Ex Parte Fonseka

Patent Trial and Appeal Board

Sep 1, 2017

13902036 (P.T.A.B. Sep. 1, 2017)

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.
13/902,036 05/24/2013 Christopher FONSEKA JHN-5065-187 5166
23117 7590 09/06/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
GARFT, CHRISTOPHER
ART UNIT PAPER NUMBER
3632
NOTIFICATION DATE DELIVERY MODE
09/06/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER FONSEKA
Appeal 2017-000888
Application 13/902,036
Technology Center 3600
Before ROBERT E. NAPPI, JOHN D. HAMANN, and JASON M. REPKO,
Administrative Patent Judges.
REPKO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 9—13 and 17—19. App. Br. I.2 Claims 1—8 and 14—16
have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies the real party in interest as Airbus Operations Limited.
App. Br. 3.
2 Throughout this opinion, we refer to (1) the Final Rejection (“Final Act.”)
mailed October 15, 2015, (2) the Appeal Brief (“App. Br.”) filed May 27,
2016, (3) the Examiner’s Answer (“Ans.”) mailed August 18, 2016, and (4)
the Reply Brief (“Reply Br.”) filed October 18, 2016.
Appeal 2017-000888
Application 13/902,036
THE INVENTION
Appellant’s invention relates to an aircraft structure having a
reinforcing stringer and a securing plate. Spec. 1:5—6. Aircraft typically
have a lightweight frame covered in a skin. Id. at 1:8—9. The skin is
reinforced by stringers. Id. at 1:9-10. Stringers are elongated strengthening
elements, which are attached to the inside of the skin to provide support for
the aircraft structure. Id. at 1:9—12. But large peel and shear loading actions
can separate the stringer from the skin. Id. at 1:31—33. For example, ascent,
decent, and turbulence present a large shear-loading action at the stringer
“run-out”—i.e., where the stringer terminates. Id. at 1:27—29. To improve
the attachment, the invention uses snugly fitting steps to clamp a securing
plate to the stringer. Id. at 7:1—5. The Specification explains that this
stepped design more uniformly transfers load compared to conventional non-
stepped, flat-bottomed, fingerplates. Id. at 7:1—7.
Claim 9 is reproduced below with our emphasis:
9. An aircraft structure comprising:
a skin having an inner surface;
a stringer extending in a longitudinal direction of the
aircraft structure, the stringer comprising a stringer foot bonded
to the inner surface and a web extending from the stringer foot
and away from the inner surface, wherein the stringer foot
comprises a plurality of laminated plies of composite material
and the stringer foot decreases in thickness towards an end of the
stringer foot by incremental reduction of plies which forms a
plurality of stringer ply steps, and
a metallic securing plate overlying a portion of the stringer
foot at an end of the stringer, said securing plate is attached to
the skin and includes a plurality of steps overlying the portion of
the stringer foot, wherein the steps define a recess between the
plate and skin that incrementally increases in depth and wherein
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Application 13/902,036
the portion of the stringer foot is in the recess and is clamped
between the securing plate and the skin, and
wherein the plurality of stringer ply steps are configured
to correspond to and be overlaid by the plurality of plate steps of
the securing plate to clamp the stringer foot to the inner surface
of the skin.
THE REJECTIONS
The Examiner relies on the following as evidence:
Stephan US 2008/0292849 A1 Nov. 27,2008
Cosentino US 2011/0164918 A1 July 7,2011
Gaitonde et al. WO 2012/042246 A2 Apr. 5, 2012
Claims 9—13, 17, and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gaitonde and Stephan. Ans. 2—6.
Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Gaitonde, Stephan, and Cosentino. Ans. 6.
THE REJECTION OVER GAITONDE AND STEPHAN
The Examiner’s Findings
In the rejection of claims 9 and 19, the Examiner finds that Gaitonde’s
stiffener 212 and fitting 213 correspond to the recited stringer and securing
plate. Ans. 2. But the Examiner finds that Gaitonde’s stiffener and fitting
lack the recited steps. Id. at 3^4. Regarding this feature, the Examiner finds
that Stephan teaches matching step-shaped end portions. Id. at 7—8 (citing
Stephan Fig. 5). The Examiner concludes it would have been obvious to
modify Gaitonde’s stiffener and fitting with Stephan’s steps to improve
lateral alignment during assembly, among other advantages. Id. at 5—6.
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Application 13/902,036
Appellant’s Contentions
Appellant argues that Gaitonde does not teach the claimed stringer
foot with ply steps or a securing plate with the claimed steps. App. Br. 8—
10. Appellant further contends that Stephan also lacks these features.
Id. at 10—14.
Regarding the Gaitonde-Stephan combination, Appellant argues that
substantial evidence does not support modifying Gaitonde with Stephan to
arrive at the limitation at issue. App. Br. 14—16. According to Appellant,
the Examiner has erred by (1) relying on common knowledge,
(2) concluding that one of ordinary skill would want a seam-free joint, and
(3) concluding that adding steps would improve Gaitonde’s connection.
Reply Br. 1—3, 5—6. In Appellant’s view, Gaitonde teaches away from
adding steps. Id. at 4—5. Lastly, Appellant argues that Stephan is non-
analogous art. App. Br. 16—17; Reply Br. 6—7.
Issues
Appellant’s arguments for independent claims 9 and 19 (see
App. Br. 7—17; Reply Br. 1—7) present us with the following issues:
I. Under § 103, has the Examiner erred by finding that Gaitonde and
Stephan collectively would have taught or suggested the claimed stringer
foot with ply steps and the claimed steps of a securing plate?
II. Has the Examiner supported the obviousness conclusion with
articulated reasoning with some rational underpinning?
Analysis
Claims 9 and 19 require, in part, an aircraft structure with (1) a
stringer and (2) a metallic securing plate. The claims require that the
stringer foot comprise laminated plies that incrementally reduce to form “a
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Application 13/902,036
plurality of stringer ply steps.” Claims 9 and 19 further require that the
securing plate include a plurality of steps overlying a portion of the stringer
foot. For example, Figures 3 and 4 show side views of a stringer run-out and
a securing plate, respectively.
Appellant’s Figure 3 shows a side view of stringer run-out 31 with ply
steps 50.
Figure 4
Appellant’s Figure 4 shows a side view of securing plate 40 with steps
51.
Appellant’s argument that Stephan lacks these features is
unpersuasive. App. Br. 11—14. The Examiner did not rely on Stephan to
teach the recited stringer foot. Ans. 8. Likewise, although Appellant argues
that (1) Gaitonde does not teach the recited steps, and (2) Stephan does not
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Application 13/902,036
teach a stringer and securing plate (App. Br. 8—14), these arguments are
unpersuasive because the Examiner relies on the combined teachings from
Gaitonde and Stephan to address the limitation at issue. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”).
Specifically, the Examiner finds that Gaitonde’s stiffener 212
corresponds to the recited stringer. Ans. 2. The Examiner, however, turns
to Stephan in concluding that it would have been obvious to modify
Gaitonde to arrive at the claimed invention. Id. at 3^4. In particular, the
Examiner finds that Stephan teaches matching step-shaped end portions
{id. at 7—8 (citing Stephan Fig. 5)), which are shown in Figure 5 as
reproduced below.
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Stephan’s Figure 5 shows step-shaped end portions 68 and 69.
In the proposed combination the Examiner concludes that it would have
been obvious to modify the ends of Gaitonde’s stringer run-out and securing
plate to have Stephan’s step-shaped end portion. Ans. 3^4.
We are unpersuaded by Appellant’s argument that the Examiner does
not (1) define what common knowledge is relied upon or (2) provide a
reasoned analysis with substantial evidentiary support. App. Br. 14—16;
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Reply Br. 1—2. On the contrary, the Examiner explains that Stephan’s step­
shaped end portions would improve lateral alignment between Gaitonde’s
stringer and securing plate. Ans. 5—6. According to the Examiner,
Stephan’s matching steps allow the installer to slide the stringer foot toward
the securing plate to mate them. Id. at 12. If the ends were flat, they would
not match or mate mechanically. Id. That is, flat ends would require the
installer to maneuver the plates into a specific position to fasten them. Id.
From this reasoning, the Examiner concludes, and we agree, that modifying
Gaitonde with Stephan’s teachings would improve assembly. Id.
On this record, the Examiner has supported the obviousness
conclusion with articulated reasoning with some rational underpinning. See
Ans. 5—6, 12.
Appellant argues that the references do not recognize a need for a
stepped recess for a stringer (App. Br. 14—15) or suggest improving positive
lateral alignment (id. at 16). We find this argument unpersuasive because
“[a] suggestion, teaching, or motivation to combine the relevant prior art
teachings does not have to be found explicitly in the prior art... .” In re
Kahn, 441 F.3d 977, 987-88 (Fed. Cir. 2006).
Appellant further argues that the Gaitonde’s structure would be
weakened by the proposed modification. App. Br. 15; Reply Br. 4—5.
Appellant’s argument has not identified what constitutes an acceptable level
of strength. App. Br. 15; Reply Br. 4—5. Nor has Appellant explained why
the fitting resulting from the combined teachings would not meet this
strength level. App. Br. 15; Reply Br. 4—5. For instance, Gaitonde is
concerned with the load required for crack initiation. Gaitonde 2:23—26.
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Appellant, however, has not shown that the steps would weaken the structure
to a point that would make it susceptible to cracking. See Reply Br. 4.
Appellant argues that Gaitonde teaches away from thinning or
weakening of the fingerplate by adding steps. Reply Br. 4. “A reference
may be said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). In
contrast, Gaitonde merely discloses that the fitting has “sufficient bending
stiffness.” Gaitonde 2:23—26 (emphasis added), cited in Reply Br. 4. But
Appellant has not provided evidence that the amount of thinning required to
for the steps would result in an unacceptable bending stiffness or cause
cracks. See App. Br. 15; Reply Br. 4—5.
Appellant further contends Gaitonde’s fitting already provides lateral
alignment, and thus, one of ordinary skill would not have turned to Stephan.
Reply Br. 6. We disagree. Apart from noting that fitting webs 213b
sandwich either side of stiffener web 212b, Gaitonde does not expressly
describe how this structure is assembled. See Gaitonde 11:6—10, cited in
Reply Br. 6. Nevertheless, even if fitting webs 213b do provide some
degree of alignment during assembly, the Examiner proposes replacing the
flat interface between the foot and the plate. See Ans. 11. This modification
provides a different type of mechanical match, which is desirable for the
reasons discussed by the Examiner. See id. Additionally, courts have
recognized that it would have been obvious to substitute one known element
for another that performs the same function, where the results of the
substitution would have been predictable. See, e.g., Agrizap, Inc. v.
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Application 13/902,036
Woodstream Corp., 520 F.3d 1337, 1344 (Fed. Cir. 2008) (concluding that
the claims were obvious, noting that “[t]he asserted claims simply substitute
a resistive electrical switch for the mechanical pressure switch”).
Appellant further argues that Stephan is non-analogous art.
App. Br. 16—17; Reply Br. 6—7. Prior art is analogous if it is (1) from the
same field of endeavor as Appellant’s invention, regardless of the problem
addressed, or (2) reasonably pertinent to the particular problem with which
the inventor is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
Here, Stephan is at least in the same field of endeavor—i.e., aircraft
structures. See Spec. 1:5. Additionally, Stephan is reasonably pertinent to
the inventor’s problem of mechanically securing aircraft components. See
Spec. 1:5—33; Stephan | 8. Therefore, we find Appellant’s argument
(App. Br. 16—17; Reply Br. 6—7) unpersuasive.
The Examiner further concludes that the proposed modification would
create a seamless joint, which would make the joint more secure, among
other advantages. Ans. 6, 11. As discussed above, the Examiner’s lateral-
alignment rationale (id. at 5—6) is sufficient to support the obviousness
conclusion. The Examiner’s additional rationale discussing the advantages
of a seamless joint is cumulative. See, e.g., id. at 10. So, to the extent that
the Examiner erred in this regard, as Appellant argues (App. Br. 15—16;
Reply Br. 2—3, 5—6), such an error does not affect our decision regarding
claims 9 and 19.
Accordingly, Appellant has not persuaded us of error in the rejection
of independent claims 9 and 19.
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Claim 10
Appellant, relying on the arguments for claims 9 and 19, contends that
claim 10 is not properly rejected as being obvious. App. Br. 17. For the
reasons discussed in connection with claims 9 and 19, we find these
arguments unpersuasive. Therefore, we sustain the rejection of claim 10.
Claims 11 and 17
Appellant, relying on the arguments for claims 9, contends that claims
11 and 17 are patentable. App. Br. 18—19. For the reasons discussed in
connection with claim 9, we find these arguments unpersuasive. Appellant
further argues that claims 11 and 17 are patentable on their own merits.
Id. at 18. But we find this argument unpersuasive because Appellant does
not further discuss the features introduced by claims 11 and 17. See id.
Therefore, we also sustain the rejection of claims 11 and 17.
Claim 12
Claim 12, recites in part, “the securing plate overlies the stringer foot
and a portion of the skin adjacent to the stringer foot.”
Appellant contends that Gaitonde’s fitting 213 only overlies a portion
of the stringer foot, not any adjacent skin. App. Br. 18 (citing Gaitonde
Figs. 6—7). Appellant bases this argument solely on Gaitonde. See App.
Br. 18. Yet the Examiner proposes modifying Gaitonde’s fitting 213 with
Stephan. Ans. 5—6. In this modification, the Examiner proposes using
Stephan’s stepped configuration between the stringer and fitting in Figure 5,
not Gaitonde’s configuration. Id. Thus, Appellant’s arguments
(App. Br. 17—18) are unpersuasive because they do not address the
Examiner’s reliance on Gaitonde and Stephan in combination. Therefore,
we sustain the rejection of claim 12.
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Claim 13
Claim 13, recites in part, “the stringer foot includes steps which are
adjacent the steps of the metallic securing plate.”
Appellant contends that Stephan’s steps are not in a stringer.
App. Br. 18. The Examiner, however, relies on Gaitonde, not Stephan, to
teach the recited stringer foot and concludes that it would have been obvious
to modify Gaitonde’s stringer to arrive at the limitation in claim 13. Ans. 2—
5; see also id. at 8. Thus, Appellant’s arguments (App. Br. 18) are
unpersuasive because they do not address the Examiner’s reliance on
Gaitonde and Stephan in combination. Therefore, we sustain the rejection of
claim 13.
THE REJECTION OVER GAITONDE, STEPHAN, AND CONSENTING
Claim 18 depends from claim 9. In arguing against the rejection for
claim 18, Appellant refers to the arguments presented for independent claim
9. App. Br. 19. Appellant also argues that Cosentino does not teach the
steps from claim 9. Id. For the reasons discussed in connection with claim
9, we agree with the Examiner that Gaitonde and Stephan collectively teach
this limitation. Thus, we also sustain the rejection of claim 18.
DECISION
We affirm the Examiner’s rejection of claims 9—13 and 17—19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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