United Technologies Corporation

Patent Trials and Appeals Board

Nov 4, 2020

2020000804 (P.T.A.B. Nov. 4, 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.
14/706,045 05/07/2015 Michael J. Birnkrant 70963US02;
67097-2939PUS1
4437
54549 7590 11/04/2020
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
BEEBE, JOSHUA R
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
11/04/2020 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):
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL J. BIRNKRANT, DOMINIC J. MONGILLO JR.,
JOEL H. WAGNER, WEINA LI, JOSE L. SANTANA, CAREY CLUM,
and JAMES T. BEALS
Appeal 2020-000804
Application 14/706,045
Technology Center 3700
Before STEFAN STAICOVICI, JEREMY M. PLENZLER, and
SUSAN L. C. MITCHELL, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3, 4, 6, 7, 20, and 21.2 We have
jurisdiction under 35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as United
Technologies Corporation. Appeal Br. 2.
2 The Advisory Action mailed August 8, 2018 indicates that claims 8–11, 13,
14, and 16–19 have been cancelled. Adv. Act. 2. Appellant additionally
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We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to an airfoil. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A transpiration-cooled airfoil comprising:
an airfoil body that includes an internal passage and an
outer gas-path surface, and at least a portion of the airfoil body
includes at least one discrete window of a nanocellular foam
through which cooling fluid from the internal passage can flow
to the gas-path surface, wherein the at least one discrete window
of a nanocellular foam is recessed from the outer gas-path
surface.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Grylls US 6,443,700 B1 Sept. 3, 2002
Metheny US 2005/0111966 A1 May 26, 2005
Marcin US 2006/0021730 A1 Feb. 2, 2006
Barsoum US 2010/0055492 A1 Mar. 4, 2010
Draper US 2010/0239412 A1 Sept. 23, 2010
Poquette US 2011/0117338 A1 May 19, 2011
Pinnavaia US 2013/0284667 A1 Oct. 31, 2013

cancelled claims 23 and 24 in its amendment submitted July 16, 2018,
leaving only claims 1, 3, 6, 7, 20, and 21 pending. Appeal Br. 2.
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REJECTIONS3
Claims 1, 3, 4, 6, and 7 are rejected under 35 U.S.C. § 112(b) as being
indefinite.4
Claims 1, 4, 6, and 7 are rejected under 35 U.S.C. § 103 as being
unpatentable over Marcin, Poquette, and Metheny.
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Marcin, Poquette, Metheny, and Pinnavaia.
Claims 20 and 21 are rejected under 35 U.S.C. § 103 as being
unpatentable over Marcin, Poquette, Metheny, and Grylls.
OPINION
Indefiniteness
Claim 1 recites a “nanocellular foam,” without further defining any
characteristics of that nanocellular foam. The Examiner explains that
“[n]anocellular, in particular with foams, describe[s] a foam with a structure
whose porosity is reduced to a sub-micrometer level” and “cites US
7,838,108 to Thiagarajan et al. for providing both a common example of
pore size in nanocellular foams (10 nanometers to 500 nanometers or (0.5

3 As noted above, many of the claims rejected in the Final Action have been
cancelled. The listing of rejections on appeal is adjusted to reflect those
claim cancellations. In addition, the rejections under 35 U.S.C. § 103 of
claims 8, 9, 11, 13, 14, 16–19, and 22–24 are moot as these claims are
cancelled, and, thus, are not part of the instant appeal. See Final Act. 9–18,
20–25.
4 The Examiner’s rejection does not specifically list claims 20 and 21, but
because those claims depend from claim 1 and do not further define the
nanocellular foam at issue in claim 1, the Examiner’s rejection applies to
those claims as well.
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micrometers)) AND the reason why this distinction has structural meaning
and impact over microcellular, [Col. 1, lines 10-32.].” Final Act. 5.
The Examiner rejects claim 1 as indefinite because “[t]he foams
Applicant’s specification is describing in the invention range from
microcellular to nanocellular,” which “directly contradict[s] the accepted
meaning for nanocellular sufficient to encompass structures which one of
ordinary skill in the art would explicitly define as NOT nanocellular.” Final
Act. 5. The Examiner “provides yet more evidence of the standard
definition, turning [to] the Journal of Applied Polymer Science, CO2-Blown
Nanocellular Foams which presents clearly the broadly accepted definition
in material sciences in its abstract, [with] the line ‘Polymeric nanocellular
foams are broadly defined as having cell size below one micron.’” Id. The
Examiner explains that “it is pore size that is being utilized to determine the
standard definition of a nanocellular foam, and while Applicant can always
be their own lexicographer, they MUST make the public aware in their
disclosure of their deviation from the standard meaning.” Id.
Appellant contends that although the “two documents may offer
definitions for nanocellular foams, the rejection fails to establish that
adoption of these definitions to the subject application is appropriate.”
Appeal Br. 2. Appellant contends that “the present application describes that
the subject nanocellular foam is of the type that is composed of an
interconnected network of ligaments (see p. 7, [0042]),” and “neither
Thiagarajan nor Costeux disclose foams with an interconnected network of
ligaments.” Id. Appellant “suggests that an appropriate interpretation of
‘nanocellular’ in view of the specification of the present application should
take into account the ligament size.” Id. at 3 (citing two U.S. Patent
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Application Publications). Appellant contends that because “[t]he present
application discloses nanocellular foam that has an average pore size of 10
micrometers to 100 nanometers . . . [a] claim interpretation of ‘nanocellular
foam’ that is based solely on cell size would be inconsistent with the
specification, since 10 micrometers is outside of the nanometer range.” Id.
A claim is properly rejected as indefinite if, after applying the
broadest reasonable interpretation in light of the Specification, the metes and
bounds of a claim are not clear because the claim contains words or phrases
whose meaning is unclear. In re Packard, 751 F.3d 1307, 1310 (Fed. Cir.
2014) (per curiam); see also Ex parte McAward, Appeal No. 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).
Appellant fails to apprise us of error in the Examiner’s determination
that the recitation of “nanocellular” in claim 1 introduces an unacceptable
level of ambiguity into the claims. Based on Appellant’s own admission, we
know that the “nanocellular foam” recited in the claim encompasses a “cell
size . . . outside of the nanometer range.” Appeal Br. 4. According to
Appellant, the structure required for a “nanocellular foam” requires some
understanding of a ligament size associated with the foam. Appeal Br. 3.
The claim, however, includes no recitation of ligaments, let alone any
particular ligament size. Appellant does not allege, nor do we see, that it
acted as its own lexicographer in defining the term “nanocellular.”
Paragraph 42 of the Specification, which Appellant cites to support its
importation of a ligament size requirement into the claim, simply states that
“the nanocellular foam 68 includes an interconnected network of ligaments
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80 between which interconnected pores 82 extend.” Without being limited
to any particular cell size or ligament arrangement, we are apprised of no
particular structure defining what is required by a “nanocellular foam.”
Accordingly, we are not apprised of error in the Examiner’s decision
to reject claims 1, 3, 4, 6, and 7.5
Obviousness
Although we affirm the Examiner’s decision to reject the claims as
indefinite, we are able to reach the Examiner’s obviousness rejections
because Appellant does not dispute the Examiner’s finding that Poquette
teaches the “nanocellular foam” recited in claim 1 or the Examiner’s
rationale for modifying Marcin’s structure based on that teaching. Rather,
the dispute concerns whether Marcin teaches its foam structure being
“recessed” as recited in claim 1.
The Examiner finds that Marcin teaches “a portion of the airfoil body
includes at least one discrete window of a foam (42) through which cooling
fluid from the internal passage can flow to the gas path surface” and that
“[i]t is known to place the foam/reticulations recessed from the outer path
surface of a blade.” Final Act. 6. Specifically, the Examiner finds that
Marcin “DOES disclose placing foam (250) in a recessed position from the
outer surface (204) on blade outer air shields when placed beneath film-
cooling in Figure 10, and explicitly discloses this is an OBVIOUS variant to
placing the foam WITHIN the cooling holes (240).” Id. (citing Marcin

5 Appellant does not contend that any of the dependent claims cure the
deficiency in claim 1.
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¶¶ 47–48). The Examiner provides an annotated version of Marcin’s
Figure 10 illustrating these findings (Ans. 6), which is reproduced below.

The figure reproduced above is Marcin’s Figure 10, which is “a sectional
view of an alternate blade outer air seal” (Marcin ¶ 25), along with the
Examiner’s annotations indicating the portions of that figure mapped to the
claim elements (Ans. 6). The Examiner explains that
[i]t would have been obvious . . . to modify the airfoil of Marcin
to include film cooling holes with discrete nano-cellular foam
beneath it as utilized in Marcin for [blade outer air seal] sections,
which can be modified and applied to airfoils as taught by
Metheny as being a way to expand upon transpirational cooling
foams to further utilize the air for film cooling, enhancing the
efficiency of the system.
Final Act. 8.6
Appellant responds that “[i]n the . . . claim language, the term ‘from
the outer gas-path surface’ provides a reference point for the word

6 The structure referenced by the Examiner from Methany, for example, is
that in Methany’s Figures 3–5. See id. at 7–8.
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‘recessed,’ i.e., the foam is recessed into the wall that carries the outer gas-
path surface” and “thus informs that the foam is set back, or recessed, in the
wall from that surface.” Appeal Br. 4. Appellant contends that “[s]uch an
interpretation is also consistent with how the recessed foam is represented in
the present application in Figure 8 (reproduced below), in which the foam
168 is set back from surface 164b in wall 188.” Id. Appellant’s Figure 8 is
reproduced below.

Figure 8 is a cross-section of a nanocellular foam window.7
Appellant contends that Marcin’s “foam is inside of the body of the
article,” rather than being recessed from the outer gas-path surface. Id. at 5.
Appellant acknowledges that “a broad definition of ‘recessed’ could . . .
support an assertion that [Marcin’s] foam is ‘recessed’ in the body,” but
contends that “such a definition is precluded by the claim language ‘recessed
from the outer gas-path surface’ because the foam in Marcin is not set back
in the wall 232 from the surface 204.” Appeal Br. 5.

7 It appears that Appellant’s figures are incorrectly labeled, and what is
shown in as Figure 8 above is actually referenced as Figure 7 in the
Specification. See Spec. ¶¶ 30, 55–56. It appears that what is currently
labeled as Figure 6 is actually referenced as Figure 8 in the Specification and
what is currently labeled as Figure 7 is actually referenced as Figure 6 in the
Specification. See Spec. ¶¶ 28–29, 55–56.
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Again, Appellant reads too much into the claim. As Appellant
acknowledges, Marcin teaches its foam being recessed in its airfoil body.
As illustrated in the annotated figure provided by the Examiner and
reproduced above, that foam is recessed into the airfoil body relative to the
outer gas path surface of the airfoil body. Based on Appellant’s contentions,
it is unclear exactly what particular structure is missing from Marcin.8
Whatever structure that might be, it is clearly not recited in the claim.
Accordingly, we are not apprised of error in the Examiner’s decision
to reject claim 1. Appellant does not provide separate argument for claims
3, 4, 20, and 21.
As for claims 6 and 7, Appellant alleges inconsistencies between the
rejection of those claims and the rejection of claim 1. Appeal Br. 6–7.
Claim 6 depends from claim 1 and further recites that “the nanocellular foam
is located in the first sidewall, and the first sidewall is a suction side of the
airfoil body.” Claim 7 also depends from claim 1 and further recites that
“the airfoil body extend[s] from a platform end wall, and the nanocellular
foam is in the platform end wall.” These claims do not further define the
particular “nanocellular foam [that] is recessed from the outer gas-path
surface” recited in claim 1. Rather, the “nanocellular foam” recited in
claims 6 and 7 is additional “nanocellular foam.” This is most readily
apparent in claim 7, which makes clear that the structure including the
nanocellular foam is not even part of the airfoil body, which includes the

8 Although not clear from Appellant’s contentions, it appears that Appellant
may be alleging that a continuous opening, rather than a series of holes like
holes 220 in Marcin’s Figures 9 and 10, are required by the claim. We see
no support for such an assertion.
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“nonocellular foam” in claim 1 (i.e., in claim 7, the nanocellular foam is in
the platform end wall and the airfoil body extends from the platform end
wall).
We see no inconsistencies in the Examiner’s findings regarding
claims 6 and 7 relative to claim 1. With respect to claim 6, the Examiner
cites Marcin’s paragraph 46 (Final Act. 8), which describes “alternate
reticulated regions 140 and 142 [(i.e., foam)] within the pressure and suction
side sidewalls 124 and 126” of the airfoil body” (Marcin ¶ 46). For claim 7,
the Examiner cites Marcin’s Figure 1 and paragraph 38, for example (Final
Act. 8), which teach foam region 42 on the endwall of platform 26 (Marcin
¶ 38, Fig. 1). Appellant offers no meaningful argument identifying error in
these findings.
CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6, 7 112(b) Indefiniteness 1, 3, 4, 6, 7
1, 4, 6, 7 103 Marcin, Poquette,
Metheny
1, 4, 6, 7
3 103 Marcin, Poquette,
Metheny,
Pinnavaia
3
20, 21 103 Marcin, Poquette,
Metheny, Grylls
20, 21
Overall
Outcome
1, 3, 4, 6, 7,
20, 21

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TIME PERIOD FOR RESPONSE
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