Ex Parte Bradley et al

Patent Trial and Appeal Board

Oct 20, 2016

12762743 (P.T.A.B. Oct. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121762,743 04/19/2010 Jeremy Peter BRADLEY
22429 7590 10/24/2016
HAUPTMAN HAM, LLP
2318 Mill Road
Suite 1400
ALEXANDRIA, VA 22314
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
4928-101 4175
EXAMINER
BENEDIK, JUSTIN M
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
10/24/2016 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):
docketing@ipfirm.com
pair_lhhb@firsttofile.com
EAnastasio@IPFirm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEREMY PETER BRADLEY,
DAVID ALISTAIR SUTTON, COLIN JOHN WEST,
and ANDREW WITHERS
Appeal2014-006069
Application 12/762,743
Technology Center 3600
Before JOHN C. KERINS, ANNETTE R. REIMERS, and
JAMES J. MAYBERRY, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jeremy Peter Bradley et al. (Appellants) seek our review under 35
U.S.C. § 134 of the final rejection of claims 1-18 and 29-33. We have
jurisdiction under 35 U.S.C. § 6(b ). An oral hearing was held on October 4,
2016, with Martin J. Cosenza, Esq., appearing on behalf of Appellants.
We REVERSE.
Appeal2014-006069
Application 12/762,743
THE INVENTION
Appellants' claimed invention is directed to a fiber-reinforced
composite structure having a cut edge and an elastomeric cap covering the
cut edge. Claim 1, reproduced below, is illustrative:
1. A fiber-reinforced composite structure comprising a cut
edge; an elastomeric cap covering the cut edge; and an adhesive
sealant bonding the elastomeric cap to the cut edge.
THE REJECTIONS
The Examiner has rejected:
(i) claims 1--4, 15-18, and 32 under 35 U.S.C. § 103(a) as being
unpatentable over Kovach (US 2008/0128430 Al, published June 5, 2008);
(ii) claim 5 under 35 U.S.C. § 103(a) as being unpatentable over
Kovach in view ofBaerveldt (US 6,532,708 Bl, issued Mar. 18, 2003); and
(iii) claims 6-14, 29-31, and 33 under 35 U.S.C. § 103(a) as being
unpatentable over Kovach in view of Yamashita (US 6,786,452 B2, issued
Sept. 7, 2004 ).
ANALYSIS
Claims 1-4, 15-18, and 32--Unpatentable over Kovach
The Examiner finds that Kovach discloses the use of a dielectric
material as a cap covering a cut edge of a fiber-reinforced composite
structure, but fails to teach that the cap is to be an elastomeric material.
Final Act. 2. The Examiner opines that it would have been obvious to use
any material suitable as a dielectric, as a selection of a known material on
the basis of its suitability for an intended use, and that "elastomeric material
is old and well known to be a dielectric material." Id. at 2-3. The Examiner
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Application 12/762,743
additionally takes the position that a person of ordinary skill in the art
"would have the knowledge and ability to try any combination of materials
to find the best combination." Id. at 9.
Appellants point to a statement in Kovach advising that it is important
to select a thermosetting material for a cap (edge seal in Kovach) that has
material properties that match those of the thermosetting resin from which
the fiber-reinforced composite structure is made. Appeal Br. 20-21 (quoting
Kovach, para. 24). Appellants argue that the Examiner's obviousness
conclusion erroneously fails to take this disclosure into account, and
improperly applies, in effect, a per se rule of obviousness. Id. at 20-21, 33-
34.
The Examiner responds that, notwithstanding the Kovach disclosure
of the importance of matching material properties for the cap and composite
structure, "any material capable of preventing sparks from igniting the fuel
would be obvious to use." Ans. 3. The Examiner then attempts to address
the Kovach disclosure by asserting that the carbon fiber reinforced polymer
(CFRP) structure used in Kovach is made up of carbon fiber reinforcements
in a polymer matrix, that "it is not uncommon to use elastomeric polymers"
as the matrix, and that"[ e ]lastomeric material is well known to have
properties consistent with the applications of Kovach." Id. at 3--4.
Appellants point out that the Examiner provides no evidence or
rationale supporting the above assertions directed to elastomers being used
in CFRP structures. Reply Br. 15. Appellants additionally point out that
elastomers are generally flexible and soft. Id. at 16. Given that Kovach
does not disclose the use of an elastomer as the polymer matrix in the CFRP
structure, and that the use of such would appear to not be a good fit for a
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Application 12/762,743
structural member, the Examiner's attempt to extend the teachings of
Kovach to include a CFRP structure having an elastomer as the matrix
polymer, to further justify why it would have been obvious to provide an
elastomeric cap for the structure, is not supported by a preponderance of the
evidence.
The remainder of the Examiner's assertions regarding the alleged
obviousness of using any material known to prevent sparks from igniting fail
to take into account, as argued by Appellants, the admonition in Kovach that
material properties of the structure and cap should be matched. The
Examiner presents no evidence or persuasive technical reasoning as to the
similarities and differences in material properties of the CFRP structure in
Kovach and the elastomer proposed to be employed as an end cap for the
structure.
Accordingly, the rejection of claims 1--4, 15-18, and 32 as being
unpatentable over Kovach is not sustained.
Claim 5--Unpatentable over Kovach and Baerveldt
The Examiner does not rely on Baerveldt in any manner that
overcomes the deficiency noted above with respect to the proposed
modification of Kovach to include an elastomeric cap. Final Act. 3--4. The
rejection of claim 5 is therefore not sustained.
Claims 6-14, 29-31, and 33--Unpatentable over Kovach and Yamashita
Claims 6, 8, and 29-31 subject to this rejection depend either directly
or indirectly from independent claim 1. The Examiner does not rely on
Yamashita in any manner that overcomes the deficiency noted above with
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Appeal2014-006069
Application 12/762,743
respect to the proposed modification of Kovach to include an elastomeric
cap. Final Act. 4--8. The rejection of claims 6, 8, and 29--31 is therefore not
sustained.
Claim 7 is independent and does not require the cap to be elastomeric,
as does claim 1. Claim 7, also unlike claim 1, requires that a component be
joined to the fibre-reinforced composite structure, and the cap is to have a
web bonded to the cut edge of the composite structure and a flange bonded
to the component and extending away from the composite structure.
The Examiner finds that Kovach discloses component 12 (Figure 2)
joined to the composite structure and a cap having a web bonded to the cut
edge of the composite structure and a flange 22a bonded to component 12.
Final Act. 4--5. The Examiner acknowledges that Kovach does not disclose
this flange as extending away from the composite structure, and cites to
Yamashita as providing a reason to modify the Kovach flange to extend
away from the composite structure. Id. at 5.
Appellants maintain that Kovach does not disclose that flange 22a is
bonded to component 12, but instead a mechanical coupling is used to secure
fibre-reinforced composite structure 10, onto which cap 22 having flange
22a is affixed, to component 12. Appeal Br. 12. The Examiner counters
that "bonded" is broad enough to encompass the use of fasteners of the type
shown in Kovach. Ans. 2-3. 1 Appellants respond, in tum, by citing to
passages from the Specification that discuss how the term "bonded" is used,
1 The Examiner also makes passing reference to bonding being by "fasteners
or any other desired obvious means." Ans. 2. As there is no analysis
presented as to what might constitute such other desired obvious means, we
disregard this apparent attempt to extend the teachings of Kovach.
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Application 12/762,743
as well as providing a dictionary definition of "bonded," and argue that the
Examiner's interpretation of bonded as encompassing joining with
mechanical fasteners is unreasonably broad. Reply Br. 6-10.
Appellants have the better position here. Persons of ordinary skill in
the art would understand, in light of Appellants' Specification, that the claim
term "bonded" is limited to joining the recited structures with an adhesive.
See Reply Br. 7. The Examiner has not established that the components in
Kovach corresponding to the claimed component (element 10) and flange
(element 22a) are bonded together as required by claim 7.
The rejection of claim 7 as being unpatentable over Kovach and
Yamashita is therefore not sustained. Claims 9-14 and 33 depend either
directly or indirectly from claim 7, and the rejection is thus not sustained as
to those claims either.
DECISION
The rejection of claims 1--4, 15-18, and 32 under 35 U.S.C. § 103(a)
as being unpatentable over Kovach is reversed.
The rejection of claim 5 under 35 U.S.C. § 103(a) as being
unpatentable over Kovach in view of Baerveldt is reversed.
The rejection of claims 6-14, 29-31, and 33 under 35 U.S.C. § 103(a)
as being unpatentable over Kovach in view of Yamashita is reversed.
REVERSED
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