Ex Parte Marchaj

Patent Trial and Appeal BoardSep 21, 2017

13622526 (P.T.A.B. Sep. 21, 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. 13/622,526 09/19/2012 Ian T. Marchaj 62237US01; 67097-2042PUS1 5791 54549 7590 09/25/2017 TART SON OASKFY fr OT DS/PR ATT fr WHTTNFY EXAMINER 400 West Maple Road Suite 350 KANG, EDWIN G Birmingham, MI 48009 ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 09/25/2017 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): ptodocket @ cgolaw. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IAN T. MARCHAJ Appeal 2015-006228 Application 13/622,526 Technology Center 3700 Before MICHAEL L. HOELTER, JILL D. HILL, and BRENT M. DOUGAL, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Ian T. Marchaj (Appellant) appeals under 35U.S.C. § 134 from the Examiner’s final decision rejecting claims 1—26. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2015-006228 Application 13/622,526 BACKGROUND Independent claims 1 and 12 are pending. Independent claim 1, reproduced below, illustrates the claimed subject matter with a disputed term emphasized. 1. A nacelle assembly comprising: a thrust reverser moveable between a stowed position and a deployed position; a variable area fan nozzle; a motor to move the variable area fan nozzle; a drive shaft including a first portion coupled to the motor and a second portion coupled to the variable area fan nozzle; a clutch mechanism that couples the first portion of the drive shaft and the second portion of the drive shaft, wherein the first portion of the drive shaft decouples from the second portion of the drive shaft when the thrust reverser moves from the stowed position to the deployed position; and a sensor that detects flight conditions. REJECTIONS I. Claims 25 and 26 stand rejected under 35 U.S.C. § 112, second paragraph, as indefinite. Final Act. 3, Ans. 2. II. Claims 1—20, 23, and 24 stand rejected under 35 U.S.C. § 102(e) as anticipated by West (US 2013/0312387 Al, pub. Nov. 28, 2013. Final Act. 4. III. Claims 1—9, 12—18, and 24 stand rejected under 35 U.S.C. § 102(b) as anticipated by McKay (US 2011/0192135 Al, pub. Aug. 11, 2011). Final Act. 6. 2 Appeal 2015-006228 Application 13/622,526 IV. Claims 10, 11, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKay and Midgley (US 4,799,354, iss. Jan. 24, 1989). Final Act. 8. V. Claims 21 and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over West and Hillel (US 2010/0107600 Al, pub. May 6, 2010). Final Act. 9. VI. Claims 21 and 22 also stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKay and Hillel. Final Act. 10. VII. Claims 25 and 26 stand rejected under 35 U.S.C. § 103(a) as unpatentable over West and Trumper (US 7,448,198 B2, iss. Nov. 11, 2008). Final Act. 11. VIII. Claims 25 and 26 also stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKay and Trumper. Final Act. 12. ANALYSIS Rejection I The Examiner determines that claim 25 lacks antecedent basis for “the first feature,” “the second feature,” and “the friction material.” Final Act. 3. Appellant does not explicitly refute this rejection in the Appeal Brief. Claim 10, from which claim 25 depends, provides antecedent basis for both “the first feature” and “the second feature.” Because we are unable to find antecedent basis for “the friction material,” we sustain the rejection of claim 25, and claim 26 that depends therefrom. 3 Appeal 2015-006228 Application 13/622,526 Rejection II—Anticipation by West—Claims 1—20, 23, and 24 Appellant argues claims 1—10, 12—19, 23, and 24 as a group. Appeal Br. 3. We select independent claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv). Claims 2—10, 12—19, 23, and 24 stand or fall with claim 1. Regarding independent claim 1, the Examiner finds that West discloses a nacelle assembly including a thrust reverser and, inter alia, a clutch (in decoupling drive train 100) that couples a first portion of a drive shaft and a second portion of the drive shaft when the thrust reverser is in a stowed portion, “wherein the first portion of the drive shaft decouples from the second portion of the drive shaft when the thrust reverser moves from the stowed position to the deployed position,” and sensors 62, 74 that detect “flight conditions.” Final Act. 4 (citing West Figs. 9 and 12, || 43 and 60). Appellant argues that West’s “position sensors 62 and translation sensors 74” detect position rather than flight conditions. Appeal Br. 3. The Examiner responds that Appellant’s Specification provides no explicit definition for the term “flight conditions,” and proffers a broadest reasonable interpretation therefor. Ans. 3. According to the Examiner, Appellant’s Specification states that its “sensor 86 monitors flight conditions and supplies this data to a Full Authority Digital Engine Control 88 (FADEC),” and Mathews (US 2013/0054055 Al, pub. Feb. 28, 2013) discloses that its FADEC receives multiple current input variables of the current flight condition including throttle lever position. Ans. 3. The Examiner reasons that position sensors are flight condition sensors, and contends that the broadest reasonable interpretation of “flight conditions” is “any parameter associated with the aircraft and its component[s], while in flight.” Id. at 3—4. 4 Appeal 2015-006228 Application 13/622,526 We are not persuaded that the Examiner’s interpretation of “flight conditions” is unreasonable. Although Appellant’s Specification discloses a “particular flight condition” of cruise or fuel-efficient “bucket cruise” at 0.8 Mach and 35,000 feet, this example does not provide an explicit definition for “flight conditions.” Spec. 142. The Examiner contends that one skilled in the art would understand that a broadest reasonable interpretation of “flight conditions” can include position sensor information, and supports that contention with the citation to Mathews, which provides evidence of the understanding of one skilled in the art. Appellant does not provide evidence or reasoning showing that Mathews is inaccurate, and it remains the best evidence that a position sensor can detect flight conditions. We sustain the rejection of independent claim 1 as anticipated by West. Claims 2—10, 12—19, 23, and 24 fall with claim 1. Dependent Claims 11 and 20 Regarding dependent claims 11 and 20, which recite the clutch in more detail and including a friction material, the Examiner finds that West’s clutch (in decoupling drive shaft 100) includes a first feature connected to the first portion of the drive shaft and a second feature connected to the second portion of the drive shaft, one of the first and second features including friction material engaged by the other of the first and second features when the drive shaft is coupled. Final Act. 5 (citing West | 63). Appellant argues that the Examiner gives the term “friction material” an overly broad definition, and that the Examiner’s alleged friction material, “such as keys, teeth and ribs, might generate frictional forces, but these items are not ‘friction material.’” Appeal Br. 2—A. Appellant provides a website link to define “friction material,” and argues that the term “friction 5 Appeal 2015-006228 Application 13/622,526 material” refers to a specific type of material and is known. Id. at 4 (citing http://blog.hemmings.com/index. php/2013/08/30/tech-101 -how-to-choose- the-right-brake-frictionmaterial/) (directed to selecting brake friction material). The Examiner responds that no explicit definition for “friction material” was provided in the Specification, and contends that the broadest reasonable interpretation thereof includes “materials used to generate frictional forces.” Ans. 4. That Examiner finds that West’s keys, teeth, and ribs would generate frictional forces and, therefore, meet the claim. Id. Appellant has the better argument. The Examiner’s interpretation of “friction material” as including as any material or structure (e.g., a key or teeth) that generates frictional forces is unreasonably broad, particularly in light of Appellant’s evidence that one skilled in the art would understand “friction material” to designate a particular type of supplemental material suited to specific applications and having specific properties such as wear resistance, coefficient of friction, thermal stability, and thermal conductivity. We do not sustain the rejections of claims 11 and 20 as anticipated by West. Rejection III—Anticipation by McKay — Claims 1—9, 12—18, and 24 Appellant argues claims 1—9, 12—18, and 24 as a group. Appeal Br. 4. We select independent claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv). Claims 2—9, 12—18, and 24 stand or fall with claim 1. Like West, McKay discloses position sensors 28, 40 that the Examiner finds detect flight conditions. Final Act. 6. Appellant again argues that position sensors do not detect “flight conditions.” Appeal Br. 4. For the reasons explained above regarding Rejection II, we sustain the rejection of 6 Appeal 2015-006228 Application 13/622,526 claim 1 as anticipated by McKay. Claims 2—9, 12—18, and 24 fall with claim 1. Rejection IV— Obviousness over McKay and Midgley — Claims 10, 11, 19, and 20 Appellant makes no argument that claims 10, 11, 19, and 20 would be patentable over McKay and Midgley, if claims 1 and 12 are not patentable over McKay.1 Appeal Br. 4. We, therefore, sustain the rejection of claims 10, 11, 19, and 20 for the reason discussed above regarding Rejection III. Rejection V Obviousness over West and Hillel Claims 21 and 22 Appellant relies on the arguments made above regarding Rejection II, further arguing that, “[i]f West was modified such that the VAFN panel 58 moved based on flight conditions instead of a detected position, this modification would change how West operates and change a principle of operation of West,” such that “[tjhere is no reason to make this modification.” Appeal Br. 4—5. Lacking a defined “principle of operation” of West, and an explanation of how that principle of operation would change, we are not persuaded by this argument. We sustain Rejection V. Rejection VI— Obviousness over McKay and Hillel — Claims 21 and 22 Appellant relies on the arguments made above regarding Rejection III, further arguing that, “[i]f McKay was modified such that the VAFN cowl 12 moved based on flight conditions instead of a detected position, this modification would change how McKay operates,” such that “[tjhere is no 1 The Examiner relies on Midgley for disclosing the limitation “friction material” as recited in claims 11 and 20. Final Act. 9. 7 Appeal 2015-006228 Application 13/622,526 reason to make this modification.” Appeal Br. 5. Lacking an explanation of how McKay’s operation would change and how such a change would negate a reason for modifying McKay as proposed by the Examiner, we are not persuaded by this argument. We sustain Rejection VI. Rejection VII Obviousness over West and Trumper — Claims 25 and 26 Appellant makes no argument that claims 25 and 26 would be patentable over West and Trumper if claim 1 is not patentable over West. We sustain Rejection VII for the reason set forth above regarding Rejection II. Rejection VIII Obviousness over McKay and Trumper — Claims 25 and 26 Appellant makes no argument that claims 25 and 26 would be patentable over McKay and Trumper if claim 1 is not patentable over McKay. We sustain Rejection VIII for the reason set forth above regarding Rejection III. DECISION We AFFIRM the rejection of claims 25 and 26 under 35 U.S.C. § 112, second paragraph, as indefinite. We AFFIRM the rejection of claims 1—10, 12—19, 23, and 24 under 35 U.S.C. § 102(e) as anticipated by West. We REVERSE the rejection of claims 11 and 20 under 35 U.S.C. § 102(e) as anticipated by West. 8 Appeal 2015-006228 Application 13/622,526 We AFFIRM the rejection of claims 1—9, 12—18, and 24 under 35 U.S.C. § 102(b) as anticipated by McKay. We AFFIRM the rejection of claims 10, 11, 19, and 20 under 35 U.S.C. § 103(a) as unpatentable over McKay and Midgley. We AFFIRM the rejection of claims 21 and 22 under 35 U.S.C. § 103(a) as unpatentable over West and Hillel. We AFFIRM the rejection of claims 21 and 22 under 35 U.S.C. § 103(a) as unpatentable over McKay and Hillel. We AFFIRM the rejection of claims 25 and 26 under 35 U.S.C. § 103(a) as unpatentable over West and Trumper. We AFFIRM the rejection of claims 25 and 26 under 35 U.S.C. § 103(a) as unpatentable over McKay and Trumper. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED 9