THE BOEING COMPANY

Patent Trials and Appeals Board

Aug 28, 2020

2019005689 (P.T.A.B. Aug. 28, 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.
14/591,855 01/07/2015 Ana Gonzalez-Garcia 70186.414US01_82057 5817
65678 7590 08/28/2020
HAYNES AND BOONE, LLP (70186)
IP Section
2323 Victory Avenue
SUITE 700
Dallas, TX 75219
EXAMINER
VO, HAI
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
08/28/2020 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):
ipdocketing@haynesboone.com
patentadmin@boeing.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANA GONZALEZ-GARCIA, PEDRO P. MARTIN,
NIEVES LAPENA, and MAIK WONNEBERGER

Appeal 2019-005689
Application 14/591,855
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, MONTÉ T. SQUIRE, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 1, 3–8, 10–13, and 21–23. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as The Boeing
Company. Appeal Brief dated April 12, 2019 (“Appeal Br.”) 2.
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Application 14/591,855

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CLAIMED SUBJECT MATTER

The present application generally relates to “fire resistant sustainable
aircraft interior panels comprising a sandwich panel structure.”
Specification filed May 12, 2016 (“Spec.”) ¶ 2. The Specification teaches
that aircraft interior panels are “sandwich” structures comprising a core
sandwiched between outer skins. Id. ¶ 5. Conventionally, the outer skins
include phenolic resins and glass fibre pre-pregs or other materials all of
which have “known environmental limitations.” Id. ¶ 6. The use of such
materials presents difficulties during manufacture and at the end of an
aircraft’s useful service life. Id. ¶ 8. The Specification teaches that it would
be desirable to have sandwich panels that are more environmentally friendly
while maintaining excellent technical performance. Id. ¶ 9.
The Specification teaches an aircraft interior panel where the first and
second skins both comprise a composite comprising natural fibres set within
a biopolymeric resin thereby forming a sustainable aircraft interior panel.
Id. ¶ 10.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with certain limitations bolded for emphasis:
1. An aircraft interior panel comprising:
a core sandwiched between first and second skins,
wherein the first and the second skins both comprise a
composite comprising fibres set within a biopolymeric resin,
wherein the biopolymeric resin consists of 50% to 80% by
weight of a natural thermoset polymer derived from one
of linseed oil or soya oil, 10% to 30% by weight of a
viscosity-fixing agent, and 1 % to 10% by weight of an
initiator,
wherein the initiator consists of Initiator BK, methyl ethyl
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Application 14/591,855

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ketone peroxide, or benzoyl peroxide,
wherein the fibres are bonded to the core by the biopolymeric
resin; and
a coating, on an outer surface of at least one of the first and
the second skins to increase fire resistance of the aircraft
interior panel, wherein the coating is a halogen-free fire
resistant protective coating.
Appeal Br. 18 (Claims App.) (reformatted for clarity)
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Wolfers et al. (“Wolfers”) US 4,219,674 Aug. 26, 1980
Martin et al. (“Martin”) US 2012/0148824 A1 June 14, 2012
Chen et al. (“Chen”) US 2016/0243583 Al Aug. 25, 2016
Webster et al.
(“Webster”)
US 2016/0280842 Al Sept. 29, 2016

REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1, 3, 5–8, 10–13, 22, and 23 are rejected under 35
U.S.C. § 103 as being unpatentable over Martin in view of
Webster. Final Action dated Sept. 25, 2018 (“Final Act.”)
3–5; Examiner’s Answer dated May 13, 2019 (“Answer”)
3–6.
2. Claim 4 is rejected under 35 U.S.C. § 103 as being
unpatentable over Martin in view of Webster, and further in
view of Wolfers. Id. at 5–6.
3. Claim 21 is rejected under 35 U.S.C. § 103 as being
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unpatentable over Martin in view of Webster, and further in
view of Chen. Id. at 6–7.
DISCUSSION
Rejection 1. The Examiner rejects claims 1, 3, 5–8, 10–13, 22, and
23 as obvious over Martin in view of Webster. Answer 3–6. In support of
the rejection, the Examiner finds that Martin teaches each element of the
claim other than the biopolymeric resin. Id. at 4. The Examiner further
finds that Webster teaches a composite material that includes a resin that
satisfies the biopolymeric resin limitation. Id. at 5.
Webster teaches that “methacrylated epoxidized sucrose soyate
(MAESS) oligomers . . . may be formulated into thermosets and cured via a
free radical mechanism using styrene, for example, as the reactive diluent.”
Webster ¶ 11. In view of Webster’s teachings, the Examiner finds that
“[t]he matrix resin comprises 70 wt% of a polyfunctional bio-based
methacrylate oligomer with 30% of a diluent and 4 wt% of initiators
(paragraph 53 and table 3).”
Appellant argues that the rejection is in error on several bases.
Appeal Br. 5–16.

“1 % to 10% by Weight of an Initiator”
First, Appellant argues that Webster does not teach a biopolymeric
resin consisting of 1% to 10% by weight of an initiator. Id. at 6–8, 10–12.
Appellant directs us to the Examiner’s reliance on paragraph 65 of Webster,
which teaches “Luperox P (2% of total resin weight) and Luperox 10M75
(2% of total resin weight) were utilized as the free-radical initiators.”
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Appeal Br. 7 (citing Webster ¶ 65). Appellant correctly asserts that neither
of the listed initiators is one of the specific initiators recited in the claims.
Id. at 8. Appellant contends that “the scope of the ‘initiator’ (of 1% to 10%
by weight) in claims 1 and 7 is limited to including only one of these [listed]
substances. As such, other substances may not be employed for the
‘initiator’ of claims 1 and 7.” This is not persuasive of error in the
Examiner’s rejection.
As conceded elsewhere in Appellant’s Brief, the Examiner relies on a
different portion of Webster as teaching the use of methyl ethyl ketone
peroxide. Final Act. 4 (citing Webster ¶ 50). Paragraph 50 of Webster
provides that “[f]or thermal curing, a thermally initiated free radical initiator
is needed. Suitable thermally initiated free radical initiators include . . .
ketone peroxides such as, for example, methyl ethyl ketone peroxide.”
Webster ¶ 50. Appellant has not shown that the Examiner erred in relying
upon this portion of Webster as teaching the use of methyl ethyl ketone
peroxide as an initiator in a biopolymeric resin.
Appellant additionally argues that the Examiner errs in finding that
Webster teaches that the initiator should be present in a quantity of “1% to
10% by weight” as claimed. Appeal Br. 10–12. Appellant observes that
Paragraph 50 of Webster (relied on by the Examiner as teaching methyl
ethyl ketone) “does not indicate the percentage by weight of methyl ethyl
ketone peroxide that should be used.” Id. at 12. Appellant argues that a
person of ordinary skill in the art would not have had reason to assume that
methyl ethyl ketone peroxide would be used in the same quantity as the
initiators of Example 1 (described in paragraph 65 as present at 4% by
weight).
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In the Answer, the Examiner additionally finds that “claim 18 recites
that the initiator is present in an amount from 0.5 to 15% by weight based on
the total weight of the curable composition.” Answer 5. The Examiner
determines that the prior art range encompasses the claimed range and
establishes a prima facie case of obviousness. Id. at 5, 9.
In its Reply Brief, Appellant argues that the range taught by Webster’s
claim 18 “is so broad that it totally encompasses and greatly exceeds the
range claimed by independent claims 1 and 7.” Reply Br. 7. Appellant
further asserts that the prior art range is 38% larger than the claimed range.
Id.
This is inadequate to show error in the Examiner’s determination.
The range of Webster’s claim 18 (0.5 to 15% by weight), considered in
conjunction with the value taught by its Example 1 (4% by weight) is
generally similar to the claimed range of 1 to 10% by weight. See Appeal
Br. 18–19 (Claims App.).
As persons of scientific competence in the fields in which they work,
examiners are responsible for making findings, informed by their scientific
knowledge, as to the meaning of prior art references to persons of ordinary
skill in the art. Absent legal error or contrary factual evidence, those
findings can establish a prima facie case of obviousness. In re Berg, 320
F.3d 1310, 1315 (Fed. Cir. 2003).
Here, Appellant has not shown error in the Examiner’s finding that it
would have been a matter of routine engineering to arrive at a value within
the claimed range. Answer 5. Appellant does not argue or offer evidence in
support of the criticality of the claimed range.
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In view of the foregoing, we determine that Appellant has not shown
error with regard to the Examiner’s findings relating to the claimed initiator.

Teaching Away
Appellant additionally argues that Webster teaches away from the
claimed biopolymeric resin. Appeal Br. 8–10.
Claim 1 requires that “the biopolymeric resin consists of” a thermoset
polymer, a viscosity-fixing agent, and an initiator. Claim 7 is similar.
Appellant argues that claimed resin may not include additional components
(although not explicitly stated, apparently as a result of the use of the closed
transition term “consists of”). Id. at 9. Appellant directs us to Webster’s
teaching that “[t]he invention also relates to the use of a composition
comprising the polyfunctional bio-based methacrylated oligomers of the
invention, together with the optional initiators, diluents, catalysts,
inhibitors, pigments, and solvents discussed herein, as a matrix resin for
composites.” Webster ¶ 53 (emphasis added); see also Appeal Br. 8–9.
Appellant argues that the composition of Webster “may comprise . . .
a multitude of different combinations of substances including catalysts,
inhibitors, pigments, and/or solvents and, thus, the composition [of] Webster
teaches away from a biopolymeric resin that is limited to” the enumerated
elements. Id. at 10 (emphases omitted).
Prior art may teach away if it “criticize[s], discredit[s], or otherwise
discourage[s] the solution claimed.” In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). “[M]ere disclosure of alternative designs does not teach
away.” Id.
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Here, Appellant does not direct us to any portion of Webster that
criticizes, discredits, or otherwise discourages use of the claimed resin.
Rather, Appellant merely points out that Webster includes various
alternatives. As a result, Appellant has not shown that Webster teaches
away from the “biopolymeric resin” limitation of claims 1 and 7.

“Biopolymeric Resin” and “Natural Thermoset Polymer”
Appellant argues that “the Examiner is erroneously analogizing the
polyfunctional bio-based methacrylate oligomer [MAESS] of Webster to the
claimed natural thermoset polymer (derived from linseed oil or soya oil).”
Appeal Br. 12; see id. at 12–14.
Claim 1 requires a biopolymeric resin that consists of “a natural
thermoset polymer derived from one of linseed oil or soya oil” and other
components. Id. at 18 (Claims App.). In the Final Action, the Examiner
finds that methacrylated epoxidized sucrose soyate (MAESS) satisfies the
natural thermoset polymer limitation. Final Act. 4.
Webster teaches that bio-based epoxy resins can be “synthesized from
the epoxidation of vegetable or seed oil esters of polyols” and describes an
embodiment where “the vegetable or seed oil is selected from corn oil,
castor oil, soybean oil, safflower oil, sunflower oil, linseed oil” and others.
Webster ¶ 39 (emphasis added); see also Appeal Br. 13. Webster
additionally teaches that “[t]he invention relates to polyfunctional bio-based
methacrylate oligomers prepared by the ring-opening reaction between at
least one ethylenically unsaturated acid . . . and a polyfunctional bio-based
epoxy resin[].” Id. ¶ 37. Thus, a vegetable or seed oil is epoxidized to form
the epoxy resin. Id. ¶ 39. The epoxy resin is subsequently subject to a ring-
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opening reaction to yield “bio-based methacrylic oligomers.” Id. ¶ 37; see
also id. ¶ 86 (describing preparation of MAESS oligomers by ring-opening
reaction between methacrylic acid and epoxidized sucrose soyate).
Appellant argues that the epoxy resin (rather than the subsequently
formed oligomer) “should be analogized” to the claimed polymer because it
is the resin that is synthesized from linseed or soy oil. Appeal Br. 14. We
interpret this to mean that the Appellant contends that the resin (the
precursor) satisfies the “natural thermoset polymer” limitation, and it is the
methacrylic oligomer (the reaction product) that is taught to be combined
with styrene and initiator. Thus, we understand the Appellant to argue,
Webster does not teach a natural thermoset polymer “derived from one of
linseed or soya oil” that is combined with a viscosity-fixing agent (styrene)
and initiator to form the recited “biopolymeric resin.”2
This argument is not persuasive. The Examiner determines that “the
natural thermoset polymer derived from linseed oil or soya oil of the claimed
invention includes a bio-based polymer for which at least one portion of the
polymer consists of a material produced from linseed oil or soya oil.”
Answer 5. The Examiner further finds that “[t]he polyfunctional bio-based
methacrylate oligomer [of Webster] is a bio-based methacrylate-epoxy resin
derived from soya oil and thus meets a generic definition of the natural
thermoset polymer set out in Appellant’s disclosure.” Id. at 6.
Appellant argues that the epoxy resin of Webster is “a natural
thermoset polymer derived from one of linseed oil or soya oil” but offers

2 To the extent that Appellant contemplates some different argument, it is
not adequately stated so as to present an issue for appeal. See 37 C.F.R.
§ 41.37(c)(1)(iv).
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little argument that the “bio-based methacrylate oligomers” of Webster fall
outside the scope of such term. Appellant does not address the scope of the
term “derived from.”
In its Reply, Appellant offers argument that Webster teaches an
“oligomer” rather than a “polymer.” Reply Br. 4. This issue, however, was
not squarely presented in the Appeal Brief, nor has Appellant sought to show
good cause why such argument should be considered. Nor has the Examiner
had an adequate opportunity to respond to such argument. Accordingly, we
will not consider such argument. See 37 C.F.R. § 41.41(b)(2).
In view of the foregoing, we determine that Appellant has failed to
show error in the rejection of claims 1, 3, 5–8, 10–13, 22, and 23.

Rejections 2 and 3. The Examiner rejects claims 4 and 21 as obvious
over Martin in view of Webster and certain additional references. Final Act.
5–7. Appellant argues that these rejections are in error for the same reasons
discussed above. Appeal Br. 16. As we have not found such arguments to be
persuasive, we determine that reliance on such arguments does not show
error with regard to the rejection of claims 4 and 21. Appellant additionally
presents new argument regarding claim 4 in its Reply Brief. See Reply Br.
8–9. This is a novel argument not discussed in Appellant’s principal brief.
As Appellant has not shown good cause why such argument should be
considered, we decline to address it. See 37 C.F.R. § 41.41(b)(2).

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CONCLUSION

The Examiner’s rejections are affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3, 5–8,
10–13, 22
23
103 Martin, Webster 1, 3, 5–8,
10–13, 22
23

4 103 Martin, Webster,
Wolfers
4
21 103 Martin, Webster,
Chen
21
Overall
Outcome
1, 3–8,
10–13,
21–23

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