The Boeing Company

Patent Trials and Appeals Board

Oct 27, 2021

2020006718 (P.T.A.B. Oct. 27, 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.
15/608,245 05/30/2017 Kenneth D. Cominsky 16-2808-US-NP (10623-77) 2193
104057 7590 10/27/2021
Joseph M. Rolnicki
Sandberg Phoenix and von Gontard
120 S. Central Avenue, Suite 1600
Clayton, MO 63105
EXAMINER
OSELE, MARK A
ART UNIT PAPER NUMBER
1745
NOTIFICATION DATE DELIVERY MODE
10/27/2021 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):
patentadmin@boeing.com
uspto@sandbergphoenix.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH D. COMINSKY, TREVOR SHANE MCCREA,
DAVID ERIC GIDEON, BERNHARD DOPKER, PAUL DIEP,
JULIE FRANCES MURPHY, and JORDAN SETH ERICKSON
Appeal 2020-006718
Application 15/608,245
Technology Center 1700
Before JAMES C. HOUSEL, JEFFREY R. SNAY, and
LILAN REN Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. 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. Appellant identifies The Boeing Company as the real party in
interest. Appeal Brief (“Appeal Br.”) filed February 19, 2020, at 2.
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Application 15/608,245

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CLAIMED SUBJECT MATTER
The invention recited in the claims on appeal relates to a method of
constructing a large, complex composite panel involving connecting smaller
compression molded thermoplastic subpanels, edge to edge using
thermoplastic consolidation. Specification (“Spec.”) filed May 30, 2017,
¶ 1.2
Independent claim 1, reproduced below from the Claims Appendix to
the Appeal Brief, is illustrative of the claimed subject matter:
1. A method of constructing a large panel, the method comprising:
producing a first subpanel;
constructing a first constructed surface and a second
constructed surface along a peripheral edge surface of the first
subpanel, the first constructed surface and the second
constructed surface on the first subpanel intersect;
producing a second subpanel;
constructing a first constructed surface and a second
constructed surface along a peripheral edge surface of the
second subpanel, the first constructed surface and the second
constructed surface on the second subpanel intersect;
producing a third subpanel;
constructing a first constructed surface and a second
constructed surface along a peripheral edge surface of the third
subpanel, the first constructed surface and the second
constructed surface on the third subpanel intersect;
arranging the first subpanel, the second subpanel and the
third subpanel in a two-dimensional array;

2 This Decision also cites to the Examiner’s Answer (“Ans.”) dated June 12,
2020.
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converging together the first subpanel, the second
subpanel and the third subpanel in the two-dimensional array;
engaging the first constructed surface on the peripheral
edge surface of the first subpanel in surface engagement against
the first constructed surface on the peripheral edge surface of
the second subpanel;
engaging the second constructed surface on the
peripheral edge surface of the second subpanel in surface
engagement against the first constructed surface on the
peripheral edge surface of the third subpanel;
melting the first constructed surface on the peripheral
edge surface of the first subpanel and melting the first
constructed surface on the peripheral edge surface of the second
subpanel forming a full melt bond between the first constructed
surface on the peripheral edge surface of the first subpanel and
the first constructed surface on the peripheral edge surface of
the second subpanel;
melting the second constructed surface on the peripheral
edge surface of the second subpanel and melting the first
constructed surface on the peripheral edge surface of the third
subpanel forming a full melt bond between the second
constructed surface on the peripheral edge surface of the second
subpanel and the first constructed surface on the peripheral
edge surface of the third subpanel; and,
cooling the full melt bond between the first constructed
surface on the peripheral edge surface of the first subpanel and
the first constructed surface on the peripheral edge surface of
the second subpanel forming a co-consolidation between the
first constructed surface on the peripheral edge surface of the
first subpanel and the first constructed surface on the peripheral
edge surface of the second subpanel and cooling the full melt
bond between the second constructed surface on the peripheral
surface of the second subpanel and the first constructed surface
on the peripheral edge surface of the third subpanel forming a
co-consolidation between the second constructed surface on the
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peripheral edge surface of the second subpanel and the first
constructed surface on the peripheral edge surface of the third
subpanel and forming a large composite panel from the first
subpanel; the second subpanel and the third subpanel.
Independent claim 12 recites a method of constructing a large panel
similar to claim 1, but recites that each of the subpanels is compression
molded from thermoplastic.
REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Johnson (“Johnson I”) US 4,430,146 Feb. 7, 1984
Edson US 6,703,440 B2 Mar. 9, 2004
Fossey, Jr. et al.
(“Fossey”)
US 6,911,955 B2 June 28, 2005
Martin et al. (“Martin”) US 7,678,215 B2 Mar. 16, 2010
Crane et al. (“Crane”) US 7,959,058 B1 June 14, 2011
Johnson et al.
(“Johnson II”)
US 9,735,466 B2 Aug. 15, 2017
Carroll US 2005/0103437 A1 May 19, 2005

REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections:
1. Claims 1 and 11 under 35 U.S.C. § 102(a)(1) as anticipated by,
or in the alternative, under 35 U.S.C. § 103 as unpatentable
over Martin;
2. Claims 12, 14–16, and 20 under 35 U.S.C. § 103 as
unpatentable over Martin in view of Edson;
3. Claims 13, 18, and 19 under 35 U.S.C. § 103 as unpatentable
over Martin in view of Edson, and further in view of Carroll;
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4. Claim 17 under 35 U.S.C. § 103 as unpatentable over Martin in
view of Edson, and further in view of Crane;
5. Claims 1–6, and 9–11 under 35 U.S.C. § 103 as unpatentable
over Fossey in view of Johnson I and Johnson II; and
6. Claim 7 and 8 under 35 U.S.C. § 103 as unpatentable over
Fossey in view of Johnson I and Johnson II, and further in view
of Crane.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After considering
Appellant’s arguments and the evidence of record, we are not persuaded of
reversible error in the Examiner’s rejections for substantially the fact
findings, reasoning, and conclusions set forth in the Examiner’s Answer,
which we adopt as our own. We offer the following for emphasis.

Rejection 1: Anticipation or Obviousness over Martin

The Examiner rejects claims 1 and 11 under 35 U.S.C. § 102(a)(1) as
anticipated by, or in the alternative, under 35 U.S.C. § 103 as unpatentable
over Martin. Ans. 3–5. The Examiner finds that Martin teaches a method of
constructing a large panel substantially as recited in claim 1, except for
explicitly describing cooling the constructed surfaces and for producing a
third subpanel whose first constructed surface is engaged with and melted to
the second constructed surface of the second subpanel. Id. at 3–4. However,
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the Examiner finds that removing heating tool 45 after melting Martin’s
subpanel constructed surfaces together inherently would result in cooling. Id.
at 3. In addition, the Examiner finds that Martin teaches subpanels may be
joined on either edge and that forming constructed surfaces on all peripheral
edges of the subpanels enables subpanels to be arranged and joined in end-
to-end or side-by-side configurations. Id. at 5. Therefore, the Examiner finds
that an ordinary artisan would immediately envisage aligning a third
subpanel with its first constructed surface similarly melt joined to the second
subpanel at its second constructed surface, or as many subpanels as needed,
to create a desired two-dimensional array of subpanels. Id.
Appellant asserts that the large panel, and the first, second, and third
subpanels are all “structural panels,” which “corresponds with what and how
the [I]nventor describes his invention in the [S]pecification.” Appeal Br. 11–
12. Appellant also asserts that the constructed surface on the peripheral edge
surface of the subpanels are “constructed or machined.” Id. at 12. Appellant
contends that Martin, on the other hand, discloses sheets of flooring material
which are not structural panels and, as such, are not the claimed large panel
and subpanels. Id. Appellant also contends that Martin fails to disclose
constructed or machined surfaces on the sheets of flooring material. Id.
Appellant further contends that because Martin fails to explicitly describe
producing a third panel, Martin cannot disclose arranging first, second, and
third subpanels into a two-dimensional array as recited in claim 1. Id. at 12–
13. Therefore, Appellant argues that Martin does not disclose each and every
element of, and does not anticipate, claim 1. Id.
Appellant’s arguments are unpersuasive of reversible error. Beginning
with the claim language, we first note that none of the asserted claims
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actually recite a “structural panel.” Thus, at least based on the plain
language, the claims are not limited to a “structural panel.”
We continue our analysis by reading the claims “in view of the
specification, of which they are a part.” Phillips v. AWH, 415 F.3d 1303,
1315 (Fed. Cir. 2005) (quoting Markman v. Westview Instruments, Inc., 52
F.3d 967, 979 (Fed. Cir. 1995)). As our reviewing court has stated, “the
specification may reveal a special definition given to a claim term by the
[applicant] that differs from the meaning it would otherwise possess.” Id. at
1316. When a patent applicant acts as its own lexicographer, that definition
governs. See id. “To act as its own lexicographer, [an applicant] must
‘clearly set forth a definition of the disputed claim term’ other than its plain
and ordinary meaning.” Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d
1362, 1365 (Fed. Cir. 2012) (quoting CCS Fitness, Inc. v. Brunswick Corp.,
288 F.3d 1359, 1366 (Fed. Cir. 2002)). In addition, “the specification may
reveal an intentional disclaimer, or disavowal, of claim scope.” Phillips, 415
F.3d at 1316. In those situations, it is again applicant’s disavowal that is
dispositive of the claim construction. See id. “To disavow claim scope, the
specification must contain ‘expressions of manifest exclusion or restriction,
representing a clear disavowal of claim scope.’” Retractable Techs., Inc. v.
Becton, Dickinson & Co., 653 F.3d 1296, 1306 (Fed. Cir. 2011) (quoting
Epistar Corp. v. Int’l Trade Comm’n, 566 F.3d 1321, 1335 (Fed. Cir. 2009)).
Here, Appellant fails to direct our attention to a special definition of
“panel” or “constructed surface” in the Specification or otherwise in the
record other than their plain and ordinary meaning. Nor does Appellant
direct our attention to any intentional disclaimer or disavowal of the full
scope of the terms, “panel” and “constructed surface,” so as to limit the
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meaning of “panel” to “structural panels” only or to limit the meaning of
“constructed surface” so as to exclude any manufactured surface of the
peripheral edge of a panel. As the Examiner finds (Ans. 13–14), the
Specification never describes the large panel or its subpanels as “structural
panels,” nor describes in any detail how the “constructed surface” of each
subpanel is constructed or machined. In addition, the Examiner finds,
without dispute, that Martin constructs a large panel on site from a number
of smaller subpanels by creating melt-bonds between adjacent subpanels,
wherein the peripheral edges of each subpanel must be a constructed surface
because they are manufactured.3 Id.
With regard to the steps of producing a third subpanel and assembling
the first, second, and third subpanels into a two-dimensional array, we note
that Appellant fails to rebut or otherwise address the Examiner’s position
(Ans. 4, 15) that an ordinary artisan would have at once envisaged the use of
three or more subpanels in Martin’s process for constructing a large panel.
Moreover, although Martin only shows assembling two panels in the figures,
Martin teaches that additional subpanels may be similarly joined or
assembled together, wherein the result would necessarily be a two-
dimensional array of subpanels forming a large panel. Martin 4:13–19
(“multiple pieces the same as the illustrated piece 27 can be easily joined to
form the step lap joints”). Therefore, Appellant has not shown that Martin’s
process does not meet the limitations of assembling more than two subpanels
to create a larger panel by melt-bonding constructed surfaces of the
peripheral edges of adjacent subpanels as required by claim 1.

3 We also note that Martin describes the flooring material or panels as
“structural elements” and “in a structural aspect.” Martin 1:12 and 5:60.
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Accordingly, we sustain the Examiner’s anticipation and obviousness
rejections of claims 1 and 11 over Martin.

Rejections 2–4: Obviousness over Martin and Edson, alone or further
combined with Carroll or Crane

The Examiner rejects, under 35 U.S.C. § 103, claims 12, 14–16, and
20 as unpatentable over Martin in view of Edson; claims 13, 18, and 19 as
unpatentable over Martin in view of Edson, and further in view of Carroll;
and claim 17 as unpatentable over Martin in view of Edson, and further in
view of Crane. Ans. 9–12. Appellant does not argue these rejections nor
claims separately, but instead focuses on the limitations of claim 12 only.
We, therefore, limit our discussion to claim 12. Remaining claims 13–19
stand or fall with claim 12.
The Examiner finds that Martin teaches a method of constructing a
large panel substantially as recited in claim 1, except for explicitly stating
that the subpanels are compression molded. Ans. 9. However, the Examiner
finds that Edson discloses reinforced thermoplastic flooring can be produced
by compression molding. Id. The Examiner concludes that it would have
been obvious to produce Martin’s subpanels by compression molding as a
known technique for forming flooring as Edson teaches. Id.
Appellant argues that Martin fails to disclose constructing a large
panel of first, second, and third subpanels that have been arranged in a two-
dimensional array and converged toward each other. Appeal Br. 20.
Appellant contends that Martin positions first and second subpanels in a one-
dimensional arrangement, rather than a two-dimensional arrangement. Id. at
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18. Appellant also repeats the arguments that Martin fails to disclose
“structural panels” and “constructed surfaces.” Id. at 12.
Appellant’s arguments are not persuasive of reversible error.
Appellant’s repeated arguments that Martin fails to disclose “structural
panels” and “constructed surfaces” are not persuasive for the same reasons
given above and in the Examiner’s Answer, pages 13 and 14. Further,
although Appellant contends that Martin merely teaches forming two
subpanels into a one-dimensional array, we note that each of Martin’s
subpanels is itself two-dimensional such that when only two such subpanels
are arranged side-by-side, they necessarily form a two-dimensional array. To
the extent that Appellant is arguing that a third subpanel is required for
forming a two-dimensional array, we note that, as discussed above,
Appellant fails to address the Examiner’s position that an ordinary artisan
would have at once envisaged the inclusion of a third (or more) subpanels in
Martin’s process of constructing a single large panel.
In addition, Martin itself suggests additional subpanels as discussed
above. As the Examiner finds (Ans. 15), because Martin’s subpanels include
stepped constructed surfaces on each peripheral edge, an ordinary artisan
would have readily understood that Martin’s process contemplates joining
multiple panels in both row and column arrangements, thereby creating
different two-dimensional arrays (using side-by-side and end-to-end
joining). In this regard, we note that claim 12, while requiring that the three
subpanels are arranged in a two-dimensional array and the subpanels are
converged together, does not require that the arrangement and convergence
of all three subpanels occurs simultaneously, or that these steps occur
completely prior to melting the constructed surfaces of adjacent subpanels.
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Accordingly, we sustain the Examiner’s obviousness rejections of
claims 12–19 over Martin and Edson, alone or further in view of Carroll or
Crane.

Rejections 5 and 6: Obviousness over Fossey, Johnson I, and Johnson II,
alone or further combined with Crane

The Examiner rejects, under 35 U.S.C. § 103, claims 1–6, and 9–11 as
unpatentable over Fossey in view of Johnson I and Johnson II; and claims 7
and 8 as unpatentable over Fossey in view of Johnson I and Johnson II, and
further in view of Crane. Ans. 5–9. Appellant does not argue these rejections
nor claims separately, but instead focuses on the limitations of claim 1 only.
We, therefore, limit our discussion to claim 1. Remaining claims 2–11 stand
or fall with claim 1.
The Examiner finds that Fossey discloses a method of constructing a
large panel substantially as recited in claim 1, except for explicitly
describing cooling the constructed surfaces and describing the heat welding
as resulting in a full melt-bond between adjacent constructed surfaces. Ans.
5–7. However, the Examiner finds that cooling would inherently occur after
completing the heat welding step of the overlapped regions. Id. at 6. In
addition, the Examiner finds that Johnson I teaches a method for joining
constructed surfaces of adjacent thermoplastic subpanels, wherein heat
applied to the constructed surfaces melts these surfaces and results in a full
melt-bond therebetween. Id. at 7. The Examiner concludes that it would
have been obvious to use Johnson I’s full melt-bonding technique in
Fossey’s method in order to create a smooth, virtually unnoticeable bond,
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especially because Fossey expressly teaches that other known heat and
pressure bonding techniques may be used. Id.
The Examiner states that Fossey and Johnson I fail to show three
subpanels in a two-dimensional array, but finds that Johnson II shows
constructing a radome from a plurality of panels edge joined together,
wherein three subpanels are arranged in a two-dimensional array. Ans. 7.
The Examiner concludes that it would have been obvious to join three
subpanels in Fossey’s method in a two-dimensional array as suggested by
Johnson II to form the desired final panel shape. Id.
Similarly to the arguments presented against the rejections based on
Martin, Appellant argues that Fossey fails to disclose or suggest positioning
subpanels in a two-dimensional array to construct a large panel. Appeal Br.
14. Appellant contends that Fossey instead teaches positioning fabric
sections side-by-side in a one-dimensional array. Id. at 13, 14, and 16. In
addition, Appellant again asserts that the large panel and three subpanels of
claim 1 are “structural panels.” Id. at 14. Appellant urges that Fossey’s
fabric panels, in contrast, are flexible and thus non-structural. Id. at 14–15.
For reasons similar to those given above in reference to Martin,
Appellant’s arguments raised against Fossey are likewise not persuasive of
reversible error. For example, the Specification fails to refer to, much less
define, the large panel or subpanels as “structural panels,” and fails to
clearly indicate an intent to limit the meaning of “panel” or “subpanel” to
“structural panel” only. Moreover, Appellant fails to distinguish the recited
panel and subpanels from Fossey’s fabric panel sections which Fossey uses
to assemble into a building structure as shown in Figure 6.
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Furthermore, as discussed above, each of Fossey’s fabric panel
sections is two-dimensional and, when arranged and joined side-by-side as
shown in Figure 6, define a two-dimensional array. In addition, to the extent
that Appellant asserts that joining a plurality of subpanels side-by-side fails
to define a two-dimensional array, as the Examiner finds (Ans. 16), Johnson
II teaches that plural subpanels may be arranged in both side-by-side, as well
as end-to-end, configuration to form a two-dimensional array having a
similar large panel shape to Fossey’s large panel shape. Appellant fails to
explain in any detail why an ordinary artisan would not have found it
obvious to similarly arrange Fossey’s subpanels as Johnson II suggests.
Accordingly, we sustain the Examiner’s obviousness rejections of
claims 1–11 over the combination of Fossey, Johnson I, and Johnson II,
alone or further in view of Crane.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Examiner’s Answer, the Examiner’s decision to reject claims 1–
20 is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 11 102(a)(1) Martin 1, 11
1, 11 103 Martin 1, 11
12, 14–16,
20
103 Martin, Edson 12, 14–16,
20

13, 18, 19 103 Martin, Edson,
Carroll
13, 18, 19
17 103 Martin, Edson, Crane 17
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1–6, 9–11 103 Fossey, Johnson I,
Johnson II
1–6, 9–11
7, 8 103 Fossey, Johnson I,
Johnson II, Crane
7, 8
Overall
Outcome
1–20

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED