MTU Aero Engines AG

Patent Trials and Appeals Board

Sep 21, 2020

2020001654 (P.T.A.B. Sep. 21, 2020)

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.
15/099,348 04/14/2016 Uwe SCHULZE 6570-P50285 7652
13897 7590 09/21/2020
Abel Schillinger, LLP
5929 Balcones Drive
Suite 300
Austin, TX 78731
EXAMINER
WILENSKY, MOSHE K
ART UNIT PAPER NUMBER
3726
NOTIFICATION DATE DELIVERY MODE
09/21/2020 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):
hmuensterer@abel-ip.com
mail@Abel-IP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte UWE SCHULZE and KNUT PARTES
____________________

Appeal 2020-001654
Application 15/099,348
Technology Center 3700
____________________

Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O’HANLON, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 2, 5–7, 10, 15, 17, 21–26, and 28–33. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as MTU Aero Engines
AG. Appeal Br. 3.
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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method for repairing a damaged flow channel segment of
a turbomachine to extend a lifetime of the flow channel
segment, wherein the method comprises:
(a) providing a damaged monocrystalline or directionally
solidified flow channel segment, which has a length, a width
and a thickness, the length and width extending along the flow
channel and each being greater than the thickness, and the
width and length delimiting a surface which constitutes a
bounding surface of a flow channel and shows damage caused
by service of the flow channel segment in a turbomachine,
(b) cleaning the bounding surface to remove impurities
therefrom,
(c) remelting at least a part of the bounding surface in a
surface region in such a way that melted material solidifies
epitaxially in an inner region facing toward unmelted material
and forms a structural region in which a monocrystalline or
directionally solidified structure is preserved, and that melted
material solidifies in a polycrystalline fashion in an outer region
which faces toward the flow channel and forms an edge region,
(d) removing the edge region.

EVIDENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Fernihough US 2005/0067065 A1 Mar. 31, 2005
Greene US 2009/0252987 A1 Oct. 8, 2009
Plante US 2015/0226070 A1 Aug. 13, 2015
Burbaum US 2015/0343563 A1 Dec. 3, 2015

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REJECTIONS2
I. Claims 1, 2, 5–7, 10, 15, 17, 21–26, and 33 stand rejected under
35 U.S.C. § 103 as unpatentable over Greene and Fernihough.3
II. Claims 1, 5, 10, 15, 17, 21, 22, and 28–30 stand rejected under
35 U.S.C. § 103 as unpatentable over Greene, Fernihough, and
Plante.4
III. Claims 1, 2, 5–7, 10, 15, 17, 21–26, and 28–33 stand rejected
under 35 U.S.C. § 103 as unpatentable over Plante, Greene,
Burbaum, and Fernihough.
OPINION
Rejection I – Obviousness based on Greene and Fernihough
Claims 1, 2, 5, 10, 15, 17, 21, 22, and 26
Appellant presents arguments for independent claim 1 (Appeal
Br. 7–12) and does not assert any separate arguments for dependent claims
2, 5, 10, 15, 17, 21, 22, and 26 (see id.). We select claim 1 as representative,

2 The Examiner withdrew a rejection of claims 1, 2, 5–7, 10, 15, 17, 21–26,
and 28–33 under 35 U.S.C. § 112(b) as indefinite. Ans. 10; Advisory Act. 2.
3 In the Final Action, claims 28–32 were also rejected as unpatentable over
Greene and Fernihough. Final Act. 3, 7. However, the Examiner withdrew
this rejection with respect to claims 28–32. Ans. 10; Advisory Act. 2.
4 The statement of this rejection includes claims 31–33. See Final Act. 7.
However, in the body of the rejection, the Examiner does not set forth any
basis for rejecting claims 31–33. See id. at 7–8. Instead, the Examiner
explains that “the rejections relating to the percentage of the shroud segment
remelted are not rejected under this alternate rejection.” Id. at 8. Given that
each of claims 31–33 recites a limitation specifying a percentage of the
shroud segment bounding surface that is remelted, we understand the
Examiner’s statement (id.) to mean that claims 31–33 are not included under
this ground of rejection.
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and claims 2, 5, 10, 15, 17, 21, 22, and 26 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv).
In rejecting claim 1, the Examiner finds that Greene discloses “a
repair method for turbine components having defects. Greene teaches
providing a turbine bucket, inspecting it for damage, and then repairing the
surface. See Greene Fig. 2. These repairs would extend the lifetime of the
component. During inspection the coatings are removed and the surface is
cleaned.” Final Act. 4 (citing Greene, Fig. 2). The Examiner finds that
Green does not disclose that “the blades being repaired are monocrystalline
or directionally solidified.” Id. However, the Examiner finds that
“Fernihough teaches that the turbine blades may be monocrystalline or
directionally solidified.” Id. (citing Fernihough ¶ 35). The Examiner also
finds that Fernihough discloses “that such blades sometimes have casting
defects.” Id. The Examiner determines that “[i]t is obvious to apply a
known generic repair technique for turbine blades to known turbine blades.”
Id. (citing MPEP § 2143(D)).
The Examiner finds that, in Greene’s coating removal step,
“[e]xposing the underlying cast turbine blade may result in previously
undiscovered casting defects being detected. Such defects would also need
to be repaired. Fernihough teaches a method for these repairs.” Final Act. 4
(citing Fernihough ¶¶ 3, 15). The Examiner finds that Fernihough discloses
repairing casting defects by remelting at least part of a bounding surface
such that melted material solidifies epitaxially and forms a region that
preserves monocrystalline or directionally solidified structure. Id. (citing
Fernihough ¶¶ 17–19, 37–38). The Examiner finds that Fernihough also
discloses machining off a surface layer of equiaxed grains, which the
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Examiner equates to the claimed polycrystalline outer region facing the flow
channel and forming an edge region. Id. (citing Fernihough ¶¶ 40, 43). The
Examiner determines that it would have been obvious to “use the repair
method of Fernihough to repair these casting defects as an extra step during
the repair process of Greene because it is obvious to apply a known
technique to a known product or method, ready for improvement, to yield
predictable results.” Id. at 5 (citing MPEP § 2143(D)).
Appellant argues that the Examiner’s rejection is in error because it is
based on speculation. Appeal Br. 8. In particular, Appellant asserts that
[t]he Examiner has not explained why it allegedly is likely, let
alone certain, that casting defects were present but overlooked
before the blade of GREENE was installed in a turbine for the
first time and that these overlooked casting defects would
thereafter have been detected during the repair of the used blade
of GREENE.

Id. at 9. Appellant asserts that the Examiner has not cited evidence that
casting defects may escape inspection during fabrication. See id. at 10
(asserting that Appellant is “not aware that it is allegedly not unusual ‘for
defects to escape initial notice during original fabrication’, nor has the
Examiner provided any evidence in this regard.”). According to Appellant,
“since flow channel segments of a turbomachine apparently are critical
components whose failure may have potentially catastrophic consequences it
is reasonable to assume that these segments are inspected for defects with
utmost care before they are installed in a turbomachine.” Id. We are
unpersuaded by this argument.
In an obviousness analysis, the relevant inquiry is whether the
Examiner has set forth “some articulated reasoning with some rational
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underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). Here, as discussed above, the
Examiner explains that combining Greene’s repair method with
Fernihough’s monocrystalline material and remelting step amounts to the
mere application of a known technique to another known method to yield
predictable results. See Final Act. 4–5. The Examiner also explains that
“Greene and Fernihough both relate to repair techniques that are only used if
some type of damage or defect is discovered during inspection.” Ans. 11.
“If two different repair methods have two different types of damage that can
occur to the same airfoil, it is not speculative to presume that at least some
of these airfoils will have both, and require both types of repair.” Id. The
Examiner explains that “it is not speculative to presume that some casting
defects would be overlooked. Errors occur.” Id. at 12.
Greene teaches a new thermal acoustic imaging technique that
was new in 2008 when the patent was filed. See Greene
[0001]. This new technique did not exist when Fernihough was
first filed in 2002. Thus, it is not speculative to presume that
this newer thermal inspection technique might detect defects
previously overlooked during older fabrications. As such, a
turbine blade manufactured in the past may have defects that
were undetectable then, but detectable now.

Id. The Examiner adds that “Greene teaches inspecting turbine blades using
thermal acoustic imaging to find very small cracks,” and “Fernihough
teaches that casting defects may be micro cracks among other types of
defects.” Id. (citing Greene ¶¶ 1, 13; Fernihough ¶ 5). “Thus, the inspection
system of Greene would be expected to find these types of casting defects.”
Id. The Examiner further explains that “Greene teaches one welding system
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while Fernihough teaches an alternate remelting technique. Both are
suitable (and predictable) for repairing the casting defect crack found, both
are known in the art, thus both would have been viewed as obvious to use.”
Id. In this regard, Appellant does not persuasively refute the Examiner’s
position. Appellant asserts in the Reply Brief that the Examiner’s
“comments only highlight the speculative approach taken.” Reply Br. 3.
However, Appellant does not identify error in the Examiner’s findings and
reasoning articulated in support of the conclusion of obviousness. Appellant
does not offer any factual evidence or persuasive technical rationale to refute
the Examiner’s reasoning or explain why it would be deficient.
Appellant appears to argue that the Examiner improperly relies on
inherency and unsupported official notice. See Appeal Br. 9–10. The
Examiner responds that “the rejection does not rely on stating anything is
inherent” and “did not intend to present official notice of any fact, nor is any
such official notice made here.” Ans. 12. Appellant does not point to, nor
do we discern, any finding of inherency or statement of official notice relied
on by the Examiner in the rejection. In other words, these arguments are
unpersuasive because they are not responsive to the rejection presented.
Appellant argues that the Examiner errs in interpreting the “bounding
surface” recited in claim 1. See Appeal Br. 11. In particular, Appellant
asserts that
claim 1 can[not] reasonably be interpreted to mean that the
“bounding surface” mentioned in step (a) is not necessarily the
“bounding surface” mentioned in step (c), i.e., that claim 1
encompasses a method wherein it is not the damaged portion of
the flow channel segment that is repaired (remelted) but rather a
completely different portion of the flow channel segment that
shows no damage but shows (hypothetical) casting defects.
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Id. Appellant’s argument appears to be that what is remelted in step (c) must
be the “surface which constitutes a bounding surface of a flow channel and
shows damage caused by service of the flow channel segment in a
turbomachine,” as recited in step (a) of claim 1. We are not persuaded by
this argument.
Claim 1 recites, in relevant part, “remelting at least a part of the
bounding surface.” Appeal Br. 21 (Claims App.). The Examiner explains
that
[c]laim 1 never explicitly recites that the remelted part of the
bounding surface contains the damage caused by service.
Rather, the claim allows for a scenario in which the damage
caused by service is located at point A within the bounding
surface, and will be repaired via welding, and the casting defect
is located at a different point B (i.e. the part) within the
bounding surface and will be repaired via remelting.
Ans. 13; see also id. at 14 (explaining that the claim “limit[s] the remelting to
a newly introduced part of the bounding surface, rather than reciting
remelting the whole bounding surface (or reciting remelting the damaged
location)”). In other words, claim 1 requires only that a part of the bounding
surface is remelted. The claim does not require that the part of the bounding
surface remelted necessarily “shows damage caused by service of the flow
channel segment in a turbomachine.” It is well established that limitations
not appearing in the claim cannot be relied upon for patentability. See In re
Self, 671 F.2d 1344, 1348 (CCPA 1982).
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s conclusion of obviousness with respect to claim 1.
Accordingly, we sustain the rejection of claim 1, and claims 2, 5, 10, 15, 17,
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21, 22, and 26 falling therewith, under 35 U.S.C. § 103 as unpatentable over
Greene and Fernihough.

Claims 6, 7, 23–25, and 33
Each of claims 6, 7, 23–25, and 33 depends directly or indirectly from
independent claim 1 and recites that a particular percentage of the bounding
surface is remelted. Appeal Br. 22–24 (Claims App.). In rejecting these
claims, the Examiner finds that
any surface within a flow path creates new sub-paths. Thus, not
only may the entire airfoil be considered a bounding surface but
subsets of the airfoil are likewise bounding surfaces. As such,
any size section of the airfoil surface may be defined as the
bounding surface. Under such a definition, [E]xaminer defines
the repair area as the bounding surface. Since the entirety of
this area is remelted, claims 5–6, 23–25 are taught.
Final Act. 6; see id. at 7 (relying on the same basis for rejecting claim 33).
Appellant argues that the Examiner’s rejection of claims 6, 7, 23–25,
and 33 is based upon an incorrect interpretation of “bounding surface.” See
Appeal Br. 12–13. In particular, Appellant asserts that, “under the definition
adopted by the Examiner, any remelted portion of the bounding surface is
considered to be 100% of the bounding surface, wherefore indicating
different percentages of the bounding surface to be remelted does not make
any sense.” Id. at 13.
Independent claim 1 recites, in relevant part, a “flow channel segment,
which has a length, a width and a thickness, . . . the width and length
delimiting a surface which constitutes a bounding surface of a flow
channel.” Appeal Br. 21 (Claims App.). Claim 1 also recites “remelting at
least a part of the bounding surface.” Id. In other words, independent claim
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1 expressly defines the bounding surface as a surface delimited by the length
and width of the flow channel segment, and at least a part of the bounding
surface is remelted (i.e., some percentage of the entire bounding surface).
Claims 6, 7, 23–25, and 33, which depend from claim 1, recite particular
percentages of the bounding surface that are remelted. Given the definition
set forth in claim 1, the Examiner’s attempt in the rejection of claims 6, 7,
23–25, and 33 to redefine the bounding surface as being limited to the area
remelted (see Final Act. 6) is not commensurate with the scope of the
claims. Thus, the Examiner’s rejection based upon this claim construction is
in error.
Accordingly, we do not sustain the Examiner’s rejection of claims 6,
7, 23–25, and 33 under 35 U.S.C. § 103 as unpatentable over Greene and
Fernihough.

Rejection II – Obviousness based on Greene, Fernihough, and Plante
In contesting this rejection of claims 1, 5, 10, 15, 17, 21, 22, and
28–30, Appellant relies on the arguments asserted against Rejection I of
claim 1, and contends that Plante does not make up for the argued
deficiencies in the combination of Greene and Fernihough. Appeal Br. 14.
For the reasons discussed above, Appellant’s arguments do not apprise us of
error in Rejection I of claim 1, and, likewise, do not apprise us of error in
this rejection of claims 1, 5, 10, 15, 17, 21, 22, and 28–30. Accordingly, we
sustain the rejection of claims 1, 5, 10, 15, 17, 21, 22, and 28–30 under
35 U.S.C. § 103 as unpatentable over Greene, Fernihough, and Plante.

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Rejection III – Obviousness based on Plante, Greene, Burbaum,
and Fernihough
Claims 1, 2, 5, 10, 15, 17, 21, 22, 26, and 28–30
In contesting this rejection of claims 1, 2, 5, 10, 15, 17, 21, 22, 26, and
28–30, Appellant presents arguments without regard to any particular claim.
See Appeal Br. 15–19. We select independent claim 28 as representative,
and claims 1, 2, 5, 10, 15, 17, 21, 22, 26, 29, and 30 stand or fall with claim
28.
In rejecting claim 28, the Examiner finds that Plante discloses “a cast
turbine blade having a shroud. This is a base turbine blade. Plante does not
teach repairing this blade.” Final Act. 8. The Examiner finds that “Greene
teaches a method of repairing a turbine blade. See Greene [0001]. Greene
teaches that turbine blades can become damaged and need repairs.” Id. The
Examiner also finds that Greene discloses “cleaning the surface of a turbine
blade to be repaired. It therefore teaches step b.” Id. The Examiner
determines that “it would have been obvious to use the repair technique of
Greene on the turbine blade of Plante, if repair[s] became needed.” Id.
(citing MPEP § 2143(D)).
The Examiner finds that “[n]either Plante nor Greene explicitly
teach[es] that the blade is made of monocrystalline or directionally solidified
material. Rather, Plante is silent as to the material of the blade, merely
stating it is cast.” Final Act. 8. The Examiner determines that it would have
been obvious “to make the blade of Plante out of any know[n] material that
[is] castable in the turbine arts. Fernihough teaches that monocrystalline or
directionally solidified material is such a known material.” Id. (citing
Fernihough ¶ 5). The Examiner explains that “[t]he underlying point, at this
point in the rejection, is that turbine blades having shrouds, made of the
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material claimed, are known in the art and might need to be repaired after
use in a turbine.” Id. at 8–9.
The Examiner also finds that “Greene teaches welding repair
techniques to repair cracks, but does not teach that these welding techniques
involve[] remelting the surface in the recited manner.” Final Act. 9.
However, the Examiner finds that Burbaum discloses
repair[ing] cracks in turbine blades using a remelting technique
similar to that of the claim. Burbaum differs from claim 28 in
two key factors. One, it uses this technique on superalloys in
polycrystalline form (not monocrystalline form). Two,
Burbaum makes no mention of forming or removing an edge
region. Fernihough remedies both of these issues.
Id. The Examiner finds that
Greene and Burbaum teach techniques for crack repair in
turbine blades. The relevant inquir[y] is whether a person of
ordinary skill would think the remelting technique of Burbaum
would predictably work on monocrystalline materials.
Fernihough would suggest to one of ordinary skill that it would.
Fernihough teaches that a highly similar technique was
successfully used on the relevant material to repair casting
defects. Thus, the remelting technique will work on
monocrystalline turbine blades. Burbaum uses this remelting
technique for crack repair, but the underlying [principles] are
the same. In both cases, a defect of some type is melted away
in such a manner that the repaired component will no longer
have the defect but will have the original material properties.
Id.
Appellant argues that one of ordinary skill in the art would not have
combined the teachings of Burbaum with the teachings of Plante, Greene,
and Fernihough, as proposed by the Examiner. See Appeal Br. 16.
Appellant asserts that “the entire disclosure of BURBAUM relates to a
welding method, not to a remelting method.” Id. at 17 (citing Burbaum ¶ 2);
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see also id. (asserting that, although “remelting is occasionally mentioned in
BURBAUM, it is mentioned only in combination with (and/or as a
consequence of) the welding method”). Appellant also asserts that Burbaum
“focuses on a specific aspect of the act of welding, i.e., an a priori
calculation of the melting path depth as a function of the laser power used
for welding and the heat conduction of the materials to be welded.” Reply
Br. 5 (citing Burbaum, Abstract, claim 16, ¶¶ 14, 15); see also Appeal Br. 17
(asserting that “BURBAUM is a merely theoretical work”). According to
Appellant,
it is only with the benefit of hindsight that one can conclude
that in view of BURBAUM and FERNIHOUGH one of
ordinary skill in the art would have replaced the repair method
for a turbine blade (with integral shroud as allegedly suggested
by PLANTE) disclosed in GREENE by a completely different
repair method and in particular, a repair method used for
removing casting defects (known a long time before the filing
date of GREENE).
Appeal Br. 18. We are unpersuaded by these arguments.
Burbaum discloses that “marginal-layer remelting of cracks close to
the surface by means of laser radiation is desired in order to close the cracks
and in order to retain the mechanical properties of the components to be
repaired.” Burbaum ¶ 3. Burbaum discloses that “it is possible to calculate
the welding power in order to remelt the crack in an optimally and locally
adapted manner at its different crack depths.” Id. ¶ 25. The Examiner takes
the position that “[t]he term welding is used in Burbaum to refer to the
process of applying laser power to remelt the crack region, as explicitly
stated in paragraph [0025]. In other words, in Burbaum[,] the welding
process is a remelting process.” Ans. 15. Appellant does not contest the
Examiner’s position. Instead, in the Reply Brief, Appellant appears to
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acknowledge that Burbaum’s welding is a remelting. See Reply Br. 5
(asserting that Burbaum “is not at all concerned with the process of welding
(‘remelting’) cracks close to the surface of a component of a nickel-based
superalloy solidified in polycrystalline form as such”). Additionally,
although Burbaum indeed discloses “path-dependent welding power
calculated in advance (a priori)” (Burbaum ¶ 6), as asserted by Appellant
(Reply Br. 5), Appellant has not set forth any evidence or persuasive
technical reasoning to explain how or why the fact that Burbaum performs
the welding power calculation in advance would demonstrate error in the
Examiner’s conclusion of obviousness.
Here, as discussed above, the Examiner articulates adequate reasoning
based on rational underpinnings as to why the combined teachings of Plante,
Greene, Burbaum, and Fernihough render obvious the claimed subject
matter. See Final Act. 8–9. The Examiner explains that
Plante was chosen as the base for this rejection so that a flow
channel would exist[] regardless of claim interpretation. Plante
is silent as to the material of the blade, merely stating it is cast.
But the rejection stated that it would be obvious to make the
blade out of any know[n] material in the castable turbine arts.
Fernihough was used to establish that monocrystalline or
directionally solidified material was such a known material.
Having established the existence of a turbine blade with the
right structures and material, the rejection then used Greene to
show that turbine blades can become damaged and require
inspection, cleaning, and repair. Greene is largely silent on the
chosen method of repair (focusing on the inspection technique).
So one of ordinary skill would use any known repair technique
in the turbine arts. Burbaum is such a repair technique and
would be advantageous because it repairs cracks, while
maintaining material properties.
Ans. 16. The Examiner further explains that
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Burbaum is directed to remelting polycrystalline nickel based
superalloys instead of monocrystalline nickel superalloys. This
raises an issue in the mind of one of ordinary skill if the repair
method of Burbaum would predictably work on a
monocrystalline nickel superalloy. The rejection, however,
then notes that Fernihough teaches a repair method directed to a
similar type of damage (casting defects may be cracks) using a
highly similar remelting technique, on monocrystalline nickel
superalloy. Thus, one of ordinary skill would use this as
evidence that the remelting technique of Burbaum could also
predictably work on a monocrystalline blade.
Id. In this regard, Appellant does not persuasively refute the Examiner’s
articulated reasoning. Appellant does not set forth any evidence or
persuasive technical explanation as to why the Examiner’s reasoning would
lack rational underpinnings. See Kahn, 441 F.3d at 988, cited with approval
in KSR, 550 U.S. at 418.
Moreover, Appellant does not identify, nor do we discern, any
knowledge relied upon by the Examiner that was gleaned only from
Appellant’s disclosure and that was not otherwise within the level of
ordinary skill at the time of the invention. See In re McLaughlin, 443 F.2d
1392, 1395 (CCPA 1971) (“Any judgment on obviousness is in a sense
necessarily a reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made and does not include
knowledge gleaned only from [Appellant’s] disclosure, such a reconstruction
is proper.”). As such, we are unpersuaded by Appellant’s contention that the
Examiner relied on impermissible hindsight in reaching the determination of
obviousness of the claimed subject matter. See Appeal Br. 18; Reply Br. 5.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s conclusion of obviousness with respect to claim 28.
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Accordingly, we sustain the rejection of claim 28, and claims 1, 2, 5, 10, 15,
17, 21, 22, 26, 29, and 30 falling therewith, under 35 U.S.C. § 103 as
unpatentable over Plante, Greene, Burbaum, and Fernihough.

Claims 6, 7, 23–25, and 31–33
The Examiner finds that
none of the references explicitly teach[es] remelting 50% [of]
the bounding surface. Yet Burbaum shows remelting entire
regions to repair cracks. See Burbaum Figs. 1–3. Also the
amount of the surface melted is merely a result effective
variable linked to the percentage of the surface containing
cracks. There is no criticality to the 50% number and thus no
patentable significance.
Final Act. 9–10.
Appellant argues that “Figs. 1–3 of BURBAUM relied upon by the
Examiner apparently are merely schematic drawings and in particular, cross-
sections. No percentages of a remelted surface can be taken or deduced
from these drawings.” Appeal Br. 19. This argument is unpersuasive
because it is not responsive to the rejection presented. Although the
Examiner does cite to Figures 1–3 of Burbaum, the Examiner also takes the
position that the amount of bounding surface recited in the claims is a result
effective variable, and there is not any criticality to the specific percentage
of bounding surface being remelted. Final Act. 9; see also Ans. 16
(explaining that “the rejection also states that the repair area is a result
effective variable based on the extent of the damage”). In this regard,
Appellant does not specifically address the Examiner’s position. Appellant
does not proffer any evidence or persuasive technical rationale to refute the
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Examiner’s reasoning articulated in support of the conclusion of
obviousness.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s conclusion of obviousness with respect to claims 6, 7,
23–25, and 31–33. Accordingly, we sustain the rejection of claims 6, 7, 23–
25, and 31–33 under 35 U.S.C. § 103 as unpatentable over Plante, Greene,
Burbaum, and Fernihough.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5–7, 10,
15, 17, 21–26,
33
103 Greene, Fernihough 1, 2, 5, 10, 15,
17, 21, 22, 26
6, 7, 23–
25, 33
1, 5, 10, 15,
17, 21, 22, 28–
30
103 Greene, Fernihough,
Plante
1, 5, 10, 15,
17, 21, 22,
28–30

1, 2, 5–7, 10,
15, 17, 21–26,
28–33
103 Plante, Greene,
Burbaum, Fernihough
1, 2, 5–7, 10,
15, 17, 21–26,
28–33

Overall Outcome 1, 2, 5–7, 10,
15, 17, 21–26,
28–33

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)(1)(iv).
AFFIRMED