Ex Parte Riebe

Board of Patent Appeals and Interferences

Sep 26, 2003

08351993 (B.P.A.I. Sep. 26, 2003)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 33
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte GARY C. RIEBE
____________
Appeal No. 1998-1263
Application No. 08/351,993
____________
HEARD: SEPTEMBER 10, 2003
____________
Before COHEN, STAAB, and BAHR, Administrative Patent Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 25. These claims constitute all of the claims in the
application.
Appellant's invention pertains to a friction device and to a
method of assembling a brake stack. A basic understanding of the
invention can be derived from a reading of exemplary claims 1 and
25, respective copies of which appear in the "[AMENDED] APPENDIX
Appeal No. 1998-1263
Application No. 08/351,993
1 Rejections 7 through 11 do not appear in the final
rejection (Paper No. 7) and are clearly, therefore, new grounds
of rejection. Like appellant, it is quite disconcerting to us to
observe that the rules regarding new grounds of rejection do not
appear to have been observed. Lack of conformity with the rules
in this matter is appropriately addressed by petition, not
appeal. Since appellant has argued the merits of the new
rejections in the reply brief, we shall address those rejections.
2
1" accompanying the revised supplemental reply brief (Paper No.
27).
As evidence of anticipation and obviousness, the examiner
has applied the documents listed below:
Du Bois 2,671,532 Mar. 9, 1954
Luedtke et al 2,964,137 Dec. 13, 1960
(Luedtke)
Stanton 3,018,852 Jan. 30, 1962
Chamberlain 3,138,406 Jun. 23, 1964
Fisher 3,731,776 May 8, 1973
Halverson et al 4,605,440 Aug. 12, 1986
(Halverson)
Guichard 4,703,837 Nov. 3, 1987
The following rejections are before us for review.1
1. Claims 1 through 3, 7 through 12, 16, 17, 19, 21, 22, 24,
and 25 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Chamberlain.
Appeal No. 1998-1263
Application No. 08/351,993
3
2. Claims 3, 4, 12, and 13 stand rejected under 35 U.S.C. § 103
as being unpatentable over Chamberlain in view of Guichard.
3. Claims 5, 6, 14, and 15 stand rejected under 35 U.S.C. § 103
as being unpatentable over Chamberlain in view of Halverson.
4. Claim 20 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Chamberlain in view of Fisher.
5. Claim 23 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Chamberlain in view of Guichard and Luedtke.
6. Claim 18 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Chamberlain in view of Stanton.
7. Claims 1, 7, and 25 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Du Bois.
8. Claims 2 through 6, 8 through 17, 21, and 22 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Du Bois.
Appeal No. 1998-1263
Application No. 08/351,993
2 In our evaluation of the applied prior art, we have
considered all of the disclosure of each document for what it
(continued...)
4
9. Claim 18 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Du Bois in view of Stanton.
10. Claims 19 and 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Du Bois in view of Fisher.
11. Claims 23 and 24 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Du Bois.
The full text of the examiner's eleven rejections and
response to the argument presented by appellant appears in the
supplemental examiner's answer (Paper No. 24), while the complete
statement of appellant's argument can be found in the main and
reply briefs (Paper Nos. 17 and 21).

OPINION
In reaching our conclusion on the issues raised in this
appeal, this panel of the Board has carefully considered
appellant's specification and claims, the applied teachings,2 and
Appeal No. 1998-1263
Application No. 08/351,993
2(...continued)
would have fairly taught one of ordinary skill in the art. See
In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the Board has taken into account not
only the specific teachings, but also the inferences which one
skilled in the art would reasonably have been expected to draw
from the disclosure. See In re Preda, 401 F.2d 825, 826,
159 USPQ 342, 344 (CCPA 1968).
5
the respective viewpoints of appellant and the examiner. As a
consequence of our review, we make the determinations which
follow.
The first rejection
We do not sustain the rejection of claims 1 through 3, 7
through 12, 16, 17, 19, 21, 22, 24, and 25 under 35 U.S.C.
§ 102(b) as being anticipated by Chamberlain.
Independent claim 1 addresses a friction device comprising,
inter alia, a brake stack having an axial front end adapted to be
positioned adjacent to and for contacting engagement with a
plurality of circumferentially spaced pressure application
members, the majority of the brake disks of the brake stack being
formed of a material that will deform or flow during an
anticipated high energy braking action, the front axial end of
Appeal No. 1998-1263
Application No. 08/351,993
6
the brake stack comprising a fist rigid disk capable of
maintaining a clamp load across the brake stack during a high
energy stop that is more uniform than the clamp load across the
brake stack that results when only using a pressure plate of
steel.
Independent claim 10 sets forth a friction device
comprising, inter alia, a plurality of actuators spaced
circumferentially, a brake stack having a front axial end
positioned adjacent to and contacted only at circumferentially
spaced apart locations by said plurality of actuators, the
majority of the disks of the brake stack being formed of a
material that will deform or flow during an anticipated high
energy braking action, the brake stack comprising in sequence
from its front axial end a first rigid disk and a steel pressure
plate, and the first rigid disk being formed of a material
capable of maintaining a clamp load across the brake stack during
a high energy stop that is more uniform than the clamp load
across the brake stack that results when only using a pressure
plate of steel.
Appeal No. 1998-1263
Application No. 08/351,993
7
Independent claim 25 recites a method of assembling a brake
stack with the following features, inter alia, the brake stack
having a front axial end adapted to be positioned adjacent to and
for contact only at circumferentially spaced apart locations by a
plurality of circumferentially spaced apart pressure application
members, the majority of the brake stack being formed of a
material that will deform or flow during an anticipated high
energy braking action, the method comprising providing the front
axial end of the brake stack with a first rigid disk arranged to
be contacted only at circumferentially spaced apart locations by
said plurality of circumferentially spaced apart pressure
application members, the first rigid disk being formed of a
material capable of maintaining a clamp load across the brake
stack during a high energy stop that is more uniform than the
clamp load across the brake stack that results when only using a
pressure plate of steel.
At this point, it is particularly important for us to fully
comprehend the meaning of certain language appearing in each of
claims 1, 10, and 25. First, we focus upon the recitation in the
claims of a first rigid disk as the front axial end of the brake
stack, which rigid disk is formed of a material capable of
Appeal No. 1998-1263
Application No. 08/351,993
8
maintaining a clamp load across the brake stack during a high
energy stop that is more uniform than the clamp load across the
brake stack that results when only using a pressure plate of
steel. We are informed by the present specification (page 9)
that "rigid" is "defined as having greater resistance to bending,
flexing, deformation and flow than AMS 6302 steel." Second, we
consider the claim recitation of a first rigid disk as the front
axial end of a brake stack, which first rigid disk is contacted
by pressure application members or actuators. It is quite clear
to us from the underlying disclosure that the claimed first rigid
disk is a first or front disk contacting the pressure application
members or actuators.
Anticipation under 35 U.S.C. § 102(b) is established only
when a single prior art reference discloses, either expressly or
under principles of inherency, each and every element of a
claimed invention. See In re Schreiber, 128 F.3d 1473, 1477,
44 USPQ2d 1429, 1431 (Fed. Cir. 1997); In re Paulsen, 30 F.3d
1475, 1478-79, 31 USPQ2d 1671, 1673 (Fed. Cir. 1994); In re
Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990);
and RCA Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440,
1444, 221 USPQ 385, 388 (Fed. Cir. 1984). However, the law of
Appeal No. 1998-1263
Application No. 08/351,993
9
anticipation does not require that the reference teach
specifically what an appellant has disclosed and is claiming but
only that the claims on appeal "read on" something disclosed in
the reference, i.e., all limitations of the claim are found in
the reference. See Kalman v. Kimberly-Clark Corp., 713 F.2d 760,
772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied, 465 U.S.
1026 (1984).
Simply stated, and taking into full account our claim
language assessment, supra, we share the view of appellant that
rejected independent claims 1, 10, and 25, in particular, are not
anticipated by the Chamberlain teaching, i.e., they do not read
on the structure of the airplane wheel (Figs. 1, 2 and 4) of
Chamberlain. The examiner refers to the flat, annular layer 36
of asbestos (or other suitable insulation) on pressure plate 30
in the Chamberlain patent as the claimed first rigid disk
(answer, page 4). Clearly, annular layer 36 of Chamberlain does
not respond to all limitations of appellant's independent claims.
First, it is entirely speculative as to whether annular layer 36
is rigid, as that claim term is expressly and very specifically
defined in the appellant's specification. Second, the annular
layer 36 is not the front or first disk contacted by a plurality
Appeal No. 1998-1263
Application No. 08/351,993
3 While, as utilized by the examiner, the Guichard patent is
not dispositive, this document nevertheless is quite relevant to
(continued...)
10
of pressure application members or actuators, a requirement of
each of appellant's independent claims. As can readily be
discerned from Figs. 2 and 4 of Chamberlain the pistons 32
contact pressure plate 31 not annular layer 36. For the above
reasons, the examiner's first rejection, under
35 U.S.C. § 102(b) cannot be sustained.
The second rejection
We do not sustain the rejection of claims 3, 4, 12, and 13
under 35 U.S.C. § 103 as being unpatentable over Chamberlain in
view of Guichard.
Respective claims 3 and 4 and claims 12 and 13 depend from
independent claims 1 and 10 and recite particular materials for
the first rigid disk.

In this obviousness rejection, the examiner proposes to make
the flat, annular layer 36 of Chamberlain from a carbon composite
material, based upon the teaching of Guichard.3 However, even if
Appeal No. 1998-1263
Application No. 08/351,993
3(...continued)
the claimed invention (annular plate 42 in Fig. 2 of Guichard is
made of carbon composite material and contacted by a plurality of
pistons 19). Appellant's commentary in the penultimate paragraph
of page 8 of the main brief is noteworthy.
11
it would have been obvious to fabricate the annular layer 36 of
Chamberlain from a carbon composite material, we perceive, as
explained above, that the Chamberlain reference does not respond
to, and further would not have been suggestive of, all of the
limitations of the independent claims. Thus, the second
rejection cannot be sustained.
The third rejection
We do not sustain the rejection of claims 5, 6, 14, and 15
under 35 U.S.C. § 103 as being unpatentable over Chamberlain in
view of Halverson.
Claims 5 and 6 and claims 14 and 15, respectively, are
dependent from claims 1 and 10, and set forth a particular
material for the first rigid disk.
Akin to the second rejection, the examiner proposes to alter
the material for the flat, annular layer 36 of Chamberlain in
Appeal No. 1998-1263
Application No. 08/351,993
12
light of the Halverson disclosure. However, the Halverson
reference, as applied, does not overcome the noted deficiency of
Chamberlain relative to independent claims 1 and 10.
Accordingly, the third rejection cannot be sustained.
The fourth rejection
We do not sustain the rejection of claim 20 under 35 U.S.C.
§ 103 as being unpatentable over Chamberlain in view of Fisher.
Claim 20, dependent from claim 10, sets forth that each
rotor disk has a friction pad of a specified material.
Notwithstanding the teaching of Fisher sought to be applied
to the Chamberlain disclosure, the Fisher document, as used by
the examiner, does not overcome the basic deficiency of the
Chamberlain teaching. Therefore, the fourth rejection is not
sustained.
Appeal No. 1998-1263
Application No. 08/351,993
13
The fifth rejection
We do not sustain the rejection of claim 23 under 35 U.S.C.
§ 103 as being unpatentable over Chamberlain in view of Guichard
and Luedtke.
Claim 23, dependent from claim 10, adds the feature of the
first rigid disk being coupled to a torque tube but not to a
steel pressure plate.
Irrespective of the teachings of Guichard and Luedtke, as
proposed to be applied by the examiner, the fact remains that
Chamberlain's teaching is deficient and does not respond to all
of the limitations of independent claim 10, as determined above.
The sixth rejection
We do not sustain the rejection of claim 18 under 35 U.S.C.
§ 103 as being unpatentable over Chamberlain in view of Stanton.
The claim at issue depends from independent claim 10 and
addresses a wear indicating feature.
Appeal No. 1998-1263
Application No. 08/351,993
14
The examiner's proposed addition of a brake wear indicator
(Stanton) to the Chamberlain teaching simply does not overcome
the noted deficiency of Chamberlain, as earlier explained. Thus,
the sixth rejection cannot be sustained.
The seventh rejection
We do not sustain the rejection of claims 1, 7, and 25 under
35 U.S.C. § 102(b) as being anticipated by Du Bois.
Particular features of independent claims 1 and 25 have been
set forth above.
In the examiner's opinion, the claimed invention reads on
the Du Bois reference, with the pressure plate 124 of Du Bois
responding to the first rigid disk of appellant's independent
claims 1 and 25. We disagree that the Du Bois patent is
anticipatory. First, since no material is specified by the
patentee for the pressure plate 124 it is indeterminate as to
whether this plate can respond to the claimed first rigid disk,
particularly keeping in mind appellant's definition of the term
rigid. Second, it appears to us that one skilled in this art
Appeal No. 1998-1263
Application No. 08/351,993
15
would readily comprehend the Du Bois patent as teaching a single
piston 84 and sealing ring 88 in annular chamber 80 (Figs. 2 and
3) contacting pressure plate 124, and not as a disclosure of a
plurality of pressure application members as required by
appellant's independent claims 1 and 25. For these reasons, the
seventh rejection cannot be sustained.
The eighth rejection
We do not sustain the rejection of claims 2 through 6, 8
through 17, 21, and 22 under 35 U.S.C. § 103 as being
unpatentable over Du Bois.
This rejection concerns claims dependent from independent
claim 1, as well as independent claim 10 and dependent claims
thereof. We determined, supra, that claim 1 was not anticipated
by Du Bois.
In this obviousness rejection, only the Du Bois patent is
applied. By itself, and with an absence of any indication of a
material for the pressure plate 124, it does not appear to us
that the Du Bois teaching of an airplane wheel disk brake would
Appeal No. 1998-1263
Application No. 08/351,993
4 Appellant's application informs us that steel is the
conventional material for pressure plates (page 10, lines 13 and
14).
16
have been suggestive to one having ordinary skill in the art of
any particular material other than steel for the pressure plate,
since it is our understanding that steel is the acknowledged
conventional material for pressure plates.4 A steel pressure
plate in the airplane wheel disk brake of Du Bois would not have
rendered the claimed invention obvious. Accordingly, the eighth
rejection cannot be sustained.
The ninth rejection
We do not sustain the rejection of claim 18 under 35 U.S.C.
§ 103 as being unpatentable over Du Bois in view of Stanton.
Dependent claim 18 is drawn to the feature of a rod to
indicate the wear of a brake stack.
While the Stanton reference addresses a disk type brake with
a movable washer 42, positioned on a stem 36 of a retractor 34,
which washer acts as a wear indicator, this teaching of Stanton
simply does not overcome the already discussed deficiency of the
Appeal No. 1998-1263
Application No. 08/351,993
17
Du Bois reference. Therefore, the ninth rejection cannot be
sustained.
The tenth rejection
We do not sustain the rejection of claims 19 and 20 under
35 U.S.C. § 103 as being unpatentable over Du Bois in view of
Fisher.
Dependent claims 19 and 20, respectively, provide for
friction pads on stator and rotor discs.
The applied Fisher patent (column 2, lines 53 through 60)
teaches friction facings on rotor and stator members, but clearly
fails to cure the earlier described deficiency of the Du Bois
patent. Thus, the tenth rejection cannot be sustained.
The eleventh rejection
We do not sustain the rejection of claims 23 and 24 under
35 U.S.C. § 103 as being unpatentable over Du Bois.
Appeal No. 1998-1263
Application No. 08/351,993
18
Dependent claims 23 and 24 require the coupling of the first
rigid disk to a torque tube and to a steel pressure plate,
respectively.
Apart from the examiner's acknowledgment that the sole
reference to Du Bois is silent on the subject matter of dependent
claims 23 and 24 and opinion that the claimed features would have
been obvious to one having ordinary skill in the art, the fact
remains that Du Bois is deficient relative to the content of
independent claim 10 as discussed earlier. Thus, the eleventh
rejection cannot be sustained.
In summary, this panel of the Board has not sustained any of
the eleven rejections on appeal.
Appeal No. 1998-1263
Application No. 08/351,993
19
The decision of the examiner is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
ICC/lbg
Appeal No. 1998-1263
Application No. 08/351,993
20
MARY A. TUCKER
THE B F GOODRICH COMPANY
PATENT LAW DEPARTMENT
9921 BRECKSVILLE ROAD
BRECKSVILLE, OH 44141-3289