CNH INDUSTRIAL AMERICA LLC

Patent Trials and Appeals Board

Oct 14, 2020

2020001208 (P.T.A.B. Oct. 14, 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.
14/775,253 09/11/2015 Alessandro BENEVELLI 50770 (CNHA:0373) 1429
71475 7590 10/14/2020
CNH Industrial America LLC
Intellectual Property Law Department
700 STATE STREET
RACINE, WI 53404
EXAMINER
LEGENDRE, CHRISTOPHER RYAN
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
10/14/2020 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):
napatent@cnhind.com
vannette.azarian@cnhind.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ALESSANDRO BENEVELLI, SERGIO MAGRINI,
and RICCARDO MORSELLI
____________

Appeal 2020-001208
Application 14/775,253
Technology Center 3700
____________

Before WILLIAM A. CAPP, JEREMY M. PLENZLER, and
ERIC C. JESCHKE, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1, 2, 5, 7, 9–16, and 19–26. 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(a). Appellant identifies CNH Industrial America LLC as the
Applicant and real party in interest. Appeal Br. 2.
Appeal 2020-001208
Application 14/775,253
2
THE INVENTION
Appellant’s invention relates to variable pitch fan blades. Spec. 1.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A variable pitch fan, comprising:
a plurality of blades;
a support configured to support the plurality of blades;
a rotor configured to rotate the support around a rotation axis,
so that the plurality of blades rotate with the support to control an
air flow;
an adjusting device configured to adjust a pitch of the plurality
of blades by tilting each blade of the plurality of blades around a
respective tilt axis of a plurality of tilt axes, the adjusting device
comprising a plurality of driven members each fixed relative to a
respective blade of the plurality of blades, wherein the adjusting
device comprises:
a plurality of mechanical driving members supported by
the support so as to rotate with the support, each mechanical
driving member of the plurality of mechanical driving members
being linearly displaceable relative to the support and being
coupled to a respective driven member of the plurality of driven
members so that a linear motion of each mechanical driving
member of the plurality of mechanical driving members is
converted into a rotary motion of the respective driven member of
the plurality of driven members around the respective tilt axis of
the plurality of tilt axes;
a transmission device configured to transmit the linear motion
from an actuator to each mechanical driving member of the
plurality of mechanical driving members, wherein the
transmission device comprises a plurality of discrete bodies
contained inside a tubular guide;
a pin connected to the actuator and partially contained inside
the tubular guide, wherein the pin is configured to transmit a
thrust from the actuator to the plurality of discrete bodies,
wherein the tubular guide extends along a transmission path
interposed between the actuator and the plurality of mechanical
driving members, the transmission path having an output portion
coaxial with the rotation axis and an input portion extending at an
angle relative to the rotation axis.
Appeal 2020-001208
Application 14/775,253
3
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Seavey US 3,084,852 Apr. 9, 1963
Lin US 5,488,881 Feb. 6, 1996
Wheeler US 5,931,637 Aug. 3, 1999
Natale EP 0 967 104 A2 Dec. 29, 1999
McCallum US 6,942,458 B2 Sept. 13, 2005
Morrissey US 2006/0216663 Al Sept. 28, 2006
The following rejections are before us for review:
1. Claims 1, 2, 5, 7, 9–11, 13–16, 19 and 20 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Natale, Lin, and McCallum.
2. Claim 12 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Natale, Lin, McCallum, and Seavey.
3. Claims 21, 24, and 25 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Natale, Wheeler, and Morrissey.
4. Claims 22 and 23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Natale, Wheeler, Morrissey, Lin, and McCallum.
5. Claim 26 is are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Natale, Wheeler, Morrissey, and McCallum.
OPINION
Unpatentability of Claims 1, 2, 5, 7, 9–11, 13–16, 19 and 20
over Natale, Lin, and McCallum
Appellant argues these claims as a group. Appeal Br. 8–13. Claim 1
is representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Appeal 2020-001208
Application 14/775,253
4
The Examiner finds that Natale discloses the invention substantially
as claimed except for the tubular guide, pin, and input angle. Final Act. 4–5.
The Examiner finds that Lin teaches the tubular guide and pin and that
McCallum teaches the input angle. Id. at 5–6. The Examiner concludes that
it would have been obvious to a person of ordinary skill in the art at the time
of the invention to modify Natale by the teachings of Lin and McCallum.
Id. at 6. According to the Examiner, a person of ordinary skill in the art
would have done this to facilitate maintenance access and reduce the size of
various components. Id.
Appellant first argues that a person of ordinary skill in the art would
not have been motivated to modify Natale with the teachings of Lin and
McCallum. Appeal Br. 8–9. According to Appellant, Natale already teaches
an embodiment where motor 43 is disposed outside of support 121. Id. at 8.
Appellant concludes that: “Because Natale discloses an embodiment that
provides the advantages suggested by the examiner, it is unclear why one
skilled in the art would be motivated to interpose the Lin balls/guide
between the Natale screw 43a and Natale element 142 in the embodiment of
FIG. 3 of Natale.” Id.
Appellant’s argument is not persuasive as it is built on a faulty
premise, namely, that a person of ordinary skill in the art thinks that there is
only one way to do things. To Appellant, the skilled artisan would not
consider other, predictable alternatives to the specific embodiments
disclosed by Natale. To the contrary, however, “[a] person of ordinary skill
is also a person of ordinary creativity, not an automaton. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007). Such an artisan is presumed to
know something about the art apart from what the references disclose. See
In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). Variable pitch propellers
Appeal 2020-001208
Application 14/775,253
5
have been used in the aviation industry since well before the Second World
War.2 Over that prolonged period of time, practitioners have no doubt
experimented with a wide variety of mechanisms to vary the pitch of a
propeller blade. Some of such techniques are summarized, for example, in
the Wheeler prior art reference. Wheeler, col. 1, l. 14 – col. 2, l. 2. It is well
settled that if a person of ordinary skill can implement a predictable
variation of a known work, section 103 likely bars its patentability.
KSR, 550 U.S. at 417.
Lin teaches a mechanical transmission that features rolling bodies
confined within a guide channel. Lin, Abstract, Figs. 1, 2. Lin further
teaches that it was known to use a compression spring to bias the mechanism
to return to its initial position after work is performed. Id. col. 1, ll. 15–34;
col. 5, l. 66 – col. 6, l. 2. In a similar manner, Appellant uses actuator 20 to
activate worm gear 21 which, in turn, causes axial movement of pin 24 that
pushes spheres 22 through tubular guide 23, to cause axial movement of
shaft 27 and end element 28. Spec. p. 7, l. 20 – p. 8, l. 26. This mechanism,
in turn, causes movement of control element 7, which causes fan blades 2 to
rotate about axis Z by means of a rack and pinion arrangement (elements 4
and 5). Id. p. 5, l. 24 – p. 6, l. 5. Appellant also features spring 30 that
biases control element 7 against axial movement of shaft 27 and end
element 28. Id. p. 8, ll. 30–34; Fig. 3.
Natale teaches a variable pitch fan arrangement for conveying air to
vehicle radiators. Natale ¶ 57. Natale discloses embodiments where
motor 43 is disposed, alternatively, inside and outside of support 21. Id.

2 https://en.wikipedia.org/wiki/Variable-pitch_propeller#:~:text=
In%201919%20L.,pitch%20at%20any%20engine%20RPM. accessed
October 5, 2020.
Appeal 2020-001208
Application 14/775,253
6
¶¶ 15–18, Figs 2b, 3. Appellant presents neither evidence nor persuasive
technical reasoning that tends to show that modifying Natale with Lin’s
rolling unit transmission is anything more than a predictable variation of
Natale that requires no more than ordinary skill. KSR, 550 U.S. at 417. The
mere fact that Natale already discloses one embodiment where the motor
resides outside of support 21 does not negate the prospect that a person of
ordinary skill in the art would have considered further modifications and
improvements. See Dystar Textilfarben GmBH & Co, v. C.H. Patrick Co.,
464 F.3d 1356, 1368 (Fed. Cir. 2006) (explaining that the desire to improve
a product is universal—and even common-sensical).
Even if we were to consider Appellant’s arguments, which are based
on the Figure 2b embodiment of Natale rather than the Figure 3 embodiment
relied on by the Examiner (we sustain the Examiner’s findings based on the
Figure 3 embodiment), we would, nevertheless, find such argument
unpersuasive. In Natale’s Figure 2b embodiment, disk 42 is translated by
means of screw 43a, operated by motor 43, which is arranged outside of
support 21. Natale, ¶ 14, Fig. 2a. The Examiner could just as easily have
modified the Figure 2b embodiment by substituting the sphere and tubular
guide mechanism of Lin for the screw means of Natale. See e.g., Natale,
Figs. 1, 5. Such would have entailed nothing more than a simple
substitution of one known element for another to achieve a predictable
result. KSR, 550 U.S. at 416, United States v. Adams, 383 U.S. 39, 50–51
(1966) (explaining that when claiming a structure that is altered by the mere
substitution of one known element for another, the combination must do
more than yield a predictable result). Appellant presents neither evidence
nor persuasive technical reasoning that modifying the Figure 2b embodiment
of Natale entails more than such a simple substitution. In sum, whether we
Appeal 2020-001208
Application 14/775,253
7
look to the Figure 2b embodiment or the Figure 3 embodiment of Natale,
claim 1 is obvious over the combination of Natale, Lin, and McCallum.
Appellant criticizes the Examiner for failing to provide “objective
evidence” of the reason why one skilled in the art would have been
motivated to modify Natale in the manner proposed. Appeal Br. 11.
Appellant provides no description of what kind of “objective evidence”
Appellant believes is required. Neither does Appellant provide any legal
authority that purports to require such otherwise non-descript “objective
evidence.” Id. Contrary to Appellant’s unsubstantiated legal position, the
correct legal standard is for the Examiner to supply “articulated reasoning
with rational underpinning” to support combining or modifying the prior art.
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in
KSR, 550 U.S. at 418. The Examiner is deemed to be a person of scientific
competence. In re Berg, 320 F.3d 1310, 1315 (Fed. Cir. 2003). As such, the
Examiner makes findings, informed by scientific knowledge, as to the
meaning of prior art references to persons of ordinary skill in the art and the
motivation those references would provide to such persons. Id. Absent
legal error or contrary factual evidence, those findings can establish a prima
facie case of obviousness. Id. In the absence of contrary factual evidence
from Appellant, the Examiner’s stated reason, i.e., maintenance access,
constitutes articulated reasoning with rational underpinning and is sufficient
to support the rejection. Final Act. 3; Kahn, 441 F.3d at 988.
Finally, Appellant argues that the Examiner’s proposed modification
changes the principle of operation of Natale. Appeal Br. 11. Appellant
believes that the “principle of operation” of Natale is to provide a motor that
causes axial movement of element 142 in two directions by turning
screw 43a. Id. Natale discloses motor 43 that actuates screw 43a and causes
Appeal 2020-001208
Application 14/775,253
8
axial displacement of disk 42 in either direction. Natale, ¶ 31. In the
Examiner’s proposed modification, bi-directional movement used to vary
blade pitch is achieved in a first direction by an axial force imparted via an
output and in a second, opposite direction by means of a biasing spring.
Ans. 9. Thus, in each instance, axial motion is generated in two opposing
directions and such axial motion is converted into rotational movement to
vary the pitch of a fan blade. Natale’s principle of operation is thus
maintained.
The Examiner’s findings of fact are supported by a preponderance of
the evidence and the Examiner’s legal conclusion of unpatentability is well-
founded. In view thereof, we sustain the Examiner’s unpatentability
rejection of claims 1, 2, 5, 7, 9–11, 13–16, 19 and 20.
Unpatentability of Claim 12
over Natale, Lin, McCallum, and Seavey
Claim 12 depends directly from claim 11 and indirectly from claim 1.
Claims App. Appellant does not argue for the separate patentability of
claim 12 apart from arguments presented with respect to claim 1, which we
have previously considered. We sustain the Examiner’s rejection of
claim 12. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately argue claims
constitutes a waiver of arguments for separate patentability).
Unpatentability of Claims 21, 24, and 25
over Natale, Wheeler, and Morrissey.
Appellant argues claims 21, 24, and 25 as a group. Appeal Br. 13.
Claim 21 is representative. 37 C.F.R. § 41.37(c)(1)(iv). Claim 21 is an
independent claim that differs from claim 1 in that it requires a control unit
that is configured to perform a calibration process in response to start-up of
Appeal 2020-001208
Application 14/775,253
9
the vehicle. Claims App. The Examiner relies on Wheeler as disclosing a
fan assembly of pitch adjustable blades with blade pitch sensors that
communicate with a control unit. Final Act. 14. The Examiner relies on
Morrissey as disclosing a system controller that performs a calibration
process at start up. Id.
Appellant appears to concede that Wheeler discloses calibration of the
physical pitch of aircraft propeller blades with a cockpit display of pitch
angle. Appeal Br. 14. However, Appellant contends that Wheeler fails to
explicitly disclose “when” calibration occurs. Id. “Wheeler does not appear
to provide any indication that the display 432 is calibrated in response to
start-up of the aircraft.” Id. Appellant argues that Morrissey is directed to
calibrating fan speed at start-up of an explosive gas incinerator system, not a
vehicle. Id.
Wheeler is directed to a variable pitch aircraft propeller. Wheeler,
col. 1, ll. 8–11. Wheeler’s system displays the current pitch to the pilot. Id.
col. 4, ll. 44–53. To calibrate the display to the actual pitch angle, Wheeler
drives the propeller blades to an “extreme” pitch and then calibrates the
display to the known pitch. Id. col. 4, ll. 53–56. In summary, Wheeler
teaches that it was known, in the prior art, to calibrate a display to an actual
pitch angle. Thus, the combination of Natale and Wheeler explicitly teach
all of the elements of claim 21, except for “when” the calibration takes
place. This, in a nutshell, is the focus of Appellant’s opposition to the
rejection of claim 21. Appeal Br. 13–16.
The Examiner merely relies on Morrissey for an explicit teaching that
it is known, in the prior art, to perform a calibration procedure upon system
start-up. Final Act. 14; Ans. 12. Wheeler comes from the field of aviation.
Aviation practitioners, in general, and pilots, in particular, know that a pre-
Appeal 2020-001208
Application 14/775,253
10
flight checklist is performed to determine if aircraft systems are functioning
in a safe manner before the aircraft taxis to the runway for takeoff (i.e.,
shortly after “start-up” of the aircraft). Wheeler explicitly discloses that
propeller pitch is calibrated using an “extreme” pitch. Wheeler, col. 4,
ll. 51–56. In reading such disclosure, a pilot or other aviation practitioner
would immediately recognize and understand that such calibration would
typically be performed on the ground before the aircraft takes off into the
air. In view of common sense, safety considerations, no reasonable,
knowledgeable aviation practitioner would interpret Wheeler as suggesting
that the propeller blades be driven to an “extreme” pitch in-flight in order to
calibrate the actual blade pitch with a cockpit display. Thus, we are of a
mind that Morrissey’s teaching on the issue at hand is somewhat
superfluous, if not unnecessary. Nevertheless, the Examiner’s decision to
rely on Morrissey, given the simplicity of the issue at hand (choosing start-
up as the time to perform calibration), is entirely appropriate. See
Application of Heldt, 433 F.2d 808, 812 (CCPA 1970) (explaining that, in
cases involving relatively simple, everyday-type concepts, it is not
unreasonable to permit inquiry into areas where one of even limited
technical skill would be aware that similar problems exist).
Here, Appellant presents neither evidence nor persuasive technical
reasoning to support an argument that Wheeler’s calibration would likely be
performed at some time other than system start-up. Neither does Appellant
convincingly explain why performing calibration upon start-up is innovative,
requires more than ordinary skill, or produces unexpected results.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Appeal 2020-001208
Application 14/775,253
11
Accordingly, we sustain the Examiner's unpatentability rejection of
claims 21, 24, and 25.
Unpatentability of Claims 22 and 23
over Natale, Wheeler, Morrissey, Lin, and McCallum
These claims depend, directly or indirectly, from claim 21 and are not
separately argued. Claims App., Appeal Br. 16. The Examiner’s rejection is
sustained. 37 C.F.R. § 41.37(c)(1)(iv).
Unpatentability of Claim 26
over Natale, Wheeler, Morrissey, and McCallum.
Claim 26 depends from claim 21 and is are not separately argued.
Claims App., Appeal Br. 16. The rejection thereof is sustained. 37 C.F.R.
§ 41.37(c)(1)(iv).
CONCLUSION
Claims
Rejected
§ References Affirmed Reversed
1, 2, 5, 7,
9-11, 13-16,
19, 20
103 Natale, Lin, McCallum
1, 2, 5, 7,
9-11, 13-16,
19, 20

12 103 Natale, Lin, McCallum,
Seavey
12
21, 24, 25 103 Natale, Wheeler, Morrissey 21, 24, 25
22, 23 103 Natale, Wheeler,
Morrissey, Lin, McCallum
22, 23
26 103 Natale, Wheeler,
Morrissey, McCallum
26
Overall
Outcome
1, 2 ,5 ,7,
9–16, 19-26

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED