UNITED TECHNOLOGIES CORPORATION

Patent Trials and Appeals Board

Oct 28, 2020

2019005677 (P.T.A.B. Oct. 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.
14/726,947 06/01/2015 James W Neal 80954US01(15-186) 5237
52237 7590 10/28/2020
Bachman & LaPointe, P.C.
900 Chapel St., Suite 1201
New Haven, CT 06510
EXAMINER
KHAN, TAHSEEN
ART UNIT PAPER NUMBER
1781
MAIL DATE DELIVERY MODE
10/28/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JAMES W. NEAL, DAVID A. LITTON,
KEVIN W. SCHLICHTING, ERIC JORZIK,
BRIAN T. HAZEL, and MICHAEL J. MALONEY
____________________

Appeal 2019-005677
Application 14/726,9471
Technology Center 1700
____________________

Before JAMES C. HOUSEL, MICHELLE N. ANKENBRAND, and
JULIA HEANEY, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL
A. STATEMENT OF THE CASE
Appellant filed an appeal under 35 U.S.C. § 134(a) from the
Examiner’s final decision rejecting claims 1–8, 15–20, and 22–28.2
We have jurisdiction under 35 U.S.C. § 6(b).3

1 Appellant is the Applicant, United Technologies Corporation, which,
according to Appeal Brief, is the real party in interest. Appeal Brief
(“Appeal Br.”) 2, filed February 6, 2019.
2 Claim 21 has been withdrawn from consideration. Appeal Br. 4.
3 Our Decision additionally refers to the Specification (“Spec.”) filed June 1,
2015, the Final Office Action (“Final Act.”) dated June 29, 2018, the
Examiner’s Answer (“Ans.”) dated May 17, 2019, and the Reply Brief
(“Reply Br.”) filed July 17, 2019.
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We AFFIRM.
The subject matter on appeal relates to coated components and
methods of electron beam physical vapor deposition (see, e.g., claims 1 and
15). The Specification discloses that electron beam physical vapor
deposition causes a portion of a workpiece within a Line of Sight (LOS) to
be coated with a thin layer of material. Spec. ¶ 2. However, some
workpieces, such as contemporary airfoil components, have complex
geometries that have reduced LOS or Non Line of Sight (NLOS) areas with
respect to an electron beam physical vapor deposition process. Id. ¶ 3.
To address both LOS and NLOS areas, the Specification discloses a
coated component with a coating applied by electron beam physical vapor
deposition, wherein the component includes at least one NLOS area and at
least one LOS area and the coating defines a ratio greater than about 10%
NLOS/LOS. Id. ¶ 4. The Specification further discloses a method of
electron beam physical vapor deposition in which a deposition chamber is
maintained at a pressure between about 4–20 Pa, a workpiece is positioned
within the deposition chamber to define at least one NLOS area and at least
one LOS area, and a coating is applied to the workpiece at a ratio greater
than about 10% NLOS/LOS. Id. ¶ 18.
Independent claims 1 and 15 are illustrative and are reproduced below
from the Claims Appendix of the Appeal Brief.
1. A coated component with a coating applied by Electron
Beam Physical Vapor Deposition (EB-PVD), comprising:
at least one Non Line of Sight (NLOS) area and at least
one Line of Sight (LOS) area, a coating on a workpiece defines
a thickness ratio greater than about 10% NLOS/LOS such that
for every 1 unit of thickness in the LOS area, an at least 0.1 unit
of thickness is in the NLOS area.

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15. A method of Electron Beam Physical Vapor Deposition,
comprising:
maintaining a deposition chamber at a pressure between
about 4-20 Pa;
directing an electron beam at between 40kV -50kV at an
ingot within the deposition chamber; and
positioning a workpiece with a part manipulator to
position a workpiece within the deposition chamber and respect
to the ingot to define at least one Non Line of Sight (NLOS)
area and at least one Line of Sight (LOS) area, wherein the
coating applied to the workpiece is at a thickness ratio greater
than about 10% NLOS/LOS.

REJECTIONS ON APPEAL
The Examiner maintains, and Appellant requests our review of, the
following grounds of rejection under 35 U.S.C. § 103:
I. Claims 1–8 and 22–26 as unpatentable over Greenberg;4
II. Claims 1–6 and 26 as unpatentable over Hass;5
III. Claims 15–20, 27, and 20 as unpatentable over
Greenberg in view of Hazel;6 and
IV. Claims 15–17, 20, 27, and 28 as unpatentable over Hass
in view of Hazel.
B. DISCUSSION
Rejection I
Claims 1–8 and 22–26 are rejected under 35 U.S.C. § 103 as being
unpatentable over Greenberg.

4 Greenberg et al., US 2012/0258256 A1, published Oct. 11, 2012
(“Greenberg”).
5 Hass et al., US 2005/0255242 A1, published Nov. 17, 2005 (“Hass”).
6 Hazel et al., WO 2014/144189 A1, published Sept. 18, 2014 (“Hazel”).
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Appellant presents separate arguments for claims 1, 2, 5, 7, and 8.
Appeal Br. 9–10. Appellant does not present separate arguments for claims
3, 4, 6, and 22–26. Id. at 18. Therefore, claims 3, 4, 6, and 24–26 stand or
fall with claim 1, and claims 22 and 23 stand or fall with claims 7 and 8,
respectively. See 37 C.F.R. § 41.37(c)(1)(iv).
Claims 1, 3, 4, 6, and 24–26
The Examiner finds that Greenberg discloses a method for applying a
coating onto a substrate, such as a workpiece having an NLOS region and an
LOS region, via electron beam physical vapor deposition. Ans. 4. With
regard to the thickness ratio of claim 1, the Examiner finds that Greenberg
discloses a vapor cloud modifier that may be used to thicken a coating on an
NLOS area or to reduce the coating on an LOS area and finds Greenberg
expresses a desire for a uniform coating. Id. at 4–5. The Examiner further
finds that although Greenberg does not explicitly disclose the claimed
thickness ratio, Greenberg shows how different ratios can be obtained. Id. at
5. The Examiner concludes that “it would be expected for one of ordinary
skill in the art to know how to obtain different thicknesses in respective
areas based upon end-user specifications of the product.” Id.
Appellant contends that “Greenberg simply does not show how
different ratios can be obtained and, in fact, does not even utilize the word
‘ratio.’” Appeal Br. 9. Appellant argues that Greenberg’s vapor cloud
modifier “is actually a physical object that disrupts the flow of the vapor
cloud which inherently limits how different ratios can be obtained.” Id. at
9–10. Appellant makes similar arguments in its Reply Brief and asserts
“[t]he Examiner is apparently relying upon routine optimization,” but
“Greenberg does not require only a change of form, proportions, or degree
of the substitution of equivalents doing the same thing as the original
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invention as apparently argued by the Examiner.” Reply Br. 1–2 (citing In
re Williams, 36 F.2d 436, 438 (CCPA 1929)).
Appellant’s arguments are unpersuasive. Greenberg discloses that
electron beam physical vapor deposition can be used to deposit coatings but
the depositing vapor is transported along an LOS during the process and,
therefore, such “processes often fail to create uniform coating thicknesses on
difficult to coat locations of a substrate, i.e., non-line of sight and limited
line of sight areas.” Greenberg ¶ 8. In view of this, Greenberg discloses a
method for applying a coating to a substrate to more uniformly coat a
product including NLOS areas. Id. ¶ 1. Greenberg’s Figure 1 is reproduced
below.

Figure 1 is a perspective view of a multi-airfoil vane segment
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Figure 1 depicts multi-airfoil vane segment 107 that includes airfoils
12 between inner shroud 14 and outer shroud 16. Id. ¶ 18. Greenberg
discloses that a thermal barrier coating (TBC) is coated onto the surfaces of
airfoils 12 and inner surfaces 18, 20 of shrouds 14, 16. Id. Greenberg
teaches that “shrouds 14 and 16 prevent direct line of sight of the entire part
during TBC application” and thus the geometry of the part “results in a non-
line of sight area 13 of multi-airfoil vane segment 10.” Id. ¶ 19. Therefore,
Greenberg recognizes the problem of insufficient coating of NLOS areas of
a workpiece during electron beam physical vapor deposition, including
NLOS areas of airfoil workpieces.
To address the issue of coating NLOS areas, Greenberg discloses a
process that “comprehensively” applies a thermal barrier coating to a
workpiece. Id. ¶ 20. In Greenberg’s process, a vapor source introduces
vapor cloud 44 toward the LOS regions of a part and a gas is introduced via
a plurality of nozzles to cause particle-to-particle collisions that randomize
and push vapor cloud 44 toward the workpiece. Id. ¶¶ 20, 28. Greenberg
teaches that vapor cloud 44 coats LOS regions in the path of the introduced
gas but, “[a]lthough some of the vapor cloud will contact the non-line of
sight areas, the thickness of the resultant coating will not be the same as the
thickness of the coating applied to the line of sight areas.” Id. ¶ 20.
Greenberg’s Figure 3 is reproduced below.

7 Throughout this Decision, for clarity, we present labels to elements in
figures in unbolded font, regardless of their presentation in the original
document.
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Figure 3 depicts Greenberg’s workpiece and vapor cloud modifiers
Greenberg further discloses the use of vapor cloud modifier 36 in the
process chamber (not depicted in Figure 3), which “is a physical object that
disrupts the flow of the vapor cloud” and thus deposition of a coating on the
workpiece, such as by thickening the coating on an NLOS area of the
workpiece. Id. ¶ 27. Greenberg also discloses the use of flow modifier 46a
that directs the flow of vapor cloud 44 to the gap between airfoils 12a and
12b and towards another flow modifier 46b, which in turn redirects flows
44b and 44c to enhance the coating of inner side 50 of airfoil 12a. Id. ¶ 29.
According to Greenberg, some of the flow will continue through the gap
between airfoils 12a and 12b and contact flow inhibitor 48, which will
impede the flow and redirect it back towards outer side 52 of airfoil 12b. Id.
Greenberg teaches that as a result of this process, “the application of the
coating being deposited by vapor cloud 44 will be more uniformly dispersed
on workpiece 32.” Id. Thus, Greenberg also expresses a desire for more
uniform coatings.
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As Appellant states, the Examiner appears to rely upon routine
optimization. Reply Br. 1. “[D]iscovery of an optimum value of a result
effective variable in a known process is ordinarily within the skill of the art.”
In re Boesch, 617 F.2d 272, 276 (CCPA 1980). Greenberg teaches that
vapor cloud modifiers 36, including flow modifiers 46 and flow inhibitor 48,
“may be of any dimension so long as the resultant flow of the carrier gas that
creates vapor cloud 44 is disrupted to achieve the desire[d] result.”
Greenberg ¶ 31. In other words, Greenberg recognizes that the dimensions
of flow modifiers 46 and flow inhibitor 48 are variables that can be altered
to achieve a desired result (e.g., a uniform coating thickness) in an electron
beam physical vapor deposition process. Therefore, in view of Greenberg’s
teachings regarding the problem of coating NLOS areas, Greenberg’s desire
for a uniform coating, and Greenberg’s process, it would have been obvious
to modify the dimensions of Greenberg’s flow modifiers 46 and flow
inhibitor 48 by determining workable or optimal dimensions for the flow
modifiers 46 and flow inhibitor 48, as a matter of routine experimentation
and design within the level of the ordinary skill, to achieve a more uniform
coating of NLOS areas and LOS areas of a workpiece. As the Examiner
finds, a uniform coating suggests a coating thickness ratio of 1:1 for NLOS
and LOS areas. Ans. 4–5. As a result, the routine experimentation to
provide the more uniform coating Greenberg desires would result in a coated
product that falls within the scope of claim 1 (i.e., “a thickness ratio greater
than about 10% NLOS/LOS”).
Appellant also presents new arguments for claims 24 and 25 in
Appellant’s Reply Brief. Reply Br. 2–3. Appellant has failed to show good
cause why these arguments could not have been presented in the Appeal
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Brief. Therefore, we will not consider the separate arguments for claims 24
and 25 newly raised in the Reply Brief. 37 C.F.R. § 41.41(b)(2).
Claims 2 and 5
Although Appellant argues claims 2 and 5 separately, we address
claims 2 and 5 together for purposes of efficiency. Claim 2 depends from
claim 1 and requires the thickness ratio of NLOS/LOS area to “between
about 10% – 50%,” and claim 5, which also depends from claim 1, requires
a coating thickness of “about 5–15 mil . . . at the LOS area and about 4–11
mil . . . at the NLOS area.” Appeal Br. 13. Appellant asserts that Greenberg
cannot achieve the limitations of claims 2 and 5. Appeal Br. 10. However,
these “separate” arguments amount to no more than a recitation of the
additional limitations of the dependent claims and a generic denial that the
applied reference teaches or suggests the additional limitations. We and our
reviewing court have long held that such “argument” does not merit separate
consideration. See, e.g., In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(“[W]e hold that the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.”).
Claims 7, 8, 22, and 23
Claim 7 depends from claim 1, and further recites “wherein the LOS
area includes a leading edge of an airfoil.” Appeal Br. 14. Claim 22
depends from claim 7. Id. at 15.
Claim 8 depends from claim 1, and further recites “wherein the NLOS
area includes an area between two airfoils.” Id. at 14. Claim 23 depends
from claim 8. Id. at 15.
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As an initial matter, we note that claims 7 and 8 are product claims
that result from how a workpiece, an airfoil in the case of claims 7 and 8, is
positioned within an electron beam physical vapor deposition process
chamber relative to the source of coating material and the vapor cloud that is
produced from that source. Therefore, the naming of certain areas of a
workpiece as LOS areas and others as NLOS areas are artifacts of the
process design and would have been an obvious matter of design choice,
given the lack of evidence demonstrating a difference in function or
unexpected result when different areas of an airfoil product are presented as
LOS or NLOS areas, as the Examiner seems to indicate (e.g., as a matter of
selecting how a workpiece is positioned within a process chamber).
Ans. 11–12.
Moreover, Greenberg discloses the limitations of claims 7 and 8. As
discussed above, Greenberg discloses NLOS area 13 between airfoils 12
depicted in Greenberg’s Figure 1. Greenberg ¶¶ 19–20. Greenberg’s Figure
3 also depicts the leading edges of airfoils 12a, 12b as facing vapor cloud 44,
and thus being in line-of-sight with vapor cloud 44.
For these reasons and those set forth in the Examiner’s Answer, we
sustain the Examiner’s § 103 rejection of claims 1–8 and 22–26 over
Greenberg.
Rejection II
Claims 1–6 and 26 are rejected as being unpatentable under 35 U.S.C.
§ 103 over Hass. Final Act. 4–5; Ans. 5–6.
Appellant does not address this ground in the Appeal Brief. See
Appeal Br. 8. We, therefore, summarily affirm the Examiner’s § 103
rejection of claims 1–6 and 26 over Hass.
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Rejection III
Claims 15–20, 27, and 28 are rejected as being unpatentable under
35 U.S.C. § 103 over Greenberg in view of Hazel. Appellant argues the
claims together as a group. Therefore, we select claim 15 to address
Appellant’s arguments and remaining claims 16–20, 27, and 28 stand or fall
with claim 15. 37 C.F.R. § 41.37(c)(1)(iv).
For the rejection of claim 15, the Examiner repeats many of the
findings made with regard to claim 1 above, and also finds that Greenberg
discloses a deposition pressure range of 1 x 10-8 to 101 kPa and that this
overlaps the pressure range of claim 15. Ans. 6–7 (citing Greenberg ¶ 24).8
The Examiner concludes it would have been obvious to achieve claim 15’s
thickness ratio for essentially the same reasons provided in the rejection of
claim 1 over Greenberg. Id. at 7–8.
The Examiner further finds that Greenberg does not disclose claim
15’s electron beam voltage. Id. at 8. However, the Examiner finds Hazel
discloses a deposition process that uses electron beam guns to produce
thermal barrier coatings on workpieces that have LOS and NLOS areas and
that Hazel discloses a voltage of 20–90 kV. Id. The Examiner concludes it
would have been obvious to use Hazel’s electron beam voltage in
Greenberg’s process as a suitable voltage for a process in the same field of
endeavor. Id.

8 See E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996 (Fed.
Cir. 2018) (“[A] prima facie case of obviousness typically exists when the
ranges of a claimed composition overlap the ranges disclosed in the prior
art.” (quoting In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003))). Thus,
it would have been obvious to determine a workable pressure for
Greenberg’s process and arrive at a pressure value that encompasses claim
15’s range as a matter of routine experimentation.
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Appellant cites the arguments asserted for the rejection of claim 1
over Greenberg, contending “the vapor cloud modifier of Greenberg is
actually a physical object that disrupts the flow of the vapor cloud” and
“[t]his defeats the proposed combination with Hazel.” Appeal Br. 10–11.
These arguments do not sufficiently explain why Greenberg’s vapor cloud
modifier would defeat the Examiner’s proposed modification, which is to
use Hazel’s electron beam voltage in Greenberg’s process. In addition, for
the reasons discussed above with regard to the rejection of claim 1 over
Greenberg, Appellant’s arguments do not identify a reversible error in the
Examiner’s proposed modification of Greenberg’s process to arrive at the
claimed thickness ratio.
For these reasons and those set forth in the Examiner’s Answer, we
sustain the Examiner’s § 103 rejection of claims 15–20, 27, and 28 over
Greenberg in view of Hazel.
Rejection IV
Claims 15–17, 20, 27, and 28 are rejected as being unpatentable under
35 U.S.C. § 103 over Hass in view of Hazel. Appellant argues the claims
together as a group. Therefore, we select claim 15 to address Appellant’s
arguments and remaining claims 16, 17, 20, 27, and 28 stand or fall with
claim 15. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Hass discloses a process of coating NLOS
and LOS regions of a substrate via electron beam physical vapor deposition.
Ans. 8–9. The Examiner finds that Hass discloses a thickness range of 2–30
microns for a LOS region and a thickness range of 0.2–2 microns for an
NLOS region. Id. at 9. The Examiner further finds that Hass discloses
adjusting a coating thickness and its degree of uniformity. Id.
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The Examiner finds that Hass does not disclose claim 15’s electron
beam voltage. Id. at 10. However, the Examiner finds Hazel discloses a
deposition process that uses electron beam guns to produce thermal barrier
coatings on workpieces that have LOS and NLOS areas and that Hazel
discloses a voltage of 20–90 kV. Id. The Examiner concludes it would have
been obvious to use Hazel’s electron beam voltage in Hass’s process as a
suitable voltage for a process in the same field of endeavor. Id.
Appellant argues that Hass discloses altering a pressure ratio used to
create a carrier gas jet, but does not disclose or suggest maintaining the
claimed deposition chamber pressure. Appeal Br. 11; Reply Br. 3. This
argument is unpersuasive because the Examiner cites Hass’s teaching of a 16
Pa chamber pressure. Ans. 8–9, 13; Hass ¶¶ 24–25.
Appellant contends that Hass’s thickness range of 0.2 to 2 microns for
an NLOS region “is completely outside the 4–11 mil thickness in the NLOS
coverage area as recited and claimed by Appellant.” Appeal Br. 11. We
note that claim 15 does not recite a specific coating thickness range for an
NLOS area, but instead recites a thickness ratio between an NLOS area and
an LOS area. The Examiner finds that Hass discloses coating thickness
ranges for these two areas that provide thickness ratios that fall within the
claimed range. Ans. 8–9.
To the extent Appellant is arguing the NLOS thickness range of claim
17, the Examiner also finds that Hass discloses adjusting coating thickness
and the degree of coating uniformity. Ans. 9. Based on this teaching, the
Examiner concludes it would have been obvious to modify Hass’s coating
thickness based on an end-user’s specification. Id. at 9–10, 13. Hass
discloses an electron beam vapor deposition process and that altering the
pressure ratio and gas velocity of a carrier gas jet changes coating thickness
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uniformity between LOS and NLOS areas of a workpiece. Hass ¶¶ 3, 56,
58, 61–63, 71, 73. Therefore, Hass recognizes that the pressure ratio and
velocity of a carrier gas jet are variables that affect the uniformity of a
coating applied to a workpiece having LOS and NLOS regions. As a result,
it would have been a matter of routine experimentation and design within the
level of the ordinary skill in the art to determine the workable or optimal
pressure ratio and velocity for a carrier gas jet of Hass’s process that
provides a more uniform coating of NLOS and LOS workpiece areas. As a
result, if an end user desires a uniform coating thickness of 4 or 5
micrometers, which is within the LOS range of 2–30 micrometers suggested
in Hass’s paragraph 61, it would have been obvious to optimize Hass’s
process to also achieve a similar thickness on NLOS areas to achieve the
uniform thickness Hass desires. See Hass ¶ 47.
Appellant argues that Hass does not address the NLOS/LOS thickness
ratio. Appeal Br. 11–12. This argument is unpersuasive in view of Hass’s
thickness range disclosures and desire to achieve a more uniform coating
between LOS and NLOS areas of a workpiece.
In addition, Appellant asserts a lack of reason to modify Hass in view
of Hazel because “Hazel discloses a different voltage range within a
different system” and “the Examiner has only selected Hazel to attempt to
correct the noted deficiency of Hass without any proper motivation,” and
further argues impermissible hindsight. Appeal Br. 12; Reply Br. 3. These
arguments are also unpersuasive. The Examiner explains that Hass and
Hazel are both directed to electron beam deposition processes for
workpieces that have LOS and NLOS areas. Ans. 10, 14. Therefore, the
substitution of Hazel’s electron beam voltage in Hass’s process would
merely have been the use of a known electron beam voltage to achieve a
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predictable result (e.g., produce a coating in an electron beam deposition
process). KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416–417 (2007) (The
substitution of one known element for another is obvious when the
combination yields no more than a predictable result or is the mere
application of a known technique to prior art that is ready for improvement).
For these reasons and those set forth in the Examiner’s Answer, we
sustain the Examiner’s § 103 rejection of claims 15–17, 20, 27, and 28 over
Hass in view of Hazel.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Final Office Action and the Examiner’s Answer, the Examiner’s
decision to reject claims 1–8, 15–20, and 22–28 under 35 U.S.C. § 103 is
affirmed.
In summary:

Claims
Rejected
35
U.S.C. § References/Basis Affirmed Reversed
1–8, 22–26 103 Greenberg 1–8, 22–26
1–6, 26 103 Hass 1–6, 26
15–20, 27, 28 103 Greenberg, Hazel 15–20, 27, 28
15–17, 20,
27, 28 103 Hass, Hazel
15–17, 20,
27, 28
Overall
Outcome
1–8, 15–20,
22–28

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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