Ex Parte FisherDownload PDFPatent Trial and Appeal BoardMay 31, 201812553529 (P.T.A.B. May. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/553,529 09/03/2009 7590 06/01/2018 RayL. Weber 106 S. Main Street, 4th Floor Akron, OH 44308 FIRST NAMED INVENTOR Martin James Fisher 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 ATTORNEY DOCKET NO. CONFIRMATION NO. ABR.P.21 6739 EXAMINER BELLINGER, JASON R ART UNIT PAPER NUMBER 3617 MAIL DATE DELIVERY MODE 06/01/2018 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte MARTIN JAMES FISHER Appeal 2016-004179 Application 12/553,529 Technology Center 3600 Before STEVEND.A. McCARTHY, MICHELLE R. OSINSKI, and NATHAN A. ENGELS, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Martin James Fisher ("Appellant") 1 appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1--4 and 6-24, which are all of the pending claims. An oral hearing was held on May 9, 2018. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellant identifies the real party in interest as Meggitt Aerospace Limited. Br. 1. Appeal 2016-004179 Application 12/553,529 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter on appeal. 1. An aircraft wheel fitted with a hubcap, said hubcap comprising a generally cup-like body covering a free end of an axle, the cup-like body having an end wall, a side wall and an open end opposite the end wall, the hubcap further comprising one or more elongate formations protruding from an outer surface of the side wall and extending from the end wall towards the open end of the body, wherein the height of elongate formation varies or tapers between a closed end and the open end of the cup-like body, said configuration of said aircraft wheel hubcap attenuating noise otherwise generated by said hubcap when exposed to an airstream when said aircraft wheel is lowered from a storage bay of an aircraft during final approach to a runway. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Abbate Daga Gorges Johnson Mackness us 4,547,021 us 5,020,861 US 6,447,072 Bl US 2004/0124307 Al THE REJECTIONS Oct. 15, 1985 June 4, 1991 Sept. 10, 2002 July 1, 2004 I. Claims 1--4, 6-8, 10-14, 16, 17, and 19--23 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Mackness, Johnson, and Gorges. Final Act. 2-3. II. Claims 9, 15, 18, and 24 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Mackness, Johnson, Gorges, and Abbate Daga. Id. at 3--4. 2 Appeal 2016-004179 Application 12/553,529 OPINION The Examiner relies on Mackness for the general teachings of an aircraft wheel fitted with a hubcap, the hubcap comprising a generally cup- like body covering a free end of an axle and having an end wall, a side wall, and an open end opposite the end wall. Final Act. 2. The Examiner acknowledges that Mackness fails to teach elongate formations protruding from an outer surface of the side wall and extending from the end wall towards the open end of the body. Id. The Examiner finds that "Johnson teaches the use of a hubcap 20 having a plurality of equidistantly spaced ribs 28 on a side wall of the hubcap 20." Id. The Examiner concludes that it would have been obvious "to provide the cap of Mackness with ribs for the purpose of increasing heat transfer, thus cooling the hubcap and wheel components[,] thereby preventing undue damage." Id. 2 Appellant argues that "a person skilled in the art of aircraft landing gear and components associated therewith would never combine the teachings of Mackness and Gorges with the teaching of Johnson." Br. 5. Appellant explains that "the end cap of Johnson is necessarily solid to ensure 2 As to the height of the elongate formation varying or tapering between the closed and open ends of the body, the Examiner finds that "Gorges teaches the use of a hubcap 60 having a radially outwardly tapered body." Final Act. 3. The Examiner concludes that it would have been obvious "to form the cap of Mackness as modified by Johnson with a tapered body, as a substitute equivalent shape, dependent upon the aesthetic appearance desired" (id.) and "to provide tapered ribs on a tapered surface in order to preserve the tapered shape" (Ans. 7). As to the configuration of the aircraft wheel hubcap attenuating noise when exposed to an airstream when the aircraft wheel is lowered from a storage bay of an aircraft during final approach to a runway, the Examiner finds that "the ribs taught by Johnson are capable of influencing the flow of air around the cap, which could reduce noise generated by air flowing around the wheel assembly." Final Act. 2. 3 Appeal 2016-004179 Application 12/553,529 adequate heat conduction," but "[p ]lacing such an end cap on an aircraft would add weight----diametrically contrary to aircraft design goals." Id. at 8; see also Declaration Under Rule 37 C.F.R. § 1.132 ("Deel.") ,r 7( d) ( explaining that Johnson's end cap 20 is a solid, heavy material to facilitate its function as a heat sink, and it would be undesirable to make aircraft industry components heavier). Appellant's Specification explains that reducing aircraft weight is of major concern to the aircraft industry and "gives benefits in performance and cost of operation." Spec. 1: 16-17. Appellant's Specification further explains that "wheel and brake components ... are only used during ground based maneuvers, such as during the take-off and landing cycles." Id. at 1: 18-19. In contrast to the more limited use of aircraft wheel and brake components, Johnson is concerned with wheel spindle and hub assemblies used on trailers that are prone to heat build-up because of extended travel over hot roadways and continuous braking. Johnson 1 :8-14, 32--40; 2:9-17. The Examiner has failed to adequately consider the differences between aircraft on one hand and trailers on the other hand, including for example, differences in the conditions to which the wheels for the respective means of transportation would be exposed. The Examiner has also failed to balance the potential increase in heat transfer that might be achieved through the use of ribs (as identified in the rejection) against the disadvantageous increase in weight, especially considering the importance given to reducing the weight of an aircraft as evidenced by Appellant's Declaration evidence. See Deel. ,r 7 ( d). Given this disadvantage, the weakness of the stated advantage in light of, for example, the differences between aircraft and trailers, and the absence 4 Appeal 2016-004179 Application 12/553,529 in the rejection of a balancing of the purported increase in heat transfer against the detrimental increase in weight, we find that the Examiner's stated reasoning lacks a rational underpinning. See In re Kahn, 441 F .3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,418 (2007) ("[R]ejections on obviousness grounds ... [require] some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness."). That is, the Examiner's articulated reasoning for modifying Mackness to add ribs in accordance with the teachings of Johnson (e.g., in order to increase heat transfer) fails to adequately take into account how the proposed modification affects aircraft, as compared to the land trailers with which Johnson was concerned, so as to be persuasive of the obviousness of the subject matter of the independent claims. For the foregoing reasons, we find that the Examiner erred in concluding that Mackness, Johnson, and Gorges render obvious the subject matter of the independent claims, as well as those claims that depend therefrom. Accordingly, we do not sustain the Examiner's rejection of claims 1--4, 6-8, 10-14, 16, 17, and 19--23 under 35 U.S.C. § 103(a) as unpatentable over Mackness, Johnson, and Gorges. Rejection II Claims 9, 15, 18, and 24 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Mackness, Johnson, Gorges, and Abbate Daga. Final Act. 3--4. The rejection of these claims rely on the Examiner's erroneous conclusion that Mackness, Johnson, and Gorges render obvious the subject matter of claims 1 and 14, from which claims 9, 15, 18, and 24 depend. Id. at 3. The Examiner does not explain how Abbate Daga cures this underlying 5 Appeal 2016-004179 Application 12/553,529 deficiency. Accordingly, we do not sustain the Examiner's rejection of claims 9, 15, 18, and 24 under 35 U.S.C. § 103(a) as unpatentable over Mackness, Johnson, Gorges, and Abbate Daga. DECISION The Examiner's decision to reject claims 1--4, 6-8, 10-14, 16, 17, and 19--23 under 35 U.S.C. § 103(a) as unpatentable over Mackness, Johnson, and Gorges is reversed. The Examiner's decision to reject claims 9, 15, 18, and 24 under 35 U.S.C. § 103(a) as unpatentable over Mackness, Johnson, Gorges, and Abbate Daga is reversed. REVERSED 6 Copy with citationCopy as parenthetical citation