Ex Parte Akhmeteli et al

Patent Trial and Appeal Board

Mar 28, 2013

11517915 (P.T.A.B. Mar. 28, 2013)

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.
11/517,915 09/08/2006 Andrey M. Akhmeteli 2732
7590 03/29/2013
Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.
2nd Floor
215 S. Monroe Street
P.O. Box 10095
Tallahassee, FL 32302-2095
EXAMINER
KREINER, MICHAEL B
ART UNIT PAPER NUMBER
3644
MAIL DATE DELIVERY MODE
03/29/2013 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
____________

Ex parte ANDREY M. AKHMETELI and ANDREY V. GAVRILIN
____________

Appeal 2010-005001
Application 11/517,915
Technology Center 3600
____________

Before STEFAN STAICOVICI, KEN B. BARRETT, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
The Appellants originally appealed under 35 U.S.C. § 134 from the
Examiner’s decision finally rejecting claims 1-24. See Not. Of App. (stating
“Applicant hereby appeals . . . from the last decision of the examiner.”) In
the Appeal Brief, however, the Appellants state “[t]he Petitioners have now
elected to appeal only the rejections as to claims 1 and 14.” Br. 3; see Br. 5.
As such, we understand Appellants to have withdrawn the appeal as to
claims 2-13 and 15-24. We suggest that the Examiner cancel claims 2-13
and 15-24 upon return of jurisdiction of this application to the Examiner.
See Ex Parte Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008) (precedential);
see also Manual of Patent Examining Procedure (MPEP) § 1215.03 (8th ed.,
Rev. 9, Aug. 2012).
The Appellants seek our review under 35 U.S.C. § 134 of the
Examiner’s decision rejecting claims 1 and 14 under 35 U.S.C. § 103(a) as
unpatentable over Armstrong (US 1,390,745, iss. Sept. 13, 1921). The
Appellants present additional evidence in the following declarations under
37 C.F.R. § 1.132: Declaration of Andrey V. Gavrilin, filed September 8,
2008; and Declaration of Andrey Akhmeteli, filed September 8, 2008. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Claimed Subject Matter
Claim 1 is the sole independent claim on appeal, is reproduced below,
and is representative of the subject matter on appeal.
1. A structure for creating buoyancy within an atmosphere
having an atmospheric pressure and an air density ρa,
comprising:
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a. a sealed spherical shell, with an enclosed volume
contained therein;
b. wherein said spherical shell includes,
i. an inner layer proximate said enclosed volume,
ii. an outer layer distal to said enclosed volume,
iii. a core layer between said inner layer and said outer
layer;
c. wherein said inner layer, said outer layer, and said core
layer are all bonded together;
d. wherein said inner layer and said outer layer are
approximately the same thickness;
e. wherein said core layer is substantially thicker than said
inner layer and said outer layer;
f. wherein said core layer includes a plurality of adjoining
cells;
g. said spherical shell has a radius R;
h. said inner layer has a thickness h1, a thickness to shell
radius ratio h1' = h1/R, a modulus of elasticity E1, a
Poisson’s ratio μ1 and a density ρ1;
i. said outer layer has a thickness h2 a thickness to shell
radius ratio h2' = h2/R, a modulus of elasticity E2, a
Poisson’s ratio μ2 and a density ρ2;
j. said core layer has a thickness h3 a thickness to shell
radius ratio h3' = h3/R, a modulus of elasticity Ec, and a
density ρc;
k. wherein materials are selected for said inner layer, said
outer layer, and said core layer, and values for said h1',
h2', and h3' are selected such that they lie within a range
wherein,
i. 2E1h1'h3' is at least the same order of magnitude as
said atmospheric pressure,
ii. 2E2h2'h3'is at least the same order of magnitude as
said atmospheric pressure,
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iii. [16Ec2 E1/1- μ12]1/3h1' is at least the same order of
magnitude as said atmospheric pressure,
iv. [16Ec2 E2/1- μ22]1/3h2' is at least the same order of
magnitude as said atmospheric pressure; and
v. h1'ρ1 + h2' ρ2 + h3'ρc is less than 1/3 ρa.

OPINION
The Appellants’ arguments have been considered but do not persuade
us of Examiner error. At the outset, we note that contrary to the Appellants’
categorization of the Examiner’s rejection of claims 1 and 14, the rejection is
not “a classic ‘obvious to try’ rejection.” See Br. 9; see also Br. 18-19.
For the rejection of claims 1 and 14, the Examiner finds Armstrong
discloses “a structure for creating buoyancy within an atmosphere having an
atmospheric pressure and an air density” including a sealed spherical shell,
with an enclosed volume, where the shell has an inner layer 1, outer layer 2,
and a core layer 3 between the inner and outer layers, and all the layers are
bonded together. Final Office Action 3, Armstrong, p. 2, ll. 16-37, fig. 2.
The Examiner also finds that Armstrong’s core layer 2 includes adjacent
cells 4 and is substantially thicker than the inner and outer layers. Final
Office Action 3, Armstrong, fig. 3. With regard to limitations 1g-1j of claim
1, the Examiner finds that “the dimensions so defined (such as radius R) are
inherently present for Armstrong's balloon, or inherently present in the
materials of construction.” Final Office Action 3.
The remainder of the Examiner’s rejection for claims 1 and 14 is as
follows:
Claim limitations 1k(i)-1k(v) and 14a-14d are deemed
optimization within prior art conditions or through routine
experimentation. Armstrong teaches motivation for designing a
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balloon to withstand the collapsing tendency of the vacuum (p.
2 l. 78-84). Also, it is well known in the balloon art that the
mass of the balloon and enclosed gases must be less than the
mass of displaced atmosphere in order to generate lift. It is
understood that a viable vacuum balloon design, such as
Armstrong's, necessitates structural integrity to withstand this
collapsing force, as well as light weight to properly generate
lift, and that dimensioning of the parameters set forth in
limitations 1g-1j by routine experimentation would produce a
viable design. Such experimentation could be carried out by
trial-and-error until a working result is produced, or by
performing a well known computer analysis, such as finite
element analysis, on balloon designs. Commercially available
computer programs are available to perform such analysis. (See
MPEP 2144.05, in particular IIa. Optimization within Prior Art
Conditions or Through Routine Experimentation).
Final Office Acton 3-4.
The Appellants also focus attention on the result-effective parameters
including the thickness to shell radius ratios, (h1' h2', and h3'), and the other
expressions stemming from the result-effective parameters. See Br. 11-13.
The Appellants assert that “[t]he key to the patentability of claim 1 is found
in clause (k) (including (i) through (v)). Clause k(v) - the buoyancy
equation - is not new. However, its interaction with the other parameters is
crucial to the invention. The constraints on these parameters are defined in
claim 1.” Br. 13. Additionally, the Appellants argues that the prior art does
not suggest the optimized range of claim 14. See Br. 15.
In response, the Examiner explains that limitation (k)(i) of claim 1 “is
merely a reworking of the first equation of Appellant’s Specification p. 12,
which the Appellant discloses is known (Specification p. 11 l. 19-20). The
Appellant has taken a known equation and substituted h_l' for (h_1/R) and
h_3' for (h_3/R).” Ans. 4-5. The Examiner explains that limitation (k)(ii) of
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claim 1 is similar to limitation (k)(i) of claim 1. Ans. 5. As for the
limitations (k)(iii)-(iv), the Examiner finds that these limitations also involve
“a similar reworking of known equations.” Id. See Answer Attachment,
which includes a handwritten derivation of the formulas of limitations
(k)(iii)-(iv). Id. The Examiner explains that:
These derivations were straightforward and intuitive, resulting
from the known equations and the known design constraints of
vacuum balloons (the walls cannot buckle or else the balloon
fails, Zahm p. 443 ¶1). No new variables, result-effective or
not, were discovered in retracing the Appellant's steps. The
Examiner merely plugged a first equation into a second,
plugged the resulting equation into a third, and simplified.
Id.; see Ans. 8. The Examiner determines that:
It has been shown that no novelty rests in the structure of
the Appellant's invention or in the ranges outlined in k(1)(i-iv).
In addition, since these ranges define the design envelope for all
viable vacuum shell balloons, and since all vacuum shell
balloons must meet these four buckling stability conditions, it
follows that the design of Armstrong, which is considered a
viable design for a vacuum balloon, must have fallen within this
design envelope.
Ans. 6. As for the Appellants’ plot attached in Appendix C of the Appeal
Brief, the Examiner explains that the “Appellant[s] ha[ve] merely claimed
previously known equations (p. 12 l. 17-19), and has not claimed the ranges
shown in the plot of h_1' versus h_3', but has instead claimed a much
broader range.” Ans. 12.
Lastly, we agree with the Examiner that Armstrong is presumed
operable, and an appellant challenging the operability of the reference has
the burden to rebut this presumption of operability. In re Sasse, 629 F.2d
675, 681 (CCPA 1980) (when the reference relied on expressly anticipates
or makes obvious all of the elements of the claimed invention, the reference
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is presumed to be operable, and the appellant must rebut this presumption
with a preponderance of evidence). Although the Appellants make the
conclusory allegation that “Armstrong is a good example of ‘blue-sky
thinking’ in that the pressurized fabric structure it discloses is inherently
incapable of achieving buoyancy before collapsing” (Br. 9), the Appellants
have not provided any persuasive evidence or reasoning that would tend to
show that Armstrong is not enabling.
Thus, the rejection of claims 1 and 14 as unpatentable over Armstrong
is sustained.

DECISION
We AFFIRM the rejection of claims 1 and 14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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