Ex Parte Rabiei

Patent Trials and Appeals Board

Mar 27, 2019

13843110 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/843,110 03/15/2013
26158 7590 03/29/2019
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
FIRST NAMED INVENTOR
Afsaneh Rabiei
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.
Al04136 lOlOUS.CPCl
(0005
6737
EXAMINER
ZHU, WEIPING
ART UNIT PAPER NUMBER
1733
NOTIFICATION DATE DELIVERY MODE
03/29/2019 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):
IPDocketing@wbd-us.com
BostonPatents@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AFSANEH RABIEI
Appeal2018-005695
Application 13/843,110
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 49, 52, 55---63, 65, 66, and 68-75 under 35 U.S.C.
§ 103(a) over Smarsly (US 5,073,459, issued Dec. 17, 1991) and Ghosh (US
2009/0044475 Al, published Feb. 19, 2009). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is Applicant, Advance Materials Manufacturing, LLC, which is
said to be the real party in interest. Br. 1. We cite to the Specification
("Spec.") filed March 15, 2013; Non-Final Office Action ("Non-Final Act.")
dated July 19, 2017; Appellant's Appeal Brief ("Br.") filed February 1,
2018; and Examiner's Answer ("Ans.") dated March 15, 2018.
Appeal2018-005695
Application 13/843,110
BACKGROUND
The subject matter on appeal relates to a radiation shielding structure
comprising a closed cell composite metal foam layer and a second layer
comprising an open cell foam. See claim 49, reproduced below.
49. A radiation shielding structure comprising an
energy absorption panel that is formed of:
a first layer that includes a closed cell, composite metal
foam comprising a plurality of hollow metallic spheres having
an average diameter of about 0.5 mm to about 20 mm, an
average wall porosity of less than about 12%, and an average
wall thickness of about 1 % to about 15% of the average sphere
diameter, the plurality of hollow metallic spheres arranged with
an interstitial space there between, the interstitial space being
filled with a solid metal matrix; and
a second layer that comprises an open cell foam;
wherein the structure is effective shielding against one or
more of gamma radiation, X-ray radiation, cosmic radiation,
and neutron radiation.
Br. 11 (Claims Appendix).
Claim 72 includes the features of claim 49 and adds that the metallic
spheres are in a random arrangement. Each remaining claim on appeal
depends from claim 49 or 72.
OPINION
Appellant does not argue any claim apart from the others. Br. 3-9.
We select claim 49 as representative for deciding the issues on appeal. 2
2 We recognize that the Examiner omits certain claim numbers from the
statement of the rejection, Non-Final Act. 2, but designates all the pending
claims as rejected in the Office Action Summary page, id. at 1. Appellant
states in the Appeal Brief that "Appellants assume that the intended rejection
is of pending claims 49, 52, 55---63, 65, 66, and 68-75." Br. 3. We consider
the Examiner's omissions in the statement of the rejection harmless error.
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Appeal2018-005695
Application 13/843,110
We review the appealed rejection for error based upon the issues
identified by Appellant 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 the argued
claims presented in this Appeal and each of Appellant's arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner's rejection for the reasons expressed in the Non-Final Office
Action and the Answer. We add the following primarily for emphasis.
Relevant to Appellant's arguments on appeal, the Examiner finds
Ghosh discloses a radiation shielding structure that comprises a liquid-filled
open foam layer. Non-Final Act. 4 (citing Ghosh ,r,r 3, 4, 17, 25). The
Examiner also finds that Ghosh discloses providing a closed cell skin layer
over the open cell foam to meet requirements of different applications. Id. at
6-7 (citing Ghosh ,r 25). The Examiner finds Smarsly discloses a light-
weight closed cell composite metal foam construction material comprising
hollow metal spheres in a solid metal matrix. Id. at 3. Smarsly states that
the disclosed metal foam material "possesses substantially higher weight-
specific strength values than conventional material and exhibits uniform
strength properties throughout the structure of the material." Smarsly 1 :23-
28. The Examiner determines it would have been obvious to one of ordinary
skill in the art to layer Smarsly's metal foam over Ghosh's radiation
shielding open foam. Id. at 4---6; Ans. 3--4.
Appellant argues the Examiner failed to address the wall porosity
("less than about 12%") and wall thickness ("about 1 % to about 15% of the
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Appeal2018-005695
Application 13/843,110
average sphere diameter") recited in claim 49. Br. 4. We disagree. The
Examiner finds that Smarsly suggests "that the shell is generally a solid
material with a limited porosity which would meet the claimed wall porosity
including 0%." Non-Final Act. 4. The Examiner also finds that Smarsly
discloses a "shell thickness of about 2% of the diameter." Id. at 3 ( citing
Smarsly 4:47--49). Appellant neither disputes nor addresses these findings.
Appellant also argues that "Ghosh specifically teaches away from
combining the core layer 12 with any additional foam layers, such as the
foam layer taught by Smarsly." Br. 7. Appellant's argument is
unpersuasive. Ghosh expressly teaches providing additional skin layers to
core layer 12. Ghosh ,r 25 ("[I]n order to adapt the core layer 12 to different
applications, it would optionally also be possible to provide one or more
additional layers on either or both sides of the core layer 12."); id. ("One or
more layers or skins 18, 20 can be formed on, applied to, or bonded to the
core layer 12."); id. ("The skins 18, 20 can be used to provide additional
properties to the overall energy-attenuation structure 10, including stiffness,
reflectivity or absorption, for example of acoustics, thermal management,
explosive impact, etc."). Appellant's argument that Ghosh teaches away
from providing additional layers is contrary to Ghosh's express teachings.
Appellant further argues that Ghosh's metal foam is flexible, whereas
Appellant characterizes Smarsly's metal foam as "hard and brittle," such that
"a person of ordinary skill in the art would not seek to modify the Ghosh
structure to add a layer of the Smarsly material." Br. 8. Appellant does not
point to evidence to support the contention that Smarsly's material would
have been hard and brittle. To the contrary, Smarsly states that the disclosed
material exhibits "high ductility." Smarsly 3:34. Moreover, Ghosh states
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Appeal2018-005695
Application 13/843,110
that skin layer materials can be selected to provide "stiffness." Ghosh ,r 25.
Appellant does not persuasively identify any incompatibility between the
physical properties that Ghosh identifies as useful in a skin layer and the
properties that Smarsly states are exhibited by the disclosed metal foam.
Appellant urges, "if the closed-cell metallic foam in Smarsly was
utilized to replace the alleged "closed" cells 13 in Ghosh, then Ghosh would
be utterly unable to attenuate energy as currently contemplated." Br. 9. We
do not read the Examiner's rejection as replacing Ghosh's cells 13. Ghosh's
cells 13 are a component of the disclosed core layer 12. Ghosh ,r 13
("Substantially all of the cells of the cellular material are open cells, wherein
those cells 14 that are disposed in a central portion of the core layer 12 are
more open than those cells 13 that are disposed in outer portions of the core
layer."). The Examiner's obviousness determination involves adding
Smarsly's metal foam as an additional layer over Ghosh's core layer, not
modifying any component of the core layer itself. Thus, Appellant's
argument regarding modification of cells within Ghosh's core layer neither
addresses nor reveals error in the Examiner's obviousness determination.
For the foregoing reasons, we are not persuaded of reversible error.
DECISION
The Examiner's decision rejecting claims 49, 52, 55---63, 65, 66, and
6 8-7 5 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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