Ex Parte Chico et al

Board of Patent Appeals and Interferences

Feb 24, 2009

10853267 (B.P.A.I. Feb. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PHILIPPE CHICO and PIERRE GIROD
____________

Appeal 2008-2432
Application 10/853,267
Technology Center 3600
____________

Decided:1 February 24, 2009
____________

Before LINDA E. HORNER, JOHN C. KERINS, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

HORNER, Administrative Patent Judge

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Philippe Chico and Pierre Girod (Appellants) seek our review under
35 U.S.C. § 134 of the final rejection of claims 1-12. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM.

THE INVENTION
The Appellants’ claimed invention is to a method of controlling an
electromechanical aircraft brake. Spec. 1:3-4. Aircraft brakes use a stack of
rotating disks (rotors) and stationary disks (stators) and a presser member to
press against the stack to cause braking by friction between the rotors and
stators. Spec. 1:6-12. Hydraulic aircraft brakes use pistons mounted on a
ring to press it against the stack of disks under drive from hydraulic fluid
under pressure. Spec. 1:13-17. Electromechanical aircraft brakes use a
pusher, which is displaced by an electric motor and a converter, to engage
the disk stack. Spec. 2:11-18. As the disks in the brake stack wear, the
resting position of the pusher is adjusted by turning the electric motor so that
the pusher is maintained close to the stack of disks. Spec. 2:30-36. The
Appellants state that the object of their invention is “to propose a method of
controlling electromechanical brakes that take[s] advantage of the
possibilities made available by such technology to obtain new and
advantageous functions that are not available with hydraulic technology.”
Spec. 3:10-14. In particular, the Appellants’ claimed invention uses the
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same electric motor that is used to adjust the pusher toward the stack of
disks to also reverse the position of the pusher away from the stack of disks.
Spec. 3:30-37.
Claim 1, reproduced below [paragraphing added], is representative of
the subject matter on appeal.
1. A method of controlling an
electromechanical aircraft brake comprising a
stack of disks and a ring carrying a plurality of
electromechanical actuators each fitted with a
pusher that is movable in register with the stack of
disks under drive from an associated electric motor
so that rotation of the motor in a first direction
causes the pusher to be pressed against the stack of
disks, the method comprising the step of
causing at least one motor to rotate in a
second direction opposite to the first direction so
as to cause the corresponding pusher to reverse
beyond a distance corresponding to normal
operating clearance between the pusher and the
stack of disks.

THE REJECTION
The Appellants seek review of the Examiner’s rejection of
claims 1-12 under 35 U.S.C. § 103(a) as unpatentable over U.S. Patent
No. 6,471,015 B1 to Ralea et al., issued October 29, 2002 (Ralea) and U.S.
Patent No. 6,293,370 B1 to McCann et al., issued September 25, 2001
(McCann).
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ISSUE
The Examiner found that Ralea discloses the claimed method of
controlling an electromechanical aircraft brake except that it lacks a specific
disclosure of reversing the actuating motors. Ans. 3. The Examiner found
that McCann teaches a disc brake capable of compensating for wear of the
brake linings and teaches reversing an electric motor 40 when the brake
lining requires changing. Ans. 3-4. The Examiner determined it would have
been obvious to use reversible actuators/motors in Ralea “to make
replacement of the brake disc stack and subsequent readjustment of the
brakes easier.” Ans. 4.
The Appellants contend there is no reason to consider the motor of
McCann or its operation for use with a pusher in a stacked disk-type brake
for driving a pusher in both a braking and a retracting direction. Br. 17.
The issue presented by this appeal is:
Have the Appellants shown the Examiner erred in determining that the
claimed method of controlling an electromechanical aircraft brake would
have been obvious in view of the combined teachings of Ralea and
McCann?

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
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1. The Appellants’ Specification describes that “[i]n order to ensure
that the brake has a very fast reaction speed, the pushers 8 are
maintained close to the stack of disks while the brake is not in
action, at a distance d corresponding to normal operating
clearance, which in practice is of the order of a few millimeters.”
Spec. 6:23-27.
2. The Appellants’ Specification describes that when maintenance is
performed on the brake, “at least one of the motors is powered so
as to cause it to rotate in the second direction, thereby causing the
corresponding pusher to reverse through a distance l (of the order
of several tens of millimeters), that is sufficient to enable the stack
of worn disks to be replaced by a thicker stack of new disks.”
Spec. 7:16-23; Fig. 2.
3. Ralea discloses an electromechanical brake assembly comprising a
brake disk stack, a housing 147 including a guideway 165, a ram
nut 163 guided by the guideway 165 for movement of an actuator
ram 135 toward and away from the brake disk stack, a lead screw
162 in threaded engagement with the ram nut 163 whereupon
rotation of the lead screw 162 effects linear movement of the ram
nut 163 for selective movement of the actuator ram 135 into and
out of forceful engagement with the brake disk stack for applying
and releasing braking force on a rotatable wheel; and an electric
motor 150 drivingly connected to the lead screw gear for rotating
the lead screw to effect movement of the ram nut and actuator ram
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toward and away from the brake disk stack. Ralea, col. 4, ll. 10-
22; col. 9, l. 58 – col. 10, l. 50; col. 11, ll. 14-19; Figs 12-15.
Ralea further discloses a plurality of motors 150 and a
corresponding plurality of actuators 127 each having a ram 135,
wherein the actuators are mounted about four respective quadrants
of the housing 147. Ralea, col. 9, ll. 58-64; Fig. 11.
4. As such, Ralea discloses that the motor 150 is used to both
advance and retract the ram 135 toward and away from the brake
disk stack.
5. Ralea discloses a brake wear measurement routine in which brake
wear is determined by comparing a present brake disk stack height
to a reference brake disk stack height. Ralea, col. 2, ll. 53-63.
6. Ralea discloses that the reference brake disk stack height is
obtained by displacing the reciprocating ram to load a new brake
disk stack by a predetermined amount and using a position sensor
to measure the displacement of the reciprocating ram to the brake
disk stack. Ralea, col. 3, ll. 38-47.
7. Ralea discloses that the present brake disk stack height is measured
by displacing the reciprocating ram to load the brake disk stack by
a predetermined amount and using a position sensor to measure a
present displacement value of the ram. Ralea, col. 3, ll. 14-22.
8. Ralea also discloses a running clearance adjustment routine in
which a present displacement value of the reciprocating ram is
obtained and using this value to determining a running clearance
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position of the ram by subtracting the predetermined clearance
value from the present displacement value to obtain a new running
clearance value, and using this new value to determine the running
clearance position of the ram. Ralea, col. 3, ll. 48-67.
9. In other words, Ralea advances the ram to engage the brake disk
stack to obtain a present displacement value and then retracts the
ram by a predetermined clearance value so that the resting position
of the ram is always maintained a certain distance away from the
brake disk stack as the brake disk stack wears during use.
10. Ralea does not explicitly disclose that the motor can be used to
retract the actuator ram a distance greater than the running
clearance distance.
11. It was known in the art of electromechanical braking that worn
disks are replaced by a new disk stack. Spec. 1:29-30.
12. McCann discloses the use of an electric motor within a brake to
control the brake running clearance and to enable brake “de-
adjustment.” McCann, col. 1, ll. 5-8.
13. In other words, McCann discloses using the same electric motor to
advance the brake-applying piston so as to adjust the running
clearance as the brake linings wear during use and to retract the
brake-applying piston when the brake linings need to be replaced:
In a brake having an electric motor adapted
to perform the adjustment operation, de-adjustment
can also be enabled automatically through use of
the same motor. De-adjustment is required when it
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has been determined that the brake linings require
replacement. In a conventional brake, the adjuster
mechanism has to be manually unwound so as to
retract the brake-applying piston away from the
brake rotor. This enables the old linings to be
removed and replaced with new linings. In the
implementation having an electric motor, a simple
electrical signal from a brake-associated switch,
either mounted on the brake or electrically
connected thereto, can be used to instigate
retraction of the brake applying member.”
McCann, col. 2, l. 64 – col. 3, l. 1. 9. See also McCann, col. 6, ll.
34-58.
14. The complex computer-controlled braking system disclosed in
Ralea demonstrates that the person of ordinary skill in the art of
electromechanical braking systems has a high level of skill, both in
terms of education and training and in terms of the consequences
associated with brake failure.

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, ___,
127 S. Ct. 1727, 1734 (2007). The question of obviousness is resolved on
the basis of underlying factual determinations including (1) the scope and
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content of the prior art, (2) any differences between the claimed subject
matter and the prior art, (3) the level of skill in the art, and (4) where in
evidence, so-called secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17-18 (1966). See also KSR, 550 U.S. at ___, 127 S. Ct. at 1734
(“While the sequence of these questions might be reordered in any particular
case, the [Graham] factors continue to define the inquiry that controls.”)

ANALYSIS
Claims 1 and 10-12
The Appellants argue claims 1 and 10-12 as a first group. Br. 13-24.
We select claim 1 as representative, and claims 10-12 stand or fall with
claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2008).
The Appellants admit that Ralea discloses an electronic braking
system for an aircraft (Br. 15) having a servo motor 50 that drives a ram 35
against a stack of disks 80 (Br. 16), and that movement of the ram (or
pusher) 35 is advanced and returned by operation of the motor 50, 150 (Br.
17). Ralea further discloses an electromechanical aircraft brake comprising
a stack of disks and a ring (housing 147) carrying a plurality of
electromechanical actuators 127 each fitted with a pusher (ram 135) that is
movable in register with the stack of disks under drive from an associated
electric motor 150 so that rotation of the motor in a first direction causes the
pusher to be pressed against the stack of disks, and causing at least one
motor to rotate in a second direction opposite to the first direction so as to
cause the corresponding pusher to reverse. (Facts 3 & 4).
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As such, Ralea discloses all of the elements of the electromechanical
aircraft brake and method recited in claim 1, except that it does not explicitly
disclose that the motor causes the corresponding pusher to reverse “beyond a
distance corresponding to normal operating clearance between the pusher
and the stack of disks” (Fact 10). Ralea does, however, disclose that the
stack of disks will wear down during use (Facts 5-7), and it was known in
the art that worn disks are replaced by a new disk stack (Fact 11).
McCann discloses using the same electric motor in a brake to advance
a brake-applying piston so as to adjust the running clearance as the brake
linings wear during use and to retract the brake-applying piston when the
brake linings need to be replaced (Facts 12 & 13).
It would have been obvious to use the motor of Ralea to reverse the
corresponding pusher beyond a normal operating clearing distance when the
brake disk stack needs to be replaced, based on the suggestion in McCann to
use the motor for replacement of braking system components. Ralea already
teaches using the motor to advance and retract the pusher (Facts 3 & 4), and
it was known in the art to replace the brake disk stack once the current stack
is worn (Fact 11). Ralea also teaches to advance the pusher during wear of
the brake disk stack in order to maintain a predetermined running clearance
between the pusher and the disk stack (Facts 8 & 9). Thus, at the point in
time when the disk stack is ready to be replaced, the pusher would be
advanced forwardly from its starting position well beyond a distance
corresponding to a normal operating clearance amount (Compare Facts 1 &
2). In order to replace the worn brake disk stack with a new thicker brake
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disk stack, the pusher must be retracted from its fully advanced position to
its starting position accommodate the new, thicker brake disk stack. It
would have been obvious for one having ordinary skill in the art, in view of
the suggestion of McCann to use the same motor to advance the pusher for
running clearance and retract the pusher for replacement of a braking system
component, to use the motor of Ralea to retract the pusher all the way back
to a starting position to extract the worn disk stack and to insert and
accommodate the new, thicker brake disk stack. By doing so, the motor
would retract the pusher through a distance which is beyond a distance
corresponding to normal operating clearance between the pusher and the
stack of disks.
The Appellants argue that “[t]here is no basis for one skilled in the art
to look to the caliper-type brake in McCann et al for teachings relevant to
aircraft braking mechanisms.” Br. 15. Both McCann and Ralea disclose
braking systems that use an electric motor to maintain a predetermined
running clearance between a brake-applying member and a brake disk (Facts
9 & 13). As such, the teachings of McCann would have been of interest and
are directly relevant to the braking system and controller routines disclosed
in Ralea. Further, the level of skill in the art of electromechanical brake
systems is high (Fact 14), and one having ordinary skill in the art would
have been capable of applying the teachings of a caliper-type braking
system, such as described in McCann, to a stacked-disk type braking system,
such as is disclosed in Ralea and in the Appellants’ Specification. KSR, 550
U.S. at ___, 127 S. Ct. at 1740 (“[I]f a technique has been used to improve
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one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.”).
The Appellants argue that the prior art does not realize the advantages
of the method of claim 1. Br. 21-22. First, we disagree with the Appellants’
contention. For example, although McCann is directed to only a single
brake disk, it does disclose a method for reversing the brake-applying
member to permit easy replacement of the worn disk and brake linings (Fact
13). Further, Ralea discloses routines for measuring brake disk stack wear
and for maintaining a normal running clearance (Facts 5-9). Second,
obviousness is not determined only by looking to the problem(s) the
Appellants were trying to solve. KSR, 550 U.S. at ___, 127 S. Ct. at 1742
(“Under the correct analysis, any need or problem known in the field of
endeavor at the time of invention and addressed by the patent can provide a
reason for combining the elements in the manner claimed.”).
The Appellants further argue that the different structures of Ralea and
McCann are “incompatible due to their different operational structures.” Br.
22-24. For the reasons discussed supra, one having ordinary skill in the art
would have been capable of applying the teachings of a caliper-type braking
system, such as described in McCann, to a stacked-disk type braking system,
such as is disclosed in Ralea. Further, the Examiner’s proposed combination
of teachings from the art does not require the tappet member of McCann to
be bodily incorporated into the braking system of Ralea. “The test for
obviousness is not whether the features of a secondary reference may be
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bodily incorporated into the structure of the primary reference.... Rather, the
test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413,
425 (CCPA 1981). See also In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir.
1983) (“[I]t is not necessary that the inventions of the references be
physically combinable to render obvious the invention under review.”); and
In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of
references does not involve an ability to combine their specific structures.”).
Rather, “if a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.” KSR, 550 U.S. at ___, 127 S.Ct. at
1740. As such, the Appellants have failed to show that the Examiner erred
in determining that the method of claim 1 would have been obvious to one
having ordinary skill in the art at the time of the invention based on the
combined teachings of Ralea and McCann.

Claims 2-4
The Appellants argue claims 2-4 as a second group. Br. 24-25. We
select claim 2 as representative, and claims 3 and 4 stand or fall with claim
2. 37 C.F.R. § 41.37(c)(1)(vii). Claim 2 depends from claim 1 and further
recites that “the pusher is reversed sufficiently to enable a stack of new disks
to be put into place, replacing a stack of worn disks.”
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The Appellants argue that neither Ralea nor McCann teach or suggest
retracting a pusher in a stacked disk-type brake to permit replacement of
worn disks. Br. 24-25. This argument fails to demonstrate error in the
Examiner’s conclusion of obviousness based on the combined teachings of
Ralea and McCann, because Ralea discloses retraction of a pusher in a
stacked disk-type brake, and McCann is relied on for its suggestion to use an
electric motor to retract a brake-applying member in order to replace worn
brake components. One cannot show nonobviousness by attacking
references individually where the rejections are based on combinations of
references. See In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986); In re
Keller, 642 F.2d 413 (CCPA 1981).

Claims 5-9
The Appellants argue claims 5-9 as a third group. Br. 25. We select
claim 5 as representative, and claims 6-9 stand or fall with claim 5.
37 C.F.R. § 41.37(c)(1)(vii). Claim 5 recites the method of claim 1
“wherein the pusher is reversed to a reference position that is independent of
the thickness of the stack of disks.”
Again, the Appellants argue the references individually, contending
that neither reference teaches or suggests reversal of the pusher to a position
that is independent of the thickness of the stack of disks. Br. 25. This
argument, however, fails to show error in the Examiner’s conclusion of
obviousness based on the combined teachings of the prior art. Further,
Ralea teaches moving a ram to a reference point, albeit a reference point
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based on a reference brake disk stack height that relates to the thickness of a
new brake disk stack (Fact 6). This disclosure of a reference point for
displacement of the ram would have suggested to one having ordinary skill
in the art that the controller of Ralea could be programmed to advance or
retract the ram to any desired reference point based on the particular
operation being performed on the braking system. In the case of the braking
method disclosed in Ralea, as modified by the teaching of McCann, it would
have been obvious to retract the ram to a predetermined reference position
during replacement of a worn brake disk stack so as to ensure that the ram is
completely retracted for ease of removal of the worn brake disk stack and
insertion of a new brake disk stack. As such, the Appellants have failed to
demonstrate error in the Examiner’s conclusion of obviousness of the
subject matter of claim 5 based on Ralea and McCann.

CONCLUSIONS
The Appellants have failed to show that the Examiner erred in
determining that the method of claims 1-12 would have been obvious to one
having ordinary skill in the art at the time of the invention based on the
combined teachings of Ralea and McCann

DECISION
The decision of the Examiner to reject claims 1-12 is AFFIRMED.
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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) (2007).

AFFIRMED

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