Ex Parte Mueller et al

Patent Trial and Appeal Board

Jun 16, 2017

12935107 (P.T.A.B. Jun. 16, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/935,107 12/14/2010 Rainer Mueller AIRBUS 3.3-252 1764
530 7590 06/20/2017
LERNER, DAVID, LITTENBERG,
KRUMHOLZ & MENTLIK
600 SOUTH AVENUE WEST
WESTFIELD, NJ 07090
EXAMINER
FABULA, MICHAEL A
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
06/20/2017 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):
eOfficeAction @ ldlkm. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAINER MUELLER, ROBERT HUEBNER,
HEINZ-PETER BUSCH, and MARIE-LAURE WAWRZYNIEC
Appeal 2015-007868
Application 12/935,107
Technology Center 3600
Before EDWARD A. BROWN, JAMES P. CALVE, and
FREDERICK C. LANEY, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35U.S.C. § 134 from the final rejection of
claims 1—7 and 10—12. Appeal Br. 2. Claims 8 and 9 have been cancelled.
See Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2015-007868
Application 12/935,107
CLAIMED SUBJECT MATTER
Claims 1,7, 10, and 12 are independent. Claim 1 is reproduced
below.
1. An aircraft fuselage comprising:
at least one space arranged in an aircraft fuselage with a
floor,
wherein the floor comprises one or several floor panels,
wherein the one or several floor panels are made from
materials providing a sufficient strength for use as floor panels
and an adequate bumthrough resistance to prevent flame
penetration therethrough for a period of at least four minutes
from outside the aircraft fuselage towards the space, and
wherein a region of the aircraft fuselage underneath the
floor does not include an insulation configured to prevent flame
penetration therethrough for a period of at least four minutes.
REJECTIONS1
Claims 1—7 and 10-12 are rejected under 35 U.S.C. § 112, first
paragraph, for lack of an adequate written description of the limitation
“configured to prevent flame penetration for at least four minute” in claims
1, 4, 7, 10, and 12. Final Act. 4—6 (paragraphs 8—9).
1 The Examiner withdrew the following rejections: (1) claim 7 under 35
U.S.C. § 112, first paragraph, for lack of a written description of “wherein a
region of the space of the fuselage immediately above the fairing does not
include an insulation configured to prevent flame penetration therethrough
for a period of at least four minutes;” (2) claims 1, 4, 7, 10,and 12 under 35
U.S.C. § 112, first paragraph, for lack of a written description of “configured
to prevent flame penetration therethrough for a period of at least four
minutes;” and (3) claims 1—12 under 35 U.S.C. § 112, second paragraph, for
indefmiteness of “configured to prevent flame penetration therethrough for a
period of at least four minutes.” See Final Act. 3,7; Ans. 4.
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Application 12/935,107
Claims 1—7 and 10—12 are rejected under 35U.S.C. § 112, second
paragraph, as being indefinite. Final Act. 7—8 (paragraphs 12, 14, and 15).
Claims 7, 10, and 11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beuck (US 5,542,626, iss. Aug. 6, 1996) and Quintiere
(DOT/FAA/AR-07/57, “Flammability Properties of Aircraft Carbon-Fiber
Structural Composite,” pub. Oct. 2007), as evidenced by Marker
(DOT/FAA/AR-09/58, “Evaluating the Decomposition Products Generated
Inside an Intact Fuselage During a Simulated Postcrash Fuel Fire,” pub. June
2011) and Gunter (“Dustbusters! How trusting employees and applying
environmental innovation resulted in a better workplace, Boeing Challenge
Magazine, Vol. 6, Issue 3, July 2007).
Claims 1—3 and 6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Smith (US 2009/0072086 Al, pub. Mar. 19, 2009) and
Quintiere, as evidenced by Marker and Gunter.
Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Smith and Quintiere, as evidenced by Marker, Gunter,
Westre (US 7,182,291 B2, iss. Feb. 27, 2007), Klems (European Programme
on Improvement of Fuselage Bum Through Resistance, Airbus Industrie,
1998), and the Appellant’s Admitted Prior Art (AAPA).
Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Smith, Lin (US 8,056,850 B2, iss. Nov. 15, 2011), and Quintiere, as
evidenced by Marker, Gunter, and Westre.
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Application 12/935,107
ANALYSIS
Claims 1—7 and 10—12 for lack of a written description
The Examiner found that the limitation “configured to prevent flame
penetration for at least four minutes” in claims 1, 4, 7, 10, and 12 is not
described in the Specification. Final Act. 4. The Examiner found that the
Specification describes carbon or glass fiber materials but does not describe
how these elements are configured to meet this requirement. Id.', Ans. 5.
Appellants argue that their original claims recited insulation materials
configured to resist flame penetration for at least four minutes, and materials
that fulfill the regulatory requirements for bumthrough-resistant insulation
for the lower passenger fuselage are known. Br. 6—7, 12, 14. Appellants
argue that the Specification describes the relevant characteristics of materials
used for floor panels and fairings to prevent flame penetration for a period of
at least four minutes. Id. at 12—14 (citing Spec. 2:20-3:4, 3:12—14, 3:28—
4:4, 4:5—9, 7:13—16). Appellants also argue that any material that provides
bumthrough resistance to flame penetration for at last four minutes may be
used to make the claimed floor panel. Id. at 13. Appellants also argue that a
skilled artisan is aware of the specific configurations. Id. at 14.
The Examiner recognizes that the Specification discloses carbon fiber
and glass fiber materials in the form of woven-fabric structures, laminates,
sandwich structures, or the like to provide bumthrough resistance for at least
four minutes. Ans. 5. The Examiner finds, however, that the Specification
does not teach the configurations of the floor panels and belly fairing, the
matrix used with the fibers (e.g., epoxy resin), the number of layers of fiber,
the orientation of the fibers, the core materials for the laminate panels, and
other factors that provide the bumthrough period. Id.', see Final Act. 4—5.
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Application 12/935,107
We determine that a skilled artisan would understand Appellants to be
in possession of insulation material configured to prevent flame penetration
into an aircraft fuselage for a period of at least four minutes, as claimed.
Appellants disclose carbon fiber and glass fibers as exemplary materials.
Spec. 2:20—3:4, 3:12—14, 4:28-4:9, 7:13—16. The Examiner recognizes
these disclosures by Appellants. Ans. 5. The Examiner’s rejection appears
to be directed to whether Appellants have provided an enabling disclosure.
Such a rejection requires consideration of whether the Specification enables
a skilled artisan to practice the invention without undue experimentation.
AK Steel Corp. v. Sollac, 344 F.3d 1234, 1244 (Fed. Cir. 2003) (quoting In
re Wands, 858 F.2d 731, 736—37 (Fed. Cir. 1988)); see Auto. Techs. Int’l,
Inc. v. BMW of N. Am., Inc., 501 F.3d 1274, 1282 (Fed. Cir. 2007); MPEP
§ 2164.08 (9th ed., rev. 7, Nov. 2015). This rejection is not before us for
review, however.
Thus, we do not sustain the rejection of claims 1—7 and 10-12 for lack
of written description.
Claims 1—7 and 10—12 as being indefinite
Claims 1—6 (“sufficient”)
The Examiner found that the term “sufficient” in claim 1 is indefinite
because the Specification does not provide a standard for ascertaining the
requisite degree of whether a floor(s) is made from materials that provide “a
sufficient strength for use as floor panels.” Final Act. 7. The Examiner also
found that Appellants’ Specification discloses that the materials used in floor
panels feature “high” strength and the term “high” also renders the strength
of the panels indefinite. Ans. 9.
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Application 12/935,107
Appellants argue that the Specification discloses floor panels made
from suitable materials that feature high strength and adequate bumthrough
resistance. Br. 17 (citing Spec. 2:29-3:4). Appellants also argue that their
disclosure requires the claimed floor panels to have strength comparable to
conventional floor panels that they are replacing and these requirements are
well-known in the art and are determined by prior experience, safety, and
regulatory requirements of the aviation industry. Id. As a result, Appellants
argue that a skilled artisan would be apprised of the scope of claim 1.
We agree with Appellants that a skilled artisan would understand the
scope of claim 1 in light of the written description and understanding in the
art. We appreciate the Examiner’s position that the requirements for floor
panels can be numerous and can vary widely. Ans. 9. Smith teaches that the
types and physical characteristics of aircraft floor panels vary depending on
the intended use. Smith 1 [10]. However, merely claiming broadly does not
render a claim indefinite. We are not persuaded that a skilled artisan would
not understand what is meant by the term “sufficient” strength for use as a
floor panel. Thus, we do not sustain the rejection of claims 1—6.
Claims 1—7 and 10—12 (“configured to prevent flame penetration”)
The Examiner found that the limitation “configured to prevent flame
penetration therethrough for a period of at least four minutes” in independent
claims 1,7, 10, and 12, and dependent claim 4, is indefinite because it is
unclear whether flame penetration is measured according to some testing
procedure outlined in FAR § 25.865(b) that may change over time or some
other standard for which there is no description as to the temperature of the
flame, the distance of the burning element, and the like. Final Act. 7—8.
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Appellants argue that if a given material can prevent flame penetration
therethrough for a period of at least four minutes, as claimed, the material
may be suitable for making the elements recited in claims 1, 4, 7, 10, and 12.
Br. 19. Appellants argue that if a skilled artisan makes floor panels from a
material configured to prevent bumthrough resistance for a period of at least
four minutes, such floor panels would be within the scope of the claims. Id.
Claims 1, 4, 7, 10, and 12 recite a material that is “configured to
prevent flame penetration therethrough for a period of at least four minutes.”
Appellants disclose floor panels and fairing that meet bumthrough resistance
requirements of FAR § 25.856(b) of at least four minutes. Spec. 7:25—27.
However, the claims cover any materials that prevent flame penetration for a
period of at least four minutes.
Thus, we do not sustain the rejection of claims 1—7 and 10-12.
Claims 7, 10, and 11 as unpatentable over
Beuck and Quintiere, as evidenced by Marker and Gunter
The Examiner found that Beuck discloses an aircraft, as recited in
independent claim 7, with fairing located at a wing to fuselage transition and
comprising a carbon or glass fiber reinforced laminate, but lacks an express
disclosure of resistance to flame penetration therethrough for a period of at
least four minutes. Final Act. 9—10. The Examiner found that Quintiere
teaches carbon fiber composites used for aircraft stmctural components and
comprising 16-ply laminates offer flame penetration resistance of at least
four minutes as evidenced by Marker. Id. at 10. The Examiner determined
it would have been obvious to use such carbon fiber stmctures in the carbon
fiber fairing of Beuck to improve its fire resistance and strength. Id.
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Application 12/935,107
The Examiner also found that Gunter teaches a carbon fiber composite
material that meets the BMS 8-276 specification and is used for structures
on the Boeing 787 such as empennage. Id. at 11. The Examiner determined
that this BMS 8-276 material provides sufficient strength and bumthrough
protection for primary aircraft structures such that it would have been
obvious to use this material in the belly fairings of Beuck as well. Id.
Appellants argue that Beuck does not disclose what material is used to
make belly fairing 6 that forms a transition between a wing and the aircraft
fuselage as claimed. Br. 22. Appellants argue that the portions of Beuck
cited by the Examiner pertain to carbon and glass fiber reinforced composite
materials used in upper and lower pan members of an energy absorbing
structure 5 A, 5B of Beuck. Id. at 21—22. Appellants argue that Beuck does
not disclose a wing-fuselage fairing or belly fairing of claim 10. Id. at 23.
The Examiner’s finding that Beuck discloses a “fairing” comprising a
carbon or glass fiber reinforced multi-layered laminate is not supported by a
preponderance of evidence. Instead, Beuck discloses an energy absorbing
structure 5 A, 5B that includes skin pan 19 that comprises a plurality of fiber
reinforced composite plies of desired/required strength and stiffness. Beuck,
8:40-59, Figs. 1, 2, 5, 6. Beuck discloses that belly fairing 6 forms the main
landing gear bay and is a separate element from energy absorbing structure
5A, 5B. Id. at Figs. 1—4. In this regard, Beuck discloses energy absorbing
structural unit 5 A as extending substantially from nose 3 of the aircraft to
belly fairing 6. Id. at 4:41—47, Fig. 1. Beuck discloses energy absorbing
structural unit 5B as being attached to aircraft fuselage 2 and extending
substantially from belly fairing 6, which forms the landing gear bay, to the
tail portion 4 of aircraft 1’. Id. at 4:65—5:3, Fig. 2, 3.
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As a result, the Examiner’s reasoning that it would have been obvious
to use carbon fiber materials of Quintiere and Gunter in place of the carbon
fiber belly fairing of Beuck (Final Act. 10-11) is not supported by evidence
of record and therefore is not supported by a rational underpinning. The
composition of belly fairing 6, which forms a landing gear bay rather than a
structural or energy absorbing component, is not disclosed. Therefore, it is
cannot be said that a skilled artisan would have been motivated to make
belly fairing 6 of carbon fiber material like the energy absorbing component.
Thus, we do not sustain the rejection of claims 7, 10, and 11.
Claims 1—3 and 6 as unpatentable over
Smith and Quintiere, as evidenced by Marker and Gunter
Appellants argue claims 1—3 and 6 as a group. Br. 23—25. We select
claim 1 as representative, with claims 2, 3, and 6 standing or falling with
claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Claim 1 recites floor panels that provide bumthrough resistance to
prevent flame penetration therethrough for a period of at least four minutes.
The Examiner found that Smith teaches an aircraft fuselage with floor panels
made of laminated sheets of woven glass or carbon fibers and flame resistant
phenolic resin or thermoplastics that satisfy flammability requirements for
aircraft interior structures. Final Act. 11—12. The Examiner also found that
Quintiere discloses BMS 8-276 multi-ply composite laminates for aircraft
structural components to provide flame penetration resistance of at least four
minutes as evidenced by Marker. Id. at 12. The Examiner determined that it
would have been obvious to use such well-known carbon fiber materials in
such a well-known aerospace use as floor panels in Smith to improve the
fire-resistance properties in addition to the strength of the floor panels. Id.
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Appellants argue that the Examiner failed to articulate any rationale as
to why a skilled artisan would have replaced the floor panels of Smith with
such carbon fibers because there is nothing in either secondary reference to
indicate that the material discussed therein is suitable for use as aircraft floor
panels. Br. 23—24. Appellants also argue that Smith relates to sandwich
panels and other structural composite materials that are useful to aircraft
floors and interior panels, and a proposed modification cannot change the
principle of operation of a reference or render it superfluous. Id. at 24.
The Examiner’s reasons for using fire resistant carbon fiber materials
of Quintiere and Marker in Smith’s floor panels are supported by a rational
underpinning of improving the fire resistance and the strength of the floor
panels. Quintiere teaches that carbon-fiber structural laminates fabricated to
Boeing material specification (BMS) 8-276 are used in many exterior and
structural components of aircraft. Quintiere, 1,11; Final Act. 12. Marker
teaches that such materials provide bumthrough resistance of more than five
minutes. Marker, 46-47; Final Act. 12. Gunter teaches that BMS 8-276
materials are used in many aerospace structural applications. Gunter, 44-45;
Final Act. 12—13. The Examiner reasonably determined that a skilled artisan
would have been motivated to use BMS 8-276 compliant materials described
in Quintiere and Gunter in Smith’s floor panels to provide light weight, high
strength panels that also improve the bumthrough resistance of the panels
based on these teachings. Final Act. 12; Ans. 13. In this regard, Smith uses
composite carbon and glass fiber laminates as facing sheets 17, 19 for its
honeycomb floor panels. Smith |30, Fig. 1; Ans. 13. Smith also uses the
sandwich panels in applications that require high strength and light weight
(Smith || 5, 10) and that therefore would benefit from use of BMS 8-276.
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Application 12/935,107
Appellants’ arguments do not persuade us of error in the Examiner’s
findings or determination of obviousness. Nor are we persuaded that the
proposed modification would change Smith’s principle of operation where
Smith uses composite laminates as facing sheets. We also find no disclosure
in Smith of insulation mats in the fuselage underneath the floor. Appellants’
arguments in this regard are speculative and not persuasive. See Br. 24—25.
Thus, we sustain the rejection of claims 1—3 and 6.
Claims 4 and 5 as unpatentable over
Smith and Quintiere, as evidenced by Marker,
Gunter, Westre, Klems, and the AAPA
Claim 4 depends from claim 1 and recites that some regions of the
floor include a roller conveyor and/or a ball-element mat over a region that
is not equipped with floor panels, and a film or foil on the underside that is
configured to prevent flame penetration therethrough. Claim 5 depends
from claim 4 and recites that the film or foil overlaps adjacent floor panels.
The Examiner found that Smith does not disclose these features, but
took Official Notice that the features are well-known, and Appellants did not
dispute this Official Notice. Final Act. 14; Appeal Br. 26. The Examiner
also found that installations such as roller conveyors and ball-element mats
would create gaps in the floor panels, and the European Programme teaches
carbon fiber and fiberglass floor panels and the need to overlap fire resistant
materials between the gaps in the panels to prevent fire from penetrating into
the cabin through gaps and seams. Id. at 14—15. The Examiner determined
that it would have been obvious to apply flame resistant materials like foils
or films to gaps and seams between the floor panels and the installed roller
conveyor or ball-element mat to prevent fire penetration, as European
Programme teaches. Id. at 15.
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Appellants argue that claims 4 and 5 are patentable at least because
they depend from claim 1. Br. 25—26. Appellants also argue that a skilled
artisan would not have been motivated to install roller conveyor and ball
element matters in a floor of a passenger cabin of Smith because Smith does
not disclose a cargo compartment. Id. at 26. Appellants further argue that
the Examiner does not provide a reason why a skilled artisan would install
roller conveyor and ball-element mates in a floor of a passenger cabin of an
aircraft. Id.
The Examiner’s reasons for modifying Smith to include installations
such as a roller conveyor or a ball-element mat to facilitate the loading and
unloading of cargo, and fire resistant foil or film to cover the gaps or seams
between the installations and floor panels to prevent flame penetration are
supported by a rationale underpinning. The European Programme teaches
the use of honeycomb sandwich panels as effective fire barriers and the use
of insulation blankets and linings to cover the gaps and seams between the
panels to improve fire resistance. European Programme, 8—9; Final Act. 15.
The Examiner found that Smith uses fire resistant honeycomb floor panels in
aircraft fuselages for galley panels and high load panels that have different
load capacities so it would have been obvious to modify Smith’s floor panels
with the claimed installations to move cargo within the fuselage. Ans. 15.
The Examiner reasoned that Smith would benefit from such installations to
load cargo into the galley or other areas of the aircraft that handle cargo as
established by the Examiner’s taking of Official Notice that such uses are
well-known in the art. Id.', Final Act. 14. The Examiner treated this finding
as Admitted Prior Art (AAPA) in view of Appellants’ failure to challenge
the Official Notice. Final Act. 14.
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Appellants’ arguments that Smith does not disclose installations or a
cargo compartment (Br. 26) are not persuasive in view of the AAPA and the
Examiner’s findings that Smith discloses floor panels for galleys and high
load areas that would have been obvious to modify with the installations to
handle heavier loads and cargo (Ans. 15; Final Act. 14). Claims 4 and 5 do
not require the aircraft to have a “cargo compartment.” Ans. 15; Smith 110.
Even so, the Examiner’s taking of Official Notice and the AAPA establish
that installations are well-known for loading cargo in aircraft. They would
improve Smith’s panels for the same reasons with the overlapping insulation
taught by the European Programme being added to resist fire penetration.
Thus, we sustain the rejection of claims 4 and 5.
Claim 12 as unpatentable over
Smith, Lin, and Quintiere, as evidenced by
Marker, Gunter, and Westre.
Independent claim 12 recites an aircraft comprising floor panels and a
belly fairing, which are configured to prevent flame penetration for at least
four minutes. The Examiner relied on Smith and Quintiere, as evidenced by
Marker and Gunter, to render obvious the floor panels for the same reasons
as claim 1. Final Act. 16—18. The Examiner relied on Lin and Quintiere, as
evidenced by Marker and Gunter, to render obvious the belly fairing. Id.
Appellants’ arguments that the cited art fails to disclose the features of
claim 12 for the same reasons as claims 1 and 7 are not persuasive as to the
claimed floor panels for the reasons discussed above for claim 1, and are not
persuasive as to the claimed belly fairing, because they do not address the
Examiner’s findings that Lin discloses belly fairing of composite materials
that would have been obvious to modify based on the teachings of Quintiere,
Marker, and Gunter for fire resistance. Final Act. 16.
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Thus, we sustain the rejection of claim 12.
DECISION
We reverse the rejection of claims 1—7 and 10—12 under 35 U.S.C.
§112, first paragraph, for lack of an adequate written description.
We reverse the rejection of claims 1—7 and 10—12 under 35 U.S.C.
§112, second paragraph, for being indefinite.
We reverse the rejection of claims 7, 10, and 11 under 35 U.S.C.
§ 103(a) as unpatentable over Beuck and Quintiere, as evidenced by Marker
and Gunter.
We sustain the rejection of claims 1—3 and 6 under 35 U.S.C. § 103(a)
as unpatentable over Smith and Quintiere, as evidenced by Marker and
Gunter.
We sustain the rejection of claims 4 and 5 under 35 U.S.C. § 103(a) as
unpatentable over Smith and Quintiere, as evidenced by Marker, Gunter,
Westre, Klems, and the AAPA.
We sustain the rejection of claim 12 under 35 U.S.C. § 103(a) as
unpatentable over Smith, Lin, and Quintiere, as evidenced by Marker,
Gunter, and Westre.
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-IN-PART
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