Ex Parte Driver et al

Patent Trial and Appeal Board

May 19, 2017

13628894 (P.T.A.B. May. 19, 2017)

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.
13/628,894 09/27/2012 Howard Daniel DRIVER 258701/22113-0114 3426
13152 7590 05/19/2017
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
EXAMINER
HOOVER, MATTHEW
ART UNIT PAPER NUMBER
1746
MAIL DATE DELIVERY MODE
05/19/2017 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 HOWARD DANIEL DRIVER and AMIR RIAHI1
Appeal 2016-006204
Application 13/628,894
Technology Center 1700
Before KAREN M. HASTINGS, JULIA HEANEY, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 1—8. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 The real party in interest is identified as the General Electric Company.
App. Br. 1.
Appeal 2016-006204
Application 13/628,894
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below (emphasis added to highlight disputed feature):
1. A method of making a compacted composite material
preform, comprising:
providing a pre-impregnated preform comprising a
plurality of reinforcing fibers and a polymer matrix;
positioning the preform on a base plate;
enclosing the preform inside a vacuum bag defining a
first cavity;
enclosing the preform and vacuum bag inside a
substantially rigid cover that can withstand a pressure level of
greater than 15 psi defining a second cavity,
drawing a vacuum in the first cavity through a first
opening in the base plate and the second cavity through a
second opening in the base plate that is substantially equal or
greater than the vacuum in the first cavity to remove air and
volatiles from the preform; and
drawing a greater vacuum in the first cavity relative to
the second cavity to urge the vacuum bag into compressive
contact with the plurality of reinforcing fibers and the polymer
matrix to a compacted arrangement.
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Appeal 2016-006204
Application 13/628,894
Appellants (App. Br. 3) request review of the following rejections
from the Examiner’s Final Office Action:2
I. Claims 1, 3, and 5—7 rejected under 35 U.S.C. § 103(a) as
unpatentable over McGann (US 4,357,193, issued November 2, 1982) and
Thompson (US 2012/0298296 Al, published November 29, 2012).
II. Claim 2 rejected under 35 U.S.C. § 103(a) as unpatentable over
McGann, Thompson, and Hou (US 7,186,367 B2, issued March 6, 2007).
III. Claim 4 rejected under 35 U.S.C. § 103(a) as unpatentable over
McGann, Thompson, and Cochran (US 5,236,646, issued August 17, 1993).
IV. Claim 8 rejected under 35 U.S.C. § 103(a) as unpatentable over
McGann, Thompson, and Chikaki (US 2006/0289119 Al, published
December 28, 2006).
Appellants present arguments for independent claim 1 and rely on
these arguments to address the rejection of dependent claims 3 and 5—7
(Rejection I) as well as the separate rejections of dependent claims 2, 4, and
8 (Rejections II—IV). App. Br. 4, 6—7. Accordingly, we select claim 1 as
representative of the subject matter before us on appeal. Claims 2—8 stand
or fall with claim 1.
2 The Final Office Action includes rejections under 35 USC § 112, first and
second paragraphs. Final Act. 3. The prosecution record shows these
rejections were overcome by an amendment submitted by Appellants dated
August 5, 2015, which was entered into the record in the Advisory Action of
August 20, 2015. Accordingly, these rejections are not before us for review
on appeal.
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Appeal 2016-006204
Application 13/628,894
OPINION
The Prior Art Rejections
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the Examiner’s rejection of representative
claim 1 for the reasons presented by the Examiner. We add the following
for emphasis.
Claim 1 is directed to a method of making a compacted composite
material preform comprising the step of enclosing a preform and vacuum
bag inside a substantially rigid cover defining a second cavity, where the
rigid cover can withstand a pressure level of greater than 15 psi.
We refer to the Examiner’s Final Action for a statement of the
rejection. Final Act. 4—6.
Appellants do not dispute the Examiner’s reasons for combining the
teachings of the cited art. See Appeal Brief, generally. Instead, Appellants
argue the primary reference to McGann only teaches that a vacuum bag is
subjected to a psi of less than 14. Id. at 5—6. Thus, Appellants contend,
absent impermissible hindsight, there is no support for the Examiner’s
assertion that one skilled in the art would operate the second cavity provided
by McGann’s rigid cover at pressures greater than 15 psi for any period of
time or that McGann’s second cavity is capable of sustaining pressures
greater than 15 psi. Id.
We are unpersuaded by these arguments for the reasons presented by
the Examiner. Ans. 8—11. Moreover, McGann discloses it was known in the
art to cure a composite pre-impregnated preform comprising a plurality of
plies of fibrous materials after expelling the air from the composite laminate
by the application of low positive pressure of less than 15 psi using
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Appeal 2016-006204
Application 13/628,894
inflatable elastomeric bladders. McGann, col. 1,11. 8—14, col. 6,11. 60-65,
col. 7,11. 7—10. This is consistent with Appellants’ own disclosure that
known vacuum bag processes for making composite articles operate at
pressures of about 15 psi. Spec. 113; App. Br. 6. We note that when
“about” is used as part of a numeric range, “the use of the word ‘about,’
avoids a strict numerical boundary to the specified parameter. Its range must
be interpreted in its technologic and stylistic context.” Cohesive Techs., Inc.
v. Waters Corp., 543 F.3d 1351, 1368 (Fed. Cir. 2008). In determining how
far beyond the claimed range the term “about” extends a term, “[w]e must
focus ... on the criticality of the [numerical limitation] to the invention.”
Id. Similarly, the prior art provides a reasonable basis for operating
McGann’s process of curing composite pre-impregnated preforms at less
than or at about 15 psi, which is close to the lower end of the claimed range
of greater than 15 psi. Absent evidence to the contrary, one skilled in the art
would expect that the curing process of a composite pre-impregnated
preform at about 15 psi, or even at a pressure of 13.75 psi as disclosed in
McGann’s Example II (Final Act. 5; Ans. 8; McGann (col. 8,11. 36—59),
would not be significantly different from a similar curing process performed
at a pressure slightly greater than 15 psi, for example 15.5 psi. A prima
facie case of obviousness exists where the prior art and claimed ranges
overlap, as well as in those cases where the claimed range and the prior art
range, though not overlapping, are sufficiently close that one skilled in the
art would have expected them to have the same properties. Cf. In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); In re Geisler, 116 F.3d
1465, 1469 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir.
1990); Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783
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Appeal 2016-006204
Application 13/628,894
(Fed. Cir. 1985). Appellants have not adequately explained or directed us to
evidence showing criticality of the claimed pressure range of greater than 15
psi for the lamination of a composite pre-impregnated preform. Ans. 9.
Further, Appellants have not adequately explained why one skilled in the art
would not have been capable of modifying McGann’s rigid cover to
withstand pressures of at least slightly greater than 15 psi, as needed and/or
desired by the skilled artisan, to ensure effective lamination of the composite
pre-impregnated preform. See In re Sovish, 769 F.2d 738, 743 (Fed. Cir.
1985) (skill is presumed on the part of one of ordinary skill in the art); In re
Bozek, 416 F.2d 1385, 1390 (CCPA 1969).
Accordingly, we affirm the Examiner’s prior art rejections of claims
1—8 under 35 U.S.C. § 103(a) for the reasons presented by the Examiner and
given above.
DECISION
The Examiner’s prior art rejections of claims 1—8 under 35 U.S.C.
§ 103(a) are affirmed.
TIME PERIOD
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).
AFFIRMED
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