Airbus Operations GmbH

Patent Trials and Appeals Board

Dec 24, 2021

2021000354 (P.T.A.B. Dec. 24, 2021)

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.
15/522,917 04/28/2017 Gregor Christian ENDRES 4404.128585 5586
24978 7590 12/24/2021
GREER, BURNS & CRAIN, LTD
300 S. WACKER DR.
SUITE 2500
CHICAGO, IL 60606
EXAMINER
MCKINNON, LASHAWNDA T
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
12/24/2021 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):
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PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GREGOR CHRISTIAN ENDRES,
HANS-JUERGEN WEBER, and KLAUS SCHOOTE
____________

Appeal 2021-000354
Application 15/522,917
Technology Center 1700
____________
Before GEORGE C. BEST, MERRELL C. CASHION, JR., and
JANE E. INGLESE, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 15–18 and 20–35 of Application
15/522,917. Final Act. (August 30, 2019). We have jurisdiction under 35
U.S.C. § 6.
For the reasons set forth below, we reverse.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Airbus Operations GmbH as the real party in interest. Appeal
Br. 1.
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I. BACKGROUND
The ’917 Application describes a composite panel that can be used as
a floor plate in aircraft construction. Spec. ¶ 2. The composite panel
comprises a sandwich-type construction. Id. ¶ 12. In this construction, two
opposed outer layers are separated by a closed-cell foam material. Id. The
outer layers are interconnected by spacers, which are connected to the outer
layers by a cured plastics material. Id. The spacers are rod-shaped in the
region between the two outer layers. Id. ¶ 13.
Claim 15 represents the ’917 Application’s claims, and is reproduced
below from the Appeal Brief’s Claims Appendix. We have italicized the
limitations that are important to our analysis.
15. A composite plate having a sandwich-type construction,
comprising:
two outer layers which are mutually opposed in parallel,
a foam material completely filling the space between the
outer layers, at least in some regions, wherein
the outer layers are interconnected by means of
spacers, and
the spacers are connected to the outer layers via a
cured plastics material,
wherein a first plurality of the spacers completely penetrate at
least one of the outer layers,
wherein a second plurality of the spaced partially penetrate the
at least one of the outer layers, and
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wherein a third plurality of spacers lie flat against an inner
face of the at least one of the outer layers.
Appeal Br. Claims App. A-1 (emphasis added).
II. REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 15–18, 21–24, 26, and 29–34 are rejected under 35
U.S.C. § 102(a)(1) as anticipated by Pinan.2 Final Act. 2.
2. Claims 20, 22, 25, 27, and 35 are rejected under 35 U.S.C.
§ 103 as unpatentable over Pinan. Final Act. 5.
3. Claim 28 is rejected under 35 U.S.C. § 103 as unpatentable
over the combination of Pinan and Weber.3 Final Act. 6.
III. DISCUSSION
A. Rejection of claims 15–18, 21–24, 26, and 29–34 as anticipated by
Pinan
Claims 15, 29, and 32 are independent. Appellant presents separate
arguments for the patentability of each of these claims. See Appeal Br. 10–
18. Accordingly, we individually discuss each of these claims along with the
claims that depend from them below.
1. Claims 15–18, 21–24, and 26
Appellant argues for reversal of the rejection of independent claim 15.
Appeal Br. 10–16. Dependent claims 16–18, 21–24, and 26 are said to be
patentable for the same reasons as their parent independent claim. Id. at 16.

2 WO 2011/012587 A1, published February 3, 2011.
3 WO 2010/136362 A1, published December 2, 2010.
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We, therefore, choose claim 15 as representative of this group of claims and
limit our discussion accordingly. 37 C.F.R. § 41.37(c)(1)(iv) (2019).
Appellant argues that the Examiner erred by finding that Pinan
describes each of the limitations of claim 15. In particular, Appellant argues
that Pinan does not describe a structure in which a plurality of spacers
completely penetrate at least one of the outer layers and another plurality of
spacers lie flat against an inner face of at least one of the outer layers.
Appeal Br. 11–16.
We address these claim limitations in turn.
a) “a first plurality of the spacers completely penetrate at
least one of the outer layers”
We begin by construing the claim limitations at issue. Oakley, Inc. v.
Sunglass Hut Int’l, 316 F.3d 1331, 1339 (Fed. Cir. 2003) (explaining that
anticipation and obviousness require comparison of the properly construed
claims to the available prior art); In re Paulsen, 30 F.3d 1475, 1479 (Fed.
Cir. 1994) (“[T]o properly compare [the prior art] with the claims at issue,
we must construe the term [in dispute] to ascertain its scope and meaning.”).
During prosecution, the PTO gives the language of the proposed
claims the broadest reasonable meaning of the words in their ordinary usage
as they would be understood by one of ordinary skill in the art, taking into
account any definitions or other enlightenment provided by the written
description contained in the applicant’s specification. In re Morris, 127 F.3d
1048, 1054–55 (Fed. Cir. 1997).
We begin by considering the ordinary meaning of the phrase
“completely penetrate.” In the context provided by claim 15, the ordinary
meaning of the verb “penetrate” is “to pass into or through,” Penetrate
Definition & Meaning — Merriam-Webster, Merriam-Webster.com (Dec. 2,
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2021), https://www.merriam-webster.com/dictionary/penetrate, and the
ordinary meaning of the adverb “completely” is “fully carried out,”
Completely Definition & Meaning — Merriam-Webster, Merriam-
Webster.com (Dec. 2, 2021), https://www.merriam-
webster.com/dictionary/completely. Thus, the ordinary meaning of the
phrase “completely penetrate” is “to pass fully through.”
Next, we turn to the Specification to determine whether, at the time of
filing, a person of ordinary skill in the art would have understood that this
phrase was used in a manner inconsistent with its ordinary meaning. After
consideration of the Specification—especially paragraphs 35–43 and Figures
1, 4, and 5, which discuss penetration of the spacers into and through the
outer layers—we conclude that the Specification does not use the phrase
“completely penetrate” in a manner inconsistent with its ordinary meaning.
For these reasons, we interpret the claim phrase “completely
penetrate” as meaning “to pass fully through.”
Appellant argues that Pinan does not disclose spacers that completely
penetrate the outer layers. Appeal Br. 14–16.
In rejecting claim 15, the Examiner found that Pinan’s Figures 3A,
3B, and 4B describe such a composite plate. Final Act. 2; see also Answer
3–4. In particular, the Examiner found that Pinan’s Figures 3A and 3B
demonstrate spacers that completely penetrate at least one of the outer
layers. Answer 11–12.
Appellant argues that this finding is erroneous because “there is
nothing in FIGS. 3A and 3B from Pinan that ‘clearly shows’ or requires the
complete penetration.” Appeal Br. 14. In particular, Appellant argues that
because Figures 3A and 3B are hand-drawn, a person having ordinary skill
in the art “could also view the above drawings as showing, similar to FIGS.
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4A and 4B of Pinan, fibers 46 terminating within the outer layers, providing
a smooth outer surface.” Id. at 15.
We are not persuaded by this argument. As discussed above, we have
interpreted the claim language “completely penetrate” to mean “to pass fully
through.” A spacer that passes fully through an outer layer need not extend
beyond the outer layer’s outer surface. For example, Figure 4 of the
Specification, reproduced below, shows spacers that pass fully through the
composite plate’s outer layer.
Figure 4 is a cross-section of
a composite plate. Spec. ¶ 30.
As the Specification explains, in Figure 4, “[a] plurality of spacers
penetrate the outer layers in full (reference sign 20) or in part (reference sign
22).” Spec. ¶ 38.
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Pinan’s Figures 3A and 3B also show spacers 46 that fully pass
through outer layer 40 or 42, ending at its outer surface. For ease of
reference, we reproduce Pinan’s Figures 3A and 3B below.
Figures 3A and 3B are cross-sectional views of
cores described by Pinan. Pinan 4.
Pinan describes Figures 3A and 3B as depicting a core sandwiched by
outer skins 40 and 42. Pinan 8–9. Bridging fibers 12 link outer skins 40 and
42 by forming bridges 46. Id. In particular, Pinan describes bridging fibers
12 as “passing through the core 48 [of Figure 3B] and forming bridges 46.”
Id. at 9.
In view of the foregoing, Appellant has not persuaded us that the
Examiner erred by finding that Pinan describes a composite plate having a
plurality of spacers that completely penetrate at least one of the composite
plate’s outer layers.
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b) “a third plurality of spacers lie flat against an inner face
of the at least one of the outer layers”
Second, we consider the proper interpretation of the claim language
“lie flat against.” We begin by considering the ordinary meaning of the
words in this phrase in the context provided by claim 15. In this context, the
ordinary meaning of the word “lie” is “to be or remain in a flat or horizontal
position upon a broad support.” Lie Definition & Meaning — Merriam-
Webster, Merriam-Webster.com (Dec. 3, 2021), https://www.merriam-
webster.com/dictionary/lie. The ordinary meaning of the word “against” is
“in contact with,” Against Definition & Meaning — Merriam-Webster,
Merriam-Webster.com (Dec. 3, 2021), https://www.merriam-
webster.com/dictionary/against.
The ordinary meaning of the word “flat” in the context provided by
the rest of claim 15 is ambiguous. A dictionary suggests at least three
possible meanings: “resting with a surface against something,” “arranged so
as to be level or even,” or “having the major surfaces essentially parallel and
distinctly greater than the minor surfaces.” Flat Definition & Meaning —
Merriam-Webster, Merriam-Webster.com (Dec. 3, 2021),
https://www.merriam-webster.com/dictionary/flat; see also 1 Shorter Oxford
English Dictionary 982 (6th ed. 2007) (“lying in close apposition, with the
whole length and breadth evenly in contact with a surface”).
To resolve this ambiguity, we turn to the ’917 Application’s
Specification. “[T]he specification is always highly relevant to the claim
construction analysis. Usually, it is dispositive; it is the single best guide to
the meaning of a disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90
F.3d 1576, 1582 (Fed. Cir. 1996); see also In re Morris, 127 F.3d 1048,
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Application 15/522,917
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1054 (Fed. Cir. 1997) (holding that ignoring the specification in claim
construction is unreasonable).
The Specification—especially paragraphs 35–43 and Figures 1, 4, and
5—discuss the relationship between the spacers and the outer layers of the
composite panel. In describing Figure 4, paragraph 38 states that “[o]ther
spacers 23 rest flat against at least one of the inwardly facing surfaces of the
outer layers 10.” See Fig. 4, reproduced supra. As can be seen in Figure 4,
spacer 23 is bent, so that a portion of its side is resting against the inner
surface of outer layer 10. This configuration can also be seen in Figure 5,
which we reproduce below.
Figure 5 is a photo of a section through a
composite plate. Spec. ¶ 31.
According to the Specification, Figure 5
shows an image of a spacer 20 which is in contact with both
outer layers 10. In this case, the spacer 20 does not pierce
through the outer layers 10, but rather rests against the inner
contour of the outer layers between the foam material 35 and
the outer layers 10.
Spec. ¶ 42.
Thus, the Specification describes spacers that lie flat against an inner
surface of the outer layer in a manner that requires a specific type of contact
between the spacer and the outer layer. While we are aware of the
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prohibition against reading limitations from the specification into the claims,
see Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc)
(“[A]lthough the specification often describes very specific embodiments of
the invention, we have repeatedly warned against confining the claims to
those embodiments.”), the broadest reasonable interpretation “is an
interpretation that corresponds with what and how the inventor describes his
invention in the specification, i.e., an interpretation that is ‘consistent with
the specification,’” In re Smith Int’l, Inc., 871 F.3d 1375, 1382–83 (Fed. Cir.
2017).
In this case, we have concluded that an interpretation that is consistent
with the Specification should reflect the Specification’s depiction of the
spacers that lie flat against the inner surface of the outer layer. Thus, we
interpret the claim phrase “lie flat against” as requiring that a substantial
portion of the side of a spacer remains in horizontal contact with an inner
face of the outer layer.
Having construed the relevant claim language, we determine whether
the Examiner erred by finding that Pinan describes a composite plate having
“a third plurality of spacers [that] lie flat against an inner face of the at least
one of the outer layers.” In rejecting claim 15, the Examiner found that
Pinan’s Figure 4B depicts spacers that lie flat against an inner face of the at
least one of the outer layers. Answer 8–11 (citing Pinan 9, 11).
Appellant argues that this finding is erroneous because Pinan’s Figure
4B does not describe such spacers: “not one of the fibers in FIG. 4B of Pinan
is shown as being bent and laying flat between the inner face of one of the
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[outer] layers and the core.” Appeal Br. 12. For ease of reference, we
reproduce Pinan’s Figure 4B below.
Figure 4B contains two views of a panel
produced from a core obtained from
Pinan’s process. Pinan 4.
As can be seen, Appellant is correct. Figure 4B shows that each fiber
12 has at least one end that contacts the inner surface of one of the outer
layers 10. None of the fibers 12, however, are shown as having any portion
of its side in horizontal contact with an inner face of an outer layer 10.
In view of the foregoing, we determine that Pinan’s Figure 4B does
not show a plurality of spacers that “lie flat against” an inner surface of the
outer layers as we have interpreted claim 15’s language.
c) Conclusion regarding claims 15–18, 21–24, and 26
For the reasons set forth above, we have determined that the Examiner
erred by finding that Pinan anticipates claims 15–18, 21–24, and 26 of the
’917 Application.
2. Claims 29–31
Claim 29 is an independent claim. Claims 30 and 31 depend from
claim 29. We select claim 29 to represent the group of claims subject to this
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ground of rejection. 37 C.F.R. § 41.37(c)(1)(iv). For ease of reference, we
reproduce claim 29 from the Appeal Brief’s Claims Appendix.
29. A method for producing a composite plate, comprising
the steps:
creating, firstly, an intermediate product comprising two
outer layers and a foamed layer located therebetween, and,
introducing spacers into the region located between the
outer layers by means of a penetration of at least one of the
outer layers, and subsequently,
curing a plastics material which is located in at least one
of the outer layers and the spacers
wherein a first plurality of the spacers completely
penetrate at least one of the outer layers,
wherein a second plurality of the spaced partially
penetrate the at least one of the outer layers, and
wherein a third plurality of spacers lie flat against an
inner face of the at least one of the outer layers.
Appeal Br. Claims App. A-4 (emphasis added).
Claim 29 is directed to a composite plate that comprises a plurality of
spacers that “lie flat against” an inner face of at least one of the outer layers.
We interpret claim 29 such that the phrase “lie flat against” has the same
meaning in claims 15 and 29. For the reasons set forth above, the Examiner
erred by finding that Pinan’s Figure 4B describe such a plurality of spacers.
We, therefore, reverse the rejection of claims 29–31 as anticipated by
Pinan.
3. Claims 32–34
Claim 32 is an independent claim, and claims 33 and 34 depend
therefrom. We select claim 32 to represent the group of claims subject to this
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Application 15/522,917
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rejection. 37 C.F.R. § 41.37(c)(1)(iv). For ease of reference, we reproduce
claim 32 from the Appeal Brief’s Claims Appendix.
32. A method for producing a composite plate, comprising
the steps:
introducing a plurality of spacers, at least mostly,
into a foamed layer, wherein by using outer layers, a
sandwich assembly is produced, and
pushing or pulling the spacers into the outer layers,
or attaching the spacers to an inner face of the outer
layers, and wherein, subsequently,
curing a plastics material which is located in at
least one of the outer layers and the spacers to connect
the spacers to the outer layers
wherein a first plurality of the spacers completely
penetrate at least one of the outer layers,
wherein a second plurality of the spaced partially
penetrate the at least one of the outer layers, and
wherein a third plurality of spacers lie flat against an
inner face of the at least one of the outer layers.
Appeal Br. Claims App. A-5 (emphasis added).
Claim 32 is directed to a composite plate comprising a plurality of
spacers that “lie flat against” an inner face of at least one of the outer layers.
We interpret claim 32 such that the phrase “lie flat against” has the same
meaning in claims 15 and 29. For the reasons set forth above, the Examiner
erred by finding that Pinan’s Figure 4B describes such a plurality of spacers.
We, therefore, reverse the rejection of claims 32–34 as anticipated by
Pinan.
B. Rejection of claims 20, 22, 25, 27, and 35 as unpatentable over Pinan
Claims 20, 22, 25, 27, and 35 depend from claim 15. The Examiner
rejected these dependent claims as obvious over Pinan. For the reasons set
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forth above, we have determined the Examiner erred by finding that Pinan
describes a composite plate having a plurality of spacers that lie flat against
an inner face of one of the outer layers. Final Act. 5–6. In rejecting claims
20, 22, 25, 27, and 35, the Examiner has not explained how Pinan suggests
such a plurality of spacers. Id. We, therefore, also reverse the rejection of
these claims.
C. Rejection of claim 28 as unpatentable over the combination of Pinan
and Weber
Claim 28 depends from claim 15. For the reasons set forth above, we
have determined that the Examiner erred by finding that Pinan describes a
composite plate having a plurality of spacers that lie flat against an inner
face of one of the outer layers. In rejecting claim 28, the Examiner has not
explained how Pinan suggests such a plurality of spacers. Final Act. 6. Nor
has the Examiner found that Weber describes or suggests such a plurality of
spacers. Id. We, therefore, also reverse the rejection of claim 28.
IV. CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
15–18, 21–24, 26,
29–34 102(a)(1) Pinan
15–18, 21–24,
26, 29–34
20, 22, 25, 27, 35 103 Pinan 20, 22, 25, 27, 35
28 103 Pinan, Weber 28
Overall Outcome 15–18, 20–35
REVERSED