Ex Parte Anast

Patent Trial and Appeal Board

Oct 23, 2018

14537791 (P.T.A.B. Oct. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/537,791 11/10/2014
48058 7590 10/25/2018
GA TES & COOPER LLP - Boeing
HOW ARD HUGHES CENTER
6060 CENTER DRIVE, SUITE 830
LOS ANGELES, CA 90045
FIRST NAMED INVENTOR
Peter Z. Anast
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.
14-0646-US-NP 1092
EXAMINER
DIXON, KEITH L
ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
10/25/2018 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):
docketing-us@gates-cooper.com
gates-cooper@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER Z. ANAST 1
Appeal2017-010568
Application 14/537,791
Technology Center 3600
Before DANIELS. SONG, CHARLES N. GREENHUT, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1---6, 14--16, 18-23, and 29-33. 2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Boeing Company ("Appellant") is the Applicant as provided in
3 7 C.F .R. § 1.46 and is identified as the real party in interest. Appeal Br. 1.
2 Claims 7-13, 17, 24--28, and 34--43 are cancelled. Appeal Br. 23-27
(Claims App.).
Appeal2017-010568
Application 14/537,791
THE CLAIMED SUBJECT MATTER
Claims 1, 23, and 29 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter on appeal.
1. A fuselage portion (200), comprising:
a frame (202);
a floor beam (204) comprising ends (204A, 204B) directly
attached to the frame (202);
a structural stanchion (206), comprising a first end (206A)
and a second end (206B);
a first structural coupling (207 A) joining the first end
(206A) of the structural stanchion (206) and the floor beam
(204);
a second structural coupling (207B) joining the second end
(206B) of the structural stanchion (206) and the frame (202);
a non-structural stanchion (208), comprising a third end
(208A) and a fourth end (208B);
a first non-structural coupling (209A) joining the third end
(208A) of the non-structural stanchion (208) and the floor beam
(204); and
a second non-structural coupling (209B) joining the fourth
end (208B) of the non-structural stanchion (208) and the frame
(202).
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Abdelmaseh
Roeder
Schroeer
us 4,648,570
us 5,086,996
US 2010/0044510 Al
2
Mar. 10, 1987
Feb. 11, 1992
Feb.25,2010
Appeal2017-010568
Application 14/537,791
THE REJECTIONS
I. Claims 1---6, 14--16, 23, and 29-33 3 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Schroeer and Roeder. Final Act. 3---6.
II. Claims 18-22 stand rejected under 35 U.S.C. § 103 as
unpatentable over Schroeer, Roeder, and Abdelmaseh. Id. at 6-7.
OPINION
Rejection I
The Examiner finds that Schroeer teaches all of the limitations of
independent claims 1 and 23, except for the floor beam having ends directly
attached to the frame. Final Act. 3--4 ( citing Schroeer Fig. 6). The
Examiner turns to Roeder as teaching "a fuselage wherein a floor 23 is
directly attached to a frame 17." Id. at 4 (citing Roeder Fig. 2A). The
Examiner concludes that it would have been obvious "to modify Schroeer
... such that the floor or floor beam is directly attached to the frame because
[Roeder] teaches that such a predictable arrangement will result in complete
freedom of passenger movement within the cabin in the transverse
direction." Final Act. 4 ( citing Roeder 3 :43--45). The Examiner relies on
the same findings to reject independent claim 29. Id. at 6.
Appellant argues that Schroeer does not teach structural and non-
structural stanchions. Appeal Br. 12. In particular, Appellant argues that
"[t]he Examiner fails to specifically point to any teaching or suggestion of
the structural versus non-structural nature of Schroeer's stanchions (struts)."
Id. at 13. Appellant also argues that it "defines the structural and non-
structural nature of the stanchions by the type of coupling being used," and
3 The heading for this rejection omits claims 29-33, but it is apparent that
these claims are also included in this rejection. See Final Act. 6.
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Application 14/537,791
that Schroeer uses the same type of coupling for both struts. Id. at 12. The
Examiner responds that Appellant's Specification states that "the difference
between the structural and non-structural stanchions is that the non-
structural stanchion is capable of supporting a second load that is less than a
first load carried by the structural stanchion." Ans. 3 (citing Spec. ,r 29).
The Examiner finds that "the structural arrangement disclosed by Appellant
is very similar to Schroeer' s structural arrangement." Id. at 4 ( comparing
Spec. Fig. 3A to Schroeer Fig. 6). The Examiner finds that Schroeer's
"stanchion 71 appears to be capable of carrying a lighter load than stanchion
72." Id.
We agree with the Examiner that Schroeer's stanchion 71 is capable
of being a non-structural stanchion by carrying a lighter load than stanchion
72. The burden shifts to Appellant to establish that Schroeer' s stanchion 71
is not necessarily capable of being a non-structural stanchion (i.e., incapable
of supporting a lighter load than stanchion 72), and Appellant does not meet
this burden. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997)
( once the Examiner finds that the prior art structure would be capable of
performing all of the functions claimed, the burden shifts to the applicant to
show that this is not the case). More particularly, Appellant's argument that
Schroeer fails to explicitly state that its stanchions are structural and non-
structural (Appeal Br. 13) is not evidence or persuasive technical reasoning
as to why Schroeer' s stanchion 71 is not necessarily capable of being a non-
structural stanchion by supporting a lighter load than stanchion 72. As to
Appellant's argument that it "defines the structural and non-structural nature
of the stanchions by the type of coupling being used," and that Schroeer uses
the same type of coupling for both struts (id. at 12), we are not persuaded
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Application 14/537,791
that Appellant has defined sufficiently in the Specification the structural
and/or non-structural nature of the stanchions by the type of coupling being
used, as opposed to merely the load capable of being supported by the
stanchion ( which might vary depending on any number of other variables
besides the coupling).
Appellant also argues that Schroeer does not teach structural and non-
structural couplings. Appeal Br. 12, 13, 14. As described above, Appellant
argues that Schroeer teaches "that the same type of coupling is employed to
attach both of Schroeer' s struts." Id. at 13. The Examiner responds that
"Appellant does not make a physical distinction other [than] that of
structural and non-structural" and "[b ]ecause Schroeer includes structural
and non-structural stanchions ... , Schroeer inherently includes structural
and non-structural couplings." Ans. 5.
We look to the Specification for its description regarding structural
and non-structural couplings. Appellant's Specification describes that
elements such as "bolts or similar hardware elements that provide a
sufficiently firm coupling" "provide the required structural coupling for
supporting the load of the floor beam(s)." Spec. ,r 54. Appellant's
Specification also describes a "pinned clevis joint" as a suitable structural
coupling. Id. ,r,r 55-56. On the other hand, Appellant's Specification
identifies a slip joint, pin joint, hook-and-loop coupling, and magnetic
coupling as suitable non-structural couplings. Id. ,r,r 57---64. Appellant's
Specification, however, does not clearly define structural and non-structural
couplings so as to make them mutually exclusive of each other. Appellant
has not persuaded us that the Examiner's position in which couplings are
considered structural and non-structural based on the type of stanchion with
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Appeal2017-010568
Application 14/537,791
which they are used is precluded by the Specification or is otherwise
unreasonable. Therefore, Schroeer's disclosure of fastening points 271,272
for connection of stanchions 71, 72 to frame 7 and specifically "two
fastening points 270 located in the vicinity of one another" for connection of
stanchions 71, 72 to cross beam 6 (Schroeer ,r 56, Fig. 6) can reasonably be
considered a disclosure of first and second structural couplings and first and
second non-structural couplings. Appellant argues Schroeer teaches away
from using two different types of couplings of any kind. Appeal Br. 13. We
do not find this argument persuasive in that it is not responsive to the
Examiner's rejection, which is not based on modification of Schroeer' s
couplings, but instead on a finding that using the same type of coupling in
connection with two differently oriented stanchions is sufficient.
Appellant next argues that even if Roeder teaches floor 23 directly
attached to frame 17 (Roeder Fig. 2A), this does not teach or suggest a floor
beam being directly attached to the frame. Appeal Br. 16. Appellant asserts
that Roeder instead discloses a longitudinally extending girder 32 for
supporting the floor. Id. (citing Roeder 6:47-50, 15:12-20, Fig. 2A).
Appellant argues that although longitudinal girder 32 serves as a means for
supporting floor 23 (i.e., is a floor beam), it is not attached to the frame. Id.
at 16-1 7. Appellant further asserts that Roeder discloses that "girder 3 2 is in
tum supported by cross-beams 111 ... which transfer the load to the
fuselage shell 17 ." Id. at 17 (italics omitted) ( citing Roeder Fig. 28).
Appellant argues that cross-beam 111 "is not a floor beam" and, thus, does
not teach or suggest directly attaching a floor beam to a frame. Id. at 17-18.
We are not persuaded by Appellant's argument that the Examiner
failed to articulate reasoning having rational underpinnings in support of
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Application 14/537,791
attaching a floor beam directly to the frame. Roeder' s cross beams 111 are
attached to the frame and support the floor as a floor beam ( albeit by
supporting girder 32 which in tum directly supports floor 23). Appellant
appears to acknowledge as such by the first part of its statement that
"Roeder, in fact, discloses a system in which the floor is supported by floor
beams, directly attached to the frame, but the Examiner's Answer
confabulates this statement as equivalent to the floor itself being directly
attached to the frame." Reply Br. 5---6. The Examiner determines that the
use of "floor beams directly attached to the frame [is] consistent with the
floor 23 being directly attached to frame 1 7." Ans. 6. 4 Considering the
extent of the span of a floor across an aircraft and the teachings of Roeder,
we agree with the Examiner that one of ordinary skill in the art would have
been led to attach Schroeer' s floor, as well as its supporting floor beams, to
the frame. See Final Act. 4.
Appellant also argues that "even if Roeder could be combined with
Schroeer to provide a floor beam attached to the frame(s) at both ends, such
combination would make Schroeer unsuitable for its intended purpose."
Appeal Br. 18. That is, Appellant argues that having the floor beam attached
to the frame "would prevent the kind of access to the edge region 400
envisaged by Schroeer." Id. ( citing Schroeer ,r 42). The Examiner responds
that a floor beam would not prevent access to a region of the aircraft in that
4 Although we do not rely on the following, we also note that the
Background of Appellant's Specification states that "[m]any commercially
available aircraft include floor beams extending between opposite sides of
the fuselage and attached to the frames of the fuselage" and that "[t]he floor
beams support the floor of the passenger compartment and/or the upper
cargo compartment." Spec. ,r 1.
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Application 14/537,791
the floor plates 2 described in paragraph 42 of Schroeer may be included
along with the floor beam. Ans. 6. Appellant replies that "Schroeer indeed
discloses that access to the edge region (where supply and signal lines can be
accessed-see paragraph [0040]) may be provided by plate removal, but
accessing the edge region by removing the plate involves additional
procedures, which would incur additional cost." Reply Br. 6-7. However,
increased cost is not dispositive. In re Farrenkopf, 713 F.2d 714, 718 (Fed.
Cir. 1983) ("That a given combination would not be made by businessmen
for economic reasons does not mean that persons skilled in the art would not
make the combination because of some technological incompatibility. Only
the latter fact would be relevant."). In addition, that extending a floor, and
its supporting floor beam, to the frame and using floor access plates may
involve additional procedures suggests that the Examiner's proposed
modification of Schroeer involves tradeoffs; however, such considerations
do not necessarily preclude the proposed combination. See Medichem, S. A.
v. Rolabo, S. L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) ("a given course of
action often has simultaneous advantages and disadvantages, and this does
not necessarily obviate motivation to combine"); Winner Int 'l Royalty Corp.
v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) ("The fact that the
motivating benefit comes at the expense of another benefit, however, should
not nullify its use as a basis to modify the disclosure of one reference with
the teachings of another. Instead, the benefits, both lost and gained, should
be weighed against one another."). Given this acceptable consideration of
tradeoffs, and Appellant's failure to specifically address or identify error in
the Examiner's position, we are unpersuaded by Appellant's argument.
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Application 14/537,791
For the foregoing reasons, we do not find that the Examiner erred in
concluding that the subject matter of claims 1 and 23 would have been
obvious in view of the combination of Schroeer and Roeder. We sustain the
rejection of claims 1 and 23 under 35 U.S.C. § 103(a) as unpatentable over
Schroeer and Roeder. We also sustain the rejection of independent claim 29
and claims 2---6, 14--16, and 30-33 depending from independent claims 1, 23,
or 29, for which Appellant relies on the same arguments.
Re} ection II
Appellant relies on the same arguments and reasoning we found
unpersuasive in connection with independent claims 1, 23, and 29 as the
basis for seeking reversal of the rejection of claims 18-22. Accordingly, we
also sustain the rejection of claims 18-22 under 35 U.S.C. § 103(a) as
unpatentable over Schroeer, Roeder, and Abdelmaseh.
DECISION
The Examiner's decision to reject claims 1---6, 14--16, 23, and 29-33
under 35 U.S.C. § 103 as unpatentable over Schroeer and Roeder is
affirmed.
The Examiner's decision to reject claims 18-22 under 35 U.S.C.
§ 103 as unpatentable over Schroeer, Roeder, and Abdelmaseh 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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