LM WIND POWER US TECHNOLOGY APS

Patent Trials and Appeals Board

Mar 28, 2022

2022000718 (P.T.A.B. Mar. 28, 2022)

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. 16/312,681 12/21/2018 Morten RAVN 36200U 8874 20529 7590 03/28/2022 NATH, GOLDBERG & MEYER Joshua Goldberg 112 South West Street Alexandria, VA 22314 EXAMINER FISHER, WESLEY LE ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 03/28/2022 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): USPTO@nathlaw.com jgoldberg@nathlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MORTEN RAVN, PETER HANSEN, SIMON BERG BOJESEN, CASPER SKOVBY, MADS DØSSING, PETER BÆK, CHRISTIAN FRANK ANDERSEN, MICHAEL KLITGAARD, and MARK OLAF SLOT ____________ Appeal 2022-000718 Application 16/312,681 Technology Center 3700 ____________ Before EDWARD A. BROWN, WILLIAM A. CAPP, and ARTHUR M. PESLAK, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 1 and 3-16 as unpatentable under 35 U.S.C. § 103 over Upton (US 2015/0151390 A1, pub. June 4, 2015), and claim 2 over Upton and Westergaard (WO 99/43955, pub. Sept. 2, 1999). We have jurisdiction under 35 U.S.C. § 6(b).2 We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies LM Wind Power US Technology APS, as the applicant and real party in interest. Appeal Br. 3. 2 This case came before the Board for regularly scheduled oral hearing on March 22, 2022. Appeal 2022-000718 Application 16/312,681 2 THE INVENTION Appellant’s invention relates to wind turbine blades. Spec. 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A wind turbine blade (10), comprising: a profiled contour with a leading edge (56) and a trailing edge (58) and a chord (60) extending between the leading edge and the trailing edge; a blade shell (64) with a pressure side and a suction side; a first main spar cap (70) integrated in the pressure side of the blade shell; a second main spar cap (72) integrated in the suction side of the blade shell; and one or more shear webs (74, 76) connected between the first main spar cap and the second main spar cap, wherein the blade shell comprises at least a first load carrying structure (78) comprising one or more unidirectional fibre layers and being arranged at the leading edge, wherein the first load carrying structure has a first extension including a first primary extension (E1,1) on a first side of the chord, wherein the first primary extension is at least 70% of the first extension. OPINION Unpatentability of Claims 1 and 3-16 over Upton Appellant argues claims 1 and 3-16 as a group. Appeal Br. 8-16. Claim 1 is representative. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Upton discloses the invention substantially as claimed except for the first primary extension (E1,1) being at least 70 percent of the first extension. Final Act. 4. The Examiner considers making the primary extension 70 percent of the first extension to be an obvious design Appeal 2022-000718 Application 16/312,681 3 choice. Id. According to the Examiner, a person of ordinary skill in the art would have done this to reinforce the leading edge of the blade. Id. Appellant challenges the Examiner’s determination that having a first primary extension be at least 70 percent of a first extension is a mere matter of design choice. Appeal Br. 10-11. Appellant points to the following language in the Specification as purportedly supporting this position. The first load carrying structure and optionally the second load carrying structure is/are designed to tailor the dynamic properties of the wind turbine blade, e.g. in order to improve the edgewise damping of the wind turbine blade. Id. at 10 quoting Spec. 14, lines 25-27 (emphasis in Appeal Brief supplied by Appellant). Appellant argues that the analogous load carrying structures of Upton cited by the Examiner relate to the static, not the dynamic, properties of the wind turbine blade. Id. at 12. Therefore, according to Appellant, a person of ordinary skill in the art would not have been motivated to modify Upton’s blade to give it the claimed dimensions, which are related to the dynamic properties of the blade. Id. at 13-14 (“Upton provides no motivation for choosing the presently claimed parameter, since Upton already teaches a particular design selected to meet its ‘strength and/or reinforcement’ considerations”). In response, the Examiner states that claim 1 does not have an explicitly recited limitation directed to the “dynamic properties” of the blade. Ans. 4. The Examiner cites paragraph 179 of Upton as teaching that its preform layers add geometric control to the blade such that the blade manages aerodynamic vortices and sheds air loads. Id. Furthermore, the Examiner observes that the “dynamic properties” passages cited by Appeal 2022-000718 Application 16/312,681 4 Appellant make no mention of any particular percentage of the primary extension having any criticality. Id. at 5. Moreover, the Examiner responds to Appellant’s arguments regarding motivation by pointing out, correctly, that the obviousness analysis does not require the person of ordinary skill in the art to modify the prior art for the same reason as the inventor. Id. at 5-6. According to the Examiner, Upton does not need to provide motivation for tailoring parameters to improve dynamic features of the blade since this is not required by the claim language, nor is it the basis for the claimed percentage value based upon review of section of the instant specification cited by Appellant. Id. at 6. Upton is directed to a wind turbine blade. Upton ¶ 66, Figs. 1, 2. Upton explicitly addresses the aerodynamic performance of a blade. Id. ¶ 6. Upton notes that elastic deformation and twist bend coupling in blade materials effects the passive pitch of a blade and that fabrication materials and construction techniques affect the passive pitch control of the blade. Id. ¶ 7-8. One of Upton’s objectives is to form load bearing and structural components of turbine rotor blades to improve blade aerodynamics. Id. ¶ 14. Upton’s blade has a leading edge (112) and a trailing edge (114). Id. ¶ 68, Fig. 3. The blade has a pressure side (122) and a suction side (120). Id. ¶ 70, Fig 3. Upton’s blade features shear web 125 that extends between main spar caps 126 disposed on each of the pressure and suction sides of the blade and is also disposed at a point at or near the maximum thickness of the blade. Id. At the leading and trailing edges of the blade, Upton incorporates respective first and second load carrying structures made up of preform layers 300A, 300B, and 400. Id. ¶ 179, Fig. 15. The load carrying structures Appeal 2022-000718 Application 16/312,681 5 are constructed and arranged to provide strength and reinforcement along the leading and trailing edges where incorporated therein. Id. They help to add geometric control to the blade so that it manages aerodynamic vortices and sheds air loads. Id. Taking into account the stated objectives of Upton and Upton’s explicit teaching that the load carrying structures add geometric control to manage aerodynamic vortices and loads, we find no evidentiary basis to support Appellant’s argument that Upton’s load carrying structures only relate to static properties to the exclusion of dynamic properties. Appeal Br. 10-12. A person of ordinary skill in the art readily understands that a wind turbine blade operates in an environment that places dynamic loads on the blade including, but not limited to, aerodynamic loads from steady state wind velocity and also acceleration forces attributable to changes in wind direction and velocity. Upton ¶¶ 3-8, 14. Such loads cause a blade to flex or bend in one or more planes and also cause the blade to experience twisting forces along its axial length. A person of ordinary skill in the art would also understand that Upton’s load carrying structures, at least in part, facilitate successful operation of the blade in such dynamic environment. Id. ¶ 179. “[I]n appropriate circumstances, a patent can be obvious in light of a single prior art reference if it would have been obvious to modify that reference to arrive at the patented invention.” Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1361 (Fed. Cir. 2016). Here, the Examiner determines that the 70 percent limitation related to the first primary extension is merely a matter of design choice. Final Act. 4. The Examiner further finds that Appellant fails to adduce evidence of criticality with respect to the 70 Appeal 2022-000718 Application 16/312,681 6 percent limitation. Id. Indeed, Appellant’s Specification provides a chart (Table 1) that suggests that 60 percent is an acceptable ratio for the first primary extension. Spec. 15. Claim 13 claims a first primary extension (E1,1) of at least 60 percent of the first extension. Claims App. Claim 4 claims a first primary extension (E1,1) of at least 80 percent of the first extension. Id. Furthermore, the ratio of the first primary extension (E1,1) is in relation to “a first side of the chord.” Claims App., claim 1. Claim 1 does not differentiate between the suction side or the pressure side of the blade. Id. Claim 4, on the other hand, requires the first primary extension to reside on the pressure side of the chord. Id. claim 4. Moreover, there is little or no discussion, much less any teaching, in Appellant’s disclosure regarding how the ratio of the first primary extension (E1,1) relates to performance of the blade over a range of pitch angles, amount of camber, wind velocity, variations in wind parameters such as wind gusts, turbulence, and changes in wind direction. See generally Spec. Thus, although load carrying structure 78 is purportedly designed to improve the edgewise damping of the wind turbine blade (Spec. p. 14, ll. 25-27), Appellant presents no evidence in the Specification or otherwise in the briefing, that the 70 percent ratio is critical to operation of the blade. Upton discloses a first load bearing structure disposed at the leading edge of its blade. Upton, ¶ 179, Fig. 15 (preform layers 300A, 300B, 400). Such load bearing structure extends in either direction from the chord line toward each of the suction side 120 and pressure side 122 of the blade respectively. Id. Thus, Upton discloses at least the existence of a first primary extension (E1,1) ratio. Id. Upton is merely silent as to the quantification of such ratio. We further note that Upton’s first load bearing Appeal 2022-000718 Application 16/312,681 7 structure is comprised of a curvilinear portion that substantially follows the curvature of the leading edge of the blade and a linear portion that intersects and runs substantially transverse to such curvilinear portion at the pressure side end thereof, forming what may be characterized as a “T” intersection, and which also extends in a substantially transverse direction from the surface of the blade. Id. Upton does not quantify the overall extent to which the first load carrying structure is asymmetrical to the chord line of the blade, however, even considering that Upton’s figure may not be drawn to scale, a person of ordinary skill in the art would interpret the figure as having approximately 70 percent or more of the first load carrying structure disposed on the pressure side of the blade. Id. At this juncture, it bears mention that, since the 60 percent ratio of Appellant’s claim 13 and the 70 percent ratio of Appellant’s claim 1 can extend on either the suction or the pressure side of the chord, either of which can be considered a “first side of the chord,” the 60 percent ratio could also be expressed as a 40 percent ratio and the 70 percent ratio could also be expressed as a 30 percent ratio. Stated differently, a first primary extension (E1,1) ratio of 70 percent on the pressure side of the chord equates to a ratio of 30 percent on the suction side of the blade and vice versa and either alternative satisfies the claim language that the ratio exist relative to a “first side” of the chord regardless of whether the pressure side or the suction side is considered the “first side.” We further note that Appellant’s first primary extension (E1,1) ratio of 70 percent of claim 1 is expressed in reference to the chord without regard to the pitch angle of the blade in operation and subject to aerodynamic loads. Claims App. In view of the foregoing, the record supports the Examiner’s finding that selecting a first primary extension (E1,1) Appeal 2022-000718 Application 16/312,681 8 ratio of 70 percent, as opposed to 30, or 40, or 60 percent, is little more than a matter of design choice. Id. Without departing from the Examiner’s reasoning and conclusion, we note that Upton explicitly recognizes that there is a relationship between blade reinforcing structures and blade aerodynamic performance. See Id. ¶¶ 6-14. Thus, arriving at a first primary extension (E1,1) ratio of any particular value, including 70 percent, is considered little more than routine optimization of a result effective variable. [G]enerally, a claim to a product does not become nonobvious simply because the patent specification provides a more comprehensive explication of the known relationships between the variables and the affected properties. In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012), quoting In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”). Nevertheless, the outcome of optimizing a result-effective variable may still be patentable if the claimed ranges are “critical” and “produce a new and unexpected result which is different in kind and not merely in degree from the results of the prior art.” Applied Materials, 692 F.3d at 1297, Aller, 220 F.2d at 456. However, despite being informed that the Examiner did not consider Appellant’s 70 percent ratio to be critical (Final Act. 4, Ans. 5), Appellant provided no such evidence. See generally Appeal Br., Reply Br. Rather, Appellant argues that the Examiner’s rejection is based on impermissible hindsight. Appeal Br. 14. Appellant argues that a person of ordinary skill in the art would not have modified Upton to assume the Appeal 2022-000718 Application 16/312,681 9 asymmetrical arrangement of the claimed invention. Id. However, it bears mention that Upton discloses an overall asymmetrical arrangement by virtue of concentrating the second load carrying structure on the suction side of the blade near the trailing edge and by adding a transverse extension to the curvilinear portion of the first load carrying structure on the pressure side of the blade near the leading edge. Upton, Fig. 15. Inasmuch as we agree with the Examiner that using a first primary extension (E1,1) ratio of 70 percent on a “first” side of the chord is simply a matter of design choice or, possibly routine optimization requiring no more than ordinary skill, we see no evidence of hindsight reasoning in the Examiner’s rejection. Here, Appellant presents neither evidence nor persuasive technical reasoning that extending a load carrying structure asymmetrically relative to the chord line of a wind turbine blade requires more than ordinary skill or produces unexpected results. In that regard, Appellant presents no evidence regarding the dynamic properties of the blade when exposed to operational dynamic forces such as wind velocity and turbulence either alone or in conjunction with operating parameters such as blade pitch angle. Under the circumstances, we determine that the Examiner’s findings of fact are supported by a preponderance of the evidence and the Examiner’s legal conclusion of unpatentability is well-founded. In view thereof, we sustain the Examiner’s unpatentability rejection of claims 1 and 3-16. Unpatentability of Claim 2 over Upton and Westergaard Appellant argues all of the pending claims under a single heading. Appeal Br. 8-16. However, it appears that Appellant raises certain arguments with respect to the rejection of claim 2 over Upton and Appeal 2022-000718 Application 16/312,681 10 Westergaard. See id. at 14-16. Appellant fails to present this argument under a separate heading or sub-heading as required by our rules. See 37 C.F.R. § 41.37(c)(1)(iv) (“any claims(s) argued separately or as a subgroup shall be argued under a separate subheading that identifies the claim(s) by number”). Appellant provides no explanation for failing to comply with our rules. See generally Appeal Br. We will endeavor to consider what we understand to be arguments raised with respect to claim 2; however, to the extent that we may inadvertently overlook arguments advanced against the rejection of claim 2 as a result of Appellant’s failure to follow our rules, we will consider such arguments waived. Claim 2 depends from claim 1 and adds the limitation: “wherein the first load carrying structure is designed to tailor the edgewise damping of the wind turbine blade.” Claims App. The Examiner finds that Upton does not “explicitly” teach that its load carrying structure is “designed” to tailor the edgewise damping of the wind turbine blade, but finds that Westergaard discloses a load carrying structure that satisfies the limitation of claim 2. Final Act. 10. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time the invention was made to modify the blade of Upton with a damper. Id. According to the Examiner, a person of ordinary skill in the art would have done this to dampen edgewise vibrations in the blade. Id. Appellant argues that Westergaard requires a separate damper and that, therefore, Westergaard “teaches away” from damping “through selected geometry of the blade itself.” Appeal Br. 14. In response, the Examiner states that Westergaard’s damper could be attached to the surface of Upton’s load carrying structure and need not replace it. Ans. 7. Appeal 2022-000718 Application 16/312,681 11 Appellant’s argument is not persuasive. Appellant’s claim 1 uses a “comprising” transition in the preamble and further recites a load carrying structure “comprising” unidirectional fiber layers. Claims App. Appellant’s claim 2 is thus broad enough to encompass dampers that are separate from and in addition to the preform layers of Upton’s load carrying structure. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (comprising transition means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim). We sustain the Examiner’s rejection of claim 2. CONCLUSION Claims Rejected 35 U.S.C. § References Affirmed Reversed 1, 3-16 103 Upton 1, 3-16 2 103 Upton, Westergaard 2 Overall Outcome 1-16 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)(iv). AFFIRMED