Ex Parte Oehler et alDownload PDFPatent Trial and Appeal BoardFeb 15, 201914462906 (P.T.A.B. Feb. 15, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/462,906 08/19/2014 60476 7590 02/20/2019 PA TENT DOCKET DEPARTMENT ARMSTRONG TEASDALE LLP 7700 Forsyth Boulevard Suite 1800 St. Louis, MO 63105 FIRST NAMED INVENTOR Stephen D. Oehler 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 ATTORNEY DOCKET NO. 14-0707-US-NP (24691-757) CONFIRMATION NO. 4714 EXAMINER WEYDEMEYER, ETHAN ART UNIT PAPER NUMBER 1783 NOTIFICATION DATE DELIVERY MODE 02/20/2019 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): USpatents@armstrongteasdale.com patentadmin@boeing.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHEN D. OEHLER and FREDERICK T. CALKINS Appeal2018-003500 Application 14/462,906 Technology Center 1700 Before KAREN M. HASTINGS, JEFFREY B. ROBERTSON, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. § 134(a) from a rejection of claims 1-16. 3 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 In our Decision, we refer to the Specification filed August 19, 2014 ("Spec."); the Final Office Action dated March 23, 2017 ("Final Act."); the Advisory Action dated July 11, 2017 ("Adv. Act."); the Appeal Brief filed September 7, 2017 ("Appeal Br."); the Examiner's Answer dated December 22, 2017 ("Ans."); and the Reply Brief filed February 15, 2018 ("Reply Br."). 2 Appellant is applicant The Boeing Company, identified as the real party in interest. App. Br. 1. 3 The first page of the Final Office Action incorrectly indicates that claims 1-20 are rejected. Claims 17-20 were previously withdrawn. App. Br. 1. Appeal2018-003500 Application 14/462,906 STATEMENT OF THE CASE The claims are directed to composite sandwich structures for a vehicle, and aircraft comprising same. Claim 1, reproduced below from the Claims Appendix, illustrates the claimed subject matter: 1. A composite sandwich structure for a vehicle, said composite sandwich structure comprising: a first sheet comprising a first surface and an opposing second surface, wherein a transverse direction is defined normal to said second surface of said first sheet; a second sheet opposite said first sheet; and a core coupled between said first and second sheets, said core is formed from a shape memory alloy having an austenite finish transition temperature within a range of about -35 degrees Celsius to about -10 degrees Celsius, said shape memory alloy comprises a plurality of web portions that each extend from said first sheet to said second sheet, said core is configured to reversibly transform between: a substantially fully austenite state in response to said composite sandwich structure being subjected to a relatively low force applied substantially parallel to the transverse direction, and an at least partially martensite state in response to said composite sandwich structure being subjected to a relatively high force applied to said composite sandwich structure substantially parallel to the transverse direction, wherein each of a plurality of first portions of said core correspondingly changes shape to accommodate an application of the relatively high force, such that said core reversibly deforms. 2 Appeal2018-003500 Application 14/462,906 REFERENCES The Examiner relies on the following prior art in rejecting the claims on appeal: Elzey et al. ("Elzey") Widdle, Jr. et al. ("Widdle") Blohowiak et al. ("Blohowiak") US 2005/0158573 Al US 2011/0030380 Al US 2011/0300358 Al REJECTIONS July 21, 2005 Feb. 10,2011 Dec. 8, 2011 The Examiner maintains and Appellant seeks review of the rejection of claims 1-16 under 35 U.S.C. § 103 4 over Blohowiak in view of Elzey, and in further view of Widdle. OPINION Independent claim 1 recites a composite sandwich structure for a vehicle; independent claim 9 recites an aircraft comprising a composite sandwich structure. App. Br. 12, 14 (Claims App.). Claims 1 and 9 are otherwise identical. See id. Appellant argues claims 1 and 9 together, and relies on these arguments for patentability of dependent claims 2-8 and 10- 16. In the Appeal Brief, Appellant provides background on the technology involved in the appeal: 4 We consider this appeal under the AIA version of the statute because the application was filed after the March 16, 2013, effective date of the America Invents Act. 3 Appeal2018-003500 Application 14/462,906 In general, SMAs [ shape memory alloys] are capable of being "snapped" back and forth between two distinct solid shapes ( associated respectively with the austenite and martensite states of the alloy) by passing the SMA through a well-defined temperature change. In addition, an SMA may be transformed from one shape to another by application and removal of mechanical stress, but only while in the austenitic temperature range. [ A ]n SMA is typically transitioned from its martensite phase to its austenite phase by increasing the temperature of the SMA. The transition starts at the austenite start temperature As and completes above the austenite finish temperature Af. Similarly, an SMA is typically transitioned from its austenite phase to its martensite phase by decreasing the temperature of the SMA. That transition starts at the martensite start temperature Ms and ends at the martensite finish temperature Mf. Therefore, if an SMA is to be used as a temperature-based actuator, the heating/cooling source associated with the actuator must be capable of moving the SMA from above the austenite finish temperature to below the martensite finish temperature, and vice versa. However, when an SMA is in its austenite phase, application of mechanical stress can transform the SMA to the martensite phase, despite the fact that the SMA remains above the martensite start temperature Ms. Notably, this effect only occurs to the extent the SMA is in the austenite phase to begin with-if the SMA is below the martensite start temperature Ms, at least a portion of the SMA will already be in the martensite phase, and no further phase-based deformation of that portion due to mechanical stress can occur. App. Br. 4---6 (citing US 8,800,590 to Gilbertson et al., issued August 12, 2014 ("Gilbertson"), and US 2014/0026679 to Mankame et al., published January 30, 2014 ("Mankame")). 4 Appeal2018-003500 Application 14/462,906 The Examiner finds that claim 1 is unpatentable over Blohowiak in view of Elzey and further in view of Widdle. Final Act. 2. The Examiner finds that Blohowiak discloses a composite for an aircraft in which nitinol sheets (a type of SMA) are sandwiched between first and second fiber reinforced plies, but is silent as to the austenite finish temperature of the nitinol, necessitating that one of ordinary skill consult the art in order to determine an appropriate austenite finish temperature. Id. at 2-3. The Examiner finds that Elzey teaches SMAs typically have austenite finish temperatures between about-20QC and about +770QC. Id. at 3. The Examiner finds that the combination of Blohowiak and Elzey does not teach a SMA including a plurality of web portions, as recited in claim 1. Id. at 4. The Examiner relies on Widdle for teaching an SMA actuated aerostructure comprising a shape memory actuator layer having a fluted shape. Id. The Examiner concludes that it would have been obvious at the time the invention was filed to have incorporated Widdle' s fluted shape in the nitinol layer of the combination of Blohowiak and Elzey. Appellant argues persuasively that the Examiner errs in assuming that one of ordinary skill in the art would have an incentive to combine an SMA shape described as useful for an actuator system (e.g., Blohowiak and Widdle) with an austenite finish transition temperature of an SMA that is suitable for a mechanical stress absorption system (e.g., Elzey or the claimed invention). App. Br. 6. Appellant correctly describes Blohowiak as concerned with actively morphing vehicle surfaces in a controlled fashion using thermal inputs, to reduce environmental noise and emissions, reduce fuel-related operating costs, and improve lift-to-drag during cruise conditions, and Widdle as concerned with active control of surface shapes to 5 Appeal2018-003500 Application 14/462,906 address the problem of reducing noise and drag during flight. Reply Br. 2, 3; see Blohowiak ,r 3; Widdle ,r,r 3--4. Claim 1, in contrast, is drawn to a composite sandwich that morphs in response to mechanical stress (transverse impacts). App. Br. 12 (Claims App.). As Appellant explains, the range of austenite finish transition temperatures claimed (about-35 degrees Celsius to about -10 degrees Celsius) would inhibit the active, thermally-induced shape morphing disclosed in Blohowiak at virtually all operating temperatures of any vehicle, particularly aircraft. Reply Br. 2. In addition, we note that Blohowiak discloses transforming nitinol from a martensite structure to an austenite structure by heating the composite to a temperature of between about 1 lOQF and about 320QF. Blohowiak ,r 15. The Examiner finds that the Specification does not disclose a specific composition or treatment process of the SMA, specifically nitinol, which would have suggested the claimed composite is structurally different from the nitinol disclosed in Blohowiak and Widdle. Ans. 7-8. In response, Appellant argues that it was well known in the art how to tailor an SMA to achieve a preselected austenite finish temperature, quoting Gilbertson: "manufacturers may alter the alloy composition to achieve different transition temperatures." Reply Br. 4 (quoting Gilbertson, col. 6, 11. 18-20). Appellant also argues that the nitinol of the art cited by the Examiner, having an austenite finish temperature tuned to facilitate active induction of shape morphing in flight, would already be substantially in the martensite state at in-flight operating temperatures, and, therefore, would not be capable of transforming from austenite to martensite in response to transverse impacts, as required by claim 1. Reply Br. 5. 6 Appeal2018-003500 Application 14/462,906 Appellant contends that one of ordinary skill in the art at the time of the invention would not have been motivated to modify Blohowiak' s composition to include an SMA with the claimed austenite finish temperature ( about -3 5 degrees Celsius to about -10 degrees Celsius) because it would have been impracticable or impossible to reliably cool the SMA to below the austenite finish temperature in order to trigger the martensite state. Reply Br. 5. We agree with Appellant in this regard. Although, as acknowledged by Appellant, the prior art suggests that the austenite transition temperature may be adjusted, the Examiner has not provided sufficient reasoning with rational underpinnings to modify the austenite transition in Blohowiak to the range recited in claim 1. See KSR Int 'l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). When the references cited by the exarniner fail to establish a prim a facie case of obviousness, the rejection is improper and will be overturned. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988) For the reasons above, the Examiner fails to show prima facie obviousness of claim 1 over the cited references. We do not sustain the rejection of claim 1. For the same reasons, we do not sustain the rejection of claims 2-16. DECISION The rejection of claims 1-16 is reversed. REVERSED 7 Copy with citationCopy as parenthetical citation