Ex Parte DELVAUX

Patent Trials and Appeals Board

Apr 30, 2019

14041262 - (D) (P.T.A.B. Apr. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/041,262 09/30/2013 John McConnell DEL VAUX
13152 7590 05/01/2019
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
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.
261816/22113-0161 4840
EXAMINER
LAMBERT, WAYNE A
ART UNIT PAPER NUMBER
3745
MAIL DATE DELIVERY MODE
05/01/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN McCONNELL DEL VAUX
Appeal2018-006852
Application 14/041,262
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
General Electric Company ("Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1 and 3-21, which
are all the pending claims. See Appeal Br. 2. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
General Electric Company is the applicant, as provided in 37 C.F.R.
§ 1.46, and is identified as the real party in interest. Appeal Br. 1.
Appeal2018-006852
Application 14/041,262
CLAIMED SUBJECT MATTER
Appellant's disclosed invention relates to "manufactured components
and a process of using manufactured components." Spec. ,r 2. Claims 1, 7,
10, and 21 are independent. Claim 1, reproduced below, is illustrative of the
subject matter on appeal.
1. A ceramic matrix composite component, comprising:
a ceramic matrix composite material;
an environmental barrier coating applied over the
ceramic matrix composite material; and
a hard wear coating applied over the environmental
barrier coating, the hard wear coating being silicon carbide,
wherein the environmental barrier coating protects the
ceramic matrix composite material from volatilization or
deterioration.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Bruce us 5,683,825 Nov. 4, 1997
Lane US 6,929,852 B2 Aug. 16, 2005
Strangman US 7,510,370 B2 Mar. 31, 2009
Cybulsky US 8,124,252 B2 Feb.28,2012
Ward US 8,177,494 B2 May 15, 2012
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REJECTIONS
The following rejections are before us for review:
I. Claims 1, 3-6, and 21 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Lane and Bruce. Final Act. 4--8.
II. Claims 7-9 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lane, Bruce, and Strangman. Id. at 8-10.
III. Claims 10, 11, and 16-20 stand rejected under 35 U.S.C. § 103
as being unpatentable over Strangman, Lane, and Bruce. Id.
at 11-15.
IV. Claims 12 and 13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Strangman, Lane, Bruce, and Ward. Id.
at 15-16.
V. Claims 14 and 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Strangman, Lane, Bruce, Ward, and
Cybulsky. Id. at 16-18.
ANALYSIS
Rejection I- Claims 1, 3-6, and 21 as unpatentable over
Lane and Bruce
Appellant argues the rejection of claims 1, 3---6, and 21 together as a
group. See Appeal Br. 5-7. We select claim 1 as representative of the
issues that Appellant presents together, and claims 3-6 and 21 stand or fall
with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner found that Lane teaches a ceramic matrix composite
component comprising, inter alia,
an environmental barrier coating (i.e. 14, ... which include[ s]
mullite or zirconia, see col 1, 1157-66 and col 3, 1141-57 ... )
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applied over the ceramic matrix composite material 12; and a
hard wear coating (i.e. 20, which protects the under
[ environmental barrier coating] layer from at least water erosion,
see col 3, 11 62-65) applied over the environmental barrier
coating 14.
Final Act. 4. The Examiner acknowledged that "Lane does not explicitly
disclose the hard wear coating being silicon carbide." Id. However, the
Examiner found that Bruce teaches a "hard wear coating (i.e. erosion-
resistant composition 24) being silicon carbide (see abstract)." Id. at 5.
The Examiner concluded that, given the teachings of the prior art, it
would have been obvious to modify Lane so that the hard wear coating is
silicon carbide, as recited in the claim. Id. The Examiner reasoned that such
a modification would be no more than
Id.
a simple substitution of one known element (in this case, the use
of alumina as a hard wear coating, see Lane col 3, 1166-67 and
Bruce abstract) for another (in this case, the use of silicon carbide
as a hard wear coating, see Bruce abstract ... ) to obtain
predictable results (in this case, protection of the under layer of
thermal or environmental barrier coating from erosion).
Appellant argues that "Lane and Bruce teach away from the use of
[ silicon carbide] as an outermost layer, except when being deposited on [a]
micro-structured columnar [yttria-stabilized zirconia] layer." Appeal Br. 6.
In particular, Appellant asserts that Lane teaches that, in a combustion
environment, silica-based non-oxide ceramic materials such as silicon
carbide require an environmental barrier coating to protect the material from
oxidation and degradation. See id. at 5 ( citing Lane, col. 1, 11. 45--49,
59-61 ). Appellant also asserts that Bruce teaches that using silicon carbide
as an outer wear surface for a thermal barrier coating is undesirable because
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silicon carbide readily oxidizes and promotes spallation. See id. at 6 ( citing
Bruce, col. 6, 11. 29--40). According to Appellant, "a person skilled in the art
would use [ silicon carbide] as an outermost layer only when silicon carbide
is deposited on [a] micro-structured columnar [yttria-stabilized zirconia]
layer." Id. (emphasis added). We are not persuaded by this line of argument
because Appellant does not persuasively explain why a person of ordinary
skill, upon reading the references, would be led in a direction divergent from
the path taken by Appellant. See In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994).
Lane discloses, in the background, that
structural ceramic technology for gas turbine engines relies on
silica-based materials. Silica-based non-oxides such as silicon
carbide (SiC) and silicon nitride (ShN4) are subject to both
oxidation and attack by high temperature, high pressure water
vapor. In this dual degradation mechanism, the silicon carbide
or silicon nitride is oxidized to form a thermally grown oxide
(Si02) layer. This oxide layer then reacts with the high
temperature, high pressure water vapor to form a volatile
hydroxide species [Si(OH)x] which is then lost to the
environment. Thus, surface recession occurs in a continual
process as the protective Si02 layer volatizes and the base
ceramic oxidizes to replenish the lost Si02. This process is
enhanced by the high velocity gas stream in a gas turbine
environment. Accordingly, environmental barrier coatings
(EBC) have been developed to protect silica-based non-oxide
ceramics from the combustion environment.
Lane, col. 1, 11. 45-61.
To address this degradation concern, Lane discloses "[a]n alumina ...
composition ... used as a protective overlayer coating material for ceramics
and ceramic matrix composite materials with thermal insulation layers." Id.,
col. 3, 11. 16-20. In particular, Lane discloses that gas turbine engine
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component 10 is formed of a ceramic matrix composite material substrate 12
that is thermally protected by ceramic insulating coating 14. Id., 11. 42--44;
see also id., 11. 47-50 ("Ceramic insulating coating 14 is advantageously an
oxide based ceramic including a matrix material 16 surrounding a plurality
of mullite spheres 18 .... An optional oxygen barrier layer 34, illustrated in
FIG. 2, may also be used.") (boldface omitted). A protective overlayer 20,
such as alumina, "is disposed over the ceramic insulating coating 14 to
isolate the ceramic insulating coating 14 from water vapor contained in the
hot gas environment in which component 10 is designed to operate." Id.,
11. 62---65 (boldface omitted).
Here, Appellant does not persuasively explain why the cited
disclosure of Lane criticizes, discredits, or otherwise discourages the
Examiner's proposed modification of Lane's protective overlayer 20 to use
silicon carbide in place of alumina. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004) (prior art does not teach away from claimed subject matter
merely by disclosing a different solution unless the prior art also criticizes,
discredits or otherwise discourages the solution claimed). Although Lane
discloses that underlying structural components made of silicon carbide
(such as ceramic matrix composite substrate 12) are susceptible to oxidation
and degradation and require environmental barrier coatings for protection
(see Lane, col. 1, 11. 45---61 ), Appellant does not persuasively explain why
such disclosure criticizes, discredits, or otherwise discourages modifying
Lane to use silicon carbide as the overlying hard wear layer (i.e., protective
overlayer 20) over the environmental barrier coating (i.e., ceramic insulating
coating 14).
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Bruce discloses "a thermal barrier coating which is adapted to be
formed on an article subjected to a hostile thermal environment while
subjected to erosion by particles and debris, as is the case with turbine,
combustor and augmentor components of a gas turbine engine." Bruce,
col. 3, 11. 36-40. In particular, Bruce discloses that erosion-resistant thermal
barrier coating system 20 comprises ceramic layer 30 over bond layer 26.
See id., col. 4, 11. 47-55. "To achieve a substantially greater level of erosion
resistance, the ceramic layer 30 of this invention is protected by an impact
and erosion-resistant composition that can ... overlay the ceramic layer 30
as a wear coating 24." Id., col. 5, 11. 52-55 (boldface omitted). Bruce
discloses that "[t]he erosion-resistant composition is either alumina (Ab03)
or silicon carbide (SiC), while a preferred ceramic layer is yttria-stabilized
zirconia (YSZ)." Id., col. 3, 11. 48-50 (emphasis added). Given Bruce's
disclosure that alumina and silicon carbide are both suitable materials for
erosion-resistant wear coating 24 (see Bruce, col. 3, 11. 48--49, col. 6,
11. 9-11 ), the reference does not teach away from using silicon carbide as a
hard wear coating in place of the alumina in Lane.
Further, although Bruce discloses a preferred embodiment using
columnar yttria-stabilized zirconia ceramic layer 30 under silicon carbide
wear coating 24, Appellant does not identify, nor do we discern, any
disclosure in Bruce that silicon carbide would be suitable as a hard wear
layer only when used in combination with a columnar yttria-stabilized
zirconia ceramic layer, as Appellant urges. See Appeal Br. 6. It is well
established that the disclosure of a particular embodiment, even a preferred
embodiment, in the prior art-absent such criticizing, discrediting, or
otherwise discouraging-is not a teaching away. See DyStar Textilfarben
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GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) ("We will
not read into a reference a teaching away from a process where no such
language exists.").
Appellant argues that "a person skilled in the art would not be
motivated to use a combination of [silicon carbide] and [thermal barrier
coating] micro-structured columnar [yttria-stabilized zirconia] layer to
protect [ ceramic matrix composite] due to the porous structure of [ thermal
barrier coating] micro-structured columnar [yttria-stabilized zirconia] layer."
Appeal Br. 6-7. In particular, Appellant asserts that a thermal barrier
coating "micro-structured columnar [yttria-stabilized zirconia] layer having
porosity and microcracks due to its structure, however, would not protect a
[ ceramic matrix composite] substrate from volatilization and deterioration
due to oxidation and high pressure water vapor and thus would not read on
claims 1 and 21." Id. at 6 ( citing Bruce, col. 3, 11. 23-26; Declaration of
inventor John Delvaux, dated May 5, 2017 ("Delvaux Declaration")).
We are not persuaded by this argument because it appears to rely on
bodily incorporation of specific structural details of Bruce (i.e., a layer of
columnar yttria-stabilized zirconia) into Lane, which is neither the standard
for an obviousness determination, nor is it an accurate characterization of the
rejection presented. See In re Keller, 642 F.2d 413,425 (CCPA 1981). As
discussed supra, the Examiner concluded that it would have been obvious to
modify Lane by simply substituting Bruce's silicon carbide hard wear
coating for Lane's alumina protective overlayer. See Final Act. 5. The
rejection presented did not propose modifying Lane to include Bruce's
columnar yttria-stabilized zirconia ceramic layer. In this regard, Appellant's
arguments and evidence regarding the use of a columnar yttria-stabilized
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zirconia ceramic layer in Lane (see Appeal Br. 6; Delvaux Declaration
,r,r 12-13) are not responsive to the rejection as articulated by the Examiner
and, thus, do not apprise us of error.
Appellant further argues that "the combination of Lane and Bruce is
improper and a result of improper hindsight reconstruction without the
articulation of a technical basis based on the disclosures of the applied art."
Reply Br. 3. Appellant asserts that the Examiner has provided no evidence
that using silicon carbide as the outermost layer would yield predictable
results. Id. We are not persuaded by this argument. As the Examiner
explains, Lane discloses that it was known to protect underlying silicon
carbide substrates with an environmental barrier coating and an alumina
protective overlayer, and Bruce discloses that it was known to use either
alumina or silicon carbide as a protective overlayer in a gas turbine engine.
See Ans. 2; see also Bruce, col. 3, 11. 40-49, col. 6, 11. 9-11 (disclosing that
that erosion-resistant wear coating 24 may be alumina or silicon carbide). In
other words, Bruce provides evidence that silicon carbide would be a
suitable substitute for alumina as a hard wear coating, thereby supporting the
Examiner's reasoning that the proposed substitution of Bruce's silicon
carbide for Lane's alumina would likely yield predictable results.
Moreover, Appellant does not identify any knowledge relied upon by
the Examiner that was gleaned only from Appellant's disclosure and that
was not otherwise within the level of ordinary skill at the time of the
invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (so
long as a conclusion of obviousness is based on a reconstruction that "takes
into account only knowledge which was within the level of ordinary skill at
the time the claimed invention was made and does not include knowledge
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gleaned only from [Appellant's] disclosure, such a reconstruction is
proper"). Thus, Appellant's assertion of improper hindsight is unsupported.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 1, and of claims 3---6 and 21 falling therewith, under 35 U.S.C. § 103
as being unpatentable over Lane and Bruce.
Rejection II- Claims 7-9 as unpatentable over
Lane, Bruce, and Strangman
In contesting the rejection of independent claim 7, Appellant relies on
the same arguments set forth with respect to independent claim 1 subject to
Rejection I. See Appeal Br. 8-10 (asserting that Lane and Bruce teach away
from using silicon carbide as an outermost layer, except when deposited
over a columnar yttria-stabilized zirconia layer, and one of ordinary skill in
the art would not have been motivated to modify Lane to include a
combination of silicon carbide over a columnar yttria-stabilized zirconia
layer to protect ceramic matrix composite). For the same reasons that
Appellant's arguments do not apprise us of error in the rejection of claim 1,
discussed supra, these arguments likewise do not apprise us of error in the
rejection of claim 7.
Appellant also asserts that Strangman does not cure the asserted
deficiencies of Lane and Bruce. See id. at 10 ( asserting that "there is
nothing in Strangman that teaches or suggests any of the limitations in
independent claim 7 not taught or suggested by Lane and/or Bruce").
However, as we do not find a deficiency in the combination of Lane and
Bruce, this argument does not apprise us of error in the Examiner's rejection
of claim 7.
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Accordingly, we sustain the rejection of independent claim 7, and of
claims 8 and 9, for which Appellant does not present separate arguments,
under 35 U.S.C. § 103 as being unpatentable over Lane, Bruce, and
Strangman.
Rejection III - Claims 10, 11, and 16--20 as unpatentable over
Strangman, Lane, and Bruce
In contesting the rejection of independent claim 10, Appellant relies
on the same arguments set forth with respect to independent claim 1 subject
to Rejection I. See id. at 10-13 (asserting that Lane and Bruce teach away
from using silicon carbide as an outermost layer, except when deposited
over a columnar yttria-stabilized zirconia layer, and one of ordinary skill in
the art would not have been motivated to modify Lane to include a
combination of silicon carbide over a columnar yttria-stabilized zirconia
layer to protect ceramic matrix composite). For the same reasons that
Appellant's arguments do not apprise us of error in the rejection of claim 1,
discussed supra, these arguments likewise do not apprise us of error in the
rejection of claim 10.
Accordingly, we sustain the rejection of independent claim 10, and of
claims 11, and 16-20, for which Appellant does not present separate
arguments, under 35 U.S.C. § 103 as being unpatentable over Strangman,
Lane, and Bruce.
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Rejections IV and V - Claims 12-15 as unpatentable over
Strangman, Lane, Bruce, and one or more of Ward and Cybulsky
With respect to the rejections of claims 12-15, Appellant does not set
forth any additional substantive arguments separate from the arguments
discussed supra; instead adding only that each of Ward and Cybulsky does
not cure the asserted deficiencies in the combination of Strangman, Lane,
and Bruce, and otherwise relying on dependency from independent claim 10.
See id. at 13-14. Thus, for the same reasons that Appellant's arguments do
not apprise us of error in the rejection of base claim 10, Appellant also does
not apprise us of error in Rejections IV and V.
Accordingly, we likewise sustain the rejections of claims 12-15 under
35 U.S.C. § 103 as being unpatentable over Strangman, Lane, Bruce, and
one or more of Ward and Cybulsky.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1, 3---6, and 21
under 35 U.S.C. § 103 as being unpatentable over Lane and Bruce.
We AFFIRM the Examiner's decision rejecting claims 7-9 under
35 U.S.C. § 103 as being unpatentable over Lane, Bruce, and Strangman.
We AFFIRM the Examiner's decision rejecting claims 10, 11, and
16-20 under 35 U.S.C. § 103 as being unpatentable over Strangman, Lane,
and Bruce.
We AFFIRM the Examiner's decision rejecting claims 12 and 13
under 35 U.S.C. § 103 as being unpatentable over Strangman, Lane, Bruce,
and Ward.
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We AFFIRM the Examiner's decision rejecting claims 14 and 15
under 35 U.S.C. § 103 as being unpatentable over Strangman, Lane, Bruce,
Ward, and Cybulsky.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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