UNITED TECHNOLOGIES CORPORATION

Patent Trials and Appeals Board

May 11, 2021

2020005840 (P.T.A.B. May. 11, 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.
14/904,560 01/12/2016 Grant O. Cook III 67097-2550PUS1;72391US02 1319
54549 7590 05/11/2021
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
GETACHEW, JULIAN B
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
05/11/2021 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):
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GRANT O. COOK III, MICHAEL G. ABOTT,
and MICHAEL G. MCCAFFREY
____________

Appeal 2020-005840
Application 14/904,560
Technology Center 3700
____________

Before DANIEL S. SONG, MICHAEL J. FITZPATRICK, and
WILLIAM A. CAPP, 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, 2, and 5–18. 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(a). Appellant identifies United Technologies Corporation as
the Applicant and real party in interest. Appeal Br. 1.
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Application 14/904,560
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THE INVENTION
Appellant’s invention relates to gas turbine engine assemblies.
Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A gas turbine engine component assembly comprising:
first and second portions, wherein at least one of the first
and second portions is constructed from a ceramic matrix
composite material, the first portion includes an aperture with a
first angled surface, the second portion is disposed within the
aperture and includes a second angled surface adjacent to the
first angled surface, the first and second angled surfaces locking
the first and second portions to one another under a pulling
load; and
a bonding material is one of transient liquid phase bond
layers or partial transient liquid phase bond layers, the bonding
material operatively securing the first and second portions to
one another.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Draskovich US 6,000,906 Dec. 14, 1999
Bogue US 7,510,372 B2 Mar. 31, 2009
Morrison US 2005/0254942 A1 Nov. 17, 2005
Cuny EP 0171329 A1 Feb. 12, 1986
Cook Non-Patent Literature2 May 7, 2011

2 Grant O. Cook III & Carl D. Sorensen, Overview of transient liquid phase
and partial transient liquid phase bonding, 46 J. Mater. Sci. 5305–23
(2011).
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The following rejections are before us for review:
1. Claims 1, 2, 5–7, 9–15, and 17 are rejected under 35 U.S.C. § 103
as being unpatentable over Bogue, Morrison, and Cook.
2. Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable
over Bogue, Morrison, Cook, and Draskovich.
3. Claims 15, 16, and 18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Cuny, Morrison, and Cook.
OPINION
Unpatentability of Claims 1, 2, 5–7, 9–15, and 17
over Bogue, Morrison, and Cook
Appellant argues claims 1, 2, 5–7, 9–15, and 17 as a group. Appeal
Br. 3–7. Claim 1 is representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Bogue discloses the invention substantially
as claimed except for using ceramic matrix composite (“CMC”) material and
transient liquid phase bonding layers, for which the Examiner relies on
Morrison and Cook, respectively. Final Act. 4–6. The Examiner concludes
that it would have been obvious to a person of ordinary skill in the art at the
time of the invention to modify Bogue by the teachings of Morrison and
Cook to achieve the claimed invention. Id. at 6. According to the Examiner,
a person of ordinary skill in the art would have done this as merely a matter
of selecting a known material on the basis of its suitability for the intended
use and, furthermore, as simply a matter of combining prior art elements
according to known methods to yield a predictable result. Id.
Appellant argues that a person of ordinary skill in the art would not
combine the prior art in the manner proposed by the Examiner. Appeal
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Br. 3. According to Appellant, “[t]here is no reason or benefit to changing
the material of Bogue.” Id.
Appellant’s argument that there is no reason to use CMC material in
Bogue is not persuasive. Bogue is directed to a method for repairing or
replacing a turbine engine vane. Bogue, col. 1, ll. 1–30. Bogue’s invention
features an “oversized” cavity 50 in the outer composite base 14 of a vane
assembly where cavity 50 has converging side walls. Id. at col. 2, ll. 12–20.
The flared end 18 of vane airfoil 22 is installed through the pinched end of
the converging side walls of cavity 50. Id. Bogue’s repair and replace
technique uses wedge detail 70 to occupy space 66, which is the difference
between the oversize of cavity 50 and flared end 18. Id. at col. 2, ll. 36–44.
Bogue recognizes that it was known, in the prior art, to install the flared end
of a vane airfoil into a pinched vane cavity. Id. at col. 1, ll. 12–30.
Morrison discloses the use of CMC material in gas turbine engine
airfoils. Morrison ¶ 26. It is well settled that “when a patent claims a
structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 416 (2007), United States v. Adams, 383 U.S. 39, 50–51
(1966). Here, Appellant presents neither evidence nor persuasive technical
reasoning that using CMC material as taught by Morrison, in Bogue’s
airfoil, entails more than ordinary skill or produces unexpected results.
Next, Appellant argues that there is no evidence that Bogue could be
made successfully from Morrison’s oxide CMC material. Appeal Br. 4.
In response, the Examiner points out that Appellant’s argument is
based on materials disclosed in paragraph 25 of Morrison, whereas the
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rejection under review is based on the broader disclosure in paragraph 5 of
Morrison describing the high operating temperature benefits of using CMC
material in gas turbine engines. Ans. 6. The Examiner reminds Appellant
that claim 1 merely recites that “at least one of the first and second portions”
is made of CMC material. Id. Moreover, the Examiner points out that
paragraph 25 of Morrison discloses the use of both oxide and non-oxide
materials. Id.
Again, Morrison discloses the use of CMC material in gas turbine
engine airfoils. Morrison ¶ 26. As correctly pointed out by the Examiner,
Morrison is not limited to oxide CMC material. Ans. 6, Morrison ¶ 25
(oxide or non-oxide CMC materials). Appellant’s argument based on
Morrison’s oxide material is unpersuasive as it fails to address the
Examiner’s reliance on Morrison’s non-oxide CMC materials.
Next, Appellant argues that Morrison depends on particularized
processing steps to shrink ceramic matrix composite (“CMC”) material.
Appeal Br. 3.
Morrison is directed to a method for joining assembly components
with complex shapes from CMC elements of simpler shapes. Morrison,
Abstract. We recognize that Morrison teaches using a first ceramic part and
a second ceramic part where the two such parts are heat cured at different
stages. Morrison ¶ 20. Morrison uses differential heat shrinkage to
effectuate a joint between first ceramic part 30 and a second ceramic part 36.
Id. When Morrison’s assembly is fully heat cured, first ceramic part 30
shrinks more than second ceramic part 36 to tighten the resulting joint. Id.
Morrison teaches a gas turbine engine airfoil assembly that includes
airfoil 70 (a first portion) and platform 76 (a second portion). Morrison
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¶ 26. Airfoil 70 is made of CMC material. Id. The misconception in
Appellant’s position is its reliance on the purpose of Morrison, not its full
teaching. It is well settled that “[a] reference may be read for all that it
teaches, including uses beyond its primary purpose.” In re Mouttet, 686
F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR, 550 U.S. at 418–21. Contrary
to the impression given by Appellant’s brief, the Examiner does not rely on
Morrison for teaching how CMC parts are joined together. Instead, the
Examiner relies on Morrison as teaching the use of CMC materials for gas
turbine engine parts. Final Act. 6. Appellant’s arguments based on the heat
shrinking aspects of Morrison are not persuasive, in the main, because they
are wholly irrelevant to the issues before us.
Appellant argues that “Bogue does not work with a CMC.” Appeal
Br. 7. In presenting this argument, Appellant relies on paragraph 8 of the
McCaffrey Affidavit. We have reviewed paragraph 8 of McCaffrey’s
Affidavit and find that it does not support Appellant’s argument. McCaffrey
goes off on a tangent describing technical issues with using Cook’s bonding
materials in conjunction with Morrison’s oxide CMC heat curing process.
See McCaffrey Affidavit ¶ 8. McCaffrey’s testimony, even if true, is not
relevant to the issues before us, which relate to Bogue disclosing an aperture
with angled surfaces and Morrison disclosing that it was known to make
turbine airfoils with CMC material. Bogue teaches securing end 18 of
vane 22 into tapered aperture 50 using adhesive. Bogue, col. 2, ll. 12–59.
Bogue further teaches that “[a]ny adhesive compatible with the base, vane
and wedge materials known in the art may be used to adhesively secure
these elements together.” Id. at col. 2, ll. 59–62. Here, the Examiner relies
on Cook as teaching the use of transient liquid phase bonding. Final Act. 6.
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Furthermore, Morrison is not limited to joining parts using differential heat
shrinking. See Morrison ¶¶ 21, 26. Morrison explicitly discloses joining
CMC parts, such as airfoil 70, using adhesive. Id.
It bears mention that we are not constrained to accept the McCaffrey
Affidavit at face value. McCaffrey offers what amounts to opinion
testimony, not fact testimony based on personal knowledge. See generally
McCaffrey Affidavit. Basically, McCaffrey’s testimony carries little weight
as it just parrots the arguments presented by counsel in the Appeal Brief
under the guise of being evidence and is plagued by the same detours from
relevancy that we have noted above with respect to Appellant’s briefing. Id.
“An affidavit by an applicant or co-applicant as to the advantages of his
invention is less persuasive than one made by a disinterested person.” In re
McKenna, 203 F.2d 717, 720 (CCPA 1953). Furthermore, we are not
inclined to place weight on self-serving opinion testimony of an inventor
where the affidavit fails to establish a proper foundation qualifying Mr.
McCaffrey to present an expert opinion. See Homeland Housewares, LLC v.
Whirlpool Corp., 865 F.3d 1372, 1378 (Fed. Cir. 2017) (admonishing us to
“disregard the testimony of an expert that is plainly inconsistent with the
record, . . . or based on an incorrect understanding of the claim[s]”).
Moreover, the affidavit fails to otherwise present a foundation that would
qualify McCaffrey to testify from the standpoint of a hypothetical person of
ordinary skill in the art. See Custom Accessories, Inc. v. Jeffrey-Allan
Indus., Inc., 807 F.2d 955, 962 (Fed. Cir. 1986) (explaining that obviousness
is determined by reference to a person of ordinary skill in the art as opposed
to what may be obvious to a judge, or to a layman, or to someone of
extraordinary skill).
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We have considered Appellant’s remaining arguments and find them
to be without merit. 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
rejection of claims 1, 2, 5–7, 9–15, and 17.
Unpatentability of Claim 8
over Bogue, Morrison, Cook, and Draskovich
Claim 8 depends directly from claim 2 and indirectly from claim 1
and adds the limitation: “wherein at least one of the first portion, the second
portion, and/or the keeper is constructed from a metal alloy.” Claims App.
The Examiner finds, and Appellant does not dispute, that Draskovich
discloses this limitation. Final Act. 12, Appeal Br. 7–8.
Appellant does not argue for the separate patentability of claim 8 apart
from arguments presented with respect to claim 1 which we have previously
considered. Appeal Br. 7–8. We sustain the Examiner’s rejection of
claim 8. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately argue claims
constitutes a waiver of arguments for separate patentability).
Unpatentability of Claims 15, 16, and 18
over Cuny, Morrison, and Cook
Appellant purports to argue claims 15, 16, and 18 separately (Appeal
Br. 8) but fails to do so under a separate 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 or excuse for
failing to comply with our rules. Appellant argues these claims as a group.
Appeal Br. 8. Claim 15 is representative. See 37 C.F.R. § 41.37(c)(1)(iv).
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Claim 15 is an independent claim that is substantially similar to
claim 1. Claims App. Claims 16 and 18 depend, directly or indirectly, from
claim 15. Id. In this ground of rejection, the Examiner finds, and Appellant
does not dispute, that Cuny discloses an airfoil and shroud configuration
with angled surfaces as claimed. Final Act. 13, Appeal Br. 8.
Appellant argues that Cuny does not disclose a CMC material.
Appeal Br. 8. This argument does not apprise of Examiner error. As with
the rejection of claim 1, the Examiner relies on Morrison as satisfying the
CMC material limitation. Final Act. 13, Ans. 17–18.
We sustain the rejection of claims 15, 16, and 18.
CONCLUSION
Claims
Rejected
35
U.S.C. §
References Affirmed Reversed
1, 2, 5-7,
9-15, 17
103 Bogue, Morrison, Cook 1, 2, 5-7,
9-15, 17

8 103 Bogue, Morrison, Cook,
Draskovich
8
15, 16, 18 103 Cuny, Morrison, Cook 15, 16, 18
Overall
Outcome
1, 2, 5-18

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