Ex Parte Driver et al

Patent Trial and Appeal Board

Aug 15, 2016

12972806 (P.T.A.B. Aug. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/972,806 12/20/2010 Howard D. Driver
87853 7590 08/15/2016
Dority & Manning, PA and General Electric Company
Post Office Box 1449
Greenville, SC 29602
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.
246982-2/GEC-182B 1656
EXAMINER
HTAY,AYE SU MON
ART UNIT PAPER NUMBER
3745
MAILDATE DELIVERY MODE
08/15/2016 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 HOW ARD D. DRIVER and
WENDY WEN-LING LIN
Appeal2014-006644
Application 12/972,806
Technology Center 3700
Before MICHAEL L. HOELTER, JILL D. HILL, and
MARK A. GEIER, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1-20. App. Br. 3. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates in general to wind turbine rotor
blades, and more particularly to materials for mounting noise reducers to the
Appeal2014-006644
Application 12/972,806
rotor blades." Spec. il L Claims 1, 12, and 19 are independent. Claim 1 is
illustrative of the claims on appeal and is reproduced below:
1. A rotor blade assembly for a wind turbine, comprising:
a rotor blade having surfaces defining a pressure side, a
suction side, a leading edge, and a trailing edge extending
between a tip and a root;
a noise reducer mounted to a surface of the rotor blade,
the noise reducer comprising a plurality of noise reduction
features; and,
a bond layer disposed between the noise reducer and the
rotor blade for bonding the noise reducer to the rotor blade, the
bond layer having a shear modulus approximately equal to or
less than 500 megapascals.
REFERENCES RELIED ON BY THE EXAMINER
Josey
Ray
Herr
Haag
Zuteck
US 6,023,898 Feb. 15, 2000
US 6,352,601 Bl Mar. 5, 2002
US 2008/0166241 Al July 10, 2008
US 2009/0087314 Al Apr. 2, 2009
US 2010/0296940 Al Nov. 25, 2010
THE REJECTIONS ON APPEAL
Claims 1---6, 19, and 20 are rejected under 35 U.S.C. §103(a) as
unpatentable over Herr and Zuteck.
Claims 7, 8, and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Herr, Zuteck, Haag, and Josey.
Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Herr, Zuteck, Haag, Josey, and Ray.
Claims 12-14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Herr, Haag, and Josey.
Claims 15 and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Herr, Haag, Josey, and Ray.
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Application 12/972,806
Claims 17 and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Herr, Haag, Josey, and Zuteck.
ANALYSIS
The rejection of claims 1-6, 19, and 20
as unpatentable over Herr and Zuteck
Appellants argue independent claims 1 and 19 together. App. Br. 4--8.
Appellants also contend that because "claims 1 and 19 are allowable, all
claims depending therefrom are additionally allowable." App. Br. 8. We
select claim 1 for review with claims 2-6, 19, and 20 standing or falling with
claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner primarily relies on the teachings of Herr but
acknowledges that Herr does not teach a bond layer having the claimed
(flexible) characteristics. Final Act. 5-6. The Examiner relies on the
teachings of Zuteck for these missing limitations and concludes that it would
have been obvious "to modify the bond of Herr et al. by using the bond layer
... as taught by Zuteck for the purpose of joining the noise reducer and the
rotor blade." Final Act. 6-7.
Appellants contend, "the Examiner's only suggested motivation for
combining Zuteck and Herr is [a] conclusory statement." App. Br. 5; see
also App. Br. 7. Contrary to such an assertion, the Examiner makes several
findings regarding the motivation to combine Zuteck and Herr. In the Final
Office Action, the Examiner identifies where the primary reference to Herr
teaches, "[i]n order to reduce noise which is caused by various effects
related to the trailing edge 190 of the blade ... [t]he bristles can applied to
the blade body by a variety of methods such as gluing." Final Act. 6; see
also Herr i-f 29. Zuteck (also related to wind turbine blades) is relied upon
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for teaching "a bond layer (425) used to attach and assemble components of
a rotor blade," with this bond layer having the claimed (flexible)
characteristics. Final Act. 6 referencing Zuteck i-f 39 and Fig. 7. Referenced
Paragraph 39 of Zuteck teaches the use of a more flexible bond (i.e., the
claimed bond characteristics) rather than a more rigid bond normally found
in turbine blades. 1 In the Examiner's Answer, the Examiner also identifies
Paragraph 26 of Zuteck which states that such a bond is "in order to lower
the torsional stiffness of the shell and increase the twist response of the
blade." Ans. 6. The Examiner explains, "it would be desirable to use a
bonding layer having a lower shear modulus as taught by Zuteck when
assembling the components of the rotor blade of Herr" and that it would also
be desirable to secure Herr's noise reducers in this fashion "for the purpose
of reducing torsional stiffness." Ans. 6; see also Ans. 7. We thus are not
persuaded the Examiner failed to provide a reason for employing Zuteck' s
more flexible bond "for the purpose of joining the noise reducer and the
rotor blade." Final Act. 6-7. Appellants' contention that the Examiner's
stated reason is a "conclusory statement" is not persuasive. App. Br. 5.
Appellants also contend that, "[ n ]otably, no noise reducer is taught by
Zuteck." App. Br. 5. However, the Examiner did not rely on Zuteck for
disclosing a noise reducer. See Herr and Final Act. 6. Instead, the Examiner
relied on Zuteck for disclosing a flexible bond used in turbine blade
1 The following Paragraph 40 of Zuteck discusses the desire to reduce the
torsional stiffness of the blade so that "the twist response of the blade [is]
improved." Paragraph 40 continues stating, "the twist response of the blade
can be increased either by increasing the thickness of the bond layer 425 or
by utilizing an adhesive with a lower modulus of rigidity." Emphasis added.
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construction. Final Act. 6. Accordingly, Appellants' contention is not
persuasive of Examiner error.
Appellants also state, "[ t ]he bond layer of Zuteck is utilized for an
entirely separate purpose" but Appellants do not indicate why such a bond is
unable to be employed in the manner suggested, or is otherwise
unsatisfactory for bonding a noise reducer to a blade. Appellants'
contention is not persuasive of Examiner error.
Appellants further contend, "Herr discloses only rigid connections,
and not flexible bond layers."2 App. Br. 6; see also Reply Br. 3. However,
"[t]he Examiner finds no evidence that the adhesive used in the 'gluing'
method of Herr must be rigid." Ans. 2. Appellants do not indicate where
Herr precludes the use of a flexible adhesive or otherwise states that any
adhesion must be rigid in nature. Herr simply teaches that the noise reducer
(bristles) can be applied by "gluing" (Herr i-f 29) without limiting the type of
glue to be used. See also Ans. 3, 5. Appellants' contention regarding Herr's
disclosure is not persuasive the Examiner erred in relying on Herr.
Appellants additionally contend, "the Examiner cites Herr as
disclosing a bond layer by partially quoting a single sentence." App. Br. 6.
However, there is no dispute that this quote identifies several methods by
which Herr's noise reducing bristles may be attached to the blade, with one
being via "gluing." Herr i-f 29; see also Final Act. 6.
Appellants also contend, "because [Herr's] bristles are necessarily
flexible, additional flexibility in the connection of the bristles to the rotor
blade would not be desirable." App. Br. 7. However, Appellants do not
2 Appellants state "[t]hese are all rigid connections." App. Br. 6.
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explain how, if flexibility is desired, why increasing such flexibility such as
via the use of a more flexible adhesive, would "not be desirable" as well.
Appellants further reference a Declaration submitted "by Stefan Herr,
one of the named inventor[s] listed on Herr." App. Br. 7. Appellants
identify where Mr. Herr states therein, "[t ]he flexible bristles of [Herr] are
intended to be attached to a rotor blade by a rigid connection." App. Br. 7;
Deel. i-f 5; see also Deel. i-f 7. The Examiner addresses Mr. Herr's statement
as to how the bristles "are intended to be attached" stating that Herr "is
evaluated for what it reasonably conveys ... and not the later asserted
intention of a prior Applicant." Ans. 3--4. The Examiner further states,
"[t]he Declaration does not disclose any evidence that a rigid connection is
more desirable than a flexible connection and that only a rigid connection
can be used as the means of attachment in the context of the prior art of
Herr." Ans. 4. We agree with the Examiner's assessment of the submitted
declaration, i.e., a later statement regarding how the bristles were intended to
be attached is not a limit on what Herr actually teaches, which is attachment
via gluing. Furthermore, even presuming Herr discloses a rigid manner of
attachment, Appellants do not explain how Zuteck' s disclosure of employing
a more flexible bond would render Herr (with Zuteck's adhesive) unsuitable
for its intended purpose. See also Ans. 4. Accordingly, the submitted
Declaration is not persuasive of Examiner error.
Lastly, Appellants contend the Examiner relied on "improper
hindsight." App. Br. 4; see also App. Br. 7 and Reply Br. 3. However,
Appellants do not indicate how the Examiner's rejection was gleaned only
from Appellants' disclosure when Herr teaches attachment via gluing and
Zuteck teaches the advantages of employing a flexible bond.
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Based on the record presented, we sustain the Examiner's rejection of
claims 1-6, 19, and20.
The rejection of (a) claims 7, 8, and 11 as unpatentable over Herr, Zuteck,
Haag, and Josey; and, (b) claims 9 and 10 as unpatentable over Herr,
Zuteck, Haag, Josey, and Ray
Each of these claims depend (directly or indirectly) from claim 1.
Appellants do not separately argue these rejections. See App. Br. 8.
Accordingly, we sustain the Examiner's rejections of claims 7-11.
The rejection of claims 12-14 as unpatentable over Herr, Haag, and Josey
Appellants present arguments with respect to independent claim 12,
and do not separately argue dependent claims 13 or 14. App. Br. 8-10. We
select claim 12 for review with claims 13 and 14 standing or falling
therewith.
The Examiner acknowledges that Herr does not teach a bond
"comprising an inner acrylic foam layer disposed between outer adhesive
layers" as recited and relies on Haag and Josey for such teachings. Final
Act. 14. The Examiner states that Haag teaches the use of "an acryl based
Pressure [S]ensitive Adhesive (PSA)" and that it would have been obvious
"to modify the bond layer of Herr et al. by replacing it with the acryl based
pressure sensitive adhesive as taught by Haag." Final Act. 14. However,
this combination of Herr and Haag does not disclose "an inner acrylic foam
layer" as recited. For this, the Examiner relies on the teachings of Josey.
Final Act. 14. The Examiner concludes that it would have been obvious "to
modify the pressure sensitive adhesive of Herr et al. in view of Haag by
replacing it with the pressure sensitive adhesive as taught by Josey." Final
Act. 14; see also Ans. 9. The Examiner states that this replacement in favor
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of Josey's adhesive would have been obvious "due to the fact that the
substitution of one known element ... for another ... would have been
obvious ... since the substitution of acryl based Pressure Sensitive Adhesive
of Josey would have yielded predictable results, namely securing two
components together." Ans. 9.
Appellants contend, "Josey is non-analogous art, and must be
excluded from present consideration." App. Br. 9. Appellants state that
Josey is not (a) "in the same field of endeavor as the present disclosure," and
(b) "considered reasonably pertinent to the present disclosure" (i.e.,
reasonably pertinent to the problem with which the inventor is involved).
App. Br. 9; see also App. Br. 8.
The Examiner explains, "Haag discloses an acryl based Pressure
Sensitive Adhesive" for use on wind turbine blades. Ans. 8. "The specific
details of the acryl based Pressure Sensitive Adhesive has been
supplemented by Josey" because "Josey teaches a particular type of acryl
based pressure sensitive adhesive." Ans. 8. Further, as per the Examiner,
"Josey teaches an acryl based Pressure Sensitive Adhesive that attaches two
components together" and that "[t]he adhesive of Josey solves the same
problem as the [Appellants'] invention and prior [art] Herr and Haag are
trying to solve, which is to attach two components together." Ans. 8. Thus,
"the adhesive of Josey is an analogous art." Ans. 8.
The Examiner's explanation is sound. Herr and Haag address the
problem of attaching wind turbine components together, with Haag
specifically teaching the advantage "of adhesives such as an acryl based
pressure sensitive adhesive." Haag i-f 38. Josey also teaches the use of acryl
based pressure sensitive adhesive to secure components together, and more
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particularly a "double-sided adhesive tape [] formed of a closed-cell acrylic
foam carrier having pressure sensitive adhesive on both sides." Josey
Abstract. Hence, Josey is directed to a problem with which the inventor was
also concerned, i.e., securely fastening separate components together.
Furthermore, based on Haag's disclosure of employing pressure sensitive
adhesive on turbine blades, Appellants do not persuade us that one skilled in
the art (when contemplating the use of pressure sensitive adhesive on turbine
blades) would fail to look to the teachings of Josey for such a pressure
sensitive adhesive. Josey is also likely to be of interest due to Josey's usage
of such an adhesive in joining building framing components that must
withstand sizeable loading.
For these reasons, we are not persuaded the Examiner erred in relying
on Josey, or that Josey is non-analogous art as argued by Appellants.
Appellants also address the "conclusory fashion" and lack of
"motivation" by which the Examiner combined Herr, Haag, and Josey, but
we note the Examiner's repeated reliance on replacement or substitution as
the basis for the rejection. App. Br. 8-9; Final Act. 14. On this point, the
Supreme Court has provided guidance in matters that "involve more than the
simple substitution of one known element for another." KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007). In such cases (i.e., other than those
involving simple substitution), we are instructed that the Examiner's
analysis "should be made explicit" and "there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness." KSR, 550 U.S. at 418. Here, the Examiner's rejection is
based on one of replacement or substitution and thus does not fall into the
category of "more than the simple substitution of one known element for
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another," and all that that entails. See Final Act. 14; Ans. 9. Therefore, any
argument by Appellants addressing the "conclusory fashion" or "no
motivation" regarding the Examiner's rejection is without merit. 3
Accordingly, and based on the record presented, we sustain the
Examiner's rejection of claims 12-14 as being obvious over Herr, Haag, and
Josey.
The rejection of (a) claims 15 and 16 as unpatentable over Herr, Haag,
Josey, and Ray; and, (b) claims 17 and 18 as unpatentable over Herr, Haag,
Josey, and Zuteck
Each of these claims depend (directly or indirectly) from claim 12.
Appellants do not separately argue these rejections. See App. Br. 10.
Accordingly, we sustain the Examiner's rejections of claims 15-18.
DECISION
The Examiner's rejections of claims 1-20 are 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)(l )(iv).
AFFIRMED
3 Appellants contend that Haag already teaches the use of acryl based
adhesive and as such, there would be no reason to employ the foam adhesive
teachings of Josey. App. Br. 10. Further, Appellants contend, "[t]he
modification of Haag to utilize the adhesive of Josey would serve only to
complicate the Haag structure." App. Br. 10. However, as stated by the
Examiner, the "Josey reference was only used to further elaborate the details
of the acrylic based Pressure Sensitive Adhesive of Haag." Ans. 8.
Appellants are not persuasive that the replacement/substitution of Haag's
adhesive for Josey's adhesive would have been beyond the ability of one
skilled in the art.
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