizes that “Thompson does not state
that a halogen or tungsten lamp must be used but instead states that any light
source providing a source of light can be used, which would include a light
that works with Bragg gratings sensors.” Ans. 20 (citing Thompson, col. 4,
11. 38-40). The Examiner adds that Mortensen does not require Bragg
grating sensors on optical fiber 104, but, rather, teaches measuring strains
and temperatures as one possible use of optical fiber 104. Id. (citing
Mortensen, col. 4,11. 9—12). Mortensen teaches that “optical fibre 104 can
among other things be used for measuring strains and temperatures at
positions on the blade, where a number of Bragg gratings 106 ... are placed
in the fibre.” Mortensen, col. 4,11. 9—12. As such, Mortensen clearly
contemplates other functions, in addition to measuring strains and
temperatures, for optical fiber 104. The additional function (transmitting
light to an energy conversion device) of Mortensen’s optical fiber in the
combination would simply be one of these other functions (i.e., “other
things”) contemplated by Mortensen. The Examiner also finds that
Thompson’s light source, even if combined with Mortensen, would not
interfere with the operation of Bragg gratings 106 because Bragg grating
sensors reflect only certain wavelengths, while letting others pass. Ans. 20.
Appellant does not contest the Examiner’s finding in this regard. Finally,
the Examiner finds that “one in the art would be capable of finding a source
of light that could support both types of sensors, such as the light source
(107) of Mortensen.” Id. at 21.
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Appellant does not proffer any evidence or persuasive technical
reasoning to suggest that selecting a light emission and/or light receiving
means as taught by Mortensen that is sufficient to perform both functions of
the combination (i.e., supporting the strains/temperature measurement
function taught by Mortensen and providing light energy to the energy
conversion device of the combination to power a sensor, as taught by
Thompson) would have been beyond the technical grasp of a person having
ordinary skill in the art. “A person of ordinary skill is also a person of
ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 421(2007). Thus, Appellant’s arguments regarding the light
source do not apprise us of error in the rejection.
Appellant contends that the combination of Mortensen and Thompson
is not proper because Thompson “does not discuss using the ‘energy
conversion device 32’ ... in the context of lightning protection.” Appeal Br.
17. However, as the Examiner points out (Ans. 18), obviousness does not
require that the teachings of the references be combined for the same reasons
identified by an applicant. “In determining whether the subject matter of a
patent claim is obvious, neither the particular motivation nor the avowed
purpose of the [patent applicant] controls. What matters is the objective
reach of the claim. If the claim extends to what is obvious, it is invalid
under § 103.” KSR, 550 U.S. at 419. “Under the correct analysis, any need
or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed.” Id. at 420. Moreover, the Examiner relies on
Johansen, and not Mortensen or Thompson, for the lightning protection
system. Ans. 4. Nonobviousness cannot be established by attacking the
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references individually when the rejection is predicated upon a combination
of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Appellant contends that the combination of Mortensen and Thompson
proposed by the Examiner would be more complicated because it would
require the combination of an optical fiber and a more complicated energy
conversion device, rather than merely a single electric wire 105, as taught by
Mortensen. Appeal Br. 17—18; Reply Br. 6. Thus, Appellant submits that
the proposed combination “appears to be arbitrary and thus impermissible
hindsight.” Appeal Br. 18; Reply Br. 6.
The Examiner counters that “[t]he use of a light source as a power
source eliminates the need for an electrical wire and allows [optical fiber
104] to do multiple jobs,” consistent with Mortensen’s teaching of
connecting optical fiber 104 to connector boxes 103 “for whatever is needed
(col. 4, lines 44-49).” Ans. 18—19. In the modification of Mortensen
proposed by the Examiner, “this would also include power supply to the
sensors.” Id. at 19. The Examiner explains that the modification simplifies
the construction by eliminating the need for electrical wire 105, which
requires a constant connection between the power source and the blades,
such as a connection ring spanning the entire inside of the hub of the turbine,
which “is not simple and requires extensive construction and design.” Id. at
19. The modification proposed by the Examiner eliminates the need for
such a complicated electrical connection between the tower and the rotating
blades of the wind turbine because, as the Examiner explains in the
rejection, “the light can be located adjacent the moving parts and provide
power without a direct connection to the fiber optic cable.'1'’ Id. at 4
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(emphasis added). Accordingly, the reason for the modification articulated
by the Examiner has rational underpinnings. A hindsight argument is of no
moment where, as here, the Examiner provides a sufficient, non-hindsight
reason to combine the references. See In re Cree, Inc., 818 F.3d 694, 702,
n.3 (Fed. Cir. 2016).
Appellant additionally argues that
[t]he references of record do not discuss “a power supply coupled
to a blade body,” as recited in claim 1 [,] and ... do not lead one
of ordinary skill in the art to couple the “energy conversion
device 32” of Thompson with the “connector box 103” of the
“blade 101” of Mortensen.
Appeal Br. 18; Reply Br. 7. This argument is unavailing because it appears
to attack the references individually rather than as combined in the rejection.
As the Examiner explains, Mortensen already teaches a sensor received in
connection box 103 and, thus, coupled to the blade body via the connection
box. See Ans. 19. Thompson teaches coupling a power conversion device
(energy conversion device 32) to the sensor to supply power to the sensor.
See id. (finding that Thompson’s sensor is premade with all components,
such as the energy conversion device, already integrated); Thompson, col. 4,
11. 51—54 (teaching conversion cell 42 having first output lead 54 for
applying voltage to collector 56 in detector 26); id., Fig. 4. Thus, according
to the Examiner, Mortensen’s sensor, modified as taught by Thompson to
include an energy conversion device integrated therewith, “would be
plugged into the connector boxes,” and, therefore, would be coupled to
Mortensen’s blade body. Ans. 19.
Finally, Appellant argues that the combination of elements in the
Examiner’s rejection “does not include elements that perform the same
function as they do separately, so the combination of these elements is
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improper and the combination is not obvious.” Reply Br. 7. Appellant’s
argument is premised on an understanding that the Examiner’s combination
includes Mortensen’s blade 101, Mortensen’s connector box 103,
Mortensen’s optical fiber 104, Thompson’s energy conversion device 32,
and Thompson’s sensor or detector 26. Id. Appellant contends that
Mortensen’s optical fiber 104 and Thompson’s sensor or detector 26 do not
perform the same functions in the combination as they do separately. Id.
More specifically, Appellant submits that Mortensen’s optical fiber 104 is
used to measure strains and temperatures, not to provide operational energy
to an energy conversion device, such as energy conversion device 32 of
Thompson. Id. at 7—8. As for Thompson’s sensor or detector 26, which is
disclosed for detecting pyrolytic products in cooling gas, Appellant points
out, correctly, that Mortensen “does not discuss ‘pyrolytic products, ’
‘particulates’ or ‘cooling gas’ as part of [connector box 103].” Id. at 8.
Thus, Appellant submits that Thompson’s sensor or detector 26, when
combined with connector box 103 of Mortensen, “cannot perform the same
function as it does separate from the combination.” Id.
We agree with Appellant that Thompson’s pyrolytic products sensor
26 and the sensors contemplated by Mortensen for coupling to connector
box 103 would not necessarily perform the same function. See Mortensen,
col. 4,11. 41—44 (teaching the possibility of using connector box 103 “to
place some kind of sensor[, such as a GPS, temperature sensor, or
accelerometer,] at various places along the blade”). We also agree that the
Examiner has not articulated an apparent reason with rational underpinnings
to combine a pyrolytic products sensor, as taught by Thompson, with
Mortensen’s wind turbine blade. However, we do not understand the
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proposed modification to involve such a combination. According to the
Examiner, “[t]he combination substitutes the sensor power system of
Thompson for that of Mortensen.” Ans. 18 (emphasis added). In other
words, as discussed above, we understand the modification of Mortensen in
view of Thompson set forth in the rejection to entail providing Mortensen’s
“some kind of sensor” (provided at connector box 103) with an energy
conversion device for converting light energy to electrical power and
powering the sensor from Mortensen’s light source (light emission and/or
light receiving means 107) via an optical fiber (such as Mortensen’s optical
fiber 104) that transmits light from the light source to the sensor.
Accordingly, Appellant’s argument is not responsive to the rejection as we
understand it.
For the above reasons, Appellant’s arguments do not apprise us of
error in the rejection of claim 1, as we understand the rejection.
Accordingly, we sustain the rejection of claim 1, as well as claims 2, 4—8,
10—12, and 16—18, which fall with claim 1, under 35 U.S.C. § 103(a) as
unpatentable over Mortensen, Thompson, and Johansen.
Although, after reviewing all of the statements made by the Examiner,
both in the rejection and in responding to Appellant’s arguments, we do not
understand the Examiner to be proposing incorporating a pyrolytic products
sensor, as taught by Thompson, into Mortensen’s wind turbine blade, we
appreciate that the Examiner’s statements in the Answer in responding to
Appellant’s arguments do introduce some ambiguity in this regard.
Compare Ans. 17 (stating that the Examiner “intended to use the light source
of Mortensen (107) as modified to provide power to the sensor system of
Thompson”), and id. at 19 (“Thompson’s sensor would similarly be premade
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with all of the components such as the power conversion system (32) already
integrated,” and “the sensor would be plugged into the connector boxes as
done with the traditional sensors already present in Mortensen.”), with id. at
4 (proposing “to modify the turbine blade and sensor of Mortensen by
constructing them with [an energy conversion device] that is powered by a
light source to run the sensor as taught by Thompson”), id. at 18 (“The
combination substitutes the sensor power system of Thompson for that of
Mortensen.”), and id. (stating that, in the combination, “the operation of
Mortensen would work in the same manner except that the light source (107)
would also deliver power to the sensor”). Thus, we designate our affirmance
of the rejection of claims 1, 2, 4—8, 10-14, and 16—18 as a new ground of
rejection pursuant to 37 C.F.R. § 41.50(b) to provide Appellant with an
opportunity to respond to the rejection as we understand it.
Rejections II and III
In contesting the rejections of claims 3, 9, 15, and 19, Appellant relies
on the same arguments presented for claim 1, which, for the reasons
discussed above, do not apprise us of error in the rejection of claim 1.
Appeal Br. 21. For the same reasons, these arguments likewise fail to
apprise us of error in the rejection of claims 3, 15, and 19 under 35 U.S.C.
§ 103(a) as unpatentable over Mortensen, Thompson, Johansen, and
Riesberg, or the rejection of claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Mortensen, Thompson, Johansen, and Hickey.
Accordingly, we also sustain these rejections. However, for the reasons
discussed above in connection with the rejection of claim 1, we designate the
affirmance of these rejections as new grounds of rejection pursuant to
37 C.F.R. §41.50(b).
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DECISION
The Examiner’s decision rejecting claims 1—19 is AFFIRMED.
FINALITY OF DECISION
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the Examiner, in which event the prosecution will be
remanded to the Examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
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Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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)(l)(iv).
AFFIRMED; 37 C.F.R, $ 41.50(b)
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