Ex Parte Strock et alDownload PDFPatent Trial and Appeal BoardDec 22, 201613603891 (P.T.A.B. Dec. 22, 2016) Copy Citation 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. 13/603,891 09/05/2012 Christopher W. Strock 17804-U; 67097-1888PUS1 7919 54549 7590 12/27/2016 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 EXAMINER RUMMEL, JULIA L ART UNIT PAPER NUMBER 1784 NOTIFICATION DATE DELIVERY MODE 12/27/2016 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 CHRISTOPHER W. STROCK, MICHAEL MALONEY, DAVID A. LITTON, BENJAMIN JOSEPH ZIMMERMAN, and BRIAN T. HAZEL Appeal 2015-004715 Application 13/603,891 Technology Center 1700 Before DONNA M. PRAISS, CHRISTOPHER C. KENNEDY, and MICHAEL G. MCMANUS, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF CASE Appellants2 appeal under 35 U.S.C. § 134 from the Examiner’s decision to reject claims 1, 3—5, 8—14, and 22—25 as follows:3 1 In this decision, we refer to the Specification filed Sept. 5, 2012 (Spec.), the Final Office Action appealed from mailed July 14, 2014 (Final Act.), the Appeal Brief filed Nov. 21, 2014 (App. Br.), the Examiner’s Answer mailed Jan. 30, 2015 (Ans.), and the Reply Brief filed March 20, 2015 (Reply Br.). 2 The real party in interest is identified by Appellants as United Technologies Corporation. App. Br. 1. 3 Appellants do not argue the Examiner’s provisional rejection of claims 1 and 5 on the ground of nonstatutory double patenting over copending Appeal 2015-004715 Application 13/603,891 1. Claim 1 under 35 U.S.C. § 102(b) as anticipated by Meyer;* * * 4 2. Claims 1, 3, 4, 10, and 13 under 35 U.S.C. § 102(b) as anticipated by Taylor ’658;5 3. Claims 3—5, 8, 9, 11—13, and 22—25 under 35 U.S.C. § 103(a) over Taylor ’658 as evidenced by Hasz6 and Nakamura,7 alone or in combination with Kassner8 or Taylor ’172.9 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The invention relates to the deposition of IV semiconductor material on silicon wafers with a rare earth structure between the IV material and the silicon substrate. Spec. 1. Claims 1, 22, 24, and 25 are illustrative (subject matter in dispute italicized): Application Serial No. 13/586,099 in view of Schlichting US 2008/0176097. Ans. 2; Final Act. 2. Accordingly, we summarily affirm the Examiner’s rejection of claims 1 and 5 for nonstatutory double patenting. 4 Meyer et al., US 2011/0244216 Al, published Oct. 6, 2011 (“Meyer”). 5 Taylor et al., US 2003/0138658 Al, published July 24, 2003 (“Taylor ’658”). 6 Hasz et al., US 5,660,885, issued Aug. 26, 1997 (“Hasz”). 7 T. Nakamura, G. Qian et al. Effects of Pores on Mechanical Properties of Plasma-Sprayed Ceramic Coatings, 83 J. Am. CERAM. SOC. No. 3, 578—84 (2000) (“Nakamura”). 8 H. Kassner et al., Application of Suspension Plasma Spraying (SPS) for Manufacture of Ceramic Coatings, 17 J. THERMAL SPRAY TECH. No. 1 (Mar. 2008) (“Kassner”). 9Taylor et al., US 2008/0160172 Al, published July 3, 2008 (“Taylor ’172”). 2 Appeal 2015-004715 Application 13/603,891 1. A component for a gas turbine engine, comprising: a substrate; a thermal barrier coating deposited on at least a portion of said substrate; an outer layer deposited on at least a portion of said thermal barrier coating, wherein said outer layer includes a material that is reactive with an environmental contaminant that comes into contact with said outer layer to alter a micro structure of said outer layer; and wherein said thermal barrier coating includes a first porosity and said outer layer includes a second porosity that is greater than said first porosity, and said thermal barrier coating includes a first modulus of elasticity and said outer layer includes a second modulus of elasticity that is less than said first modulus of elasticity. 22. The component as recited in claim 1, wherein said thermal barrier coating includes a first porosity in the range of approximately 20% to 28% by volume and said outer layer includes a second porosity in the range of 40%o to 60% by volume. 24. A component for a gas turbine engine, comprising: a substrate; a thermal barrier coating deposited on at least a portion of said substrate; and an outer layer deposited on at least a portion of said thermal barrier coating, wherein said outer layer includes a material including gadolinia zirconia that is reactive with an environmental contaminant that comes into contact with said outer layer to alter a micro structure of said outer layer, wherein at least a portion of said outer layer is shed from said outer layer after the reaction with said environmental contaminant. 25. A component for a gas turbine engine, comprising: a substrate; a thermal barrier coating deposited on at least a portion of said substrate; and 3 Appeal 2015-004715 Application 13/603,891 an outer layer deposited on at least a portion of said thermal barrier coating, wherein said outer layer includes a material including gadolinia zirconia that is reactive with an environmental contaminant that comes into contact with said outer layer to alter a microstructure of said outer layer, wherein the reaction between said material and said environmental contaminant forms a solid portion within at least one porous region of said outer layer to limit infiltration of said environmental contaminant into said thermal barrier coating. Claims App’x at App. Br. 10-12. Appellants do not separately argue the patentability of dependent claims 3—5, 8—13, and 23. App. Br. 3—9. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), and based upon the lack of arguments directed to the subsidiary rejection of claims 4, 12, and 23 under 35 U.S.C. § 103(a), claims 3, 4, 10, 12, 13, and 23 will stand or fall together with independent claim 1, and claims 5, 8, 9, and 11 will stand or fall together with claim 24. OPINION Anticipation of Claim 1 by Meyer Regarding claim 1, the Examiner finds that Meyer discloses a component for a gas turbine engine comprising a substrate with a thermal barrier coating (TBC) system deposited on the substrate; the TBC system has a first porous layer deposited on the substrate and a second porous layer with a greater porosity than the first layer. Final Act. 4 (citing Meyer, Abst., H 2, 11). The Examiner also finds that Meyer exemplifies the two porous layers as comprising a metal oxide ceramic such as alumina or yttria- stabilized zirconia. Id. (citing Meyer 19, 43—45). The Examiner further finds that Meyer’s outer coating metal oxide material undergoes microstructural changes upon reaction with environmental contaminants as 4 Appeal 2015-004715 Application 13/603,891 evidenced by Hasz. Id. (citing Hasz 3:16—53). The Examiner additionally finds that Meyer’s second porous layer has an elastic modulus that is lower than the first layer as evidenced by Nakamura, which teaches that elastic modulus is inversely proportional to porosity. Id. at 4—5 (citing Nakamura 579, III. Method for Estimating Effective Properties). Appellants contend that the Examiner’s rejection of claim 1 is in error because “Meyer is designed to reflect contaminants rather than absorb and react with them.” App. Br. 5. Appellants also contend that Hasz does not show alteration of an outer layer in response to an environmental contaminant, but, rather, “a completely different result — the CMAS composition is altered by increasing its melting temperature or its viscosity.” Id. at 4 (citing Hasz 3:30-64). Regarding Nakamura’s teaching about the relationship between porosity and elastic modulus, Appellants assert that the Examiner “has not provided any evidence that this ‘general’ situation would apply to achieve the ‘reflective’ properties of the coating described by Meyer.” Id. at 5. The Examiner responds that “Hasz expressly teaches that the exemplified metal oxide coatings (which include those taught by Meyer) are sacrificial and reactive with the relevant environmental contaminants (col. 3, In. 31-53).” Ans. 11. The Examiner finds that Nakamura’s teachings are particularly applicable to those of Meyer because “Meyer’s coating layers are ceramic plasma spray coatings, which is the topic of Nakamura’s disclosure, and are each made from the same type of ceramic.” Id. at 12. The Examiner further finds that “Meyer discusses the coating’s reflectivity of infrared radiation” and therefore does not teach away from a coating with the claimed characteristics because “Meyer is discussing a reflection of 5 Appeal 2015-004715 Application 13/603,891 particular wavelengths of radiation and not a reflection of contaminants.” Id. at 13 (citing Meyer H 52, 116). In the Reply Brief, Appellants argue that the Examiner has not “established by a preponderance of the evidence that the micro structure of the outer layer of the coating of Meyer would be altered in response to contact with an environmental contaminant” or that “the general porosity and elastic modulus relationship described by Nakamura could be applied to Meyer to still achieve the desired ‘reflective’ and reduced thermal conductivity properties.” Reply Br. 2—3. We are not persuaded by Appellants’ arguments and find that the preponderance of the evidence supports the rejection of claim 1 for the reasons provided by the Examiner in the Final Action and the Answer. Final Act. 4—5; Ans. 2—3, 11—13. We add the following for emphasis. Appellants’ arguments are unpersuasive because the Examiner’s finding that Meyer discloses an outer layer having greater porosity than the layer on which the outer layer is deposited, that Hasz discloses the same materials as Meyer are reactive to contaminants, and that Nakamura teaches the general relationship between porosity and modulus of elasticity indicates the outer layer of Meyer has a lower modulus of elasticity than the layer on which the outer layer is deposited, are all supported by the record. Appellants’ arguments that the Examiner has not shown Meyer’s outer layer to be reactive to contaminants and to have a lower modulus of elasticity than the layer on which it is deposited are unpersuasive because the Examiner has presented Hasz and Nakamura as evidence that the materials of Meyer meet the characteristics recited in claim 1. Appellants have not adequately rebutted the Examiner’s evidence on this record. Specifically, Appellants do 6 Appeal 2015-004715 Application 13/603,891 not dispute the Examiner’s findings that “Hasz expressly teaches that the exemplified metal oxide coatings (which include those taught by Meyer) are sacrificial and reactive with the relevant environmental contaminants” (Ans. 11) and that both Meyer’s and Nakamura’s coating layers are ceramic plasma spray coatings, making Nakamura’s teachings particularly applicable to those of Meyer {id. at 12). Moreover, Appellants do not assert that Hasz’s material differs from Meyer’s material in any significant manner. See Reply Br. 2—3 (“there is no evidence that the metal oxide coatings of Hasz would provide the desired reflective properties of the ceramic top coat taught by Meyer'”). Nor do Appellants assert that Nakamura’s general principle that the modulus of elasticity is inversely proportional to porosity, would not be applicable to Meyer’s coating materials. See id. at 3 (“it has not been established by a preponderance of evidence that the general porosity and elastic modulus relationship described by Nakamura could be applied to Meyer to still achieve the desired ‘reflective’ and reduced thermal conductivity properties.”). In the absence of any error in the Examiner’s findings, we do not find the Appellants’ arguments sufficient to justify a reversal of the Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner had failed to make a prima facie case, the Board would not have erred in framing the issue as one of reversible error because it has long been the Board’s practice to require an appellant to identity the alleged error in the examiner’s rejections). 7 Appeal 2015-004715 Application 13/603,891 In sum, Appellants have not persuaded us of reversible error in the Examiner’s finding that Meyer teaches the substrate and coatings required by claim 1, including the properties of the coating materials. Anticipation of Claim 1 by Taylor ’658 Appellants contend that the Examiner’s rejection of claims 1, 3, 4, 10, and 13 as anticipated by Taylor ’658 is in error based on similar arguments made with respect to Meyer. Appellants argue that Taylor ’658, like Meyer, does not teach a coating that would absorb and react with contaminants or the required modulus of elasticity as required by claim 1. App. Br. 6. Appellants also contend that “[theoretical density cannot be equated with porosity absent some supporting evidence suggesting these two parameters are the same.” Id. The Examiner responds that Taylor uses the term percent-theoretical density or percent of theoretical density, which report density values relative to fully dense layers of the same material composition. Ans. 14. The Examiner explains that “the volume portion in a bulk material that does not contribute to the percent-theoretical density instead contributes to the void volume, which is otherwise known as porosity. Accordingly, a material having 90 % of theoretical density has a porosity of 10%.” Id. (citing Richardson, D.W., Modem Ceramic Engineering: Properties, Processing, and Use in Design 186—87 (2006)). The Examiner further responds, that the interpretation of percent-theoretical density in the Final Action is proper, that the coating of Taylor has the claimed porosity relationship and is made from a metal oxide (e.g. an oxide of aluminum, zirconium, or magnesium) ceramic, and that, as evidence by Hasz and Nakamura, the outer coating of Taylor undergoes microstmctural changes when contact with environmental 8 Appeal 2015-004715 Application 13/603,891 contaminants, has a higher porosity, and also has a lower elastic modulus. Id. at 15. In the Reply Brief, Appellants contend that “[t]he outer layer of the Taylor coating is designed to be substantially free of vertical macrocracks such that it exhibits a much greater thermal shock resistance. See | [0055]. It has not been established by a preponderance of evidence that these desired features would be possible if the coating was designed to absorb and react with contaminants or exhibit that claimed relationship between porosity and elastic modulus.” Reply Br. 3. Appellants’ arguments are not persuasive because Appellants do not dispute that Taylor’s coating materials have the required porosity characteristics. Appellants also do not assert that Nakamura’s general principle that the modulus of elasticity is inversely proportional to porosity, would not be applicable to Taylor’s coating materials. Additionally, Appellants do not assert that Hasz’s material differs from Taylor’s material in any significant manner. Instead, Appellants simply question whether Hasz’s material also has the feature of being substantially free of vertical macrocracks. Reply Br. 3. In the absence of any error in the Examiner’s findings, we do not find the Appellants’ arguments persuasive to justify a reversal of the Examiner’s rejection. See Jung, 637 F.3d at 1365. Obviousness of Claims 24 and 25 Regarding claims 24 and 25, the Examiner finds that Taylor teaches “that both the outer coating material and the TBC material may comprise a rare earth oxide-stabilized zirconia (paragraphs 28 and 29). Based on this teaching, it would have been obvious to one of ordinary skill in the art at the time of invention to utilize gadolinia-stabilized zirconia (i.e. ‘gadolinia 9 Appeal 2015-004715 Application 13/603,891 zirconia’) to form the outer layer and TBC layer because gadolinium is a rare earth metal, which is taught as acceptable by Taylor.” Final Act. 8. The Examiner also finds that “it would have been obvious to one of ordinary skill in the art at the time of invention to make the layered coating of Taylor using SPS because Taylor explicitly teaches use of plasma spray methods for forming the coating layers and because Kassner discloses that SPS can be used to make highly cracked coatings, is ideal for producing thermal barrier coatings due to its high porosity and strain tolerance, and can be used to produce coatings with varying micro structures.” Id. at 9. The Examiner further finds that “the outer layer of the coating of Taylor and Kassner is expected to demonstrate sufficiently the same behavior as that of the instant invention after a reaction has occurred with an environmental contaminant” because “the multi-layer coating of Taylor and Kassner [] has the same structure, porosities, and outer layer composition as the instant invention and is produced by SPS, as instantly claimed.” Id. at 9—10. The entirety of Appellants’ arguments concerning the Examiner’s rejection of claims 24 and 25 is, respectively, “[n]one of the prior art of record teaches that a portion of the outer layer is shed from the outer layer after reacting with an environmental contaminant” and “[n]one of the prior art of record teaches that a solid portion is formed in a porous region in response to the reaction between the material of the outer layer and the environmental contaminant.” App. Br. 7—8. The Examiner responds that “the multilayer coating of Taylor and Kassner is expected to possess substantially the same properties and behave substantially the same as that of instant claims 24 and 25 because it is produced by the same method (i.e. suspension plasma spray) and has 10 Appeal 2015-004715 Application 13/603,891 substantially the same structure (i.e. the TBC layer has a columnar structure with vertical microcracks), porosities, and outer layer composition (i.e. containing gadolinia zirconia) as is instantly claimed.” Ans. 17. In the Reply Brief, Appellants argue “[t]he fact that a certain result or characteristic may occur or be present in the prior art is not sufficient to establish the inherency of that result or characteristic.” Reply Br. 4. We are not persuaded by Appellants’ arguments because they do not dispute any of the Examiner’s findings of fact. Appellants do not dispute the Examiner’s underlying findings of fact with respect to Taylor or Kassner, nor do Appellants adequately explain why the facts would preclude the claimed characteristics from being inherently possessed by Taylor and Kassner’s coatings. The Examiner has provided the record with a preponderance of evidence including commonalities shared by the methods of Taylor, Kassner, and claims 24 and 25 which justifies requiring Appellants to prove that Taylor's outer layer does not necessarily or inherently possess the claimed characteristic of reacting with an environmental contaminant by either shedding at portion of the outer layer or forming a solid portion. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (“[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. . . . Whether the rejection is based on ‘inherency’ under 35 U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.” (footnote omitted)). No such proof has been provided by Appellants. 11 Appeal 2015-004715 Application 13/603,891 In sum, Appellants have not persuaded us of a reversible error in the Examiner’s finding that claims 24 and 25 would have been obvious in view of Taylor, as evidenced by Hasz and Nakamura, and further in view of Kassner. Obviousness of Claim 22 Regarding claim 22, the Examiner finds that Taylor ’658 does not disclose the claimed porosity of 20-28% for the TBC layer, but that Taylor ’172 “teaches that thermal barrier coating layers should not be less than 12% in order to form a coating with excellent thermal fatigue resistance (paragraph 63).” Final Act. 10. The Examiner finds that it would have been obvious for one of ordinary skill at the time of the invention to make the inner TBC layer of Taylor ’658 to have a porosity of at least 12% for the reason given by Taylor ’172 and “to just below the porosity of the outer layer (i.e. up to just below 55%), as is consistent with the teachings of Taylor [to have a an outer coating with a porosity that is greater than the porosity of the inner thermal barrier coating].” Final Act. 10—11. Appellants contend that the Examiner’s rejection of claim 22 is in error for the same reasons discussed above with respect to claim 1 and because “there is no evidence that [] the desired outer layer of Taylor that is substantially free from macrocracks would be possible were it modified to include the claimed porosity ranges.” App. Br. 8—9. The Examiner responds that “one of ordinary skill in the art would have a reasonable expectation of successfully making an outer coating layer with a porosity of 40-50% to have the desired microstructure, i.e. substantially free of microcracks, because Taylor teaches that the porosity of the outer layer can range from 10 to 55 %.” Ans. 18. 12 Appeal 2015-004715 Application 13/603,891 In the Reply Brief, Appellants do not make any further arguments specific to claim 22. See Reply Br. 4—5. We are not persuaded by Appellants’ arguments for the same reasons discussed above with respect to claim 1. In sum, Appellants have not persuaded us of a reversible error in the Examiner’s finding that claim 22 would have been obvious in view of Taylor ’658, as evidenced by Hasz and Nakamura, in further view of Taylor ’172. CONCLUSION We sustain the Examiner’s rejections. DECISION The Examiner’s decision is affirmed. TIME PERIOD FOR RESPONSE 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). AFFIRMED 13 Copy with citationCopy as parenthetical citation