Ex Parte Thomas

Patent Trial and Appeal Board

Oct 17, 2013

11686153 (P.T.A.B. Oct. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FLINT O. THOMAS
____________

Appeal 2011-011128
Application 11/686,153
Technology Center 3600
____________

Before EDWARD A. BROWN, LYNNE H. BROWNE and
MITCHELL G. WEATHERLY, Administrative Patent Judges.

BROWNE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-011128
Application 11/686,153

2

STATEMENT OF THE CASE

Flint O. Thomas (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1, 3-8 and 29-51. Claims 2 and 9-28
are canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
Claims 1, 29, 35 and 47 are independent; claim 1 is reproduced below:
1. A plasma fairing comprising:
at least one single dielectric barrier
discharge plasma actuator coupled to an outer
surface of an aircraft landing gear, the single
dielectric barrier discharge plasma actuator having
an exposed electrode and an enclosed electrode
separated by a dielectric barrier material and
adapted to generate a plasma along at least a
portion of the outer surface of the aircraft landing
gear; and
a power supply electrically coupled to the at
least one single dielectric barrier discharge plasma
actuator such that when the power supply
energizes the at least one single dielectric barrier
discharge plasma actuator, a velocity component in
a downstream direction of the fluid flow is
induced, thereby reducing body flow separation of
a fluid flow over the aircraft landing gear,
wherein the power supply is to provide an
unsteady actuation signal with time-scales to
provide a particular excitation frequency to the
plasma actuator comparable to a relevant
frequency of a particular fluid flow control
application that the plasma actuator is to control.

Appeal 2011-011128
Application 11/686,153

3

PRIOR ART
Kremeyer US 6,527,221 B1 Mar. 4, 2003
Malmuth US 6,805,325 B1 Oct. 19, 2004
Enloe US 7,380,756 B1 Jun. 3, 2008
Chow US 7,484,688 B2 Feb. 3, 2009
Scott US 2004/0200932 A1 Oct. 14, 2004
Kawamura US 2005/0255255 A1 Nov. 17, 2005

GROUNDS OF REJECTION

1. Claims 1, 3-5, 7, 8, 29-34 and 47-51 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Scott, Chow and Malmuth.
2. Claims 6 and 46 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Scott, Chow, Malmuth and Kremeyer.1
3. Claims 35-37, 40, 41 and 43-45 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Scott, Chow and Kremeyer.
4. Claims 38 and 39 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Scott, Chow, Kremeyer and Kawamura.
5. Claim 42 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Scott, Chow, Kremeyer and Enloe.

OPINION
Claims 1, 3-8, 29-37, 40, 41 and 43-51
The Examiner finds that Scott disclose every limitation of
independent claims 1, 29 and 47 except for a “plasma actuator [that] is

1 Unlike the Examiner, we do not consider the order in which prior art is
applied in a rejection to be significant. See e.g., In re Bush 296 F.2d 491,
496 (C.C.P.A. 1961).

Appeal 2011-011128
Application 11/686,153

4

coupled to an outer surface of an aircraft landing gear” (Ans. 5) and a
“power supply [that] provide[s] an unsteady actuation signal with time-
scales to provide a particular excitation frequency . . . .” (Ans. 6). See Ans.
4-8. The Examiner finds that Chow “teaches using a flow diverting device
on an aircraft’s landing gear.” Ans. 5. The Examiner further finds that
Malmuth “teaches providing time scale adjusted voltage to a plasma actuator
to adapt to variations in flight conditions (differences in fluid flow).” Ans.
6-7. Based on these findings, the Examiner concludes that the combined
teachings of Scott, Chow and Malmuth render claims 1, 29 and 47
unpatentable. Additionally, the Examiner finds that the combined teachings
of Scott and Chow teach every limitation of claim 35 except for “using the
plasma actuator for noise reduction.” Ans. 12. The Examiner finds that
Kremeyer “teaches using a plasma generating device to reduce drag and
noise from a body moving through a fluid such as an aircraft moving
through air.” Id. Based on this additional finding, the Examiner concludes
that the combined teachings of Scott, Chow and Kremeyer render claim 35
unpatentable.
Appellant contends that
None of Scott, Chow, Malmuth, or Kremeyer,
either alone or in combination, describes or
suggests a plasma actuator that adheres a fluid
flow over a landing gear by inducing a velocity
component in a downstream direction, or describes
an excitation frequency comparable to a relevant
frequency of a fluid flow to reduce noise causing
vortices. Moreover, even if the cited art described
all of the claimed features, there is no motivation
to combine the references as suggested by the
examiner. Accordingly, it follows that none of
Scott, Chow, Malmuth, and Kremeyer either alone
Appeal 2011-011128
Application 11/686,153

5

or in combination, can render obvious claims 1,
29, 35, 47, or any claims dependent thereon.
Br. 7. In support of this contention, Appellant argues each of the references
relied upon by the Examiner in the rejection of independent claims 1, 29 and
47. Appellant further argues the Kremeyer reference which the Examiner
relies upon in the rejection of independent claim 35. We will address
Appellant’s argument in the same manner.
Appellant has not presented separate arguments for the patentability
of any of the claims. We select claim 1 as illustrative of the group of claims
1, 3-5, 7, 8, 29-34 and 47-51 and the remaining claims of this group stand or
fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 6, 36, 37,
40, 41 and 43-46 either depend from claim 35 or are rejected using
Kremeyer in addition to Scott, Chow and Malmuth. We select claim 35 as
representative of the group of claims 6, 35-37, 40, 41 and 43-46 and the
remaining claims of this group stand or fall with claim 35. Claims 38, 39
and 42 are subject to different grounds of rejection and are addressed
separately below.
Scott:
Appellant argues that “Scott fails to teach or suggest a plasma
generating device having a first, exposed electrode and second electrode
separated from the fluid flow by a dielectric, to generate plasma that induces
a velocity component in a downstream direction of the fluid flow.” Br. 7.
The Examiner finds that Scott discloses “an exposed electrode (item 7 or 9
of Scott figure 2) and an enclosed electrode (item 16).” Ans. 5. The
Examiner further finds that Scott’s teaching of redirecting the flow at some
angle away from the surface of an aerodynamically exposed aircraft
component “inherently induces ‘velocity components’ in the flow both
Appeal 2011-011128
Application 11/686,153

6

upstream and downstream.” Ans. 6.
Appellant’s arguments are unconvincing. Appellant’s statement that
Scott’s electrodes 7 and 9 “are both exposed to the fluid flow” (Br. 8) while
correct is not indicative of error, as the Examiner relied upon Scott’s
electrode 16, not electrode 9, to meet the claim limitation requiring a second
enclosed electrode separated by a dielectric barrier material. Appellant’s
argument, that Scott’s expanding air is “a dramatically different phenomena
than is recited in the present claims” (Br. 8) is not responsive to the rejection
as articulated by the Examiner because the Examiner did not rely upon the
airflow created between electrodes 7 and 9 to meet the limitations requiring
inducement of “a velocity component in a downstream direction of the fluid
flow.” Br. 20, Clms. App’x. As discussed supra, the Examiner finds that
this limitation is inherently met by Scott’s disclosure of redirecting the flow
away from the surface of the aircraft. Appellant does not persuasively
address this finding by the Examiner. Thus, Appellant has not apprised us of
error in the Examiner’s findings.
Appellant further argues that “Scott fails to teach or suggest the
actuation of a plasma generator at an excitation frequency comparable to a
relevant frequency of a fluid flow to reduce noise causing vortices.” Br. 9.
Appellant’s argument is not persuasive as actuation of a plasma generator at
an excitation frequency comparable to a relevant frequency of a fluid flow to
reduce noise causing vortices is not claimed in any of the claims.
Chow:
Appellant states that “Chow teaches the use of a flow diverting device
on a landing gear having a completely different operating principle than the
present claims.” Br. 9. Appellant notes that Chow’s device is “passive (no
Appeal 2011-011128
Application 11/686,153

7

external power required) and is simply a porous mechanical fairing which
covers a portion of the gear and in so-doing deflects a portion of the air flow
away from the gear elements.” Id. Based on these observations about
Chow’s device Appellant argues that:
Chow fails to describe or suggest a plasma
generating device having a first, exposed electrode
and second, enclosed electrode separated from the
fluid flow by a dielectric, to generate plasma that
induces a velocity component in a downstream
(i.e., parallel) direction of the fluid flow to reduce
body flow separation of the fluid flow.
Br. 10.
Appellant’s argument is not responsive to the rejection as set forth by
the Examiner as the rejection does not rely upon Chow to teach a plasma
generating device having a first exposed electrode and a second exposed
electrode separated by a dielectric. As discussed supra, the Examiner
correctly finds that Scott describes a plasma generating device having these
features as claimed. The rejection relies upon Chow to teach placement of
Scott’s plasma generating device on the landing gear of an aircraft. Ans. 5.
Appellant has not apprised us of error in the Examiner’s finding that Chow
teaches using a flow diverting device on an aircraft’s landing gear.
Accordingly, Appellant’s argument is not persuasive.
Appellant further argues that Chow “fails to teach or suggest the
actuation of a plasma generator at an excitation frequency comparable to a
relevant frequency of a fluid flow to reduce noise causing vortices.” Br. 10.
As discussed supra, this argument is not persuasive as this feature is not
claimed.
Appeal 2011-011128
Application 11/686,153

8

Malmuth:
Appellant states that Malmuth “describes a completely different
operating principle than the present claims.” Br. 11. Appellant further states
that “Malmuth is used for different purpose (not bluff body vortex
cancelation).” Id. Based on these differences, Appellant argues that
“Malmuth fails to describe an unsteady actuation signal to provide a
particular excitation frequency comparable to the relevant frequency of the
fluid flow as claimed.” Id. In support of this argument, Appellant argues
that:
in the present claims, the power supply is
energized and de[-]energized for “unsteady
operation” which is used to cancel vortex shedding
(see e.g., paras. 0056, 0057, et. seq.). In the
present claims, it is the cycling of energization and
de[-]energization that leads to an excitation
frequency (see FIG. 6B) which in combination
with the associated duty cycle is useful in bluff
body flow control.
Br. 11-12.
In response to these arguments the Examiner finds that “Malmuth
teaches a plasma generating device for drag reduction that includes a
controlled voltage source that uses a time scale adaptable to changing flight
conditions and is adjusted (by the controller) to provide plasma discharge
consistent with the fluid flow state.” Ans. 20. The Examiner additionally
finds that “Malmuth teaches that the fluid flow state is determined by the
controller and the voltage is varied accordingly.” Id. The Examiner
correctly determines that Appellant’s “claim language requires a power
supply (voltage source) that is capable of providing an ‘unsteady actuation
signal with time scales to provide a particular excitation frequency to the
Appeal 2011-011128
Application 11/686,153

9

plasma actuator comparable to a relevant frequency of a particular fluid flow
control application that the plasma actuator is to control’.” Ans. 20-21. The
Examiner further determines that “[t]he Malmuth device includes a voltage
source that is capable of performing in the claimed manner” and that
“Malmuth discloses providing a potentially unsteady actuation signal
(voltage source) that is delivered on a ‘time-scale’ that allows for adapting to
changing flight (and flow) conditions.” Ans. 21 (citing, Malmuth, col. 5, ll.
59-67). The Examiner further notes that “the claimed ‘excitation frequency’
is merely the output frequency of the voltage source that excites the plasma
actuators (electrodes) and Malmuth teaches providing a varying output
frequency (of the voltage source) to excite the plasma actuators (to produce
plasma) depending on the fluid flow state.” Id. Additionally, the Examiner
notes that “[i]n reference to the claimed use of ‘timescale’ in regards to the
‘actuation signal’, both Appellant’s specification (par. 42 and 43) and the
Malmuth teaching (col. 5, lines 59-67) refer to providing a voltage source on
a time-scale relevant to a particular fluid flow.” Id.
We agree with the Examiner’s claim construction as detailed supra
and further note that Appellant is arguing features (e.g., de-energization) that
are not claimed. See Br. 11. Although the claims are interpreted in light of
the specification, limitations from the specification are not read into the
claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
Appellant further argues that Malmuth “fails to teach or suggest the
actuation of a plasma generator at an excitation frequency comparable to a
relevant frequency of a fluid flow to reduce noise causing vortices.” Br. 12.
As discussed supra, this argument is not persuasive as this feature is not
claimed.
Appeal 2011-011128
Application 11/686,153

10

Kremeyer:
Appellant argues that Kremeyer fails to disclose “a plasma generating
device having a first, exposed electrode and second, enclosed electrode
separated from the fluid flow by a dielectric, to generate plasma that induces
a velocity component in a downstream (i.e., parallel) direction of the fluid
flow to reduce body flow separation of the fluid flow.” Br. 13.
Appellants’ argument is not responsive to the rejection as articulated
by the Examiner as the rejection relies upon Scott, not Kremeyer, for these
features as discussed supra. Accordingly, Appellant has not apprised us of
error.
Motivation to Combine Any of the Cited References:
Appellant contends that “there simply is no motivation for a person of
ordinary skill in the art of passive landing gear fairings to combine any of
the current references.” Br. 13. This argument is foreclosed by KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398 (2007), in which the Court rejected the
rigid requirement of a teaching or suggestion or motivation to combine
known elements in order to show obviousness. KSR, 550 U.S. at 415. The
Court noted that an obviousness analysis “need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id. at 418.
To the extent that Appellant is arguing that the Examiner has failed to
provide reasons with rational underpinning for combining the references,
Appellant’s arguments are not convincing. The Federal Circuit has stated
that “rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
Appeal 2011-011128
Application 11/686,153

11

with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with
approval in KSR, 550 U.S. at 418. In this case, the Examiner has articulated
reasoning with rational underpinning for combining the teachings of the
applied references relied upon to reject the claims. See Ans. 5-18.
Appellant has not apprised us of error in either the Examiner’s findings or
the conclusions the Examiner has drawn from those findings. Accordingly,
Appellant’s argument is not convincing.
Appellant’s argument that the Examiner is taking Official Notice
(Br. 17), is not taken well as the Examiner has not indicated that Official
Notice has been taken.
For these reasons, we sustain the Examiner’s rejection of claims 1, 3-
8, 29-37, 40, 41, and 43-51.
Claims 38 and 39
Appellant does not present separate arguments for the patentability of
claims 38 and 39. Br. passim. Accordingly, we sustain the Examiner’s
rejection of claims 38 and 39.
Claim 42
Appellant does not present separate arguments for the patentability of
claim 42. Br. passim. Accordingly, we sustain the Examiner’s rejection
claim 42.

Appeal 2011-011128
Application 11/686,153

12

DECISION
The Examiner’s rejections of claims 1, 3-8 and 29-51 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).

AFFIRMED

rvb