Northrop Grumman Systems Corporation

Patent Trials and Appeals Board

Oct 15, 2021

2020006162 (P.T.A.B. Oct. 15, 2021)

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.
16/409,107 05/10/2019 Michael T. Barako 303399-228586/010854-0030 5563
182118 7590 10/15/2021
SHUMAKER, LOOP & KENDRICK, LLP
NORTHROP GRUMMAN CORPORATION
1000 JACKSON STREET
TOLEDO, OH 43604
EXAMINER
O'HERN, BRENT T
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
10/15/2021 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):
cgolupski@shumaker.com
jkondos@shumaker.com
tlopez@shumaker.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL T. BARAKO, JESSE B. TICE, and
MAX H. KUCIEJ1
____________

Appeal 2020-006162
Application 16/409,107
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, GEORGE C. BEST, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 21–26.2 We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Northrop Grumman Systems Corporation. Appeal Br. 1.
2 In the Answer, the Examiner withdrew rejections of claims 1–14. Ans. 4.
Appeal 2020-006162
Application 16/409,107

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BACKGROUND
The subject matter on appeal relates to multilayered metal nanowire
arrays. E.g., Spec. ¶ 1; Claim 21. Claim 21 is reproduced below from page
25 (Claims Appendix) of the Appeal Brief (paragraph breaks added):
21. A multilayered metal nanowire array comprising
a plurality of nanowire array layers each including
a plurality of vertically aligned metal nanowires and
a lateral metal interposer provided between adjacent layers
and being thermally coupled to the nanowires in the layers.
ANALYSIS
Claims 21–26 stand rejected under 35 U.S.C. § 102(a)(2) as
anticipated by Hantschel (US 2006/0131679 A1, published June 22, 2006).3
The Appellant argues the claims as a group. We select claim 21 as
representative, and the remaining claims will stand or fall with claim 21.
See 37 C.F.R. § 41.37(c)(1)(iv).
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejection.
Accordingly, we affirm the rejection for reasons set forth below, in the Non-
Final Action dated May 20, 2020 (“Office Act.”), and in the Examiner’s
Answer.
The Examiner finds that Hantschel anticipates claim 21. Ans. 3. For
support, the Examiner relies on Figure 2 of Hantschel, which is reproduced
below as annotated by the Examiner in the Answer.

3 In the Examiner’s Answer, the Examiner withdrew several rejections under
35 U.S.C. § 112 and § 103. Ans. 4.
Appeal 2020-006162
Application 16/409,107

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Hantschel’s Figure 2, as annotated by the Examiner in the Answer, appears
above. See Ans. 3. The annotated figure depicts the Examiner’s
understanding of how Hantschel’s structure falls within the scope of
claim 21.
In the Appeal Brief, the Appellant does not argue that Hantschel’s
interposer falls beyond the plain and ordinary meaning of the term
“interposer.”4 See Appeal Br. 21–22. Rather, the Appellant argues that the
term “interposer” should be narrowly interpreted as encompassing only
interposers formed according to the specific process described by the
Specification, which—according to the Appellant—would exclude
Hantschel’s interposer. See id.
In the Examiner’s Answer, the Examiner responds that the Appellant
is attempting to transform claim 21 into a product-by-process claim, which it

4 One definition of the verb “interpose” is “to come between other things;
assume an intervening position or relation.”
https://www.dictionary.com/browse/interpose. “Interposer” is the noun form
of “interpose.”
Appeal 2020-006162
Application 16/409,107

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is not, and that the broadest reasonable interpretation of “interposer,”
consistent with the Specification, encompasses Hantschel’s interposer.
Ans. 6–7.
In the Reply Brief, the Appellant does not respond to the Examiner’s
analysis in the Answer, and instead raises a variety of new arguments. See
Reply Br. 2–4.
The Appellant’s arguments do not identify reversible error in the
Examiner’s rejection. The Appellant does not persuasively identify a
definition of “interposer” in the Specification that might exclude Hantschel’s
interposer, and the Appellant does not contest the Examiner’s determination
that claim 21 fails to include any product-by-process language and instead
broadly recites “a lateral metal interposer.” On this record, we discern no
reversible error in the Examiner’s determination that Hantschel’s interposer
constitutes an “interposer” within the broadest reasonable scope of claim 21
that is consistent with the Specification. See Ans. 6 (comparing Hantschel
Fig. 2 with Spec. Fig. 5); cf. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)
(“[D]uring patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of language explored, and
clarification imposed.”).
As to the new arguments raised in the Reply Brief, see Reply Br. 2–4,
they are untimely, and we decline to consider them. See 37 C.F.R.
§ 41.41(b)(2)
We affirm the Examiner’s rejection of claim 21.
Appeal 2020-006162
Application 16/409,107

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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
21–26 102(a)(2) Hantschel 21–26
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED