Ex Parte Queheillalt et al

Patent Trial and Appeal Board

Jun 28, 2016

13448074 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/448,074 04/16/2012
134006 7590 06/30/2016
V orys, Sater, Seymour and Pease LLP (UV A)
1909 K St., NW
Ninth Floor
Washington, DC 20006
FIRST NAMED INVENTOR
Douglas T. Queheillalt
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. CONFIRMATION NO.
070239.000030/l 6884
EXAMINER
MAESTRI, PATRICK J
ART UNIT PAPER NUMBER
3638
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
vmdeluca@vorys.com
patlaw@vorys.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DOUGLAS T. QUEHEILLALT and
HAYDN N.G. WADLEY
Appeal2014-004383
Application 13/448,074
Technology Center 3600
Before LINDA E. HORNER, LISA M. GUIJT, and GORDON D. KINDER,
Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON .,A .. PPE.,A .. L
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
2, 5-8, 10-12, and 15-22. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter NEW GROUNDS OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).
Appeal2014-004383
Application 13/448,074
CLAIMED SUBJECT MATTER
The claims are directed to lattice truss structures. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A monolithic lattice truss-based structure comprising:
a core comprising a plurality of lattice truss units each
having at least three legs, a pair of facesheets sandwiching said
core, and a plurality of nodes comprising regions where legs of
the truss units interface with said facesheets, wherein said truss
units portions1 have the same metallurgical and microstructural
properties as said facesheets and said nodes.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Kenney
Hatayama
We also rely on:
Arnold
us 3,884,646
us 5,690,035
WO 93/09068
REJECTIONS
May 20, 1975
Nov. 25, 1997
May 13, 1993
The Examiner makes the following rejections:
Claims 10 and 20 stand rejected under 35 U.S.C. § 112 (second
paragraph) as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the inventors regard as the
invention.
1 "Portions" lacks proper antecedent basis. For purposes of our decision, we
are interpreting "truss unit portions" to refer to the "plurality of truss units"
as recited in the claim. In the event of further prosecution the Examiner may
wish to consider a rejection under 35 U.S.C. § 112 (second paragraph).
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Claims 1, 2, 5-8, 11, 15-19, and 21 stand rejected under 35 U.S.C
§ 103(a) as being unpatentable over Kenney.
Claims 12 and 22 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Kenney and Hatayama.
OPINION
Rejection 1: Claims 10 and 20
Claims 10 and 20 are dependent claims. Claim 10 depends from
claim 1 and requires that "said truss units have varying relative density with
respect to each other." Appeal Br. 10, 11 (Claims App.). So far as is
relevant to this ground of rejection, claim 20, which depends from claim 15,
is the same. The Examiner rejects these two claims under 35 U.S.C. § 112
(second paragraph), finding it unclear how the truss units can have uniform
metallurgical and microstructural properties (as required by the parent
claims) yet have varying density. "Being uniform would indicate that the
densities would not change from one unit to another." Final Act. 2.
We would agree with the Examiner if "density" stood alone in the
claims. However, the claims use the term "relative density." The
Specification defines "relative density" as the "ratio of the volume of metal
in a unit cell to that of the unit cell." Spec. 14, 11. 5-6. A specific example
of how to calculate the relative density is given for a pyramidal structure
within a unit cell. Id., 11. 7-9. In essence, the relative density of a truss unit
is the ratio between the volume of a unit cell that surrounds a truss unit and
the volume of material that forms the truss unit.
During examination, after applying the broadest reasonable
interpretation to the claim, if the metes and bounds of the claimed invention
are not clear, the claim is indefinite. In re Packard, 751F.3d1307, 1310
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(Fed. Cir. 2014) ("[W]hen the USPTO has initially issued a well-grounded
rejection that identifies ways in which language in a claim is ambiguous,
vague, incoherent, opaque, or otherwise unclear in describing and defining
the claimed invention, and thereafter the applicant fails to provide a
satisfactory response, the USPTO can properly reject the claim as failing to
meet the statutory requirements of§ l 12(b )."). The test for definiteness
under 35 U.S.C. § 112, second paragraph, is whether "those skilled in the art
would understand what is claimed when the claim is read in light of the
specification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F .2d
1565, 1576 (Fed. Cir. 1986) (citations omitted). The Examiner's focus on
"density" alone is mistaken; the pertinent phrase is "relative density." In
light of the Specification, we find the definition of "relative density" to be
clear to those skilled in the art. Accordingly, we do not sustain the rejection
of claims 10 and 20 as being indefinite.
Rejection 2: Claims 1, 2, 5-8, 11, 15-19, and 21
Appellants argue claims 1, 2, and 5-8 as a group. Appeal Br. 4-7. We
select claim 1 as representative of the group, and claims 2, 5-8, and 11 stand
or fall with claim 1. Appellants make the same arguments and one
additional argument in connection with claims 15-19 and 21. Id. We select
claim 15 as representative of this second group in connection with the
additional argument, and claim 1 as representative of this group in
connection with the arguments in common with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner relies on Kenney in rejecting the claims subject to the
second ground of rejection. The Examiner finds that Kenney teaches a core
(#50) comprising a plurality of lattice truss units (#20) each having at least
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three legs, a pair of face sheets (#15) sandwiching said core, and a plurality
of nodes (#35) comprising regions where legs of the trust units interface
with the face sheets. Final Act. 3. The Examiner further finds that Kenney
discloses truss units that have the same metallurgical and microstructural
properties as the nodes (Kenney, col. 4, 11. 22-23). Id. Although the
Examiner (mistakenly, as it turns out) finds that Kenney does not
specifically teach that the truss has the same properties as the face sheets, the
Examiner concludes that it would of been obvious to one of ordinary skill in
the art at the time of the invention to create the device as taught by Kenney
with the characteristic of having the same properties as the face sheets as
well as making all the components out of the same material. Id.; Ans. 2-3
(finding that Kenney explicitly teaches that the device can be formed from a
single piece of material).
Turning to claim 1, Appellants argue that Kenney does not disclose a
monolithic lattice truss-based structure. Appeal Br. 4. Although the
Examiner's Final Action did not directly address "monolithic" as a claim
limitation, the Examiner's Answer appears to have done so. Compare Final
Act. 3-6 with Ans. 3 ("[I]t would be obvious to one of ordinary skill in the
art to recognize that creating a device such as in Kenney would involve
components of identical materials joined together to form a monolithic
structure with uniform characteristics.") .
The term "monolithic" is found only in the preamble to claim 1.
Words found only in the preamble of claims may be relied on as limitations
of the claim in narrow circumstances.
If []the body of a claim fully and intrinsically sets forth the
complete invention, including all of its limitations, and the
preamble offers no distinct definition of any of the claimed
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invention's limitations, but rather merely states, for example, the
purpose or intended use of the invention, then the preamble is of
no significance to claim construction because it cannot be said to
constitute or explain a claim limitation.
Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir.
1999). The body of claim 1 stands complete, with no reference to
"monolithic," and Appellants' argument concerning "monolithic" makes no
reference to any part of the body of claim 1. Appeal Br. 4-5, 6; Reply 2--4.
Accordingly, the word "monolithic" has no part in limiting the claimed
invention. The Appellants' arguments concerning whether Kenney discloses
or suggests a "monolithic" structure are not persuasive because they are not
directed to a limitation in the body of claim 1.
The Examiner finds Kenney teaches all features of claim 1 explicitly
except making the claimed truss units with the same physical properties as
the face sheets and the nodes. The nodes are defined in claim 1 as
"comprising regions where legs of the truss units interface2 with said
facesheets." Appeal Br. 10 (Claims App.). As recited in claim 1 and as the
Examiner finds, the nodes 3 5 of Kenney are part of Kenney' s trusses. See
Kenney, Fig. 4. Kenney specifically suggests making the trusses and nodes
of a single material (Abstract, 11. 5-7), and, although not cited by the
Examiner, Kenney also specifically suggests making both the trusses and the
surrounding sheets of the same material (i.e., steel). Id., col. 5, 11. 56-58.
Accordingly, there is articulated reasoning with rational underpinning to
support the Examiner's conclusion that it would have been obvious to make
the face sheets and truss units out of the same material. See In re Kahn, 441
2 Interface (verb): to connect or become connected. http://www.merriam-
webster.com/dictionary/interface (last viewed May 19, 2016).
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F.3d 977, 988 (Fed. Cir. 2006), cited with approval inKSR Int'! Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007).
Appellants' arguments in their Appeal Brief, pages 5-6, are not
addressed to the Examiner's findings, nor are they tied to specific claim
limitations that allegedly distinguish the invention recited in claim 1 from
the teachings of Kenney. For example, Appellants argue that "there is no
evidence in the record that Kenney discloses a plurality of lattice truss units
each having at least three legs, a pair of facesheets sandwiching said core,
and a plurality of nodes comprising regions where legs of the truss units
interface with said facesheets, wherein said truss units portions [sic] have the
same metallurgical and microstructural properties as said facesheets and said
nodes." Appeal Br. 5. We have already noted that Kenney in fact includes
such disclosure. Kenney, Abstract, 11. 5-7, col. 5, 11. 56-58. Appellants also
argue that various prior art methods of connecting lattice trusses with face
sheets result in metallurgical or microstructural discontinuities at the truss-
face sheet interface region. Appeal Br. 5. This argument is not directed to
specific claim language, and Appellants did not challenge the Examiner's
finding that part #35 in Figure 4 of Kenney constitutes a "node" as set forth
in Appellants' claims. With this reading of Kenney, nodes, trusses, and face
sheets, if all made of steel, would have the same metallurgical and
microstructural properties throughout. Accordingly, we have not been
apprised of error, and we affirm the rejection of claims 1, 2, and 5-8.
Appellants make the same arguments in connection with claims 15-19
and 21 as made in connection with claim 1, and we find them not persuasive
for the same reasons. Appeal Br. 4-7. Appellants also argue in connection
with claim 15 that Kenney does not disclose the limitations of this claim and
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that the conclusion of obviousness lacks evidentiary support. Appeal Br. 4-
5. Claim 15 is directed to a plurality of "lattice truss-based structures in
lateral communication with each other." Appeal Br. 10 (Claims App.)
Claim 15 continues by defining each of the structures as including the same
features described in claim 1, and connected to each other using one of a
variety of conventional joining techniques. The Examiner makes the same
findings in connection with Kenney as in connection with claim 1 and
further concludes, "[i]t would be obvious to connect multiple structures
laterally in order to make a larger panel to meet the application. It is well
known in the art to weld adjacent panels to create a larger panel." Final Act.
4.
The Examiner's conclusion has support in the record. Kenney
discloses panels useful in making aircraft structural shells. Kenney, col. 1,
11. 9-13. Manifestly, this would require joining multiple structural panels to
each other. A person of ordinary skill in the art must be presumed to know
something about the art apart from what the references disclose, see In re
Jacoby, 309 F.2d 513, 516 (CCPA 1962), and we agree that it would have
been obvious to one of ordinary skill in the art that structural panels of the
sort disclosed by Kenney would be used by joining them to other structures,
including other, like structural panels. This conclusion is reinforced by
Hatayama which discloses generally similar structural panels that are joined
together to form the shell of a railroad car. Fig. 14; col. 10, 11. 11-17.
Accordingly, there is articulated reasoning with rational underpinning to
support the Examiner's conclusion that it would have been obvious to make
the face sheets and truss units out of the same material. See In re Kahn,
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supra, and KSR, supra. We have not been apprised of error, and we atlinn
the rejection of claims 15-19 and 21. 37 C.F.R. § 41.37(c)(l)(iv).
Rejection 3-Claims 12 and 22
Appellants argue claims 12 and 22 as a group. Appeal Br. 7-8. We
select claim 12 as representative of the group, and claim 22 stands or falls
with claim 12. 37 C.F.R. § 41.37( c )(1 )(iv).
Claim 12 depends from claim 1 and adds that the structure further
comprises "inserts and filler material disposed between said facesheets
portions [sic], wherein said sandwich [sic] structures [sic] provide projectile
arresting capability."3 Appeal Br. 10 (Claims App.) The Examiner finds
that Kenney discloses all of claim 1, and that Hatayama discloses the subject
matter added by claim 12, namely, inserts and filler material disposed
between facesheets. Final Act. 6. The Examiner finds that although the
combined references do not teach providing projectile arresting capability,
the recitation of the manner in which the claimed apparatus is intended to be
employed does not differentiate it from prior art satisfying the claimed
structural limitations. Final Act. 6-7.
Appellants first argue the Hatayama does not show all the features of
claim 1. Appeal Br. 7-8. Hatayama was cited only for its teaching of
inserts and filler material. Final Act. 6. To the extent the Appellants'
arguments about the disclosure of Hatayama alone were an argument for the
nonobviousness of claim 12, they are unpersuasive. Nonobviousness cannot
be established by attacking the references individually when the rejection is
3 The words "sandwich" and "portions" lack proper antecedent basis. Also,
we interpret the term "structures" to refer to a "structure." In the event there
is further prosecution of this application, the Examiner may wish to consider
a rejection of this claim under 35 U.S.C. § 112, second paragraph.
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predicated upon a combination of prior art disclosures. See Jn re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellants argue that to "provide projectile arresting capability" is a
structural limitation, and not the manner of intended use. Appeal Br. 8.
They argue, by analogy, that reciting the intended use of a piece of tissue
paper as a projectile arrester does not transform piece of tissue paper into a
projectile arrester. Id. The analogy fails, for even tissue paper is capable of
arresting some projectiles. See Ans. 3 (pointing out that there is no
recitation of the projectile's speed or material). Appellants do not identify
any structure defined by claim 12 that is not found in the combination of
Kenney and Hatayama, and, in any event, the structure resulting from the
combination of Kenney and Hatayama is capable of arresting a projectile,
and so meets the limitations added by claim 12.
In their Reply, Appellants argue that the Examiner has not made a
prima facie case of obviousness, again arguing that the structural panel of
Kenney when fitted with lining material as taught by Hatayama does not
meet the claim limitation of "provid[ing] projectile arresting capability" as
required by claim 12. Reply Br. 4. Appellants rely on In re Giannelli, 739
F.3d 1375 (Fed. Cir. 2014), but that reliance is misplaced. There, the court
found that the Board's focus on whether the prior art bench-press exercise
machine was capable of use as a rowing machine was incorrect; the Board
should have looked at whether it was obvious to modify the prior art device
to arrive at the claimed rowing machine. 739 F. 3d at 1380. Here,
"capability" is what is claimed, and the Examiner's conclusion that the
combined structure "would be able" to stop some projectile directly meets
the claim limitation. Ans. 3.
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Appellants never identify what structural feature found in claim 12 is
missing from the combination of Kenney and Hatayama, and we are not
persuaded there was error in the Examiner's finding that the combination
"provide[ s] projectile arresting capability" as recited in claim 12.
New Grounds of Re} ection
To the extent that our affirmance of the rejection of claims 1, 2, 5-8,
11, 12, 15-19, 21, and 22 is based on "monolithic" not being a limitation of
claim 1 or 15, we designate that affirmance as a new ground of rejection.
Rejections under 35 U.S.C. § 102
We also reject claims 1, 5, 6-8, 10, and 11under35 U.S.C. § 102(b)
(pre-AIA) over Arnold as set forth below.
Claim 1
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
1under35 U.S.C. § 102(b) as unpatentable over Arnold. Arnold teaches a
monolithic lattice truss-based structure (Arnold 1 :4-6) comprising a core
comprising a plurality of lattice truss units (id. Figs. 1 and 2) each having at
least three legs (id. item 10 and 5:8-18), a pair of face sheets (id. Fig. 2,
items 4 and 16, 5:28-32) and a plurality of nodes (id. unnumbered, see Figs.
1 and 2) comprising regions where legs of the truss units interface with said
face sheets, wherein the truss units have the same metallurgical and
microstructural properties as said face sheets and said nodes. Id. 3: 17-24,
5: 19-32. Arnold specifically discloses making his structure from metal. Id.
7:7-10. Because Arnold uses a casting process, the metallurgical and
microstructural properties throughout the structure are uniform. When
making the structure out of silicon and silicon carbide, Arnold teaches that
the random orientation of a sintered silicon carbide and the uniform
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distribution of silicon filler make the articles of his invention substantially
isotropic. Id. 9:29-32. In addition, the truss has a uniform coefficient of
thermal expansion. Id. 10:23-26.
Claim 5
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
5 under 35 U.S.C. § 102(b) as unpatentable over Arnold. Arnold discloses a
monolithic structure, as described above in connection with claim 1, and
specifically notes that adhesive or mechanical joints make prior art trusses
anisotropic and may make the structure heavier. Id. 10:28-11 :2.
Accordingly, Arnold teaches a structure which is free of bonding, adhesives,
diffusion bonding, brazing, soldering, resistance/electron/laser welding, and
coupling as joining mechanisms.
Claim 6
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
6 under 35 U.S.C. § 102(b) as unpatentable over Arnold. Arnold discloses a
monolithic structure, as described above in connection with claim 1, and
specifically discloses making the trusses from ceramic. Id. 4:27-5:4. In
addition, Arnold identifies metal powders as suitable materials. Id. 7:7-10.
Claim 7
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
7 under 35 U.S.C. § 102(b) as unpatentable over Arnold. Arnold discloses a
monolithic structure, as described above in connection with claim 1, and
specifically suggests a truss with a tetrahedral configuration. Id. 5: 8-11,
Figs. 1 and 2.
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Claim 8
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
8 under 35 U.S.C. § 102(b) as unpatentable over Arnold. Arnold discloses a
monolithic structure, as described above in connection with claim 1, and
specifically teaches many different configurations including multiple layers
of integral trusses of different sizes and an array of truss units. Id. 5:19-28,
Figs. 1 and 2.
Claim 10
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
10 under 35 U.S.C. § 102(b) as unpatentable over Arnold. Arnold discloses
a monolithic structure, as described above in connection with claim 1, and
specifically teaches multiple layers of integral trusses, with layers having
different dimensions, and this would necessarily result in different relative
densities. Id. 5: 19-28. Arnold also teaches areal densities that vary with the
dimensions and construction of the panels. Id. 6:7-30. Varying areal
densities necessarily varies the relative densities.
Claim 11
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
11under35 U.S.C. § 102(b) as unpatentable over Arnold. Arnold discloses
a monolithic structure, as described above, and specifically teaches all
limitations of claim 1 as noted above. Arnold does not teach blast impact
mitigation. However, a "recitation with respect to the manner in which a
claimed apparatus is intended to be employed does not differentiate the
claimed apparatus from a prior art apparatus satisfying the structural
limitations of that claimed." Ex parte Masham, 2 USPQ2d 1647 (BPAI
1987); see MPEP § 2114.II.
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Rejections under 35 U.S.C. § 103
We also reject claims 2, 12, and 15-22 under 35 U.S.C. § 103(a) over
one or more of Arnold, Kenney, and Hatayama as set forth below.
Claim 2
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
2 under 35 U.S.C. § 103(a) as unpatentable over Arnold. Arnold teaches all
limitations of claim 1 as noted above. Arnold does not specifically teach
that the metallurgical properties comprise strength, ductility, and chemical
composition. However, Arnold teaches that the structure is monolithic (id.
1 :4 ), isotropic (id. 10:25-26) and with a uniform coefficient of thermal
expansion. Id. 10:23-25. It would have been obvious to someone with
ordinary skill in the art at the time of the invention to recognize that the
same material would have the same characteristics.
Claim 12
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
12 under 35 U.S.C. § 103(a) as unpatentable over Arnold. Arnold teaches
all limitations of claim 1 as noted above. Arnold does not teach inserts and
filler material disposed between said face sheets. However, Hatayama
teaches inserts and filler material disposed between face sheets. (Hatayama
Figs. 1-5, 14, item 10.)
It would have been obvious to one of ordinary skill in the art at the
time of the invention to create the device as taught by Arnold with the
characteristic of inserts as taught by Hatayama in order to reduce vibrations
throughout the material.
The references do not specifically teach that the resulting sandwich
structures provide projectile arresting capability. However, as noted above,
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the structure of Arnold arrests some projectiles, and further, as also noted
above, a "recitation with respect to the manner in which a claimed apparatus
is intended to be employed does not differentiate the claimed apparatus from
a prior art apparatus satisfying the structural limitations of that claimed." Ex
parte Masham, 2 USPQ2d 1647 (BPAI 1987); see MPEP § 2114.II.
Claim 15
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
15 under 35 U.S.C. § 103(a) as unpatentable over Arnold and either Kenney
or Hatayama. Arnold teaches a monolithic lattice truss-based structure
(Arnold 1 :4-6) comprising a core comprising a plurality of lattice truss units
(id. Fig. 2 item 10) each having at least three legs (id. Fig. 2 item 10 and
5:8-18), a pair of face sheets (id. Fig. 2 items 4 and 16), and a plurality of
nodes (id. unnumbered, see Figs. 1 and 2) comprising regions where legs of
the truss units interface with said face sheets, wherein the truss units have
the same metallurgical and microstructural properties as said face sheets and
said nodes. Id. 3: 17-24, 5: 19-32. Arnold specifically discloses making his
structure from metal. Id. 7:7-10. Because Arnold uses a casting process,
the metallurgical and microstructural properties throughout the structure are
uniform. When making the structure out of silicon and silicon carbide,
Arnold teaches that the random orientation of a sintered silicon carbide and
the uniform distribution of silicon filler make the articles of his invention
substantially isotropic. Id. 9:29-32. In addition, the truss has a uniform
coefficient of thermal expansion. Id. 10:23-26.
Arnold does not specifically teach a plurality of structures in lateral
communication and that the lateral communication comprises at least one of
bonding, adhesive, diffusion bonding, brazing, soldering, or
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resistance/electron/laser welding. However it would have been obvious to
one with ordinary skill in the art at the time of the invention to create the
devices taught by Arnold with the characteristic of having multiple
structures attached laterally. Kenney discloses panels useful in making
aircraft structural shells. Kenney, col. 1, 11. 9-13. Manifestly, this would
require joining multiple structural panels to each other. Similarly, Hatayama
discloses joining different structural panels to make a railroad car body.
Hatayama, Fig. 14 and 10: 11-19. Accordingly, it would have been obvious
to someone of ordinary skill in the art at the time the invention was made to
create the device as taught by Arnold with the characteristic of having
multiple structures attached laterally as taught by Kenney and Hatayama in
order to make a larger panel to meet the application. Further, The Examiner
finds it is well known in the art to weld adjacent panels to create a larger
panel (Final Act. 4), a finding Appellants do not challenge. Appeal Br 4-5.
Claim 16
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
16 under 35 U.S.C. § 103(a) as unpatentable over Arnold and either Kenney
or Hatayama. A plurality of monolithic lattice truss-based structures as
described in claim 15 in lateral communication with each other would have
been obvious in view of Arnold and either Kenney or Hatayama as noted
above in connection with claim 15. Arnold discloses a monolithic structure,
as described above, and specifically notes an advantage in that adhesive or
mechanical joints make prior art trusses anisotropic and may make the
structure heavier. Arnold, 10:23-11 :2. Accordingly, Arnold teaches a
structure which is free of bonding, adhesives, diffusion bonding, brazing,
soldering, resistance/electron/laser welding, and coupling as joining
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mechanisms, and it would have been obvious to someone of ordinary skill in
the art at the time of the invention to place such panels in lateral
communication in order to make a larger panel to meet the application.
Claim 17
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
17 under 35 U.S.C. § 103(a) as unpatentable over Arnold and either Kenney
or Hatayama. A plurality of monolithic lattice truss-based structures as
described in claim 15 in lateral communication with each other would have
been obvious in view of Arnold and either Kenney or Hatayama, as noted
above in connection with claim 15. Arnold specifically discloses making the
trusses from ceramic. Arnold, 4:27-5:4. In addition, Arnold identifies metal
powders as suitable materials. Id. 7:7-10. It would have been obvious to
someone of ordinary skill in the art at the time of the invention to make the
trusses of claim 15 from ceramic or metal.
Claim 18
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
18 under 35 U.S.C. § 103(a) as unpatentable over Arnold and either Kenney
or Hatayama. A plurality of monolithic lattice truss-based structures as
described in claim 15 in lateral communication with each other would have
been obvious in view of Arnold and either Kenney or Hatayama, as noted
above in connection with claim 15. Arnold specifically suggests a truss with
a tetrahedral configuration. Id. 5:8-32, Figs. 1 and 2. It would have been
obvious to someone of ordinary skill in the art at the time of the invention to
make the trusses of claim 15 with a tetrahedral configuration as Arnold
discloses.
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Claims 19 and 20
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claims
19 and 20 under 35 U.S.C. § 103(a) as unpatentable over Arnold and either
Kenney or Hatayama. A plurality of monolithic lattice truss-based structures
as described in claim 15 in lateral communication with each other would
have been obvious in view of Arnold and either Kenney or Hatayama, as
noted above in connection with claim 15. Arnold discloses a plurality of
truss units. Arnold, Figs. 1 and 2; 5:8-6:6. Arnold discloses areal densities
that vary with the dimensions and construction of the articles. Id. 6:7-30.
Varying areal density necessarily varies the relative density. It would have
been obvious to one of ordinary skill in the art at the time of the invention to
provide a truss unit comprising an array of truss unit portions and also to
provide truss units that have varying relative density with respect to each
other, as set forth in claims 19 and 20.
Claim 21
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
21under35 U.S.C. § 103(a) as unpatentable over Arnold and either Kenney
or Hatayama. A plurality of monolithic lattice truss-based structures as
described in claim 15 in lateral communication with each other would have
been obvious in view of Arnold and either Kenney or Hatayama, as noted
above in connection with claim 15. This combination does not teach blast
impact mitigation. However, a "recitation with respect to the manner in
which a claimed apparatus is intended to be employed does not differentiate
the claimed apparatus from a prior art apparatus satisfying the structural
limitations of that claimed." Ex parte Masham, 2 USPQ2d 1647 (BPAI
1987); see MPEP § 2114.II.
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Claim 22
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim
22 under 35 U.S.C. § 103(a) as unpatentable over Arnold and either Kenney
or Hatayama. A plurality of monolithic lattice truss-based structures as
described in claim 15 in lateral communication with each other would have
been obvious in view of Arnold and either Kenney or Hatayama, as noted
above in connection with claim 15. Arnold and Kenney do not teach inserts
and filler material disposed between said face sheets. However, Hatayama
teaches inserts and filler material disposed between said face sheet portions
(item 10).
It would have been obvious to one of ordinary skill in the art at the
time of the end of the invention to create the device as taught by Arnold and
either Kenney or Hatayama with the characteristic of inserts as taught by
Hatayama in order to reduce vibrations throughout the material.
The references do not specifically teach said sandwich structures
provide projectile arresting capability. However, as noted above, the
structure of Arnold arrests some projectiles, and further, as also noted above,
a "recitation with respect to the manner in which a claimed apparatus is
intended to be employed does not differentiate the claimed apparatus from a
prior art apparatus satisfying the structural limitations of that claimed." Ex
parte Masham, 2 USPQ2d 1647 (BPAI 1987); see MPEP § 2114.II.
DECISION
We REVERSE the decision of the Examiner to reject claims 10 and
20 under 35 U.S.C. § 112, second paragraph, as being indefinite.
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We AFFIRM the decision of the Examiner to reject claims 1-8, 11,
15-19, and 21under35 U.S.C. § 103(a) as being unpatentable over Kenney,
and designate our affirmance as a new ground of rejection.
We AFFIRM the decision of the Examiner to reject claims 12 and 22
under 35 U.S.C. § 103(a) as being unpatentable over Kenney and Hatayama
and designate this as a new ground of rejection.
We enter new grounds of rejection, pursuant to 37 C.F.R. § 41.50(b),
of claims 1, 5-11under35 U.S.C. § 102(b) (pre-AIA) as set forth above.
We enter new grounds of rejection, pursuant to 37 C.F.R. § 41.50(b),
of claims 2 and 12-22 under 35 U.S.C. § 103(a) as set forth above.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
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request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be found in
the Manual of Patent Examining Procedure§ 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)
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