Ex Parte Lauder et al

Patent Trials and Appeals Board

Jul 9, 2019

14716402 - (D) (P.T.A.B. Jul. 9, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/716,402 05/19/2015 Arnold J. Lauder
107112 7590 07/11/2019
The Small Patent Law Group LLC
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UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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ATTORNEY DOCKET NO. CONFIRMATION NO.
14-2038-US-CIP (800-88) 9273
EXAMINER
LUKS, JEREMY AUSTIN
ART UNIT PAPER NUMBER
2837
NOTIFICATION DATE DELIVERY MODE
07/11/2019 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):
docket@splglaw.com
patentadmin@boeing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARNOLD J. LAUDER and MARK F. GABRIEL
Appeal2018-008638
Application 14/716,402
Technology Center 2800
Before LINDA M. GAUDETTE, MONTE T. SQUIRE, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from a final rejection2 of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify "The Boeing Company" as the real party in interest.
Appeal Brief of April 30, 2018 ("App. Br."), at 4.
2 Final Office Action of January 3, 2018 ("Final Act."). In this Opinion, we
also refer to the Examiner's Answer of July 13, 2018 ("Ans.") and the Reply
Brief of September 4, 2018 ("Reply Br.").
Appeal2018-008638
Application 14/716,402
CLAIMED SUBJECT MATTER
The claims are directed to a system and method for forming elongated
perforations in an inner barrel section of an aircraft engine. Claims 1, 8, and
13, reproduced below, are independent claims illustrative of the claimed
subject matter:
1. An acoustic inlet barrel of an engine, the acoustic inlet
barrel comprising:
an inner barrel configured to provide a boundary for
directing airflow through the engine, the inner barrel comprising
an inner face sheet separated from an outer face sheet by an
acoustic core, wherein the inner face sheet comprises a plurality
of elongated, non-circular perforations formed when the inner
fact sheet is coupled to the outer face sheet by the acoustic core.
8. A method of forming a component of an engine, the
method comprising:
sandwiching an acoustic core between an inner section
and an outer section of the component; and
forming a plurality of elongated, non-circular
perforations in at least a portion of the inner section.
13. A forming system, comprising:
at least one robotic forming unit including at least one
end effector positioned inside a barrel section configured as a
composite sandwich structure having an inner face sheet,
wherein the at least one robotic forming unit is operable to form
a plurality of elongated, non-circular perforations into the inner
face sheet using the at least one end effector to provide a
predetermined percent-open-area of the inner face sheet.
Claims Appendix (App. Br. 34, 35).
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Application 14/716,402
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Calder
Vavalle
US 2010/0126971 Al
US 2013/0075193 Al
REJECTION
May 27, 2010
Mar. 28, 2013
Claims 1-20 are rejected under 35 U.S.C. § 103 as being unpatentable
over Vavalle in view of Calder. Final Act. 2.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. Cf Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) ("it has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections")). After having
considered the evidence presented in this Appeal and each of Appellants'
arguments, we are not persuaded that Appellants identify reversible error,
and we affirm the Examiner's § 103 rejection for the reasons expressed in
the Final Office Action and the Answer. We add the following primarily for
emphasis.
Claim 1
The Examiner finds that Vavalle teaches or suggests all limitations of
the recited acoustic inner barrel of claim 1 except "a plurality of elongated,
non-circular perforations" for which the Examiner cites Calder. Final Act. 3
(citing various portions ofVavalle and Calder). Based on the finding that
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Application 14/716,402
"Vavalle teaches rounded or circular perforations, and Calder teaches
employing circular perforations, as well as, elongated, non-circular
perforations," the Examiner concludes that a skilled artisan would have
combined the prior art teachings "to provide [a] simple substitution of one
known perforation shape for another, to provide the predictable result of the
perforations allowing sound waves to enter the acoustic core/panel,
regardless of the perforation shape." Id.
Appellants do not dispute the Examiner's findings regarding the prior
art's teachings but argue that the Examiner reversibly erred in rejecting
claim 1 3 because "Calder discloses a process of forming holes through ...
skin 10 [an 'acoustic sheet' on an aircraft (Calder ,r 14)], but not a portion of
a composite sandwich structure." App. Br. 11. According to Appellants, the
electron beam "drilling process of Calder that forms such holes 12 would not
work with a composite sandwich panel" and unless the Examiner provides
an explanation as to "how the complex EB drilling system 20 of Calder ...
can be used to modify" Vavalle to form the recited elongated perforations,
the rejection cannot stand. Id. at 11, 12, 14 (emphasis omitted).
We are not persuaded by Appellants' argument for several reasons.
From the outset, "when a patent claims a structure already known in the
prior art that is altered by the mere substitution of one element for another
known in the field, the combination must do more than yield a predictable
result." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007) (citing U.S.
v. Adams, 383 U.S. 39, 50-51 (1966)). To support of an obviousness
3 Appellants do not present separate arguments for the rejection of claims
4--7. See, e.g., App. Br. 8-33. These claims, therefore, stand or fall with
claim 1. See id. at 9; see also 37 C.F.R. § 4I.37(c)(l)(iv) (2013).
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Application 14/716,402
rejection, the Examiner must provide "some articulated reasoning with some
rational underpinning." Id. at 418 (internal quotation marks and citation
omitted).
In this case, Appellants' argument does not address the Examiner's
rationale that the rejection is based on the substitution of one known
perforation shape with another. Compare App. Br. 11-14, with Final Act. 3,
13-14; compare Ans. 3 (finding that both references "are directed toward
acoustic panels for use in an aircraft engine housing/nacelle" and "[b ]oth
panels include a perforated face sheet and backing sheet, with an acoustic
honeycomb shaped core layer sandwiched in between the face and backing
sheets" and the rejection is based on the substitution of perforation shapes
not the method for forming the perforations), with Reply Br. 2 ( disagreeing
with the rejection without specifically addressing any claim).
As the Examiner points out, Appellants' argument which is solely
based on the prior art process of forming perforations does not structurally
distinguish the recited apparatus and is therefore unpersuasive of error. See
Final Act. 13-14 ( stating that Appellants' argument regarding the prior art
processes is moot for an apparatus claim); see also Ans. 3 (making a similar
statement). The Examiner further notes that Appellants have not provided
evidence showing that Vavalle' s drilling method would be incapable of
producing elongated perforations as taught by Calder - both of which use a
computer guided/automated drilling device. Ans. 4. We further note that
Appellants' arguments indeed lack evidentiary support and such attorney
arguments are not persuasive as they "cannot take the place of evidence." In
re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
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We further note that in support of the obviousness rejection, the
Examiner cites a prior art reference known as Lalane for the teaching that
circular and elongated perforations "can be interchangeably formed by either
a laser beam as taught by Vavalle or an electron beam as taught by Calder."
Final Act. 3--4. Appellants do not dispute this finding and we accept this
finding as fact in support of the Examiner's rejection. See In re Kunzmann,
326 F.2d 424,425 n.3 (CCPA 1964).
Moreover, a change of shape does not make a product nonobvious
where the claimed shape is not of functional significance and accomplishes
the same purpose as the prior art shape. See In re Dailey, 357 F.2d 669,
672-73 (CCPA 1966). It has been generally held that changes in sizes of
shapes of known elements are within the level of skill in that art, especially
in the absence of unexpected results or criticality. Cf Gardner v. TEC Sys.,
Inc., 725 F.2d 1338, 1349 (Fed. Cir. 1984) (holding that, where the only
difference between the prior art and the claims was a recitation of relative
dimensions of the claimed device and a device having the claimed relative
dimensions would not perform differently than the prior art device, the
claimed device was not patentably distinct from the prior art device).
In this case, Appellants do not identify any functional significance of
the recited elongated shaped perforation, and thus, the recited apparatus is
not patentably distinguished from the prior art for this additional reason.
Claim 2
Claim 2 depends from claim 1 and recites "wherein each of the
perforations is elongated with respect to a longitudinal axis."
The Examiner finds that, because "rearranging parts of an invention
involves only routine skill in the art," "arranging or rearranging the
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elongated, non-circular perforations to be elongated with respect to a
longitudinal axis is obvious so as to desirably tune the Calder device." Final
Act. 4 ( citing Calder for the teaching of "linking the hole arrangement to
tuning"); see also Ans. 6 (citing Calder ,r 20 in support of the rejection).
Appellants do not address the Examiner's fact findings in this regard
(for example, Calder ,r 20) but argue that the Examiner engaged in
impermissible hindsight and that neither reference provides a motivation or
reason for a skilled artisan to combine the references. App. Br. 14--15; see
also Reply Br. 2 (disagreeing with the rejection without specifically
addressing any claim).
We are not persuaded by Appellants' argument because it is
conclusory and does not meaningfully address the Examiner's analysis and
fact findings in support of the rejection. Appellants also do not adequately
explain why the Examiner reversibly erred in finding that rearranging parts
of a known structure is within the skill of the ordinary artisan. The rejection
of claim 2 is therefore sustained.
Claim 3
Claim 3 depends from claim 2 and recites "wherein the longitudinal
axis aligns with a flow contour line of the airflow through the engine."
The Examiner finds that, because "rearranging parts of an invention
involves only routine skill in the art," "arranging or rearranging the
elongated, non-circular perforations to be elongated with respect to a
longitudinal axis which aligns with a flow contour line of the airflow
through the engine is obvious so as to desirably tune the Calder device."
Final Act. 5 ( citing Calder for the teaching of "linking the hole arrangement
to tuning"); see also Ans. 7-8 (citing Calder ,r 20 in support of the rejection).
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Appellants do not address the Examiner's fact findings (for example
Calder ,r 20), but argue that the Examiner engaged in impermissible
hindsight and that neither reference provides a motivation or reason for a
skilled artisan to combine the references. App. Br. 16-17; see also Reply Br.
2 ( disagreeing with the rejection without specifically addressing any claim).
We are not persuaded by Appellants' argument because it is
conclusory and does not meaningfully address the Examiner's analysis and
fact findings in support of the rejection. Appellants also do not adequately
explain why the Examiner reversibly erred in finding that rearranging parts
of a known structure is within the skill of the ordinary artisan. The rejection
of claim 3 is therefore sustained.
Claim 8
Appellants' arguments with regard to claim 84 mirror those raised for
claim 1. Compare App. Br. 11-14, with id. at 17-20. Based on the analysis
for claim 1 supra, we sustain the rejection of claim 8.
We further note that to the extent claim 8 differs from claim 1 because
claim 8 is a method claim, the Examiner's analysis and fact findings in
support of the rejection of claim 8 are not disputed. For example, Appellants
do not dispute the Examiner's finding that the Lalane reference shows
circular or elongated perforations may be formed by either the laser beam
drilling method of Vavalle or the electron beam drilling method of Calder.
Compare Final Act. 13-14, with App. Br. 17-20.
4 Appellants do not present separate arguments for the rejection of claims 11
and 12. See, e.g., App. Br. 8-33. These claims, therefore, stand or fall with
claim 8. See id. at 9; see also 37 C.F.R. § 4I.37(c)(l)(iv).
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Application 14/716,402
We also note that Appellants' argument that applying Calder's
electron beam process to a composite sandwich panel "would result in
adhesive/bonding material oozing or otherwise flowing through the holes
(requiring substantial reworking and/or cleaning, for example)" (App. Br.
18-19) is conclusory and not supported by factual evidence and, without
more, is insufficient to establish reversible error in the Examiner's rejection.
Thus, the rejection of claim 8 is sustained.
Claim 9
Claim 9 depends from claim 8 and recites "wherein the forming
operation comprises using at least one robotic forming unit to elongate each
of the perforations with respect to a longitudinal axis."
Appellants' arguments with regard to claim 9 mirror those raised for
claim 2. Compare App. Br. 14--15, with id. at 20-22. Based on the analysis
for claim 2 supra, we sustain the rejection of claim 9.
Claim 10
Claim 10 depends from claim 9 and recites "wherein the longitudinal
axis aligns with a flow contour line of the airflow through the engine."
Appellants' arguments with regard to claim 10 mirror those raised for
claim 3. Compare App. Br. 16-17, with id. at 22-23. Based on the analysis
for claim 2 supra, we sustain the rejection of claim 10.
Claim 13
Appellants' arguments with regard to claim 13 5 mirror those raised for
claim 1 as well as those for claim 8. Compare App. Br. 11-14, with id. at
5 Appellants do not present separate arguments for the rejection of claims
16-20. See, e.g., App. Br. 8-33. These claims, therefore, stand or fall with
claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
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17-20, 24--27. Based on the analysis for claims 1 and 8 supra, we sustain the
rejection of claim 13.
Claim 14
Claim 14 depends from claim 13 and recites "wherein each of the
perforations is elongated with respect to a longitudinal axis."
Appellants' arguments with regard to claim 14 mirror those raised for
claim 2. Compare App. Br. 14--15, with id. at 29-31. Based on the analysis
for claim 2 supra, we sustain the rejection of claim 14.
Claim 15
Claim 15 depends from claim 14 and recites "wherein the longitudinal
axis aligns with a flow contour line of airflow through an engine."
Appellants' arguments with regard to claim 15 mirror those raised for
claim 3. Compare App. Br. 16-17, with id. at 31-33. Based on the analysis
for claim 3 supra, we sustain the rejection of claim 15.
DECISION
The Examiner's decision 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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