Ex Parte Runyan et al

Patent Trial and Appeal Board

Oct 16, 2017

13410049 (P.T.A.B. Oct. 16, 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.
13/410,049 03/01/2012 Max R. Runyan 11-023 l-US-NP 1586
122219 7590 10/18/2017
Miller, Matthias & Hull LLP/ The Boeing Company
One North Franklin, Suite 2350
Chicago, IL 60606
EXAMINER
MCCAFFREY, KAYLA M
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
10/18/2017 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):
bmatthias @ millermatthiashull. com
patentadmin @ boeing. com
ynunez@millermatthiashull.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MAX R. RUNYAN, DANIEL G. SANDERS,
LARRY D. HEFTI, DAVID R. PAPENFUSS,
JACK W. MAULDIN, and LUIS R. LEON
Appeal 2016-006060
Application 13/410,0491
Technology Center 3700
Before JOHN C. KERINS, DANIEL S. SONG, and LEE L. STEPINA,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants’ Appeal Brief, “The Boeing Company” is the real
party in interest. Appeal Br. 1.
Appeal 2016-006060
Application 13/410,049
CLAIMED SUBJECT MATTER
The claims are directed to an SPF/DB, that is, superplastic
forming/diffusion bonding, structure for attenuation of noise from air flow.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A propulsion system comprising:
a turbine jet engine; and
an engine nacelle including an SPF/DB inner wall having
a hot side face sheet against the engine’s core and a cold side face
sheet that has noise attenuation openings.
Appeal Br. 16.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Adamson US 3,542,152 Nov. 24, 1970
Herman US 4,137,992 Feb. 6, 1979
Harp US 4,265,955 May 5, 1981
Patterson US 4,495,237 Jan. 22, 1985
Parente US 4,850,093 July 25, 1989
Runyan US 2006/0255098 A1 Nov. 16, 2006
Scarr US 2012/0308379 A1 Dec. 6, 2012
REJECTIONS
(I) Claims 1,2, 5—7, 13—15, and 19 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Adamson.
(II) Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Adamson and Parente.
(III) Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Adamson and Scarr.
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(IV) Claims 9, 10, 16, and 17 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Adamson and Harp.
(V) Claims 11, 12, and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Adamson and Patterson.2
(VI) Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Adamson and Herman.
(VII) Claims 1,2, 5—8, 13—15, and 19 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Adamson and Runyan.
(VIII) Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Adamson, Runyan, and Parente.
(IX) Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Adamson, Runyan, and Scarr.
(X) Claims 9, 10, 16, and 17 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Adamson, Runyan, and Harp.
(XI) Claims 11, 12, and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Adamson, Runyan, and Patterson.
(XII) Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Adamson, Runyan, and Herman.
2 The heading for Rejection (V) does not list Harp as a reference. Final Act.
10. However, claims 11 and 12 depend directly or indirectly from claim 9,
which, in Rejection (IV), was rejected as unpatentable over Adamson and
Harp. Id. As the heading for Rejection (V) indicates that claims 11, 12, and
18 are unpatentable over Adamson “as applied to claims 9 and 15 above”
{id.), we understand the rejection of claims 11 and 12 to implement the
teachings provided by Harp as used in the rejection of claim 9, Rejection
(IV). The same typographical error occurs in Rejection (XI). See id. at 15-
lb.
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Application 13/410,049
OPINION
Rejection (I); Adamson
The Examiner does not give patentable weight to the requirement in
claim 1 that the wall be an “SPF/DB inner wall.” Final Act. 6. Specifically,
the Examiner determines that this requirement is a product-by-process
limitation and carries no patentable weight in system claim 1. Id. (citing
MPEP § 2113).
Appellants contend that the requirement that the wall recited in claim
1 be an “SPF/DB” wall is a structural requirement and the Examiner errs in
giving it no patentable weight. Appeal Br. 8.
Appellants have the better position on this point. Although the
Examiner is correct in that some product-by-process limitations are not to be
given patentable weight in system, device, and product claims (see In re
Thorpe, 111 F.2d 695, 698 (Fed. Cir. 1985)), in some cases, the structure of
a recited element may be defined by the process in which it is made {In re
Garnero, 412 F.2d 276, 279 (CCPA 1979) (“[I]t seem[s] to us that the
recitation of the particles as ‘interbonded one to another by interfusion
between the surfaces of the perlite particles’ is as capable of being construed
as a structural limitation as ‘intermixed,’ ‘ground in place,’ ‘press fitted,’
‘etched,’ and ‘welded,’ all of which at one time or another have been
separately held capable of construction as structural, rather than process,
limitations.” (Footnote omitted)). The “DB” product-by-process limitation
in claim 1 means “diffusion bonding.” Spec. 124. We find the process of
diffusion bonding to define structure, similar to the way the processes of
welding and interbonding by interfusion discussed in Garnero define
structure. Therefore, the diffusion bonding product-by-process limitation
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Application 13/410,049
recited in claim 1 carries patentable weight. The Examiner does not find
that Adamson discloses any structure formed by diffusion bonding. See,
e.g., Final Act. 6, 12. Rather, the Examiner’s incorrect determination that
this term does not carry patentable weight in claim 1 led to the finding that
Adamson discloses all the features recited in claim 1. Id. at 6. Accordingly,
we reverse the Examiner’s rejection of claim 1 and claims 2 and 5—7
depending therefrom as anticipated by Adamson.
Independent claims 13 and 15 recite, respectively, “an SPF/DB
sandwich structure” and “A monolithic SPF/DB sandwich structure.”
Appeal Br. 17—18 (Claims App.). For the same reasons discussed above
regarding claim 1, we reverse the rejection of claims 13 and 15 and
associated dependent claims 14 and 19 as anticipated by Adamson.
Rejections (II)—(VI); Adamson, Parente, Scarr, Harp, Patterson, and
Herman
The Examiner does not rely on Parente, Scarr, Harp, Patterson, or
Herman in any way that would remedy the deficiency discussed above in
Rejection (I). See Final Act. 8—11. Accordingly, for the same reasons as
discussed above regarding Rejection (I), we reverse Rejections (II)—(VI).
Rejection (VII); Adamson and Runyan
Claims 1, 2, and 5—83
As an alternative to Rejection (I), the Examiner finds that Adamson
teaches most of the elements recited in claim 1, but “does not explicitly
teach the inner wall is formed from a superplastic forming/diffusion bonding
process (SPF/DB),” and the Examiner addresses this deficiency with the
3 Appellants indicate that claims 2 and 5—8 stand or fall with claim 1.
Appeal Br. 9.
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teachings of Runyan. Final Act. 11—12 (citing Runyan 111). The Examiner
reasons that it would have been obvious to “to form the inner wall structure
of ADAMSON by an SPF/DB process, since it is a known process for
forming high stiffness-low weight acoustic panels for aircraft applications.”
Id. at 12 (citing Adamson 1:22—32).
Appellants do not dispute that Runyan teaches an SPF/DB process,
but Appellants argue that Runyan is silent with regard to dealing with
extreme temperatures and using an SPF/DB panel in an engine nacelle.
Appeal Br. 9.
In response, the Examiner finds that Adamson discloses a sandwich
panel structure that comprises metal. Ans. 8 (citing Adamson 3:64—67, Figs.
2—3). The Examiner finds that Runyan also discloses a sandwich panel
comprising metal (aluminum), as well as an SPF/DB process for making the
panel. Ans. 8 (citing Runyan 112, Figs. 1—11). The Examiner further finds
that Runyan’s SPF/DB can be used for forming high stiffness, low weight
acoustic panels for aircraft. Ans. 8 (citing Runyan | 5). The Examiner
explains that Rejection (VII) relies on Runyan for the process of making a
panel, not for the Runyan’s panel itself. Ans. 7.
In reply, Appellants reiterate that Runyan does not discuss using its
SPF/DB process in areas exposed to extreme temperatures. Reply Br. 6—7.
In this regard, Appellants quote a portion of the Specification, which states,
“the propulsion system further includes a nacelle 140, which includes
cowling for covering the ducted fan and the engine core 122. The cowling
may be made of a light weight construction using lower temperature capable
materials such as carbon epoxy or aluminum” and contend their
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Application 13/410,049
Specification discloses using an SPF/DB structure with a material more
temperature resistant than aluminum. Reply Br. 5—6 (quoting Spec. 117).
Appellants’ arguments on this point are unavailing. We agree with
the Examiner that the rejection of claim 1 based on Adamson and Runyan
relies on the process disclosed in Runyan and modifies the panel disclosed
by Adamson such that it is formed by this process. Thus, there is no issue as
to whether the material of the panel in Adamson is compatible with the
temperatures to which it is exposed because the Examiner’s rejection does
not propose changes in the material of the panel. As for whether the
material from which Adamson’s panel 12, including facing sheet 24 and
backer sheet 26 is made is compatible with Runyan’s SPF/DB process,
Adamson teaches that these “may be formed using any suitable material
such as metals, plastics, ceramics, etc. which are essentially rigid and have
adequate mechanical properties.” Adamson 3:64—67. Thus, Adamson
teaches that a wide variety of materials are acceptable for its panels. As the
Examiner noted, Runyan applies its process to aluminum. See Runyan 112;
see also id. 146 (“Materials that can be friction stir welded and formed
according to the present invention include, but are not limited to, aluminum,
aluminum alloys, nickel alloys, and stainless steel.”). In view of Adamson’s
disclosure of using “metals” and “plastics” for its facing sheet 24 and
backing sheet 26, Appellants provide no persuasive reason to conclude that
the process taught by Runyan would be incompatible with the materials used
by Adamson in panel 12.
Appellants also contend that the Examiner’s proposed combination of
Adamson and Runyan would not satisfy all the requirements of claim 1
because backing sheet 26 of the panel is not against the engine’s core as
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Application 13/410,049
required. Appeal Br. 9—10. In support of this argument Appellants provide
an annotated copy of a portion of Figure 1 of Adamson and assert that
backing sheet 26 is “against” structure that may be a blanket, but in any
event is not the “core” of the engine. Id. at 6.4 We reproduce Appellants’
annotated figure below.
engine core
Appellants’ annotated portion of Figure 1 of Adamson identifies facing sheet
24, backing sheet 26, and structure adjacent air passage 22 that Appellants
assert may be an insulation blanket. See Appeal Br. 6.
In response, the Examiner states “the structure between the backing
sheet (26) and the core flow duct (22) is an engine core nacelle,” and “[t]he
nacelle (18) is considered the engine core nacelle because it houses the
4 This portion of the Appeal Brief addresses the rejection of claim 1 as
anticipated by Adamson, but also relates to the finding of fact Appellants
contest in the rejection of claim 1 as unpatentable over Adamson and
Runyan. Specifically, this portion of the Appeal Brief relates to the specific
location of backing sheet 26 and whether the structure in which it is in
contact qualifies as an engine core as recited in claim 1.
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Application 13/410,049
compressor, combustor and turbomachinery of the turbojet engine.” Ans. 7
(citing Adamson 2:1—8).
Appellants reply that Adamson does not identify what it considers to
be the core and that the structure against which backing sheet 26 is disposed
may not be nacelle 18. Reply Br. 3. Appellants also contend that the
Examiner’s interpretation of the term “engine core” is unreasonably broad,
and “the inner wall 132 and the engine core 122, as illustrated in FIG. 1,
provide a definition for the ‘engine core,’ along with arrows showing the
direction of the core flow,” and “the description and illustrations, when
viewed with the claims that would require it to be interpreted as, solely, the
core flow.” Reply Br. 4 (citing Spec. 126, Figs. 1, 3).
Paragraph 26 of the Specification identifies the “engine core” with
reference number 122. As is evident from Figure 1, inner wall 132 abuts the
engine core 122, and plug nozzle 124 is in contact with the core flow. See
also Spec. H 16, 26. The Specification explains that inner wall 132
separates the bypass flow from the engine core and “[t]he inner wall 132
may also function as a core duct for the core flow and as a cowling for the
engine core 122.” Spec. 118. Thus, contrary to Appellants’ asserted claim
interpretation, the Specification implies that the terms “engine core” and
“core flow” are not synonymous.
The Specification also states, “[a] typical turbofan engine 120
includes a ducted fan 121 and an engine core (or gas generator) 122 for
driving the fan 121.” Spec. 116. Paragraph 21 of the Specification states
that “the inner wall 132 suppresses engine noise, which is generated by
turbine components of the engine core 122.” Accordingly, we disagree with
Appellants’ contention that the broadest reasonable interpretation of the
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Application 13/410,049
“engine’s core” recited in claim 1 corresponds “solely” to the core flow.
Rather, Appellants’ engine’s core is disclosed as including turbine
components and as driving ducted fan 121. Similarly, Adamson discloses
that “the nacelle structure 18 houses a suitable compressor, combustor, and
turbomachinery (not shown) for driving a fan 20 disposed within the
cowling 16.” Adamson 2:1—4. Thus, we agree with the Examiner’s finding
(see Ans. 2—3) that nacelle structure 18 of Adamson would properly be
regarded as being a component of the engine core recited in claim 1.
As for Appellants’ contention that Adamson does not identify the
structure adjacent to backing sheet 26 as nacelle 18 (Reply Br. 8), we
disagree. Specifically, it is evident from Figure 1 of Adamson that nacelle
18 is the structure that defines duct 22, and which is in contact with the
structure abutted by backing face 26. This finding of fact is supported by
Adamson’s statement that Figure 1 depicts a turbojet engine “having an
annular generally streamline fan duct air passage 14 formed by an annular
cowling 16 of generally streamline cross section and a suitable nacelle
structure 18 projecting within the cowling 16.” Adamson 1:70-75. Passage
14, beginning in the front of the turbojet engine, is formed by annular
cowling 16 and nacelle 18. Thus, Appellants’ contention (Reply Br. 3) that
Adamson’s nacelle 18 is identified only at the aft portion of turbojet engine
10 is unavailing.
Appellants next argue:
The [Ejxaminer also errs for failing to consider secondary
evidence of nonobviousness. The present application provides
numerous advantages of the claimed inner wall (see paragraphs
2 and 30-34 of the application), and it also describes the
longstanding and ongoing need to reduce aircraft weight
(paragraph 2). The applicants have cited patents showing that
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superplastic forming and diffusion bonding has been known for
decades. Given its advantages, had the claimed inner wall been
so obvious, someone would have proposed it long ago.
Appeal Br. 10 (emphasis added).
In response, the Examiner determines that the facts described in the
Specification do not outweigh the prima facie case of obviousness
established in view of Adamson and Runyan. Ans. 9.
The Specification describes various disadvantages to using an
insulation blanket in a jet engine, e.g., an increase in aircraft weight (| 2),
and describes advantages provided by SPF/DB structure relative to
insulation blankets and honeycomb structures flflf 30—34). For example,
paragraph 30 of the Specification states that “[t]he SPF/DB inner wall 132
provides better corrosion resistance and thermal protection than honeycomb
structures.” None of the portions of the Specification cited by Appellants set
forth any particular time frame upon which the prior art recognized the
disadvantages associated with insulation blankets and honeycomb structures,
or even allege that these disadvantages were recognized by those of ordinary
skill in the art. See WBIP, LLC v. Kohler, 829 F.3d 1317, 1334 (Fed. Cir.
2016) (stating, “whether there is a Tong-felt need is analyzed as of the date
of an articulated identified problem and evidence of efforts to solve that
problem’”) (quoting Texas Instruments, Inc. v. U.S. Int’l Trade Comm’n,
988 F.2d 1165, 1178 (Fed. Cir. 1993); see also Iron Grip Barbell Co. v. USA
Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004) (“Absent a showing of
long-felt need or the failure of others, the mere passage of time without the
claimed invention is not evidence of nonobviousness.”).
Additionally, none of the portions of the Specification cited by
Appellants quantifies, in any detail, the benefits SPF/DB structures provide,
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and, instead, these portions merely contend that SPF/DB structure is superior
in that it provides, for example, “better corrosion resistance,” “higher
structural strength,” “better fatigue performance,” and a nacelle that is
“lighter” with “smoother surfaces.”
Considering all the evidence of record, and given the lack of detail
provided by Appellants regarding the alleged objective indicia of non­
obviousness, we are not apprised of error in the Examiner’s rejection of
claim 1 as unpatentable over Adamson and Runyan. Accordingly, Rejection
(VII) is affirmed with respect to claims 1 and claims 2 and 5—8 depending
therefrom.
Claims 13—15 and 19
Appellants argue claims 13—15 and 19 as a group, stating, “[t]he
examiner errs by relying on the combination of Adamson and Runyan
because, as discussed above, Runyan does not teach or suggest using an
SPF/DB structure in place of Adamson’s welded/bonded/brazed noise
suppression panels 12. Therefore, the ’103 rejection of claims 13-15 and 19
should be reversed.” Appeal Br. 10.
For the same reasons discussed above regarding the rejection of claim
1 over Adamson and Runyan, we affirm the Examiner’s rejection of claims
13—15 and 19.
Rejections (VIII)—(IX); Adamson, Runyan, Parente, and Scarr
Appellants make no arguments for the patentability of dependent
claims 3 and 4 apart from those made with respect to claim 1. See Appeal
Br. 9—15. Accordingly, claims 3 and 4 fall with claim 1.
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Rejection (X); Adamson, Runyan, and Harp
Appellants argue claims 9, 10, 16, and 17 as a group and assert that
Harp “does not suggest adding a septum to an SPF/DB structure . . . Harp
does not describe how to create a septum in an SPF/DB structure,” and
therefore, Harp is not enabling for the modification to Adamson proposed by
the Examiner. Appeal Br. 11. In this regard, Appellants state, “[t]he
disclosure in an assertedly anticipating reference must provide an enabling
disclosure of the desired subject matter; mere naming or description of the
subject matter is insufficient, if it cannot be produced without undue
experimentation.” Id. (citing Elan Pharm., Inc. v. Mayo Found, for Med.
Educ. and Research, 346 F.3d 1051, 1054 (Fed. Cir. 2003). Appellants also
citq Impax Labs. v. Aventis Pharms., 468 F.3d 1366, 1383 (Fed. Cir. 2006)
for the same principle. Id.
Appellants’ arguments on this point are unavailing. Not only do
Appellants’ arguments fail to provide any persuasive explanation as to why
the Examiner’s proposed combination of Adamson and Harp is not enabled,
Appellants refer to case law relating to rejections based on anticipation, not
obviousness. “Under § 103, however, a reference need not be enabled; it
qualifies as a prior art, regardless, for whatever is disclosed therein.” Amgen
Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1357 (Fed. Cir. 2003).
Accordingly, we affirm the Examiner’s rejection of claims 9, 10, 16, and 17.
Rejection (XI); Adamson, Runyan, and Patterson
Claims 11 and 18
Claims 11 recites, “[t]he system of claim 9, wherein cells are
pyramid-shaped,” and claim 18 recites the same limitation, but depends from
claim 15. Appeal Br. 17—18.
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Appellants make arguments for the patentability of claims 11 and 18
as a group. Appeal Br. 12—15. First, Appellants assert, “Patterson is silent
about noise attenuation, SPF/DB structures, engine nacelles, and air flow
through ducts. In any event, Patterson is silent about SPF/DB noise
attenuation cells that are pyramid-shaped.” Id. at 12. Thus, according to
Appellants, “Patterson provides no reason for modifying the resonating
cavities 30 and 32 of Adamson’s core.” Id. at 12—13. Appellants also argue
that the Examiner’s rationale for modifying Adamson relies on increasing
flexibility, and this would be contrary to the actual effect of the
modification, which would be to increase stiffness as taught by paragraph 44
of Appellants’ Specification. Id. at 13.
The Examiner responds by noting that the rejection of claims 11 and
18 relies on Adamson, not Patterson, to teach noise attenuation cells, and the
reasoning for modifying Adamson to include the pyramid structure Patterson
teaches “is to increase the strength to weight ratio (PATTERSON column 1,
lines 21-27) and design flexibility (PATTERSON column 3, lines 8-15) of
the panel.” Ans. 12—13.
In reply, Appellants reiterate that the use of pyramid-shaped cells does
not increase flexibility, and if it did, this would degrade the ability of the
structure disclosed by Adamson to suppress sound. Reply Br. 8. Thus,
according to Appellants, the Examiner’s rationale for modifying Adamson to
include pyramid-shaped cells is deficient. Id. at 8—9.
We disagree with Appellants’ arguments because the Examiner’s
rationale for modifying Adamson based on the teachings of Patterson relies
on increasing the strength to weight ratio of Adamson’s panel as well as
increasing design flexibility. Appellants do not argue that the proposed
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modification to Adamson to include the pyramid-shaped structure taught in
Patterson would not increase the strength to weight ratio. Additionally, this
benefit is explicitly taught by Patterson’s statement that its pyramidal
structure is “capable of distributing stresses in such a manner as to increase
the strength to weight ratio of the core structure of any suitable materials
capable of being formed and bonded.” Patterson 1:25—28; see also id. 3:7—
11. Additionally, contrary to Appellants’ assertion, the “flexibility”
provided by Patterson’s pyramid-shaped structure is design flexibility
(versatility), not flexibility in the sense of a reduction in stiffness. See id.
3:11—15. Thus, the Examiner’ s reasoning for modifying Adamson based on
the teachings of Patterson is supported by rational underpinnings.
Appellants next assert that Patterson is non-analogous art because it
does not “address the problems peculiar to reducing engine noise in a turbine
engine” and “is silent about. . . SPF/DB structures, engine nacelles, and air
flow through ducts.” Appeal Br. 14.
In response, the Examiner states, “since both the panel of
PATTERSON and the Appellant’s inner wall panel are structural panels
used in aircraft environment, they are considered within the same field of
endeavor.” Ans. 13 (emphasis added).
The Examiner has the better position on this point. Paragraph 18 of
Appellants’ Specification discusses certain structural functions of
Appellants’ claimed invention. Patterson is directed to a pyramidal structure
for a panel. See Patterson, Abstract. Patterson indicates that this generic
structure “should prove useful in the construction of houses, aircraft, rigid
airships, ships, submersibles, spacecraft, automobiles and trucks, to name a
few.” Patterson 3:12—15. Accordingly, the Examiner’s finding that
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Patterson is in the same field of endeavor is supported by a preponderance of
the evidence.
Appellants next contend that “Patterson does not enable a person
skilled in the art to manufacture pyramid-shaped cells of an SPF/DB
structure.” Appeal Br. 14. In support of this contention, Appellants again
cite Impax Labs. v. Aventis Pharms., 468 F.3d at 1383. Id.
Appellants provide no persuasive discussion as to why a person of
ordinary skill in the art would have had any difficulty combining the
teachings of Adamson, Runyan, and Patterson as proposed by the Examiner.
In any event, as discussed above, Appellants’ argument regarding the
enablement requirements in an anticipation rejection are not applicable to a
rejection based on obviousness. See Amgen Inc. v. Hoechst Marion Roussel,
Inc., 314 F.3d at 1357.
We affirm Rejection (XI) with respect to claims 11 and 18.
Claim 12
Claim 12 depends from claim 11 and recites, “wherein walls of the
cells are perforated to provide two additional degrees of freedom for noise
attenuation.” Appeal Br. 17.
Appellants contend that “the office action appears to ignore claim
language about perforations in the pyramid-shaped cells. Due to this
additional legal error, the ’103 rejection of claim 12 should be reversed.”
Appeal Br. 14. In the Reply Brief, Appellants reiterate the same argument
regarding flexibility discussed above regarding claims 11 and 18. Reply Br.
9.
Appellants’ arguments are unavailing because the Examiner did not
ignore the requirement for perforations recited in claim 12. Rather, as
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explained on pages 14—15 of the Answer, the rejection of claim 12 relies on
Adamson to teach perforations and relies on Patterson to teach pyramid
shapes. As for Appellants’ argument regarding the flexibility vel non of
pyramid-shaped cells, we disagree for the same reasons discussed above
with respect to claims 11 and 18.
DECISION
Rejections (I)—(VI) are reversed.
Rejections (VII)-(XI) are 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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