Ex Parte Kajita et al

Patent Trial and Appeal Board

Mar 10, 2017

13560568 (P.T.A.B. Mar. 10, 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.
13/560,568 07/27/2012 Kirk Ben Kajita 10-0440-US-CNT 1407
63759 7590 03/14/2017
DTTKFW YFF
EXAMINER
YEE & ASSOCIATES, P.C. KREINER, MICHAEL B
P.O. BOX 802333
DALLAS, TX 75380 ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
03/14/2017 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):
ptonotifs @yeeiplaw.com
mgamez @ yeeiplaw. com
patentadmin @ boeing. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIRK BEN KAJITA and DOUGLAS ALLEN FRISCH
Appeal 2014-001555
Application 13/5 60,56s1
Technology Center 3600
Before LINDA E. HORNER, FRANCES L. IPPOLITO, and ERIC C.
JESCHKE Administrative Patent Judges.
IPPOLITO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
decision rejecting claims 1—6, 9-16, and 19-23. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is The Boeing
Company. Appeal Br. 2.
Appeal 2014-001555
Application 13/560,568
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An apparatus comprising:
a first number of layers of a composite material for a wing;
a second number of layers of the composite material for
the wing, wherein the first number of layers and the second
number of layers are configured to carry a load up to a maximum
load expected during flight of an aircraft; and
a metal layer located between the first number of layers
and the second number of layers, the metal layer having a first
thickness at a first area configured to receive a number of
fasteners and a second thickness at a second area, and wherein
the first number of layers, the second number of layers, and the
metal layer, combined, are configured to carry a load greater than
the maximum load expected during the flight of the aircraft.
REJECTION
I. Claims 1—6, 9—16, and 19-23 stand rejected under 35
U.S.C. § 102(b) as anticipated by Daniel Gay, Composite
Materials: Design and Applications, pp. 69—73, 115—133,
135-180, 360-371, 2003, printed by USPTO Dec. 2012
(“Gay’’)-
II. Claim 15 stands rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gay.
ANALYSIS
Rejection I
The Examiner rejected claims 1—6, 9-16, and 19-23 as anticipated by
Gay. Final Act. 2. Appellants do not present separate arguments for the
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patentability of independent claims 12 and 20, and dependent claims 2—6, 9—
11, 13—16, 19, and 21—23 apart from independent claim 1. See Appeal Br. 7,
11. Therefore, in accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select
claim 1 as the representative claim, with claims 2—6, 9—16, and 19-23
standing or falling with claim 1.
With respect to claim 1, the Examiner finds that Figure 18.2 on page
361 of Gay teaches a wing tip of an airplane wing with a sandwich structure
having lower and upper layers of carbon/epoxy laminate, and a titanium
border (i.e., metal layer) located between the carbon/epoxy layers. Final
Act. 2. Further, the Examiner asserts that Gay’s titanium border has a “first
thickness at a first area configured to receive a number of fasteners
(rightmost portion in fig. 18.2 through which the line labeled ‘bolting’
passes) and a second thickness at a second area (the portion left of the first
thickness in fig. 18.2).” Id. The Examiner adds that Gay teaches that “the
first number of layers and the second number of layers are configured to
carry a load up to the maximum load expected during the flight of the
aircraft,” as recited in claim 1, because Gay’s layers are designed to
withstand a load beyond a maximum load by a “factor of safety of 2.” Id. at
2-3.
In the Appeal Brief, Appellants acknowledge that Gay “demonstrates
a sandwich structure similar to that of claim 1,” but argue that Appellants’
“apparatus is unique and non-obvious because it uses the combination of
metal bonded into composite to carry more load in a fastened joint.” Appeal
Br. 9. In particular, Appellants assert that “[t]he composite portion of
Appellant’s apparatus will carry the limit load . . . and the bond to the metal,
combined with the other layers, will carry the remaining ultimate load
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Application 13/560,568
required.” Id. at 9, 10. In the Reply Brief, Appellants add that the Examiner
has misinterpreted the claimed features because “[i]f Appellant intended to
include the layers being configured to carry a load surpassing or larger than
the maximum load expected during flight of an aircraft, Appellant would
have claimed this latter range.” Reply Br. 4.
Based on the record before us, we are not apprised of error in the
Examiner’s findings and conclusion that Gay discloses “the first number of
layers and the second number of layers are configured to carry a load up to a
maximum load expected during flight of an aircraft,” and “the first number
of layers, the second number of layers, and the metal layer, combined, are
configured to carry a load greater than the maximum load expected during
the flight of the aircraft.” As the Examiner discerns, Gay teaches a range for
the load carried by the carbon/epoxy wing tip that overlaps with the range
recited in claim 1. Specifically, for claim 1, the Examiner construes the
claimed phrase “up to a maximum load expected” to mean “a range of loads
from no load to a maximum expected load.” Ans. 2 (emphasis omitted).
Given this construction, the Examiner finds that Gay’s wing tip can
withstand an upper load limit set by a safety factor of 2 (i.e., double the
maximum load). Id. at 3 (“Gay teaches calculating the maximum loading
which the composite can handle . . . designing the composite to have a factor
of safety of 2. The result is that the first and second layers, as well as the
first, second, and metal layer can handle more [than] the maximum loading
expected during use.”); see also Gay, 360-361.
When a patent claims a range, as in this case, that range is anticipated
by a prior art reference if the reference discloses a point within the range, or
if it describes the claimed range with sufficient specificity such that a
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Application 13/560,568
reasonable fact finder could conclude that there is no reasonable difference
in how the invention operates over the ranges. Ineos USA LLC v. Berry
Plastics Corp., 783 F.3d 865, 869 (Fed. Cir. 2015) (citations omitted).
Here, Appellants argue that their claimed invention performs
differently from Gay’s wing tip because claim 1 requires a specific
distribution of load whereby the composite bears the maximum load and the
remaining excess load is carried by the combined metal layer structure (i.e.,
first number of layers, the second number of layers, and the metal layer,
combined). Reply Br. 5 (“Appellant’s claims set forth which portion of the
joint will bear which amount of the force exerted thereupon.”). Nonetheless,
we are not persuaded that claim 1 requires this particular load distribution.
The express language of claim 1 does not require any specific distribution of
any load, such that the “metal, combined with other layers, will carry the
remaining ultimate load required.” Id. at 4 (emphasis added). Rather, based
on the record before us, we agree with the Examiner that the plain and
express language of claim 1 recites a range for the load carried by the first
and second number layers of “up to a maximum load expected during flight
of an aircraft” without requiring that the maximum load is carried on some
portion of structure with the remaining excess load carried by another
portion of the structure (e.g., combined metal layer structure). See Ans. 2
(“‘[]up to a maximum load expected[]’ has been interpreted as a range of
loads from no load to a maximum expected load.”). Thus, we are not
persuaded of error by Appellants’ argument that the claimed invention, as
recited in claim 1, distributes load differently from Gay’s wing tip.
Likewise, claim 1 further recites that the combined metal layer
structure is configured to carry a “load greater than the maximum load
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Application 13/560,568
expected during the flight of the aircraft,” without requiring this carried load
to be the “balance” of the load exceeding the maximum load. Accordingly,
we sustain the rejection under 35 U.S.C. § 102(b) of claims 1—6, 9—16, and
19-23 as being anticipated by Gay.
Rejection II
The Examiner rejected claim 15 under 35 U.S.C. § 103(a) as being
unpatentable over Gay. Claim 15 depends from claim 12 and further recites
“wherein the first structure is a skin panel for a wing and the second
structure is a wing box in a fuselage of an aircraft.” Independent claim 12
recites, among other things, “a number of layers of composite material for a
first structure in which the number of layers of composite material extends
to an edge of the first structure configured to be attached to a second
structure.'1'’ Emphasis added.
In the Final Office Action, the Examiner finds that Figure 7.9 of Gay
discloses a wing tip (i.e., first structure) that is attached to a wing box (i.e.,
second structure). Final Act. 7. The Examiner adds that it would have been
obvious to replace the wing tip in Gay’s Figure 7.9 with the composite wing
tip disclosed in Gay’s Figure 18.1 in order to reduce the weight of the
aircraft. Final Act. 7.
With regard to limitations recited in independent claim 12 that are
required in claim 15, Appellants rely on arguments discussed above. Appeal
Br. 12—13. For the same reasons discussed above with respect to the
Examiner’s rejection based on section 102(b), we are not persuaded of
Examiner error by these arguments.
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Additionally, Appellants argue that Gay does not teach or suggest
“wherein the first structure is a skin panel for a wing and the second
structure is a wing box in a fuselage of an aircraft,” recited in claim 15,
because one of ordinary skill in the art would not replace the wing tip shown
in Figure 7.9 with the wing tip disclosed in Figure 18.1 of Gay. Appeal Br.
14. Specifically, Appellants make several statements including:
The wing tips of many aircraft are primary wing pieces, meaning
the failure of the wing tips will bring about the failure of the
airplane. Thus, specific precautions are taken to protect the wing
tips against lightening (for example). A simple replacement of
one wing tip with another is not obvious or advisable absent the
requisite non-trivial mathematical calculations, undue
experimentation, and undue and necessary research to support
such an action.
For example, the composite wing tip of [FJigure 18.1 is
made of a sandwich structure with carbon/epoxy skins fixed to
the rest of the wing by titanium borders. The wing tip is
subjected to aerodynamic forces including bending moments,
torsional moments, and shear forces. The mechanical and
thermal stresses endured by the wing tips cause fatigue to the
structure. This wing tip may or may not be combinable with the
aircraft of [FJigure 7.9.
Furthermore, the aircraft of [FJigure 7.9, as is indicated
below the depiction, is a Business Aircraft Falcon 10. This
specific aircraft is an early corporate jet aircraft developed by
French aircraft manufacturer Dassault Aviation. Production of
this aircraft began in 1971 and ceased in 1989, though it remains
a popular business jet on the used market. Because this aircraft
is no longer manufactured, one of ordinary skill in the art would
not find it obvious to replace the wing tip of one of these out
dated, obsolete aircraft with the composite wing tip of figure 18.1
in an attempt to lessen the weight of the aircraft. Instead, new
aircraft with advanced designs and modem composite pieces are
being produced.
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Application 13/560,568
Appeal Br. 14—15; see also Reply Br. 9. Appellants, however, do not
explain how the record supports these statements, nor do Appellants provide
evidence otherwise to support these assertions. Attorney arguments and
conclusory statements that are unsupported by factual evidence are entitled
to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997). Further, we note that the Examiner’s rejection relies on Gay’s
disclosure (e.g., Figures 7.9 and 18.1) and not on the commercial availability
of the Business Aircraft Falcon 10 or other aircraft. Final Act. 7. Thus,
based on the record before us, the commercial unavailability of a particular
aircraft also does not persuade us of Examiner error.
Accordingly, we affirm the Examiner’s rejection of claim 15 based on
Gay.
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).
DECISION
The Examiner’s decision rejecting claims 1—6, 9—16, and 19-23 based
on prior art is affirmed.
AFFIRMED
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