CROMPTON TECHNOLOGY GROUP LIMITED

Patent Trials and Appeals BoardJan 7, 2021

2020001945 (P.T.A.B. Jan. 7, 2021)

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. 14/496,329 09/25/2014 PETER F. GIDDINGS 73702US01 6031 87521 7590 01/07/2021 Cantor Colburn LLP - Hamilton Sundstrand 20 Church Street, 22nd Floor Hartford, CT 06103 EXAMINER TATESURE, VINCENT ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 01/07/2021 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): usptopatentmail@cantorcolburn.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _______________ Ex parte PETER F. GIDDINGS _______________ Appeal 2020-001945 Application 14/496,329 Technology Center 1700 _______________ Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1 and 3–10 of Application 14/496,329. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6. For the reasons set forth below, we AFFIRM. 1 In our Decision, we refer to the Specification filed September 25, 2014 (“Spec.”) of Application 14/496,329 (“the ’329 Application”); the Final Office Action dated October 5, 2018 (“Final Act.”); the Appeal Brief filed May 29, 2019 (“Appeal Br.”); and the Examiner’s Answer dated October 3, 2019 (“Ans.”). Appellant did not file a Reply Brief. 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Crompton Technology Group Ltd. as the real party in interest. Appeal Br. 1. Appeal 2020-001945 Application 14/496,329 2 BACKGROUND The ’329 Application relates to composite materials, which typically comprise carbon, Kevlar, and/or glass fiber reinforcement in a polymer matrix. Spec. ¶ 3. The ’329 Application describes that a thermal spray coating on a composite material component confers increased resistance to high temperature exposure and wear, while minimizing added mass to the component. Id. ¶ 4. According to the ’329 Application, the described composite materials allow the direct spraying of a functional coating layer onto the surface of a polymer composite substrate while achieving high interface strength. Id. ¶ 7. Claim 1 represents the ’329 Application’s claims and is reproduced below from the Claims Appendix of the Appeal Brief. 1. A coated composite material comprising: a composite substrate comprising a polymeric matrix with fiber reinforcement; a surface of the composite substrate being coated with: (i) a two-phase primer layer comprising a reinforcing phase of material elements bound in a predefined geometric arrangement by a polymeric phase and at least partially exposed at an outer surface of the primer layer so as to provide a surface texture that is characterized by one or more parameters of the predefined geometric arrangement; and (ii) a coating layer, different than the two-phase primer layer, adhered to said outer surface of the two-phase primer layer, wherein the coating layer consists of a metallic thermal spray coating. Appeal Br. 8 (Claims App.) (emphasis added). Appeal 2020-001945 Application 14/496,329 3 REFERENCES The Examiner relies on the following prior art in rejecting the claims on appeal: Name Reference Date Krajewski et al. (“Krajewski”) US 2006/0269734 A1 Nov. 30, 2006 McCrea et al. (“McCrea”) US 2010/0304063 A1 Dec. 2, 2010 Seth et al. (“Seth”) US 8,734,931 B2 May 27, 2014 REJECTION On appeal, the Examiner maintains the rejection of claims 1 and 3–10 under 35 U.S.C. § 103 over Krajewski, in view of Seth, and further in view of McCrea.3 Final Act. 2–4. DISCUSSION The Examiner determines that claims 1 and 3–10 would have been obvious over Krajewski in view of Seth and McCrea. Final Act. 2–4. Appellant argues the claims as a group based on limitations recited in claim 1. Appeal Br. 2–7. We select claim 1 as representative. Claims 3–10 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Regarding claim 1, the Examiner finds that Krajewski discloses a coated composite material comprising: (i) a composite substrate, which further comprises an aerogel polymeric matrix reinforced with fiber reinforcement and (ii) a coating, which further comprises a polymeric phase 3 Because this application was filed after the March 16, 2013, effective date of the America Invents Act, we refer to the AIA version of the statute. Appeal 2020-001945 Application 14/496,329 4 material with a fibrous reinforcement phase partially exposed at the outer surface. Final Act. 2. The Examiner finds Seth teaches an aerogel composite structure comprising a base structure of aerogel/fabric composite and a structured layer, which is bonded on the base layer’s surface. Id. at 3. The Examiner finds that the base layer, formed of fibers bound in a woven fabric, teaches the limitation “a predefined geometric arrangement,” as recited in claim 1. Id. According to the Examiner, it would have been obvious to one of ordinary skill in the art at the time of the invention to form Krajewsky’s composite substrate wherein Krajewsky’s fiber reinforcement is woven as in Seth. Id. at 3. The Examiner acknowledges that Krajewski does not teach a coating layer consisting of a metallic thermal spray coating, which is adhered to the outer surface. Id. However, the Examiner finds that McCrea teaches a reinforced polymeric article comprising an outer metallic coating, which is applied after a polymer substrate’s surface is texturized. Id. The Examiner determines that it would have been obvious to one of ordinary skill in the art at the time of the invention to initially texturize Krajewski’s polymeric composite material’s surface and, thereafter, thermal spray McCrea’s protective metallic coating onto the texturized surface. Id. at 4. According to the Examiner, the ordinarily skilled artisan would have been motivated to do so because McCrea’s applied coating would have formed “a conventional polymeric composite having enhanced strength, durability[,] . . . pressure/vacuum integrity[,] and . . . increased bond, peel[,] and shear strength between the polymer substrate and the applied metallic coating layer.” Id. Appeal 2020-001945 Application 14/496,329 5 Appellant argues that the combined prior art does not disclose all features of claim 1, and the combination is not suggested or reasonable. Appeal Br. 3. Appellant argues, inter alia, that that Krajewski’s preference for a polymeric composite material having a uniform thickness teaches away from the Examiner’s proposed combination with Seth. Appeal Br. 3 (citing Krajewski ¶ 24). Appellant argues that Krajewski’s teachings, as modified by Seth, would have resulted in undesired exposed fibers on the polymeric composite material’s surface. Appeal Br. 3. Whether a reference teaches away from a claimed invention is a question of fact. Para-Ordnance Mfg., Inc. v. SGS Importers Int’l, Inc., 73 F.3d 1085, 1088 (Fed. Cir. 1995). Teaching away requires that a reference “criticize, discredit, or otherwise discourage the solution claimed” by Appellant. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). An obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Krajewski’s disclosure in paragraph 24 that “another embodiment” in which the aerogel material’s surface may be modified to aid in coating deposition and “more uniform thickness” does not amount to teaching away; it does not criticize, discredit, or otherwise discourage exposed fibers on the surface. For purposes of § 103, a reference is prior art for all that it discloses. Symbol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1578 (Fed. Cir. 1991). All disclosure of the prior art, even unpreferred embodiments, must be considered in evaluating the teaching of prior art. See In re Lamberti, 545 F.2d 747, 750 (CCPA 1976). An alternative embodiment does not negate the broader teaching of Appeal 2020-001945 Application 14/496,329 6 Krajewski. Therefore, Krajewski cannot be said to teach away from the claimed invention. Appellant argues that Seth’s structured layer, i.e., woven fabric, “is not disclosed as part of or compatible with a coating.” Appeal Br. 3; see Seth 3:64–4:2. Appellant contends that it would not have been obvious to implement Seth’s structured layer as part of Krajewski’s composite material’s coating. Appeal Br. 3. Appellant’s arguments fail to persuade us that the Examiner reversibly errs in rejecting claim 1 as obvious. For purposes of § 103, a reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom. In re Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir. 1992). The question under 35 U.S.C. § 103 is not merely what the references teach, but what they would have suggested to one of ordinary skill in the art at the time the invention was made. All disclosures of the prior art must be considered. Lamberti, 545 F.2d at 750. In this instance, the Examiner finds that Krajewski’s fibers may be woven, non-woven, matted, etc. Ans. 4 (citing Krajewski ¶ 11); see also Final Act. 3. The Examiner finds Seth similarly teaches an “aerogel composite structure[,] wherein the composite includes a base layer and a woven layer bonded on the surface of the base layer.” Ans. 5 (citing Seth Abstract; 4:3–13; claim 1; Figs. 1–10); see also Final Act. 3. The Examiner determines that Seth’s woven layer is functionally equivalent to Krajewski’s fiber reinforced layer, which is also bonded onto a base layer. Ans. 5. We discern no reversible error in the Examiner’s reasonable conclusion that one of ordinary skill in the art would have inferred that Krajewski’s woven fiber Appeal 2020-001945 Application 14/496,329 7 reinforced layer may be substituted with Seth’s woven layer in an aerogel composite. Appellant asserts that McCrea fails to teach texturizing a composite material’s primer layer. Appeal Br. 4. According to Appellant, McCrea actually teaches texturizing “the underlying composite substrate.” Id. (citing McCrea ¶ 165). McCrea’s paragraph 65 discloses that, [t]o enhance the bond between the metallic layer and the polymer, polymer surfaces forming the interface with the intermediate or metallic layer are typically preconditioned before coatings are applied. Abrading the surface is one approach used to facilitate the bond of the coating to the surface of the polymer article. McCrea ¶ 165. However, contrary to Appellant’s assertion, McCrea does not limit the texturizing process to only the composite substrate. Therefore, we agree with the Examiner that it would have been obvious to one of ordinary skill in the art at the time of the invention to texturize Krajewski’s surface adjacent to the metallic coating. Ans. 6. Appellant contends that it would not have been inevitable for Krajewski’s texturized surface to possess a “texture that is characterized by one or more parameters of the predefined geometric arrangement” of the bound “reinforcing phase of material elements,” as recited in claim 1. Appeal Br. 5; see also id. at 8 (Claims App.). According to Appellant, “McCrea teaches . . . that the surface features of roughened (i.e.[,] texturized) polymer surfaces are irregular and difficult to describe (i.e.[,] not defined by an underlying reinforcement).” Appeal Br. 5 (citing McCrea ¶ 166). Appeal 2020-001945 Application 14/496,329 8 We give claims their broadest reasonable scope consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim must be read in light of the specification, as it would have been interpreted by one of ordinary skill in the art at the time of the invention. Id. The Specification describes that “the reinforcing phase of material elements may be bound in a predefined distribution that is regular or random.” Spec. ¶ 14 (emphasis added). This sentence does not limit the predefined distribution of a reinforcing phase’s material elements to only regular distributions. Therefore, we agree with the Examiner that the disputed “limitation is extremely broad and is necessarily met by one or more fibers being partially exposed upon the surface of” Krajewski’s texturized primer layer. Ans. 6–7. We sustain the rejection of claim 1 as obvious over Krajewski in view of Seth and McCrea. For the same reasons, we sustain the rejection of claims 3–10. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–10 103 Krajewski, Seth, McCrea 1, 3–10 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