Ex Parte Anderson et al

Patent Trial and Appeal Board

Dec 4, 2014

11714750 (P.T.A.B. Dec. 4, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DEREK W. ANDERSON and
RONALD N. ZAPPONE
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Appeal 2012-011212
Application 11/714,750
Technology Center 3700
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Before: JOHN C. KERINS, CHARLES N. GREENHUT, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Derek W. Anderson and Ronald N. Zappone (Appellants) appeal
under 35 U.S.C. § 134 from the Examiner’s final decision rejecting claims
1–15. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

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Application 11/714,750

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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter on appeal.
1. A method of repairing a defect in a splitter fairing of a
turbine engine, the method comprising:
removing a forward portion of the splitter fairing along a
radial line from a central axis of the turbine engine, the forward
portion comprising an inner flange and outer surface that create
a channel, wherein an original portion of the splitter fairing is
salvaged;
welding a replacement ring to the original portion, the
replacement ring having minimum dimensions equal to the
maximum height and width of the removed forward portion;
removing material from the replacement ring to obtain a
profile with essentially the same profile for the inner flange,
outer surface, and channel as an original specifications for the
splitter fairing.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Swick et al.
Bogard et al.
Nolan et al.
Templeton
Mussen
Trewiler et al.
Roedl et al.
US 3,449,816
US 5,205,465
US 6,128,820
US 6,301,780 B1
US 2005/0172485 A1
US 6,969,826 B2
US 7,278,829 B2
June 17, 1969
April 27, 1993
Oct. 10, 2000
Oct. 16, 2001
Aug. 11, 2005
Nov. 29, 2005
Oct. 9, 2007
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REJECTIONS
Claims 1–3, 7, 9–11, and 15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Appellants’ Admitted Prior Art1 (hereinafter
“AAPA”), Bogard, and Mussen. Ans. 5–9.
Claims 4 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Bogard, Mussen, and Nolan and/or Templeton.
Id. at 9–10.
Claims 5 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Bogard, Mussen, and Trewiler. Id. at 10–11.
Claims 6 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Bogard, Mussen, Trewiler, and Roedl. Id. at 11.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Bogard, Mussen, 2 and Swick. Id. at 11–12.
OPINION
The Examiner finds that AAPA teaches that splitter fairings are
known in the art and that the front hooks of splitter fairings often need
repair. Ans. 5 (citing AAPA). The Examiner relies on Bogard’s teachings

1 The Examiner refers to paragraphs 2 and 3 as set forth in the “Background
of the Invention” section of the Specification as Appellants’ Admitted Prior
Art. Ans. 5.
2 Appellants assume claim 8 is rejected as being unpatentable over AAPA,
Bogard, Mussen, and Swick, despite the Examiner’s reference to Ivakitch
(US 2008/0069697 A1, pub. Mar. 20, 2008) instead of Mussen in the Final
Rejection mailed June 9, 2011. Br. 4. We consider the Examiner’s failure
to replace the reference to Ivakitch in the Final Rejection with a reference to
Mussen in the Examiner’s Answer to be an inadvertent error in light of the
prior art relied upon in the rejection of claim 1 from which claim 8 indirectly
depends.
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relating to a method of repairing an airseal land 12 on a turbine that involves
(i) machining away a damaged airseal land; (ii) leaving a stub of original
material, and (iii) attaching an oversized ring of material to the stub, the
oversized ring then being machined to match the original configuration. Id.
at 6 (citing Bogard, Abstr., 3:1–2, 59–62, 4:3–6, Figs. 2, 5, 6, 7, 8, and 9).
The Examiner reasons that “[i]t would have been obvious to one of ordinary
skill in the art . . . to use the repair method of Bogard on the splitter fairing
of AAPA to yield a predictable repair.” Id. at 7. The Examiner explains that
Bogard’s airseal land repair technique is for a similar device to the AAPA’s
splitter fairing and is also inside the same type of engine (i.e., a turbine). Id.
The Examiner further finds that “the concept of cutting off a damaged
component portion, joining . . . on an oversized replacement portion, and
grinding down the replacement portion to original specifications is a well-
known repair technique.” Id. (citing, for example, Bogard, Mussen, and
Trewiler).
The Examiner acknowledges that Bogard does not explicitly teach
welding the oversized ring of material to the stub. Id. The Examiner,
however, finds that Mussen teaches using electron beam welding to weld
replacement stator vane segments in a turbine. Id. at 8. The Examiner
concludes that “[i]t would have been obvious to one of ordinary skill in the
art . . . to modify Bogard to try and use the welding technique of Mussen
because it is obvious to apply a known technique to a known product or
method to yield predictable results.” Id. The Examiner explains that the
repaired part of Mussen “need[s] to survive in the same temperature and
environment as the seal component of Bogard” and that Mussen teaches, for
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example, the successful repair of vanes on a Pratt & Whitney 4000 high
pressure compressor. Id.
Appellants argue that Bogard “teaches away from the claimed repair
by requiring forge joining of components” as Bogard states that inertia
welding is unsatisfactory to maintain mechanical properties of the repaired
element. Br. 4–5 (citing Bogard, 1:62–66). This argument is not persuasive
because “[a] reference does not teach away . . . if it merely expresses a
general preference for an alternative invention but does not ‘criticize,
discredit, or otherwise discourage’ investigation into the invention claimed.”
DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314,
1327 (Fed. Cir. 2009) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir.
2004)). At most, Appellants have pointed out how Bogard criticizes or
discredits the use of inertia welding in particular, but not other types of
welding specifically contemplated by Appellants, such as electron beam
welding. See Ans. 12–13.
Appellants further argue that Bogard’s airseal land “is located in an
entirely different area of an engine than the claimed splitter fairing of claim
1.” Br. 5. Both Bogard’s airseal land and AAPA’s splitter fairing are
located in high temperature regions of a turbine engine (see, e.g., Bogard,
2:8–11), and Appellants do not persuasively explain why one of ordinary
skill in the art would not have found Bogard’s method of repair to be
predictable for use in connection with a splitter fairing. See also Ans. 14
(stating that “Appellant[s] ha[ve] provided no mechanical reasons that would
prevent using this basic and conventional repair technique on a splitter
fairing.”).
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Appellants argue that Mussen also “teaches away from the claimed
invention” because “Mussen specifically teaches removal [of a portion of the
component of a turbine engine] in a direction counter to the claim language,”
that is, removal of material that is “either parallel or at an angle to axis of the
engine, not along a generally radial line from the central axis.” Br. 5 (citing
Mussen, Fig. 5). Appellants’ additional “teach away” argument is not
persuasive because Appellants do not identify any passages in Mussen that
criticize, discredit, or discourage the removal of material along a generally
radial line from the central axis. See DePuy Spine, 567 F.3d at 1327.
Appellants’ additional argument that “the part being repaired in Mussen is
neither a splitter fairing . . . nor a generally cylindrical part” (Br. 5) is also
not persuasive because it fails to address the rejection as articulated by the
Examiner in which Mussen is relied on for the specific teaching of welding
in connection with AAPA (teaching a splitter fairing) as already modified by
Bogard (teaching a specific repair method). In summary, Appellants have
not persuasively explained why the Examiner’s articulated reasoning for
combining AAPA, Bogard, and Mussen, namely, the application of known
techniques to a known product or method to yield predictable results, lacks a
rational underpinning. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections
on obviousness grounds . . . [require] some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.”)).
For the foregoing reasons, we sustain the Examiner’s rejection of
independent claims 1 and 9, which Appellants argue as a group. Br. 4–7;
37 C.F.R. § 41.37(c)(1)(vii) (2011). We also sustain the Examiner’s
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rejections of dependent claims 2–8 and 10–15, for which Appellants rely on
the same arguments and reasoning. See Br. 7.
DECISION
The Examiner’s decision to reject claims 1–15 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)(1)(iv).

AFFIRMED
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