Ex Parte Strock et al

Patent Trial and Appeal Board

Dec 22, 2016

13603891 (P.T.A.B. Dec. 22, 2016)

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.
13/603,891 09/05/2012 Christopher W. Strock 17804-U; 67097-1888PUS1 7919
54549 7590 12/27/2016
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
RUMMEL, JULIA L
ART UNIT PAPER NUMBER
1784
NOTIFICATION DATE DELIVERY MODE
12/27/2016 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 CHRISTOPHER W. STROCK,
MICHAEL MALONEY, DAVID A. LITTON,
BENJAMIN JOSEPH ZIMMERMAN, and BRIAN T. HAZEL
Appeal 2015-004715
Application 13/603,891
Technology Center 1700
Before DONNA M. PRAISS, CHRISTOPHER C. KENNEDY, and
MICHAEL G. MCMANUS, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF CASE
Appellants2 appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1, 3—5, 8—14, and 22—25 as follows:3
1 In this decision, we refer to the Specification filed Sept. 5, 2012 (Spec.),
the Final Office Action appealed from mailed July 14, 2014 (Final Act.), the
Appeal Brief filed Nov. 21, 2014 (App. Br.), the Examiner’s Answer mailed
Jan. 30, 2015 (Ans.), and the Reply Brief filed March 20, 2015 (Reply Br.).
2 The real party in interest is identified by Appellants as United
Technologies Corporation. App. Br. 1.
3 Appellants do not argue the Examiner’s provisional rejection of claims 1
and 5 on the ground of nonstatutory double patenting over copending
Appeal 2015-004715
Application 13/603,891
1. Claim 1 under 35 U.S.C. § 102(b) as anticipated by Meyer;* * * 4
2. Claims 1, 3, 4, 10, and 13 under 35 U.S.C. § 102(b) as anticipated
by Taylor ’658;5
3. Claims 3—5, 8, 9, 11—13, and 22—25 under 35 U.S.C. § 103(a) over
Taylor ’658 as evidenced by Hasz6 and Nakamura,7 alone or in
combination with Kassner8 or Taylor ’172.9
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The invention relates to the deposition of IV semiconductor material
on silicon wafers with a rare earth structure between the IV material and the
silicon substrate. Spec. 1. Claims 1, 22, 24, and 25 are illustrative (subject
matter in dispute italicized):
Application Serial No. 13/586,099 in view of Schlichting US 2008/0176097.
Ans. 2; Final Act. 2. Accordingly, we summarily affirm the Examiner’s
rejection of claims 1 and 5 for nonstatutory double patenting.
4 Meyer et al., US 2011/0244216 Al, published Oct. 6, 2011 (“Meyer”).
5 Taylor et al., US 2003/0138658 Al, published July 24, 2003 (“Taylor
’658”).
6 Hasz et al., US 5,660,885, issued Aug. 26, 1997 (“Hasz”).
7 T. Nakamura, G. Qian et al. Effects of Pores on Mechanical Properties of
Plasma-Sprayed Ceramic Coatings, 83 J. Am. CERAM. SOC. No. 3, 578—84
(2000) (“Nakamura”).
8 H. Kassner et al., Application of Suspension Plasma Spraying (SPS) for
Manufacture of Ceramic Coatings, 17 J. THERMAL SPRAY TECH. No. 1
(Mar. 2008) (“Kassner”).
9Taylor et al., US 2008/0160172 Al, published July 3, 2008 (“Taylor ’172”).
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Application 13/603,891
1. A component for a gas turbine engine, comprising:
a substrate;
a thermal barrier coating deposited on at least a portion of
said substrate;
an outer layer deposited on at least a portion of said
thermal barrier coating, wherein said outer layer includes a
material that is reactive with an environmental contaminant that
comes into contact with said outer layer to alter a micro structure
of said outer layer; and
wherein said thermal barrier coating includes a first
porosity and said outer layer includes a second porosity that is
greater than said first porosity, and said thermal barrier coating
includes a first modulus of elasticity and said outer layer
includes a second modulus of elasticity that is less than said first
modulus of elasticity.
22. The component as recited in claim 1, wherein said
thermal barrier coating includes a first porosity in the range of
approximately 20% to 28% by volume and said outer layer
includes a second porosity in the range of 40%o to 60% by
volume.
24. A component for a gas turbine engine, comprising:
a substrate;
a thermal barrier coating deposited on at least a portion of
said substrate; and
an outer layer deposited on at least a portion of said
thermal barrier coating, wherein said outer layer includes a
material including gadolinia zirconia that is reactive with an
environmental contaminant that comes into contact with said
outer layer to alter a micro structure of said outer layer, wherein
at least a portion of said outer layer is shed from said outer layer
after the reaction with said environmental contaminant.
25. A component for a gas turbine engine, comprising:
a substrate;
a thermal barrier coating deposited on at least a portion of
said substrate; and
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Application 13/603,891
an outer layer deposited on at least a portion of said
thermal barrier coating, wherein said
outer layer includes a material including gadolinia
zirconia that is reactive with an environmental contaminant that
comes into contact with said outer layer to alter a microstructure
of said outer layer, wherein the reaction between said material
and said environmental contaminant forms a solid portion within
at least one porous region of said outer layer to limit infiltration
of said environmental contaminant into said thermal barrier
coating.
Claims App’x at App. Br. 10-12.
Appellants do not separately argue the patentability of dependent
claims 3—5, 8—13, and 23. App. Br. 3—9. In accordance with 37 C.F.R.
§ 41.37(c)(l)(iv), and based upon the lack of arguments directed to the
subsidiary rejection of claims 4, 12, and 23 under 35 U.S.C. § 103(a), claims
3, 4, 10, 12, 13, and 23 will stand or fall together with independent claim 1,
and claims 5, 8, 9, and 11 will stand or fall together with claim 24.
OPINION
Anticipation of Claim 1 by Meyer
Regarding claim 1, the Examiner finds that Meyer discloses a
component for a gas turbine engine comprising a substrate with a thermal
barrier coating (TBC) system deposited on the substrate; the TBC system
has a first porous layer deposited on the substrate and a second porous layer
with a greater porosity than the first layer. Final Act. 4 (citing Meyer, Abst.,
H 2, 11). The Examiner also finds that Meyer exemplifies the two porous
layers as comprising a metal oxide ceramic such as alumina or yttria-
stabilized zirconia. Id. (citing Meyer 19, 43—45). The Examiner further
finds that Meyer’s outer coating metal oxide material undergoes
microstructural changes upon reaction with environmental contaminants as
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evidenced by Hasz. Id. (citing Hasz 3:16—53). The Examiner additionally
finds that Meyer’s second porous layer has an elastic modulus that is lower
than the first layer as evidenced by Nakamura, which teaches that elastic
modulus is inversely proportional to porosity. Id. at 4—5 (citing Nakamura
579, III. Method for Estimating Effective Properties).
Appellants contend that the Examiner’s rejection of claim 1 is in error
because “Meyer is designed to reflect contaminants rather than absorb and
react with them.” App. Br. 5. Appellants also contend that Hasz does not
show alteration of an outer layer in response to an environmental
contaminant, but, rather, “a completely different result — the CMAS
composition is altered by increasing its melting temperature or its viscosity.”
Id. at 4 (citing Hasz 3:30-64). Regarding Nakamura’s teaching about the
relationship between porosity and elastic modulus, Appellants assert that the
Examiner “has not provided any evidence that this ‘general’ situation would
apply to achieve the ‘reflective’ properties of the coating described by
Meyer.” Id. at 5.
The Examiner responds that “Hasz expressly teaches that the
exemplified metal oxide coatings (which include those taught by Meyer) are
sacrificial and reactive with the relevant environmental contaminants (col. 3,
In. 31-53).” Ans. 11. The Examiner finds that Nakamura’s teachings are
particularly applicable to those of Meyer because “Meyer’s coating layers
are ceramic plasma spray coatings, which is the topic of Nakamura’s
disclosure, and are each made from the same type of ceramic.” Id. at 12.
The Examiner further finds that “Meyer discusses the coating’s reflectivity
of infrared radiation” and therefore does not teach away from a coating with
the claimed characteristics because “Meyer is discussing a reflection of
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particular wavelengths of radiation and not a reflection of contaminants.”
Id. at 13 (citing Meyer H 52, 116).
In the Reply Brief, Appellants argue that the Examiner has not
“established by a preponderance of the evidence that the micro structure of
the outer layer of the coating of Meyer would be altered in response to
contact with an environmental contaminant” or that “the general porosity
and elastic modulus relationship described by Nakamura could be applied to
Meyer to still achieve the desired ‘reflective’ and reduced thermal
conductivity properties.” Reply Br. 2—3.
We are not persuaded by Appellants’ arguments and find that the
preponderance of the evidence supports the rejection of claim 1 for the
reasons provided by the Examiner in the Final Action and the Answer. Final
Act. 4—5; Ans. 2—3, 11—13. We add the following for emphasis.
Appellants’ arguments are unpersuasive because the Examiner’s
finding that Meyer discloses an outer layer having greater porosity than the
layer on which the outer layer is deposited, that Hasz discloses the same
materials as Meyer are reactive to contaminants, and that Nakamura teaches
the general relationship between porosity and modulus of elasticity indicates
the outer layer of Meyer has a lower modulus of elasticity than the layer on
which the outer layer is deposited, are all supported by the record.
Appellants’ arguments that the Examiner has not shown Meyer’s outer layer
to be reactive to contaminants and to have a lower modulus of elasticity than
the layer on which it is deposited are unpersuasive because the Examiner has
presented Hasz and Nakamura as evidence that the materials of Meyer meet
the characteristics recited in claim 1. Appellants have not adequately
rebutted the Examiner’s evidence on this record. Specifically, Appellants do
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not dispute the Examiner’s findings that “Hasz expressly teaches that the
exemplified metal oxide coatings (which include those taught by Meyer) are
sacrificial and reactive with the relevant environmental contaminants” (Ans.
11) and that both Meyer’s and Nakamura’s coating layers are ceramic
plasma spray coatings, making Nakamura’s teachings particularly applicable
to those of Meyer {id. at 12). Moreover, Appellants do not assert that Hasz’s
material differs from Meyer’s material in any significant manner. See Reply
Br. 2—3 (“there is no evidence that the metal oxide coatings of Hasz would
provide the desired reflective properties of the ceramic top coat taught by
Meyer'”). Nor do Appellants assert that Nakamura’s general principle that
the modulus of elasticity is inversely proportional to porosity, would not be
applicable to Meyer’s coating materials. See id. at 3 (“it has not been
established by a preponderance of evidence that the general porosity and
elastic modulus relationship described by Nakamura could be applied to
Meyer to still achieve the desired ‘reflective’ and reduced thermal
conductivity properties.”). In the absence of any error in the Examiner’s
findings, we do not find the Appellants’ arguments sufficient to justify a
reversal of the Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (explaining that even if the examiner had failed to make a prima
facie case, the Board would not have erred in framing the issue as one of
reversible error because it has long been the Board’s practice to require an
appellant to identity the alleged error in the examiner’s rejections).
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In sum, Appellants have not persuaded us of reversible error in the
Examiner’s finding that Meyer teaches the substrate and coatings required
by claim 1, including the properties of the coating materials.
Anticipation of Claim 1 by Taylor ’658
Appellants contend that the Examiner’s rejection of claims 1, 3, 4, 10,
and 13 as anticipated by Taylor ’658 is in error based on similar arguments
made with respect to Meyer. Appellants argue that Taylor ’658, like Meyer,
does not teach a coating that would absorb and react with contaminants or
the required modulus of elasticity as required by claim 1. App. Br. 6.
Appellants also contend that “[theoretical density cannot be equated with
porosity absent some supporting evidence suggesting these two parameters
are the same.” Id.
The Examiner responds that Taylor uses the term percent-theoretical
density or percent of theoretical density, which report density values relative
to fully dense layers of the same material composition. Ans. 14. The
Examiner explains that “the volume portion in a bulk material that does not
contribute to the percent-theoretical density instead contributes to the void
volume, which is otherwise known as porosity. Accordingly, a material
having 90 % of theoretical density has a porosity of 10%.” Id. (citing
Richardson, D.W., Modem Ceramic Engineering: Properties, Processing,
and Use in Design 186—87 (2006)). The Examiner further responds, that the
interpretation of percent-theoretical density in the Final Action is proper,
that the coating of Taylor has the claimed porosity relationship and is made
from a metal oxide (e.g. an oxide of aluminum, zirconium, or magnesium)
ceramic, and that, as evidence by Hasz and Nakamura, the outer coating of
Taylor undergoes microstmctural changes when contact with environmental
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contaminants, has a higher porosity, and also has a lower elastic modulus.
Id. at 15.
In the Reply Brief, Appellants contend that “[t]he outer layer of the
Taylor coating is designed to be substantially free of vertical macrocracks
such that it exhibits a much greater thermal shock resistance. See | [0055].
It has not been established by a preponderance of evidence that these desired
features would be possible if the coating was designed to absorb and react
with contaminants or exhibit that claimed relationship between porosity and
elastic modulus.” Reply Br. 3.
Appellants’ arguments are not persuasive because Appellants do not
dispute that Taylor’s coating materials have the required porosity
characteristics. Appellants also do not assert that Nakamura’s general
principle that the modulus of elasticity is inversely proportional to porosity,
would not be applicable to Taylor’s coating materials. Additionally,
Appellants do not assert that Hasz’s material differs from Taylor’s material
in any significant manner. Instead, Appellants simply question whether
Hasz’s material also has the feature of being substantially free of vertical
macrocracks. Reply Br. 3. In the absence of any error in the Examiner’s
findings, we do not find the Appellants’ arguments persuasive to justify a
reversal of the Examiner’s rejection. See Jung, 637 F.3d at 1365.
Obviousness of Claims 24 and 25
Regarding claims 24 and 25, the Examiner finds that Taylor teaches
“that both the outer coating material and the TBC material may comprise a
rare earth oxide-stabilized zirconia (paragraphs 28 and 29). Based on this
teaching, it would have been obvious to one of ordinary skill in the art at the
time of invention to utilize gadolinia-stabilized zirconia (i.e. ‘gadolinia
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zirconia’) to form the outer layer and TBC layer because gadolinium is a
rare earth metal, which is taught as acceptable by Taylor.” Final Act. 8. The
Examiner also finds that “it would have been obvious to one of ordinary skill
in the art at the time of invention to make the layered coating of Taylor using
SPS because Taylor explicitly teaches use of plasma spray methods for
forming the coating layers and because Kassner discloses that SPS can be
used to make highly cracked coatings, is ideal for producing thermal barrier
coatings due to its high porosity and strain tolerance, and can be used to
produce coatings with varying micro structures.” Id. at 9. The Examiner
further finds that “the outer layer of the coating of Taylor and Kassner is
expected to demonstrate sufficiently the same behavior as that of the instant
invention after a reaction has occurred with an environmental contaminant”
because “the multi-layer coating of Taylor and Kassner [] has the same
structure, porosities, and outer layer composition as the instant invention and
is produced by SPS, as instantly claimed.” Id. at 9—10.
The entirety of Appellants’ arguments concerning the Examiner’s
rejection of claims 24 and 25 is, respectively, “[n]one of the prior art of
record teaches that a portion of the outer layer is shed from the outer layer
after reacting with an environmental contaminant” and “[n]one of the prior
art of record teaches that a solid portion is formed in a porous region in
response to the reaction between the material of the outer layer and the
environmental contaminant.” App. Br. 7—8.
The Examiner responds that “the multilayer coating of Taylor and
Kassner is expected to possess substantially the same properties and behave
substantially the same as that of instant claims 24 and 25 because it is
produced by the same method (i.e. suspension plasma spray) and has
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substantially the same structure (i.e. the TBC layer has a columnar structure
with vertical microcracks), porosities, and outer layer composition (i.e.
containing gadolinia zirconia) as is instantly claimed.” Ans. 17.
In the Reply Brief, Appellants argue “[t]he fact that a certain result or
characteristic may occur or be present in the prior art is not sufficient to
establish the inherency of that result or characteristic.” Reply Br. 4.
We are not persuaded by Appellants’ arguments because they do not
dispute any of the Examiner’s findings of fact. Appellants do not dispute the
Examiner’s underlying findings of fact with respect to Taylor or Kassner,
nor do Appellants adequately explain why the facts would preclude the
claimed characteristics from being inherently possessed by Taylor and
Kassner’s coatings. The Examiner has provided the record with a
preponderance of evidence including commonalities shared by the methods
of Taylor, Kassner, and claims 24 and 25 which justifies requiring
Appellants to prove that Taylor's outer layer does not necessarily or
inherently possess the claimed characteristic of reacting with an
environmental contaminant by either shedding at portion of the outer layer
or forming a solid portion. See In re Best, 562 F.2d 1252, 1255 (CCPA
1977) (“[T]he PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of his
claimed product. . . . Whether the rejection is based on ‘inherency’ under
35 U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103,
jointly or alternatively, the burden of proof is the same, and its fairness is
evidenced by the PTO’s inability to manufacture products or to obtain and
compare prior art products.” (footnote omitted)). No such proof has been
provided by Appellants.
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In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claims 24 and 25 would have been obvious in view
of Taylor, as evidenced by Hasz and Nakamura, and further in view of
Kassner.
Obviousness of Claim 22
Regarding claim 22, the Examiner finds that Taylor ’658 does not
disclose the claimed porosity of 20-28% for the TBC layer, but that Taylor
’172 “teaches that thermal barrier coating layers should not be less than 12%
in order to form a coating with excellent thermal fatigue resistance
(paragraph 63).” Final Act. 10. The Examiner finds that it would have been
obvious for one of ordinary skill at the time of the invention to make the
inner TBC layer of Taylor ’658 to have a porosity of at least 12% for the
reason given by Taylor ’172 and “to just below the porosity of the outer
layer (i.e. up to just below 55%), as is consistent with the teachings of
Taylor [to have a an outer coating with a porosity that is greater than the
porosity of the inner thermal barrier coating].” Final Act. 10—11.
Appellants contend that the Examiner’s rejection of claim 22 is in
error for the same reasons discussed above with respect to claim 1 and
because “there is no evidence that [] the desired outer layer of Taylor that is
substantially free from macrocracks would be possible were it modified to
include the claimed porosity ranges.” App. Br. 8—9.
The Examiner responds that “one of ordinary skill in the art would
have a reasonable expectation of successfully making an outer coating layer
with a porosity of 40-50% to have the desired microstructure, i.e.
substantially free of microcracks, because Taylor teaches that the porosity of
the outer layer can range from 10 to 55 %.” Ans. 18.
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In the Reply Brief, Appellants do not make any further arguments
specific to claim 22. See Reply Br. 4—5.
We are not persuaded by Appellants’ arguments for the same reasons
discussed above with respect to claim 1.
In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claim 22 would have been obvious in view of
Taylor ’658, as evidenced by Hasz and Nakamura, in further view of Taylor
’172.
CONCLUSION
We sustain the Examiner’s rejections.
DECISION
The Examiner’s decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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