Ex Parte Rabiei

Patent Trials and Appeals BoardMar 27, 2019

13843110 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/843,110 03/15/2013 26158 7590 03/29/2019 WOMBLE BOND DICKINSON (US) LLP ATTN: IP DOCKETING P.O. BOX 7037 ATLANTA, GA 30357-0037 FIRST NAMED INVENTOR Afsaneh Rabiei 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. Al04136 lOlOUS.CPCl (0005 6737 EXAMINER ZHU, WEIPING ART UNIT PAPER NUMBER 1733 NOTIFICATION DATE DELIVERY MODE 03/29/2019 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): IPDocketing@wbd-us.com BostonPatents@wbd-us.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte AFSANEH RABIEI Appeal2018-005695 Application 13/843,110 Technology Center 1700 Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and JEFFREY R. SNAY, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 49, 52, 55---63, 65, 66, and 68-75 under 35 U.S.C. Â§ 103(a) over Smarsly (US 5,073,459, issued Dec. 17, 1991) and Ghosh (US 2009/0044475 Al, published Feb. 19, 2009). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellant is Applicant, Advance Materials Manufacturing, LLC, which is said to be the real party in interest. Br. 1. We cite to the Specification ("Spec.") filed March 15, 2013; Non-Final Office Action ("Non-Final Act.") dated July 19, 2017; Appellant's Appeal Brief ("Br.") filed February 1, 2018; and Examiner's Answer ("Ans.") dated March 15, 2018. Appeal2018-005695 Application 13/843,110 BACKGROUND The subject matter on appeal relates to a radiation shielding structure comprising a closed cell composite metal foam layer and a second layer comprising an open cell foam. See claim 49, reproduced below. 49. A radiation shielding structure comprising an energy absorption panel that is formed of: a first layer that includes a closed cell, composite metal foam comprising a plurality of hollow metallic spheres having an average diameter of about 0.5 mm to about 20 mm, an average wall porosity of less than about 12%, and an average wall thickness of about 1 % to about 15% of the average sphere diameter, the plurality of hollow metallic spheres arranged with an interstitial space there between, the interstitial space being filled with a solid metal matrix; and a second layer that comprises an open cell foam; wherein the structure is effective shielding against one or more of gamma radiation, X-ray radiation, cosmic radiation, and neutron radiation. Br. 11 (Claims Appendix). Claim 72 includes the features of claim 49 and adds that the metallic spheres are in a random arrangement. Each remaining claim on appeal depends from claim 49 or 72. OPINION Appellant does not argue any claim apart from the others. Br. 3-9. We select claim 49 as representative for deciding the issues on appeal. 2 2 We recognize that the Examiner omits certain claim numbers from the statement of the rejection, Non-Final Act. 2, but designates all the pending claims as rejected in the Office Action Summary page, id. at 1. Appellant states in the Appeal Brief that "Appellants assume that the intended rejection is of pending claims 49, 52, 55---63, 65, 66, and 68-75." Br. 3. We consider the Examiner's omissions in the statement of the rejection harmless error. 2 Appeal2018-005695 Application 13/843,110 We review the appealed rejection for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections."). After considering the argued claims presented in this Appeal and each of Appellant's arguments, we are not persuaded that Appellant identifies reversible error. Thus, we affirm the Examiner's rejection for the reasons expressed in the Non-Final Office Action and the Answer. We add the following primarily for emphasis. Relevant to Appellant's arguments on appeal, the Examiner finds Ghosh discloses a radiation shielding structure that comprises a liquid-filled open foam layer. Non-Final Act. 4 (citing Ghosh ,r,r 3, 4, 17, 25). The Examiner also finds that Ghosh discloses providing a closed cell skin layer over the open cell foam to meet requirements of different applications. Id. at 6-7 (citing Ghosh ,r 25). The Examiner finds Smarsly discloses a light- weight closed cell composite metal foam construction material comprising hollow metal spheres in a solid metal matrix. Id. at 3. Smarsly states that the disclosed metal foam material "possesses substantially higher weight- specific strength values than conventional material and exhibits uniform strength properties throughout the structure of the material." Smarsly 1 :23- 28. The Examiner determines it would have been obvious to one of ordinary skill in the art to layer Smarsly's metal foam over Ghosh's radiation shielding open foam. Id. at 4---6; Ans. 3--4. Appellant argues the Examiner failed to address the wall porosity ("less than about 12%") and wall thickness ("about 1 % to about 15% of the 3 Appeal2018-005695 Application 13/843,110 average sphere diameter") recited in claim 49. Br. 4. We disagree. The Examiner finds that Smarsly suggests "that the shell is generally a solid material with a limited porosity which would meet the claimed wall porosity including 0%." Non-Final Act. 4. The Examiner also finds that Smarsly discloses a "shell thickness of about 2% of the diameter." Id. at 3 ( citing Smarsly 4:47--49). Appellant neither disputes nor addresses these findings. Appellant also argues that "Ghosh specifically teaches away from combining the core layer 12 with any additional foam layers, such as the foam layer taught by Smarsly." Br. 7. Appellant's argument is unpersuasive. Ghosh expressly teaches providing additional skin layers to core layer 12. Ghosh ,r 25 ("[I]n order to adapt the core layer 12 to different applications, it would optionally also be possible to provide one or more additional layers on either or both sides of the core layer 12."); id. ("One or more layers or skins 18, 20 can be formed on, applied to, or bonded to the core layer 12."); id. ("The skins 18, 20 can be used to provide additional properties to the overall energy-attenuation structure 10, including stiffness, reflectivity or absorption, for example of acoustics, thermal management, explosive impact, etc."). Appellant's argument that Ghosh teaches away from providing additional layers is contrary to Ghosh's express teachings. Appellant further argues that Ghosh's metal foam is flexible, whereas Appellant characterizes Smarsly's metal foam as "hard and brittle," such that "a person of ordinary skill in the art would not seek to modify the Ghosh structure to add a layer of the Smarsly material." Br. 8. Appellant does not point to evidence to support the contention that Smarsly's material would have been hard and brittle. To the contrary, Smarsly states that the disclosed material exhibits "high ductility." Smarsly 3:34. Moreover, Ghosh states 4 Appeal2018-005695 Application 13/843,110 that skin layer materials can be selected to provide "stiffness." Ghosh ,r 25. Appellant does not persuasively identify any incompatibility between the physical properties that Ghosh identifies as useful in a skin layer and the properties that Smarsly states are exhibited by the disclosed metal foam. Appellant urges, "if the closed-cell metallic foam in Smarsly was utilized to replace the alleged "closed" cells 13 in Ghosh, then Ghosh would be utterly unable to attenuate energy as currently contemplated." Br. 9. We do not read the Examiner's rejection as replacing Ghosh's cells 13. Ghosh's cells 13 are a component of the disclosed core layer 12. Ghosh ,r 13 ("Substantially all of the cells of the cellular material are open cells, wherein those cells 14 that are disposed in a central portion of the core layer 12 are more open than those cells 13 that are disposed in outer portions of the core layer."). The Examiner's obviousness determination involves adding Smarsly's metal foam as an additional layer over Ghosh's core layer, not modifying any component of the core layer itself. Thus, Appellant's argument regarding modification of cells within Ghosh's core layer neither addresses nor reveals error in the Examiner's obviousness determination. For the foregoing reasons, we are not persuaded of reversible error. DECISION The Examiner's decision rejecting claims 49, 52, 55---63, 65, 66, and 6 8-7 5 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 5