Ex Parte Brundage et al

Patent Trial and Appeal BoardAug 22, 2013

11824301 (P.T.A.B. Aug. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KEVIN ROBERT BRUNDAGE, JACOB GEORGE, and ELIZABETH MARIE VILENO ____________ Appeal 2011-008174 Application 11/824,301 Technology Center 3700 ____________ Before GAY ANN SPAHN, MICHAEL C. ASTORINO, and GEORGE R. HOSKINS, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008174 Application 11/824,301 2 STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 19-27 under 35 U.S.C. § 103(a) as unpatentable over Bergman (US 2005/0093209 A1, pub. May 5, 2005), Forrest (US 5,172,385, iss. Dec. 15, 1992), and either Bleackley (US 3,465,114, iss. Sep. 2, 1969) or Van Amsterdam (US 3,843,861, iss. Oct. 22, 1974). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Claim 19 is the sole independent claim on appeal, is representative of the subject matter on appeal, and is reproduced below with added emphasis. 19. A method of fabricating a honeycomb structure comprising: extruding a green honeycomb structure; and exposing the green honeycomb structure to microwave energy in a microwave applicator assembly that excites a single TE mode, the TE03 mode, and provides a generally circular heating pattern in the green honeycomb structure, thereby stiffening the green honeycomb structure, wherein the azimuthal temperature variation of green honeycomb structure is less than 10°C over at least 25% of the total transverse cross-sectional area of the green honeycomb structure. OPINION The Examiner finds Bergman discloses a method of fabricating a honeycomb structure including extruding a green honeycomb article and exposing the article to microwave energy in a microwave applicator Appeal 2011-008174 Application 11/824,301 3 assembly that excites TE modes. Ans. 4. The Examiner further finds that Bergman “does not explicitly show a single TE mode, the TE03 mode.” Ans. 4, 6. Indeed, Bergman discloses that “microwave energy is provided in a succession of TExy and/or TMxy waveguide modes, where x is between 0 and 8, and y is between 1 and 3.” Bergman 2, para. [0024], Ans. 6. To remedy this deficiency with regard to independent claim 19, the Examiner finds that Forrest discloses “a single TE mode, the TE03 mode propagation.” Ans. 4 (citing Forrest, Example 4, col. 10, ll. 11-14). The Examiner concludes that it would have been obvious to one of ordinary skill in the art “to modify Bergman to use a single TE mode, the TE03 mode for suitable [sic] of the user application in view of the teaching of For[r]est . . . .” Id. The Examiner adds that Forrest’s “single TE mode, the TE03 mode propagation . . . has been well known and used for many different applications.” Ans. 6. The Appellants contend that “[t]he Examiner cannot simply point to the optical waveguide of Forrest . . . for the single TE03 mode limitation in making an obviousness rejection without indicating how or why such a combination with Bergman . . . is proper.” Br. 9. The Appellants support this contention in-part by pointing out that Bergman “is directed to an apparatus and method that stiffens a wet extruded ceramic body so that the body may be handled without damage during subsequent fabrication processes” (Br. 7 (citing Bergman, Abstract)) and that Forrest “is directed to dielectric asymmetries in crystalline organic semiconductor compounds that enable the construction of optical devices, including optical isolators, optically isolated lasers, and optical isolated optical amplifiers” (Br. 7-8 (citing Forrest, Abstract)). The Appellants’ contention is persuasive. Appeal 2011-008174 Application 11/824,301 4 The Examiner’s reasoning is not well supported. In this case, the Examiner does not explain why Forrest’s application of a single TE03 waveguide mode propagation, i.e., to construct optical devices for dielectric asymmetries in crystalline organic semiconductor compounds, is applicable for Bergman’s application, i.e., to stiffen a wet extruded ceramic body. See Br. 9. Therefore, we conclude that the Examiner has not articulated adequate reasoning with rational underpinning as to why one of ordinary skill in the art would have combined the teachings of Bergman and Forrest to result in the claimed subject matter. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds [require] some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”) (cited with approval in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)). Thus, the rejection of claims 19-27 as unpatentable over Bergman, Forrest, and either Bleackley or Van Amsterdam is not sustained. DECISION We REVERSE the rejection of claims 19-27. REVERSED Klh