Ex Parte Bridgewater

Patent Trial and Appeal Board

Jul 14, 2016

11979677 (P.T.A.B. Jul. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111979,677 11/07/2007
23117 7590 07119/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Robert James Bridgewater
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.
SCS-5065-12 3469
EXAMINER
DRIGGERS, GWENDOLYN YVONNE
ART UNIT PAPER NUMBER
3679
NOTIFICATION DATE DELIVERY MODE
07/19/2016 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
L11'-~ITED STATES PATENT AND TRADE~'v1ARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ROBERT JAMES BRIDGEWATER
Appeal2014-004326
Application 11/979,677
Technology Center 3600
Before LINDA E. HORNER, LYNNE H. BROWNE, and
THOMAS F. SMEGAL, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert James Bridgewater (Appellant)1 seeks our review under
35 U.S.C. § 134 of the Examiner's decision rejecting claims 1-14 and 20-
23, which are all of the pending claims. Final Action, dated February 17,
2012 ("Final Act."). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as Airbus Operations Limited.
Appeal Brief, dated July 16, 2012 ("Br.") 4.
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Application 11/979,677
CLAIMED SUBJECT MATTER
Appellant's claimed subject matter relates to "fuel pipe couplings."
Spec. 1, 1. 5. Claim 1 is representative of the subject matter on appeal and is
reproduced below.
1. An aircraft fuel pipe coupling comprising,
a pipe end fitting including a flange,
a socket arrangement in which the pipe end fitting is
located,
an elastomeric resiliently deformable interfacing body
including a partially spherical internal surface, wherein the
resiliently deformable interfacing body is located between the
pipe end fitting and the socket arrangement such that the partially
spherical internal surface is associated with the flange of the pipe
end fitting,
a first seal located between the partially spherical internal
surface of the resiliently deformable interfacing body and the
flange of the pipe end fitting, and
a second seal located between the resiliently deformable
interfacing body and the socket arrangement.
EVIDENCE
The Examiner relied upon the following evidence:
Ward
Barber
Couty
Petrie
us 39,691
us 1,214,985
us 2,273,395
us 4, 154,551
2
Aug. 25, 1863
Feb. 6, 1917
Feb. 17, 1942
May 15, 1979
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Application 11/979,677
REJECTIONS
The Final Action, from which this appeal is taken, contains the
following rejections: 2
1. Claims 20 and 22 under 35 U.S.C. § 112, second paragraph, as
indefinite.
2. Claims 1-11, 20, 21, and 23 under 35 U.S.C. § 103(a) as
unpatentable over Petrie and Couty.
3. Claims 12, 13, and 22 under 35 U.S.C. § 103(a) as unpatentable
over Petrie, Couty, and Barber.
4. Claim 14 under 35 U.S.C. § 103(a) as unpatentable over Petrie,
Couty, and Ward.
ANALYSIS
First Ground of Rejection
Claim 20 is directed to an aircraft including an aircraft fuel pipe
system, the system including a fuel pipe coupling according to claim 1.
Br. 20 (Claims App.). Claim 22 is directed to an aircraft including an
aircraft fuel pipe system according to claim 12. Id. at 21. The Examiner
stated that these claims are indefinite because they "omit[] essential
structural cooperative relationships of elements" such as "the relationship
2 The Final Action also included a rejection of claim 23 under 35 U.S.C.
§ 112, first paragraph. Final Act. 3--4. The Examiner withdrew this
rejection in the Examiner's Answer, dated September 24, 2013 ("Ans.").
Ans. 13.
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Application 11/979,677
between the 'fuel pipe system' and the aircraft, and the relationship between
the 'fuel pipe system' and the coupling of claims 1 and 12." Final Act. 4.
The Examiner explained that it "is unclear whether the fuel pipe system is
part of the claimed aircraft's fuel system, or merely onboard the aircraft, or
something else altogether." Id.
Appellant contends that "the issue of interrelating an aircraft, an
aircraft fuel system and the aircraft fuel system including a fuel pipe
coupling was settled in the decision of the Director of Group Art Unit 3600,
Director David Talbott in the Decision on Petition [in] co[-]pending
application Serial No. 11/890,516 dated June 20, 2011." Br. 12-13. This
Petition Decision granted a request by applicant for review of a restriction
requirement that required restriction between claims directed to a coupling
and claims directed to an aircraft. The Petition Decision withdrew the
restriction requirement, because the claimed subject matter in the co-pending
application was determined not to be properly "restrictable as
subcombinations useable together in a single combination." Pet. Dec. 2.
This Petition Decision has no bearing on the issue of indefiniteness that
forms the basis of the Examiner's rejection before us on review.
Further, contrary to Appellant's contention (Br. 13), the Examiner's
rejection is not based on Appellant's use of "a shorthand format" to claim
the aircraft of claims 20 and 22 with reference to either the coupling of claim
1 or the system of claim 12. Rather, the Examiner clearly explained that the
rejection is based on a lack of recited essential structural cooperative
relationships of elements in each claim. Final Act. 4; Ans. 14.
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Application 11/979,677
As to the cited basis for the indefiniteness rejection, Appellant
contends that "those of ordinary skill in the aeronautical art will understand
that powered aircraft do include an aircraft fuel pipe system and that such
system can include a fuel pipe coupling." Br. 13. The Examiner interpreted
these claims more broadly, determining that "[a ]s currently claimed[,] the
aircraft can only be deemed an intended environment of the system and
coupling" and determining that "[t]he inclusion of 'An aircraft including'
does not act to limit the claim[ s] since the function and relationship of the
aircraft in relation to the coupling and the fuel system has not been
established." Final Act. 5 (noting that the claim does not state that "the
coupling is utilized in a fuel system which is utilized in an aircraft"); see
also Ans. 14.
We agree with the Examiner that claims 20 and 22 do not positively
recite a structural relationship between the aircraft, and the fuel pipe system
including the claimed fuel pipe coupling. As such, these claims do not
distinctly claim that the coupling is utilized in a fuel pipe system that is
utilized in an aircraft, as asserted by Appellant. In this sense, they fail to
comply with 35 U.S.C. § 112, second paragraph, in failing to distinctly claim
what Appellant in his brief insists is his actual invention. See In re Collier,
397 F.2d 1003, 1005 (CCPA 1968) (holding that a claim that fails to
positively recite structural relationships of two elements by reciting what
may or may not occur upon the performance of future acts fails to comply
with 35 U.S.C. § 112, second paragraph, "in failing distinctly to claim what
appellant in his brief insists is his actual invention."). For this reason, we
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Application 11/979,677
sustain the rejection of claims 20 and 22 under 35 U.S.C. § 112, second
paragraph, as indefinite.
Second Ground of Re} ection
Appellant argues the claims subject to the second ground of rejection
(i.e., claims 1-11, 20, 21, and 23) as a group. Br. 14-15. We select claim 1
as representative of the group, and the remaining claims stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Appellant first argues that that Examiner erred in rejecting claim 1
because Petrie does not disclose an "elastomeric resilient deformable
interfacing body." Br. 14. The Examiner did not rely, however, on Petrie
alone for this aspect of the claimed subject matter. Final Act. 7-8 (finding
that although Petrie discloses a "resiliently deformable interfacing body" it
"fails to explicitly disclose that the interfacing body is made of an
elastomeric material"); see also Ans. 15 (finding that Petrie discloses its
socket 32 is "capable of returning to an original position" and thus is
"resilient" and capable of being deformed). Instead, the Examiner found
that Couty "discloses a fitting having an elastomeric resiliently deformable
interfacing body" and that it would have been obvious "to modify the pipe
joint of Petrie [] to have a rubber interfacing body as taught by Couty [] in
order to permit flexing, vibrating, and movement of the components with
respect to one another." Final Act. 8 (citing Couty, col. 1, 1. 10, col. 2, 1. 35,
col. 3, 11. 8-15). As such, Appellant's argument that Petrie fails to disclose
that its resilient deformable interfacing body is elastomeric is not persuasive
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of error because it fails to address the Examiner's proposed modification of
Petrie with the teaching of Couty.
Appellant next argues that the Examiner's reliance on Couty is
misplaced because "[t]he only partly spherical internal surface shown in
Couty is the metal hemispherical surfaces A and B" and that although
County "disclose[ s] an elastomeric resiliently deformable body 15 having a
partially spherical external surface, ... there is no suggestion that there is
any deformable material which has a 'partially spherical internal surface'
as claimed." Br. 15. Thus, Appellant argues that even if Couty and Petrie
were combined, the combination would not result in a resiliently deformable
interfacing body having a "partially spherical internal surface." Id.
This argument fails to address the Examiner's proposed application of
the teachings of Couty to the structure of Petrie. In particular, the Examiner
noted that one having ordinary skill in the art would glean from Couty that it
would be desirable to use an elastomeric material in a spherical socket to
allow for flexing and vibration with universal movement of the components
with respect to one another. Final Act. 8 (citing Couty, col. 3, 11. 8-15).
Appellant's argument that the combination would not result in the coupling
of claim 1 rests on bodily incorporation of Couty' s elastomeric washer 15
into Petrie's coupling. This is not the proper obviousness inquiry. In re
Keller, 642 F.2d 413, 425 (CCPA 1981) (holding that "[t]he test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of a primary reference; ... [r]ather, the
test is what the combined teachings of the references would have suggested
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to those of ordinary skill in the art.") (citations omitted); see also KSR Int'!
Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("[a] person of ordinary skill
is also a person of ordinary creativity, not an automaton"). Appellant's
argument fails to address the Examiner's proposition that one having
ordinary skill in the art would have been led to apply the teaching of Couty
to make the resilient socket member 32 of Petrie of an elastomeric material,
to achieve the advantages taught in Couty. See KSR, 550 U.S. at 418 ("the
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ").
Appellant next attacks the Examiner's articulated reason to modify
Petrie with the teachings of Couty. Br. 16 (arguing that the Examiner's
articulated reasoning is "only a conclusory statement"). For the reasons that
follow, we find that the Examiner's proposed modification is based on
rational underpinnings. Both Petrie and Couty relate to ball and socket
joints for joining lengths of pipe or rigid tubing. Petrie, col. 2, 11. 20-22,
Fig. 2; Couty, col. 1, 11. 1-4, Figs. 1-3. Petrie acknowledges the desirability
of imparting flexibility to its high pressure connection due to the "large
amount of relative motion [that] is normally experienced between the sled on
the seabed and the barge on the surface of the water." Petrie, col. 1, 11. 33-
38. Petrie discloses that "the mating contact between the surfaces 30 and 36
[respectively, the convex spherical surface 30 on the elongate member 28
and the concave spherical surface 36 on the socket member 32] allows the
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Application 11/979,677
elongate members 28 to freely pivot and rotate with respect to the body
member 22." Id. at col. 2, 11. 16-19.
Couty discloses that"[ w ]hen semi-rigid tubing or rigid tubing is
employed, a suitable flexible connection is required to prevent structural and
hydraulic failure of the tubing at the connecting means." Couty, col. 1,
11. 26-30. Couty, like Petrie, uses a ball and socket type connection to
achieve a flexible connection, and Couty further teaches that use of an
elastomeric member as the ball in this connection permits for flexing and
vibration of the components with respect to each other. Id. at col. 3, 11. 8-15.
We agree with the Examiner that it would have been apparent to one of
ordinary skill in the art, in light of Couty, that using an elastomeric material
in one of either the ball or socket portion of a ball and socket joint would
allow the joint to accommodate for flexing and vibration.
Based on this teaching in Couty, we agree with the Examiner's
determination that it would have been obvious to one having ordinary skill
in the art at the time of the invention to make the socket member 32 of Petrie
of an elastomeric material to achieve the same advantages as disclosed in
Couty. In other words, one having ordinary skill in the art would understand
Couty to disclose the use of an elastomeric material in the ball and socket
connection as a technique to improve its universal tubing fitting, and would
have recognized that this same technique would improve the similar ball and
socket connection of Petrie in the same manner. Such a predictable use of
prior art elements according to their established functions, when such use is
within the skill of one of ordinary skill in the art is obvious. See KSR, 550
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U.S. at 417 ("using [a prior art] technique [to improve similar devices in the
same way] is obvious unless its actual application is beyond [the skill of a
person of ordinary skill]"). For these reasons, we sustain the rejection of
claim 1 under 35 U.S.C. § 103(a) as unpatentable over Petrie and Couty.
Claims 2-11, 20, 21, and 23 fall with claim 1.
Remaining Grounds of Rejection
Appellant fails to present any additional arguments contesting the
third and fourth grounds of rejection of claims 12-14 and 22. We
understand Appellant's appeal of the rejection of these claims to rest on the
arguments presented against the proposed combination of Petrie and Couty,
which we found not demonstrative of error in the Examiner's rejection of
claim 1, as set forth supra. As such, for the same reasons, we sustain the
rejection of claims 12, 13, and 22 under 35 U.S.C. § 103(a) as unpatentable
over Petrie, Couty, and Barber and sustain the rejection of claim 14 under
35 U.S.C. § 103(a) as unpatentable over Petrie, Couty, and Ward.
DECISION
We sustain the rejection of claims 20 and 22 under 35 U.S.C. § 112,
second paragraph and the rejections of claims 1-14 and 20-23 under
35 U.S.C. § 103(a). Accordingly, the Examiner's decision rejecting claims
1-14 and 20-23 is AFFIRMED.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
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