Ex Parte Obrecht et al

Patent Trial and Appeal Board

Sep 28, 2017

13357661 (P.T.A.B. Sep. 28, 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.
13/357,661 01/25/2012 John M. Obrecht 2011P13698US 1977
28524 7590 10/02/2017
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
EXAMINER
MCCAFFREY, KAYLA M
Orlando, EL 32817 ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
10/02/2017 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN M. OBRECHT, LASSE GILLING,
HENRIK FREDSLUND HANSEN, SCOTT J. JOHNSON,
and RYAN A. SIEVERS
Appeal 2016-001973
Application 13/357,661
Technology Center 3700
Before MICHAEL L. HOELTER, JILL D. HILL, and ERIC C. JESCHKE,
Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
John M. Obrecht et al. (“Appellants”)1 seek review under 35 U.S.C.
§ 134(a) of the Examiner’s decision, as set forth in the Final Office Action
dated March 19, 2015 (“Final Act.”), and as further explained in the
Advisory Action dated May 7, 2015 (“Adv. Act.”), rejecting claims 1—11
and 13—19. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.
1 Appellants identify Siemens Energy, Inc. as the real party in interest.
Appeal Br. 1.
Appeal 2016-001973
Application 13/357,661
BACKGROUND
The disclosed subject matter “relates to wind turbine blades, and more
particularly to torsionally-flexible swept wind turbine blades.” Spec. 1,
11. 4—5. Claims 1, 10, and 17 are independent. Claim 1 is reproduced below,
with emphasis added:
1. A swept wind turbine blade comprising:
a blade body extending along a length
between a root and a tip of the blade;
a pitch axis extending through the root of the
blade;
a reference line defining a deviation from the
pitch axis corresponding to a swept shape of the
blade along its length;
wherein the reference line comprises:
a zero sweep at the root;
a zero slope at the root;
a positive curvature along a segment
within 25% of the length from the root to the
tip of the blade.
REJECTIONS
1. Claims 2, 4, 6, and 11 stand rejected under 35 U.S.C. § 112,
second paragraph, as failing to particularly point out and distinctly claim the
subject matter regarded as the invention.
2. Claims 1,2, 8, and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wetzel (US 7,344,360 B2, issued Mar. 18, 2008) and
Wobben (US 7,540,716 B2, issued June 2, 2009).
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3. Claims 3—7, 10, 11, and 13—19 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wetzel, Wobben, and Bonnet (US
2009/0324416 Al, published Dec. 31, 2009).2
DISCUSSION
Rejection 1 — The rejection of claims 2, 4, 6, and 11
under 35 U.S.C. § 112, second paragraph
A. Claims 2, 4, and 6
In this Rejection, the Examiner stated that “[cjlaim 2 requires the
reference line to have a positive curvature at the root while claim 1, from
which claim 2 depends, requires a zero sweep and zero slope at the root.”
Final Act. 6. According to the Examiner, “[i]f there is positive curvature at
the root (as shown in Fig. 4 and required by claim 2)[,] th[e]n there will not
be zero sweep and zero slope at the root (as shown in Fig. 3 and required by
claim 1).” Id. The Examiner concluded that “it cannot be determined
whether there is zero sweep and zero slope at the root with positive
curvature after the root or if the root itself has positive curvature.” Id.
Claims 4 and 6 were rejected based on their dependence from claim 2.
2 In the Advisory Action, the Examiner states: “Only the claims 3—6,
13 and 17—19 should be listed as rejected under WE[T]ZEL/WOBBEN/
BONNET while the claims 7, 10—11 and 14—16 should be identified as
rejected under WETZEL/WOBBEN.” Adv. Act. 3. In the Answer, the
Examiner, for example, “notes that the rejection of claims 7 and 11 remains
under a single combination of references (WETZEL in view of WOBBEN
and BONNET)” but states “that the features of claims 7 and 11 are
completely taught by WETZEL in view of WOBBEN.” Ans. 8. In addition,
the Examiner states “if a further office action [issues] (e.g. in response to a
request for continued examination), this correction would be made.” Id. In
this Decision, we list claims 7, 10, 11, and 14—16 in Rejection 3 with the
understanding that Bonnet is not substantively relied on for those claims.
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A claim fails to comply with 35U.S.C. § 112, second paragraph,
“when it contains words or phrases whose meaning is unclear.” In re
Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014) (per curiam)
(approving, for pre-issuance claims, the standard from MPEP § 2173.05(e));
see also Ex parte McAward, Appeal 2015-006416, 2017 WL 3669566, at *5
(PTAB Aug. 25, 2017) (precedential) (adopting the approach for assessing
indefiniteness approved by the Federal Circuit in Packard). For the reasons
below, in response to the rejection of claim 2, Appellants have provided a
“persuasive explanation for the record of why the language at issue is not
actually unclear.” Packard, 751 F.3d at 1311.
We first address the meaning of “positive curvature at the root” as
recited in claim 2. As noted by Appellants, the Specification expressly
“defines ‘curvature’ as ‘a local spatial rate of change in slope.’” Appeal Br.
3 (discussing Spec. 5,11. 5—6). Based on that definition, we agree with
Appellants that “a positive curvature at the root ([as recited in] claim 2) is
defined as a positive local spatial rate of change in slope at the root.”
Appeal Br. 3; see also Spec. 5,11. 6—8 (discussing Figure 3, and providing
“for example, in a first region 58 of the curvature 54, there is an increase in
slope from point to point in direction from root 26 to tip 28”). Thus, as to
the two options identified by the Examiner, claim 2 requires that “the root
itself has positive curvature.” Final Act. 6.
We turn now to the meaning of “curvature” and whether a reference
line with “zero slope at the root” (as recited in claim 1) can also have
“positive curvature at the root” (as recited in claim 2, which depends from
claim 1). In the Office Action, the Examiner stated (1) that “it is unclear
how the reference line comprises a zero slope at the root and also possesses
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positive curvature in the same location” and (2) that “claim 2 is requiring an
increasing slope at the root[,] which would contradict the previous claim 1
recitation of a zero slope at the root.” Final Act. 2 (emphasis added); see
also Ans. 3 (stating that claim 2 “is unclear because it cannot be determined
where there is positive curvature in the inboard region since the positive
curvature cannot comprise the root while the root also has zero slope, as
required by claim 1 from which claim 2 depends”) (emphasis added).
Appellants argue that the Examiner has improperly “equated slope
with rate of change of slope (i.e. curvature), and thus falsely believes that if
the slope is zero at a location, that the rate of change of slope (i.e. curvature)
at that location must also be zero.” Appeal Br. 3.
As noted by Appellants, the Specification defines “curvature” as the
“local spatial rate of change in slope.” Spec. 5,11. 5—6 (emphasis added).
Thus, “curvature” in claim 2 does not mean “slope,” which the Specification
separately defines as “defined by a line 56 that is tangent to the sweep shape
50 at any particular point.” Spec. 5,11. 4—5 (discussing Fig. 3). In light of
these definitions, we agree with Appellants that “there can be a positive
curvature (i.e. positive rate of change of slope) at the root (claim 2), while
there is zero slope at the root (claim 1).” Appeal Br. 3; cf. Adv. Act. 2
(stating that “there can not be a rate of change of slope, i.e. curvature, at the
same location that there is zero slope, i.e. a horizontal line”).3
3 As an example, the function y = x2 would have a first derivative of
2x, and thus zero slope at x = 0, and would have a second derivative of 2,
and thus the rate of change in slope would be positive along the entire x
axis, including at x = 0. See Appeal Br. 4 (stating that “the Second
Derivative Test is a well-known mathematical operation that is performed
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Although the Examiner is correct that Figures 3 through 5 do not
depict embodiments in which reference lines have “zero slope at the roof”
(as recited in claim 1) and “positive curvature at the roof” (as recited in
claim 2), that does not demonstrate a lack of clarity in claim 2. See Ans. 2
(stating that, in Figure 3, “the root 26 has zero slope” but “[t]he positive
curvature 66 does not begin until a point 60 which is distanced from the root
26 by a segment 64”), 3 (stating that “Fig. 4 clearly shows the root 26 has
positive curvature but also negative slope at the root” and that “Fig. 5
displays three dashed lines wherein the only dashed line comprising positive
curvature at the root (i.e. point ‘0’) also has positive slope at the point ‘0’”).
We first note that the issue identified by the Examiner relates to whether the
Specification provides adequate written description support for claim 2
(under 35 U.S.C. § 112, first paragraph) rather than purported indefmiteness
(under 35 U.S.C. § 112, second paragraph), which is the basis of this
Rejection. Moreover, as noted by Appellants, the Specification does
describe (but does not depict) an embodiment in which “the positive
curvature 66 has a starting point at the root 26 of the blade 20.” Spec. 5,
11. 22—23, discussed at Reply Br. 2.* * * 4
when the slope of a function is zero at a location, yet the rate of change of
the slope is not zero at that location” (citing https://en.wikipedia.org/wiki/
S econd_derivati ve_test)).
4 We understand this embodiment as similar to Figure 3, but without
zero-slope segment 64 and with the features of point 60 (such as zero slope)
at root 26. See also Spec. 5,1. 10 (discussing “first point 60 having a zero
slope”).
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For these reasons, we do not sustain the rejection of claim 2, or the
rejection of claims 4 and 6, which depend from claim 1, under 35 U.S.C.
§112, second paragraph.
B. Claim 11
Claim 11 requires a reference line with “a positive curvature along a
first portion of the length” (via dependence from claim 10) and recites “the
first portion beginning at or forward of the blade root.” Appeal Br. 23
(Claims App.) (emphasis added).
Appellants acknowledge that the Examiner “rejected claim 11 [] under
the same basis as claim 2” (citing Final Act. 6), but argue that “this appears
to be in error, as claim 11 does not recite similar language as claim 2.”
Appeal Br. 4. The Examiner responds that “similar to claim 2, claim 11 is
requiring positive curvature (i.e. the first portion) at the root.” Ans. 4.
We agree with the Examiner that the scope of claim 11 includes
blades with reference lines in which the “positive curvature” begins “at. . .
the blade root.” Thus, the determination of indefmiteness in claim 2 applies
equally to claim 11. For the same reasons above, however, we do not
sustain the rejection of claim 11 under 35 U.S.C. § 112, second paragraph.
Rejection 2 — The rejection of claims 1, 2, 8,
and 9 under 35 U.S.C. § 103(a)
A. Claims 1,8, and 9
For the claims in this group, Appellants argue the patentability of
claim 1 and do not separately argue claims 8 and 9, which depend from
claim l.5 Appeal Br. 5—11. Thus, we address claim 1, with claims 8 and 9
5 Although Appellants state that claims 8 and 9 “recite yet further
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standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
For claim 1, the Examiner relied on Wetzel for certain limitations but stated
that Wetzel “does not explicitly teach a positive curvature along a segment
within 25% of the length from the root to the tip of the blade (308, see Fig.
4), i.e. a blade having positive curvature radially outward from the root
having zero slope and zero sweep, particularly from the root, i.e. from a
point at the root.” Final Act. 7—8. The Examiner found, however, that
Wobben, in Figure 5, teaches “a positive curvature (in the central portion 13)
with reference to the leading edge (18), wherein the central portion is
between the root and the end region (12) (WOBBEN column 2, lines 22—
26), i.e. within 25% of the length from the root to the tip of the blade.” Final
Act. 8. The Examiner also stated that, at column 2, lines 22—24, Wobben
teaches “that the central portion (13) is ‘a region between the rotor blade
root and the end region,’” and that “by teaching the central component
extends radially outward from the root toward the tip, the claimed range is
encompassed by the disclosure of WOBBEN.” Final Act. 3. The Examiner
also provided reasoning to modify Wetzel with Wobben (which is not
addressed by Appellants). See id. at 8.
distinguishing features” from claim 1 (Appeal Br. 8), we do not consider this
a separate argument because Appellants essentially state that the Examiner
erred without explaining why. See Ex parte Frye, 94 USPQ2d 1072, 1075
(BPAI 2010) (precedential); see also 37 C.F.R. § 41.37(c)(l)(iv) (2014)
(“The arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant.”). Appellants make similar statements for
other dependent claims. See Appeal Br. 11 (claim 3), 17 (claims 13, 14, and
16), 19 (claims 18 and 19). For the same reason, we do not consider
Appellants to separately argue these other dependent claims.
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Appellants argue that the identified “positive curvature” (element 13
in Wobben, Figure 5) is not necessarily “within 25% of the length from the
root to the tip of the blade,” as recited in claim 1. See Appeal Br. 6.
Appellants argue that certain findings on page 3 of the Office Action “are
false, as Wobben fails to teach how far radially outward from the root
towards the tip 12 that the central portion 13 is located, let alone that the
central portion 13 is located within 25% of the length from the root to the
tip, as required by independent claim 1Id.
The Examiner responds that Figure 5 of Wobben “is a particular
embodiment and is not restrictive of the broader teaching provided in the
written description” in which Wobben “teaches [that] the central portion is
‘a region between the rotor blade root and end region. Ans. 4 (quoting
Wobben, col. 2,11. 23—26).
For the reasons below, we determine that a preponderance of the
evidence supports the finding that, with the disclosures at issue in column 2,
Wobben “suggests that the central region 13 can span the distance from the
root to the end region 12” (Ans. 4) and thus discloses a “positive curvature”
in locations along the length of a blade that at least overlap with the claimed
range. The discussion surrounding the relied-upon passage provides: “it is
particularly advantageous for a central region of the rotor blade, that is to
say a region between the rotor blade root and the end region[,] which is
swept back in the direction of the trailing edge, to be curved in the direction
of the blade leading edge.” Wobben, col. 2,11. 22—27.
Appellants argue that the passage “merely teaches that the central
portion 13 is ‘a region between the rotor blade root and the end region,’ and
thus fails to further specify that the central portion 13 is ‘anywhere’ between
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the root and end region, as contended by” the Examiner. Appeal Br. 7
(discussing Adv. Act. 2, which states that Wobben “teaches the central
region may be anywhere within the space separating the root and end
region”). Although we do not necessarily agree with the Examiner’s
specific finding that the discussion from column 2 of Wobben teaches that
central region 13 can be “anywhere” between the root and end region (Adv.
Act. 2), Appellants have not shown error in the findings that the locations
taught in Wobben at least overlap the claimed range. See, e.g., Ans. 4
(stating that, in column 2, Wobben “suggests that the central region 13 can
span the distance from the root to the end region 12”); Final Act. 3 (stating
that “by teaching the central component extends radially outward from the
root toward the tip, the claimed range is encompassed by the disclosure of
WOBBEN”).
We turn now to Appellants’ argument that “Wobben teaches a ‘fluid
transition’ between the central portion 13 sweep and the tip 12 sweep, which
indicates that the central portion 13 is not within 25% of the length from the
root to the tip.” Appeal Br. 6—7; see also Wobben, col. 5,11. 7—17
(discussing a “fluid transition”). We are not apprised of error in the
Examiner’s findings based on this argument. Appellants have not shown
that the existence of a “fluid transition” between central portion 13 and end
region 12 (see, e.g., Wobben, Fig. 5) limits the location of central portion 13
so as to preclude, for example, central portion 13 being located near the root,
with a fluid transition (longer than that shown in Figure 5) out to end region
12. See Ans. 4 (stating that Wobben “suggests that the central region 13 can
span the distance from the root to the end region 12”).
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For these reasons, we determine that the Examiner has demonstrated a
prima facie case of obviousness. See In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our
predecessor court have consistently held that even a slight overlap in range
establishes a prima facie case of obviousness.”). Appellants have not argued
criticality of the claimed range. Id. at 1330 (stating that “an applicant may
overcome a prima facie case of obviousness by establishing ‘that the
[claimed] range is critical, generally by showing that the claimed range
achieves unexpected results relative to the prior art range’”). Thus, we
sustain the rejection of independent claim 1 as unpatentable under 35 U.S.C.
§ 103(a). Claims 8 and 9 fall with claim 1.
B. Claim 2
The Examiner stated that “the blade (308) of WETZEL as modified
by WOBBEN is deemed to teach the language of claim 2.” Adv. Act. 2.
The Examiner construed claim 2 as requiring that “the positive curvature
begins some distance removed from the root but within 25% of the length
from the root to the tip.” Id.', see also Ans. 5 (stating that “claim 2 has been
interpreted in view of Appellants’] Fig. 3 embodiment,] which has zero
slope and zero sweep at the root 26 and positive curvature 66 beginning at a
point 60 spaced from the roof’ (emphasis added)).
Appellants argue that the Examiner “misinterpreted the language of
dependent claim 2” and “disregarded the ‘positive curvature at the root’
language of dependent claim 2.” Reply Br. 3^4. We agree.
For the reasons above, “positive curvature at the root” in claim 2
requires a positive local spatial rate of change in slope at the root. See supra
Rejection 1 § A. Because the Examiner has applied an incorrect
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construction of this language, the Examiner has not established a prima facie
case of obviousness as to claim 2. Thus, on the record here, we do not
sustain the rejection of claim 2 as unpatentable under 35 U.S.C. § 103(a).
Rejection 3 — The rejection of claims 3—7, 10, 11,
and 13—19 under 35 U.S.C. § 103(a)
A. Claim 3
Appellants do not separately argue claim 3, which depends from claim
1. See infra n.5. Thus, for the reasons above (see supra Rejection 2 § A),
we sustain the rejection of claim 3.
B. Claims 4 and 6
Claims 4 and 6 depend from claim 2. The Examiner’s added reliance
on Bonnet does not remedy the issue, discussed above, regarding claim 2
(see supra Rejection 2 § B). Thus, for the same reasons above, we do not
sustain the rejection of claims 4 and 6 as unpatentable under 35 U.S.C.
§ 103(a).
C. Claim 5
Claim 5 depends from claim 1 and recites “wherein the first curvature
and the second curvature each terminate at the transition point and have an
equivalent curvature.” Appeal Br. 22 (Claims App.).
Appellants argue that the Examiner “mischaracterize[d] the language
of claim 5, [because] the first curvature and second curvature each terminate
at the transition point and have ‘equivalent radii of curvature’ (instead of
equivalent curvature).” Appeal Br. 14 (citing Final Act. 5). Appellants note
that the Specification “defines ‘curvature’ as ‘a local spatial rate of change
in slope.’” Id. (citing Spec. 5,1. 6).
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The Examiner responds that “where there is equivalent slope at a
point on a line possessing curvature[,] that point also has equivalent
curvature.” Ans. 7. The Examiner states, “since the cited references teach a
continuous curvature between the forward sweep (i.e. the central region 13
of WOBBEN) and the aft sweep (i.e. the end region of WOBBEN)[,] that
the point where the curvatures meet must have equivalent curvature”
because, “[otherwise, the curvatures would not meet at the same point.” Id.
The Examiner states, “[i]n other words, when the forward sweep and aft
sweep meet at a single point, i.e. the transition point, there must be a single
curvature at the point.” Id.
The Examiner has not established a prima facie case of obviousness
under the proper construction of the limitation at issue. Appellants and the
Examiner both view the “equivalent curvature” language as relating to the
“curvature” at the “transition point.” See Appeal Br. 14 (arguing that
“Bonnet fails to disclose that the fixed radius of curvature Ri and the fixed
radius of curvature R2 have an equivalent curvature at a transition point, as
required by dependent claim 5” (emphasis added)); Ans. 7—8. We, however,
view the “equivalent curvature” language as relating to the “curvature[s]” of
the “first curvature” and the “second curvature.” This understanding is
supported by the plain language of the claim, which, as currently drafted,
requires that the “first curvature” and the “second curvature” each (1)
“terminate at a transition point” and (2) “have an equivalent curvature.”
Applying the definition of “curvature” (Spec. 5,11. 5—6), the second aspect
listed above requires the “first curvature” to have the same “local spatial rate
of change in slope” as the “second curvature.” Because the Examiner has
not established a prima facie case of obviousness under the proper
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construction of the limitation at issue, we do not sustain the rejection of
claim 5.
D. Claim 7
Addressing claim 7 in the Office Action, the Examiner stated that
“WOBBEN teaches a first curvature (at central region 13; see WOBBEN
Fig. 5) from a point forward of the root and a negative curvature, i.e. sweep
back, outboard from the first curvature.” Final Act. 9.
First, Appellants argue that because
the blade 20 of FIG. 2 of Bonnet teaches a negative curvature at
the root (slope changing from positive to negative) and a positive
curvature at the tip (slope changing from zero to positive), then
the proposed Wetzel/Wobben/Bonnet combination necessar[il]y
features a positive curvature outboard from a negative curvature
and thus expressly teaches away from the language of dependent
claim 7.
Appeal Br. 15. Appellants also argue that the rejection of claim 7 is “based
on two different combinations of references: (a) the Wetzel/Wobben
combination ([Final Act.], p. 5) and (b) the Wetzel/Wobben/Bonnet
combination ([Final Act.], p. 8).” Appeal Br. 15. According to Appellants,
“it is not clear which combination of references is the basis for the rejection
and thus the [Examiner has] failed to provide a prima facie case of
obviousness.” Id.
We are not apprised of error here because this argument does not
address the rejection as articulated. For claim 7, the Examiner does not rely
on any teachings in Bonnet to modify the blade of the combination of
Wetzel and Wobben. See Ans. 9 (stating that “WETZEF in view of
WOBBEN teaches the limitations of claims 7 and 11” and that “[t]he
addition of BONNET to the rejection of claims 7 and 11, for teaching the
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blade curvatures can be defined as functions does not remove any features
from the claims already taught by the combination of WETZEL and
WOBBEN”); see also Adv. Act. 3 (stating that claim 7 “should be identified
as rejected under WETZEL/WOBBEN”).
Second, Appellants argue that the only articulated reasoning provided
as to claim 7 states “to define the first and second curvature the swept blade
of WETZEL by a first a second function taught by______in order to express
the relationship of the blade sweep to blade parameters or aerodynamic
characteristics (BONNET Paragraph 21).” Appeal Br. 16 (quoting, with
some alterations, Final Act. 9). Appellants state that, because the Examiner,
in the Advisory Action “declared that it was error to rely on Bonnet to reject
claim 7 . . . [,] the above stated reason for the proposed modification
(expressly relying on Bonnet) is fatally deficient.” Id.
The Examiner responds by “pointing] to the motivation given in the
rejection of claim 1, from which claim 7 depends, for the combination of
WETZEL and WOBBEN.” Ans. 9; see also Final Act. 8 (paragraph
beginning “Therefore”). For the reason provided by the Examiner, we are
not apprised of error based on this argument.
Third, Appellants argue that, in rejecting claims 5—7, the Examiner
determined that “the limitations concerning a curve defined by a function”
are “common knowledge in the art.” Final Act. 9 (discussed at Appeal Br.
16). Appellants quote from MPEP 2144.03 to argue that “[i]t is never
appropriate to rely solely on ‘common knowledge’ in the art without
evidentiary support in the record, as the principal evidence upon which a
rejection was based.” Appeal Br. 16.
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We are not apprised of error based on this argument. As an initial
matter, we note that claim 7 depends directly from claim 1, not from claim 5,
and thus does not require the three limitations identified by Appellants,
which are recited in claim 5. See Appeal Br. 16. Moreover, as to the alleged
improper reliance on “common knowledge” (in the context of, for example,
the rejection of claim 5), we agree with the Examiner that the necessary
“evidentiary support is provided by BONNET[,] which teaches wind turbine
blades being defined by various curvatures can have the curvatures defined
by function (BONNET paragraph 0021, first sentence).” Ans. 9.
For these reasons, we sustain the rejection of claim 7.
E. Claims 10, 13, 14, and 16—19
Appellants state that independent claims 10 and 17 “include[]
recitations that are similar to recitations of independent claim 1.” Appeal
Br. 17, 19. On that basis, Appellants rely on the arguments presented as to
claim 1. Id. Appellants do not separately argue the patentability of claims
13, 14, and 16 (which depend from claim 10) or claims 18 and 19 (which
depend from claim 17). See infra n.5.
Neither claim 10 nor claim 17 recite the limitation from claim 1
argued by Appellants: “within 25% of the length from the root to the tip of
the blade.” See Appeal Br. 23, 24 (Claims App.); see also id. at 5—8
(providing emphasis for that limitation when arguing claim 1). And,
Appellants do not identify the language allegedly “similar” to the language
at issue regarding claim 1. Regardless, even assuming that claims 10 and 17
do include language such as that argued regarding claim 1, for the reasons
discussed above (see supra Rejection 2, § A), we sustain the rejection of
claims 10, 13, 14, and 16—19.
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F. Claim 11
To address claim 11, the Examiner cited Wobben, column 2, lines 22—
26 and stated “central region [13] is between the root and end region [12]),
or vice versa.” Final Act. 10.
Appellants argue that, in the modified device, the “Wetzel/Wobben
combination would be further modified by the blade 20 of FIG. 2 of Bonnet,
which discloses a positive curvature at the tip (i.e. outboard) of the negative
curvature at the root” such that “even if the proposed Wetzel/Wobben/
Bonnet combination was obvious, it fails to teach a positive curvature at the
first portion beginning at or forward of the blade root and a negative
curvature at the second portion outboard from the first portion, as required
by dependent claim 11.” Appeal Br. 17.
This argument does not address the rejection as articulated. For claim
11, the Examiner does not rely on Bonnet to modify the blade of the
combination of Wetzel and Wobben. See Ans. 9 (stating that “WETZEL in
view of WOBBEN teaches the limitations of claims 7 and 11” and that
“[t]he addition of BONNET to the rejection of claims 7 and 11, for teaching
the blade curvatures can be defined as functions does not remove any
features from the claims already taught by the combination of WETZEL and
WOBBEN”); see also Adv. Act. 3 (stating that claim 11 “should be
identified as rejected under WETZEL/WOBBEN”); Final Act. 9-10 (not
discussing relying on Bonnet to modify the blade of the combination of
Wetzel and Wobben).
For these reasons, we sustain the rejection of claim 11 as unpatentable
under 35 U.S.C. § 103(a).
17
Appeal 2016-001973
Application 13/357,661
G. Claim 15
Claim 15 depends from claim 10 and recites “wherein the positive
curvature extends from a segment having a zero slope forward of the root.”
Appeal Br. 23 (Claims App.).
Appellants argue that the Examiner “failed to cite to any portion of the
cited references that discloses this language.” Appeal Br. 18 (citing Final
Act. 10). Appellants state that “the Specification defines ‘sweep’ as ‘a
forward or rearward deviation of blade position away from a reference line
of a straight blade position in its plane of rotation’” (citing Spec. 3,11. 15—
17) and thus, “‘forward’ is defined by the Specification as a positive-Y
displacement of the reference line 48 in FIG. 3 from the straight blade line
46 or pitch axis 36.” Appeal Br. 18. According to Appellants, “none of the
cited references, alone or in combination, disclose that the positive curvature
extends from a segment having a zero slope forward of the root.” Id.
The Examiner responds that “WOBBEN teaches the central portion
13 is a region between the blade root and end region (WOBBEN column 2,
lines 23—26)” and “[t]hus, the central region 13 can extend the across [sic]
space between the root to the end region 12.” Ans. 10. According to the
Examiner, “WOBBEN suggests the central region . . . extends from a
segment forward of the root, while WETZEL teaches the root itself has zero
slope.” Id.
We are not apprised of error based on Appellants’ argument. We
agree with Appellants that the term “forward”—when referring to
“sweep”—would relate to displacement in the direction of the positive “Y”
axis as shown in Figure 3. We do not agree, however, that the identified
discussion defines “forward” for any use of that term, including in the phrase
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Application 13/357,661
“forward of the root.” Indeed, the phrase “forward of the root” is not used in
that discussion. See, e.g., Spec. 3,11. 12—26. That phrase is used, however,
later in the Specification:
In the embodiment shown in FIG. 3, the reference line 48
comprises a zero sweep at the root 26, a zero slope at the root 26,
and a positive curvature 66 along a segment within 25% of the
length 25 from the root 26 to the tip 28 of the blade 20. For
example, the first point 60 is located within a first segment 64
having a zero slope, although it is appreciated that the present
invention is not so limited to a segment forward of the root 26
having a zero slope. It is critical only that the positive curvature
66 of the reference line 48 starts from the root 26 or passes
through a point outboard from the root 26 having a zero slope.
Spec. 5,1. 27 — 6,1. 3. In light of this disclosure, we construe “forward of
the root” as away from the root in the plane of rotation of the blade. For
example, with respect to Figure 3 in the Specification, “forward of the root”
would mean away from root 26 along the positive “X” axis. See Adv. Act. 3
(stating that “Fig. 3 appears to show the ‘segment’ (64) is along the X-axis
and not forward of the root. See also pages 5—6, bridging paragr[ap]h that
seems to express the segment (64) is ‘forward’ of the root but is along the X-
axis.”). In light of this construction of “forward of the root,” Appellants do
not apprise us of error in the findings as to claim 15. See Ans. 9—10. For
these reasons, we sustain the rejection of claim 15.
19
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Application 13/357,661
DECISION
We reverse the decision to reject claims 2, 4, 6, and 11 under
35U.S.C. § 112, second paragraph, we affirm the decision to reject claims 1,
3, 7—11, and 13—19 under 35 U.S.C. § 103(a), and we reverse the decision to
reject claims 2 and 4—6 under 35 U.S.C. § 103(a).6
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
6 See 37 C.F.R. § 41.50(a)(1) (“The affirmance of the rejection of a
claim on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim, except as to any ground specifically
reversed.”).
20