Ex Parte Keener et al

Patent Trial and Appeal BoardAug 30, 2017

13964713 (P.T.A.B. Aug. 30, 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. 13/964,713 08/12/2013 Steven Glenn Keener 12-1996-US-NP 5971 63759 7590 09/01/2017 DTTKFW YFF EXAMINER YEE & ASSOCIATES, P.C. TADESSE, YEWEBDAR T P.O. BOX 802333 DALLAS, TX 75380 ART UNIT PAPER NUMBER 1717 NOTIFICATION DATE DELIVERY MODE 09/01/2017 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 STEVEN GLENN KEENER and TRENT ROB LOGAN1 Appeal 2016-006691 Application 13/964,713 Technology Center 1700 Before CHUNG K. PAK, CHRISTOPHER L. OGDEN, and JULIA HEANEY, Administrative Patent Judges. HEANEY, Administrative Patent Judge. DECISION ON APPEAL2 Appellants appeal pursuant to 35 U.S.C. § 134(a) from a Final Rejection of claims 1, 3—5, 7—10, and 13—18 of Application 13/964,713 as unpatentable under 35 U.S.C. § 103(a). Final Act. 3—10. We have jurisdiction under 35 U.S.C. § 6(b). For the reasons set forth below, we reverse. 1 Appellants identify The Boeing Company as the real party in interest. 2 This Decision refers to the Specification filed Aug. 12, 2013, as amended May 19, 2015 (“Spec.”), Final Rejection dated Aug. 3, 2015 (“Final Act.”), Appeal Brief filed Dec. 17, 2015 (“App. Br.”), Examiner’s Answer dated May 26, 2016 (“Ans.”), and the Reply Brief filed June 24, 2016 (“Reply Br.”). Appeal 2016-006691 Application 13/964,713 BACKGROUND The subject matter on appeal relates to an apparatus for application of a high viscosity sealant material for sealing aircraft components and sub- assemblies. App. Br. 1; see also Spec. 3^4. The apparatus includes a nozzle system having a temperature controlling element to change the temperature of the sealant material and thereby its viscosity as it is applied to a structure. Id. Claim 1, reproduced below, is illustrative of the subject matter on appeal: 1. An apparatus comprising: a structure, wherein the structure is selected from one of a workpiece, an assembly of components, and a sub-assembly; a robotic attachment element configured for attachment to a robotic device; a source attachment element configured for attachment to a source holding a sealant material having a viscosity greater than a selected threshold of about 100,000 centipoise; and a nozzle system positioned at least 0.5 inches away from the structure during application of the sealant material onto the structure and configured to apply the sealant material onto the structure in a number of streams to form a sealant deposit having a desired shape; the nozzle system having a temperature controlling element configured to alter a temperature of the sealant material flowing through the nozzle system to change the viscosity of the sealant material to control an exit velocity of the sealant material. App. Br. 13 (Claims App.) (emphasis added). 2 Appeal 2016-006691 Application 13/964,713 REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 1, 3—5, 7, 9-10, and 13—18 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Dominguez,3 Lenhardt,4 and Bretmersky.5 Final Act. 3. 2. Claims 1, 3—5, 7—10, and 13—18 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Bullen,6 Lenhardt, and Bretmersky. Final Act. 6. DISCUSSION Rejection 1 The Examiner finds that Dominguez teaches the claimed apparatus, except for a temperature controlling element. Final Act. 3. The Examiner relies on Lenhardt as disclosing a temperature controlling element as recited in claim 1, and further finds that Bretmersky discloses controlling flow rate of a nozzle by controlling nozzle pressure caused by changes in temperature and viscosity of the fluid. Id. The Examiner determines it would have been obvious to a person of ordinary skill in the art to include a temperature controlling element in Dominguez’s apparatus to discharge pasty substances of high viscosity as taught by Lenhardt, and to position the nozzle system as recited in claim 1 because Dominguez discloses a nozzle system “provided 3 Dominguez, US 4,964,362, iss. Oct. 23, 1990. 4 Lenhardt, US 5,462,199, iss. Oct. 31, 1995. 5 Bretmersky et al., US 5,687,092, iss. Nov. 11, 1997 (“Bretmersky”). 6 Bullen, US 6,001,181, iss. Dec. 14, 1999. 3 Appeal 2016-006691 Application 13/964,713 with a moving means/robot that is capable of positioning the nozzle relative to the substrate.” Id. at 3^4. Appellants argue, inter alia, that the combination of references does not disclose “a nozzle system positioned at least 0.5 inches away from the structure during application of the sealant material onto the structure” or “a source holding a sealant material having a viscosity greater than a selected threshold of about 100,000 centipoise” as recited in claim 1. App. Br. 6—9; Reply Br. 2—3. In particular, Appellants argue that the Examiner’s finding that Lenhardf s high viscosity pasty material could be as high as about 100,000 centipoise is based on speculation, because Lenhardt does not disclose any actual viscosity values, and sealant materials used in automotive applications such as Lenhardt have a viscosity less than 100,000 centipoise. Id. at 3. Appellants’ argument is persuasive of reversible error. Appellants’ Specification supports their argument that methods for applying sealant materials used in the automotive industry are not suitable for use with sealant materials in the aerospace industry which are characterized by viscosity greater than about 100,000 centipoise. Spec. 1 8. Although the Examiner finds that Lenhardt teaches application of “high viscosity pasty material,” (Ans. 3), the Examiner does not dispute that Lenhardt does not disclose any actual viscosity value for its sealant, nor do the other references. The Examiner merely states that the viscosity of Lenhardf s sealant “could be as high as claimed.” Id. On this record, the Examiner fails to provide the requisite factual basis for obviousness. See In re Warner, 379 F.2d 1011, 1016—17 (CCPA 1967) (the Examiner has the initial duty of supplying the requisite factual basis for obviousness and may not “resort to 4 Appeal 2016-006691 Application 13/964,713 speculation, unfounded assumptions, or hindsight reconstruction to supply deficiencies in [the] factual basis.”). Accordingly, we cannot sustain the rejection. Rejection 2 The Examiner does not rely upon Bullen for any disclosure that remedies the deficiency in Rejection 1. Accordingly, for the reasons discussed above, we also cannot sustain Rejection 2. SUMMARY We reverse the rejection of claims 1, 3—5, 7—10, and 13—18 under 35 U.S.C. § 103(a). REVERSED 5