Ex Parte Davis

Patent Trial and Appeal Board

Jun 15, 2016

12371952 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/371,952 02/17/2009
27877 7590 06/17/2016
KENNAMETAL INC
Intellectual Property Department
P.O. BOX231
1600 TECHNOLOGY WAY
LATROBE, PA 15650
FIRST NAMED INVENTOR
Danny Ray Davis
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.
K-2765USUS1 8772
EXAMINER
SWINNEY, JENNIFER B
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
larry.meenan@kennametal.com
k-corp. patents@kennametal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANNY RAY DA VIS
Appeal2014-002789
Application 12/371,952 1
Technology Center 3700
Before KEN B. BARRETT, WILLIAM A. CAPP, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Danny Ray Davis (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 1 and 3-18, which constitute
all the claims pending in this application. 2 We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
Regarding claims 7 and 9, the Examiner entered a new ground of
rejection in the Examiner's Answer against claim 7 under 35 U.S.C. § 103(a)
as unpatentable over Flynn and Yoneda (US 6,439,094 Bl, iss. Aug. 27,
According to Appellant, the real party in interest is Kennametal,
Incorporated. Br. 3 (filed June 4, 2013).
2 Claim 2 has been canceled. Response To Non-Final Office Action
(filed July 5, 2011 ).
Appeal2014-002789
Application 12/371,952
2002) and claim 9 under 35 U.S.C. § 103(a) as unpatentable over Flynn,
Applicant's Admission to Prior Art (AAPA), and Ribich (US 3,775,819, iss.
Dec. 4, 1973). Ans. 7-8. The Examiner properly gave notice of the new
ground of rejection. Id. The Technology Center Director approved the new
ground of rejection. Id. at 12-13. As the Answer indicates, the Appellant
had two months to respond to the new ground in either of two ways: 1)
reopen prosecution (see 37 C.F .R. § 41.39(b )(1)(2014)); or 2) maintain the
appeal by filing a reply brief as set forth in 37 C.F.R. § 41.41 (see 37 C.F.R.
§ 41.39(b)(2) (2014)), "to avoid sua sponte dismissal of the appeal as to the
claims subject to the new ground of rejection." Id. at 11-12. According to
the record before us, Appellant did not exercise either option. Accordingly,
we DISMISS the appeal as to claims 7 and 9.
SUMMARY OF DECISION
We AFFIRM.
INVENTION
Appellant's invention relates to an end mill with a wave pattern that
repeats for each alternating blade. Spec. i-f 1.
Claims 1 and 10 are independent. Illustrative claim 1 reads as
follows:
1. A rotary cutting tool with a longitudinal axis, comprising:
a shank portion; and
a cutting portion extending from the shank portion to a
cutting tip, the cutting portion having a length of cut, and a
plurality of blades separated by flutes extending along the length
of cut, each of the blades including a leading face, a trailing face,
a land surface extending between the leading face and the trailing
face, and a cutting edge at the intersection between the leading
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Appeal2014-002789
Application 12/371,952
face and the land surface, each blade forming a wave pattern
having a wave length and an amplitude,
wherein the wave pattern begins after a first rectilinear
distance from the cutting tip for a first blade of the plurality of
blades, the wave pattern repeating at the first distance for each
alternating blade of the plurality of blades, and
wherein the wave pattern begins after a second, different
rectilinear distance from the cutting tip for a second blade of the
plurality of blades, the second blade immediately adjacent the
first blade, the wave pattern repeating at the second distance for
each alternating blade of the plurality of blades.
Appeal Br. 19 (Claims App.)(emphasis added).
REJECTIONS3
The following rejections are before us for review:
I. The Examiner rejected claims 1, 3, 6, 8, 10, and 18 under 35
U.S.C. § 103(a) as unpatentable over Flynn (US 2008/0206003
Al, pub. Aug. 28, 2008).4
II. The Examiner rejected claims 4, 5, and 11-15 under 35 U.S.C.
§ 103(a) as unpatentable over Flynn and Levy (US 4,893,968,
iss. Jan. 16, 1990).
3 Because the appeal as to claims 7 and 9 has been dismissed, the rejections
of those claims will not be considered in this appeal.
4 Although the Examiner indicates in the Answer that converting the
rejection of claims 10 and 17 from a§ 103 rejection to a§ 102 rejection is
not considered a new ground of rejection (see Ans. 3), our review in this
appeal is of the Examiner's rejection of claims 10 and 17 as articulated in
the Final Action.
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Application 12/371,952
Ill. The Examiner rejected claims 16 and 17 under 35 U.S.C.
Claim 1
§ 103(a) as unpatentable over Flynn and Deller (US 4,560,308,
iss. Dec. 24, 1985).
ANALYSIS
Rejection I
Appellant challenges whether the Examiner has properly established a
prima facie case of obviousness for claim 1 in view of Flynn. Br. 10.
Specifically, Appellant argues Flynn does not disclose a rotary cutting tool
with cutting blades having a wave pattern beginning after a first rectilinear
distance from the cutting tip for each alternating blade, and a wave pattern
beginning after a second, different rectilinear distance from the cutting tip
for each alternating blade. Br. 10-13. Appellant also contends the
Examiner's reason for modifying the wave pattern of the teeth 26 in Flynn to
have the combined characteristics disclosed by Figures 5 and 8 "is not found
in the teachings of Flynn at all, but is a result of the impermissible use of
hindsight reconstruction using the Appellant's disclosure as a blueprint." Id.
at 13.
The Examiner relies on Figures 5 and 8 in Flynn, reproduced below,
to evidence known configurations for cutting blades on a rotary cutting tool.
Final Act. 2, 4--5.
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Appeal2014-002789
Application 12/371,952
FIG. 5
42····/
............ '.._ .... '
'~:t4 »,..;$$
FIG. 8
Figures 5 and 8 illustrate diagrammatic planar views of different
embodiments of the cutting edges of a rotary cutting tool having four helical
teeth. Flynn i-fi-f 16, 19. Pointing to Figure 5, and its associated description,
the Examiner finds Flynn discloses it was known to have a rotary cutting
tool in which each blade forms a wave pattern repeating at a distance for
each alternating blade of the plurality of blades and a second blade
immediately adjacent a first blade with a wave pattern repeating at a second
distance for each alternating blade of the plurality of blades. Final Act. 2
(citing Flynn Fig. 5, i127). Paragraph 27 of Flynn states, "[i]n FIG. 5, the
first and third cutting edges 34 have the same sinusoidal cutting edge
geometry and the second and fourth edges 34 have the same sinusoidal
cutting edge geometry." Flynn i-f 27. Although Figure 5 does not disclose
wave patterns beginning after a first rectilinear distance and a second,
different, rectilinear distance, the Examiner correctly finds Figure 8 "teaches
a plurality of waves patterns starting at a plurality of rectilinear distances
from the cutting tip." Final Act. 4--5.
Pointing to Flynn's teaching that creating a cutting tool with
successive helical teeth within a rotary cutting tool having different
undulating geometries allows the cutting edges to experience different loads
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Appeal2014-002789
Application 12/371,952
and prevents undesirable periodic responses (see Flynn if 9), the Examiner
concludes "[i]t would have been obvious to one having ordinary skill in the
art at the time of invention to begin the first and second wave pattern of
Figure 5 of Flynn after a first and second different rectilinear distance, as
taught by Figure 8 of Flynn." Final Act. 5. In the Answer, the Examiner
explains further Figure 5 of Flynn "teaches that it is sufficient to alternate
cutting patterns every two blades" and, therefore, "[i]t would have been
obvious to one having ordinary skill in the art at the time of the invention for
the wave pattern of Figure 8 of Flynn to alternatingly repeat every other
blade .... " Ans. 4. The Examiner illustrates this modification in the figure
below.
Id. at 5. The above figure is an annotated version of Figure 8 in which
blades 1 and 2 are repeated for blades 3 and 4, respectively. The Examiner
finds "Flynn teaches [the above modification] to be sufficiently effective at
reducing harmonic responses (noise, chatter, see paragraph 0009) and this
would simplify the blade design." Id. at 4--5.
Appellant has not persuasively demonstrated how or why the evidence
cited by the Examiner is unsupportive of the positions taken. Appellant
attacks Flynn's Figures 5 and 8 individually rather than addressing the
Examiner's proposed combination. Br. 11-12. Specifically, Appellant notes
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Application 12/371,952
that Figure 5 discloses alternating wave patterns that repeat, but are not
offset by a first and second, different rectilinear distance. Id. at 11.
Moreover, Appellant notes Figure 8 discloses wave patterns that are offset
by different rectilinear distances, but do not repeat the same rectilinear
distances for each alternating blade. Id. at 11-12. However, when a
rejection is based upon what a combination teaches, it is well settled that
non-obviousness cannot be established by separating the combination and
attacking the components individually. In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Appellant asserts Flynn does not disclose varying the first and second
rectilinear distances at which a wave pattern begins to enable the cutting
edges to experience different loads, thereby preventing an undesirable
periodic response. Br. 13. According to Appellant,
Flynn teaches that the period and amplitude of the cutting
edges 34 are sufficiently different between teeth 26 so that the
load experienced by each successive helical tooth 26 is not
substantially the same as that experienced by the previous
tooth 26, not by varying the first and second rectilinear distances
at which the pattern begins as asserted by the Examiner. In
addition, Flynn teaches undesirable harmonic response is
inhibited from occurring by varying the rake angle patterns of
successive helical teeth 26, not by varying the first and second
rectilinear distances at which the pattern begins as asserted by
the Examiner.
Br. 13. Appellant's assertions, however, are conclusory and undermined by
Flynn. For example, in the embodiment of Figure 8, the period and
amplitude of the cutting edge 34 for each of the teeth 26 are substantially the
same. See Flynn i-f 29, Fig. 8; Final Act. 4--5. Flynn teaches making the
period and amplitude of the cutting edge between successive teeth in
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Figure 8 sutliciently different, at least in part, by varying the rectilinear
distance at which the wave patterns for each tooth begins. Id.
Although Flynn also describes modifying the geometry of the wave
patterns and altering the teeth rake angles, Flynn does so in combination
with offsetting the rectilinear distance at which the teeth begin. Id.
Appellant's suggestion Flynn does not also teach offsetting the rectilinear
distance at which the teeth begin to effect substantial differences between
successive teeth, therefore, reads Flynn too narrowly. A fair reading of
Flynn supports the Examiner's determination that a skilled artisan would
have recognized adjusting the rectilinear distances at which adjacent teeth
begin was a known technique for creating differences between the
undulating geometries of successive teeth, thereby preventing an undesirable
periodic response. Final Act. 6. Thus, Appellant has failed to demonstrate
persuasively the Examiner's analysis of claim 1 was flawed.
Claims 6 and 10
Appellant argues dependent claim 6 (depending from claim 1) and
independent claim 10 are separately patentable because those claims require,
"a radial rake angle of each cutting edge of each blade is always positive
along the length of cut." See Br. 13-15. According to Appellant, "Flynn
teaches a cutting surface with a negative rake angle." Id. at 14.
For both claims 6 and 10, the Examiner finds Flynn teaches "a radial
rake angle of the cutting edge of each blade is always positive along the
length of cut (Para 0024)." Final Act. 3--4. In addition, the Examiner cites
paragraph 30 of Flynn as support that Flynn "teaches different rake angle
patterns can have only positive rake angles." Id. at 7. Addressing only
paragraph 24 of Flynn, Appellant points out that Flynn states,
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Appeal2014-002789
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geometry of the cutting surface 30 will vary depending on its
location along the undulating geometry of the cutting edge 34;
e.g. a cutting surface 30 that leads the cutting edge 34 (e.g., FIG.
2) will have a negative rake angle, and a cutting surface 30 that
trails the cutting edge 34 (e.g., FIG. 3) will have a positive rake
angle.
Br. 14. However, Appellant fails to address that Flynn subsequently states
in paragraph 24, "[a]lternatively, a cutting edge 34 embodiment with an
undulating geometry may include a cutting surface 30 that ... only trails the
cutting edge."5 Flynn i-f 24 (emphasis added). In addition, in paragraph 30,
Flynn states,
The different rake angle patterns of the successive helical teeth
26 are different enough so that an undesirable harmonic response
is inhibited from occurring. The difference in rake angle pattern
could be accomplished with helical teeth 26 having only positive
rake angles, or helical teeth 26 having only negative rake angles,
or some combination of positive and negative rake angles.
Flynn i-f 30 (emphasis added). Notably, Appellant does not address the
"alternative" embodiment Flynn discloses in paragraph 24 or the teachings
of paragraph 30. The above teachings support the Examiner's finding that
Flynn teaches "a radial rake angle of the cutting edge of each blade is always
positive along the length of cut." Appellant, thus, has not demonstrated the
Examiner erred by rejecting claims 6 and 10.
Therefore, for the foregoing reasons, and because Appellant does not
assert claims 3, 8, and 18 are separately patentable, we sustain the
Examiner's rejection of claims 1, 3, 6, 8, 10, and 18 under 35 U.S.C.
§ 103(a) as unpatentable over Flynn.
5 Flynn makes clear, "the radial rake is considered to be positive if the
cutting surface 30 trails the helical cutting edge 34 in the cutting direction of
the end mill 10." Flynn i-f 22.
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Application 12/371,952
Re} ections II
With respect to Rejection II, Appellant has not provided any
substantive arguments other than the arguments presented supra. See Br. 16.
For example, with respect to the teachings of Levy, Appellant merely repeats
the features of claims 1 and 10 previously argued were absent from Flynn in
response to Rejection I and states that, "Levy does not overcome these
shortcomings in Flynn." Id. Therefore, as Flynn is not deficient, for the
reasons stated above, we also sustain the rejection under 35 U.S.C. § 103(a)
of claims 4, 5, and 11-15 as unpatentable over Flynn and Levy.
Rejection III
Claims 16 and 17 depend from independent claims 1 and 10,
respectively, and further define "the wave length and the amplitude are the
same for each blade of the plurality of blades." Br. 21 (Claims App.). The
Examiner finds "Deller teaches the wave length and amplitude are the same
for each blade (Fig. 4, [Col.] 2, lines 56-58)." Final Act. 6. Appellant only
challenges whether Deller discloses, "the wave length and the amplitude are
the same for each blade of the plurality of blades." Br. 17.
According to Appellant, Deller discloses, "that peaks and valleys are
relatively uniformly spaced, but the shapes of the peaks and valleys can vary
and do not have to define a true or regular sinusoidal [ w]ave shape." Id.
(quoting Deller 2: 5 3---61). Other than pointing out that Deller indicates the
shapes peaks and valleys "can vary," Appellant does not explain how or why
the Examiner erred by finding Deller teaches the wavelength and amplitude
may also be the same for each blade of the plurality of blades.
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Application 12/371,952
This is especially true in light of the fact that Deller describes the
embodiment of Figure 4 as having "peaks and valleys [that] are relatively
uniformly spaced and define continuous cutting edges of generally
sinusoidal wave shape." Deller 2:56-58, Fig. 4. Simply because Deller
discloses varying the wavelength and amplitude as a possible option for the
blades, it does not follow a skilled artisan would ignore Deller's actual
disclosure of blades with the same wavelength and amplitude. As a result,
Appellant has not demonstrated persuasively the Examiner erred in rejecting
claims 16 and 17. Therefore, we sustain the Examiner's rejection of claims
16 and 17 under 35 U.S.C. § 103(a) as unpatentable over Flynn and Deller.
SUMMARY
We DISMISS the appeal as to claims 7 and 9.
We affirm the Examiner's decision to reject claims 1, 3---6, 8, and IO-
18.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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