Ex Parte Kolax et al

Patent Trial and Appeal Board

Aug 9, 2017

12520892 (P.T.A.B. Aug. 9, 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.
12/520,892 07/23/2009 Michael Kolax 4404.77428 1902
24978 7590 08/11/2017
GREER, BURNS & CRAIN, LTD
300 S. WACKER DR.
SUITE 2500
CHICAGO, IL 60606
EXAMINER
FABULA, MICHAEL A
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
08/11/2017 ELECTRONIC
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL KOLAX, WOLF-DIETRICH DOLZINSKI,
HANS-PETER WENTZEL, and RALF HERRMANN
Appeal 2015-002851
Application 12/520,892
Technology Center 3600
Before WILLIAM A. CAPP, BRANDON J. WARNER, and
AMANDA F. WIEKER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Kolax et al. (“Appellants”)1 appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 1—11 and 13—16, which are all
the pending claims. Appeal Br. 6. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Airbus
Operations Gmbh. Appeal Br. 4.
Appeal 2015-002851
Application 12/520,892
CLAIMED SUBJECT MATTER
Appellants’ disclosed invention “relates to a fuselage structural
component for an aircraft or spacecraft, wherein at least one foam layer is
provided, which forms a thermal insulation.” Spec., p. 1,11. 8—11.2 Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A fuselage structural component of an aircraft or
spacecraft, with an outer skin and a load-bearing inner
framework structure comprising[:]
an inner skin which is provided with stringers on an outer
side [thereof],
each stringer is not hollow and comprises a configuration
which does not form a hollow space with the inner skin,
the inner framework being not fastened on the outer skin
and the outer skin having a carbon fibre reinforced composite
type of construction,
an integral preformed and single piece foam layer with
preformed cut[-]outs, which acts as heat insulation and as
impact protection, being arranged between the outer skin and
the inner framework structure,
the integral and single piece foam layer and the
preformed foam layer cut-outs being sized and arranged so that
at least three of the stringers can be accommodated in the
integral single piece foam layer without gaps in the foam layer
between adjacent ones of the at least three stringers, and
an outer side of the accommodated stringers including a
top of the accommodated stringers being completely enclosed
by the foam layer,
the integral single piece foam layer completely filling out
[an] interspace between the outer skin and the inner skin and
the plurality of the stringers and the space between the top of
each accommodated stringer and the outer skin in such a way
that the foam layer is not exposed to air circulation.
2 We note that references herein to Appellants’ Specification refer to
the Substitute Specification filed November 10, 2013.
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Appeal 2015-002851
Application 12/520,892
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Struve US 2005/0211838 A1 Sept. 29,2005
Lee US 2008/0111024 A1 May 15,2008
Appellants’ Admitted Prior Art (“AAPA”) of acknowledged
conventional elements and materials known in the art.
REJECTIONS
The following rejections are before us for review:
I. Claims 1—11 and 14—16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Lee and AAPA. Final Act. 3—13;
Ans. 2.
II. Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Lee, AAPA, and Struve. Final
Act. 13—15; Ans. 2.
ANALYSIS
Appellants argue that the rejections are improper because Lee does
not expressly disclose all of the features recited in the claims. See Appeal
Br. 11—23; Reply Br. 3—13. After careful consideration of the record before
us, Appellants’ arguments do not apprise us of error in the Examiner’s
factual findings regarding Lee, which are supported by a preponderance of
the evidence, or the Examiner’s reasonable conclusion of obviousness,
which is rationally articulated based on prior art teachings. In short, we
sustain the Examiner’s rejections based on the reasoned positions set forth
therein, and in light of the Examiner’s thorough responses to Appellants’
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Appeal 2015-002851
Application 12/520,892
arguments. See Final Act. 3—15; Ans. 2—10. We address Appellants’
principal assertion below simply as a matter of emphasis.
Specifically, Appellants’ arguments are premised on an assertion that
Lee does not disclose all of the features claimed, and on the identification of
purported distinguishable features. See Appeal Br. 12—19. However, this
assertion is unpersuasive of error because it does not address the rejection
presented, which is based on obviousness—not anticipation—and, thus,
already presumes the presence of some distinctions.3 Importantly, the
Examiner has addressed the alleged shortcomings of Lee’s express
disclosures alone by rationally explaining how, despite these asserted
distinctions, the claims as a whole would have been obvious to one of
ordinary skill in the art in view of the teachings of Lee and acknowledged
conventional elements and materials known in the art.4 The Examiner’s
conclusion that the claimed subject matter would have been obvious in view
of the art is reasonable, and Appellants do not explain how the proposed
design modifications to Lee’s express disclosures would have been
3 The relevant inquiry here is not whether distinctions exist between the
claimed subject matter and the disclosures of Lee; rather, it is whether those
distinctions are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having ordinary skill
in the art to which said subject matter pertains. See 35 U.S.C. § 103(a).
4 In particular, Appellants’ asserted distinctions 1—3 (see Appeal
Br. 12—13) were already acknowledged and logically addressed in the
rejection itself (see Final Act. 7—11), and Appellants’ asserted distinctions
4—6 (see Appeal Br. 13) were logically addressed in the Examiner’s Answer
(see Ans. 3—7). Appellants’ assertions do not apprise us of error in the
Examiner’s reasoned obviousness determination.
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Appeal 2015-002851
Application 12/520,892
unpredictable or somehow beyond the level of ordinary skill in the art. See
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).
We note that any other arguments not specifically addressed in detail
herein have been thoroughly considered by the panel but are not persuasive
for the reasons discussed supra and those well expressed in the Examiner’s
Answer.
After careful consideration of all the evidence of record, Appellants’
arguments do not apprise us of error in the Examiner’s findings or reasoning
in support of the conclusion of obviousness. Accordingly, we sustain
Rejections I and II.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1—11 and
14—16 under 35 U.S.C. § 103(a) as being unpatentable over Lee and AAPA.
We AFFIRM the Examiner’s decision rejecting claims 3 and 13 under
35 U.S.C. § 103(a) as being unpatentable over Lee, AAPA, and Struve.
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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