Ex Parte Schlichting et al

Patent Trial and Appeal BoardMar 31, 2016

12971370 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/971,370 12/17/2010 52237 7590 Bachman & LaPointe, P.C. 900 Chapel St., Suite 1201 New Haven, CT 06510 04/01/2016 FIRST NAMED INVENTOR Kevin W. Schlichting 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. 0001775-US-AA (06-212-2) CONFIRMATION NO. 7802 EXAMINER BAREFORD, KATHERINE A ART UNIT PAPER NUMBER 1718 MAILDATE DELIVERY MODE 04/01/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KEVIN W. SCHLICHTING, MICHAEL J. MALONEY, DA YID A. LITTON, MEL VIN FRELING, JOHN G. SMEGGIL, and DA YID SNOW1 Appeal2013-009119 Application 12/971,370 Technology Center 1700 Before BRADLEY R. GARRIS, CHUNG K. PAK, and MARK NAGUMO, Administrative Patent Judges. PAK, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision2 rejecting claims 15 and 17-23, which are all of the claims pending in the above-identified application. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 The real party in interest is said to be United Technologies Corporation of Hartford, Connecticut. Appeal Brief filed April 8, 2013 ("App. Br.") at 1.). 2 Final Action entered October 17, 2012 ("Final Act.") at 1-34 and the Examiner's Answer entered May 15, 2013 ("Ans.") at 2. Appeal2013-009119 Application 12/971,370 STATEMENT OF THE CASE The subject matter on appeal is directed to "the use of a plasma sprayed outer layer on top of a thermal barrier coating [on a turbine engine component] to block the penetration of molten sands into the thermal barrier coating." Spec. ,-i,-i 1, 4. "The thermal barrier coating ... may be applied using any suitable technique known in the art such as electron beam physical vapor deposition .... " Id. at ,-i 11. Details of the appealed subject matter are recited in illustrative claims 15 and 21, which are reproduced below: 15. A method for forming a coating on a turbine engine component comprising the steps of: forming a thermal barrier coating comprising a gadolinia- or a yttria-stabilized zirconia material on a surface of said turbine engine component; said thermal barrier coating forming step comprising forming said thermal barrier coating with at least one layer having a porosity in the range of from 10 to 20%; sealing an outer surface of said thermal barrier coating and limiting molten sand penetration into said thermal barrier coating; and said sealing step comprising plasma spraying a ceramic outer sealing layer having a splat structure and a porosity in the range of from 2.0 to 30% so as to create a tortuous path through said ceramic outer sealing layer onto said thermal barrier coating. 21. The method of claim 15, wherein said thermal barrier coating step comprises depositing a ceramic material at a temperature of from 1700 to 2000Â° F, a pressure of from 0.05 to 2.0 millitorrs, and afeed rate of from 0.3 to 2.0 inches per hour. App. Br. 13, 14 (Claims App'x). 2 Appeal2013-009119 Application 12/971,370 The Examiner has maintained the following grounds3 of rejection: (1) Claims 15, 17, 19, 22, and 23 under 35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Strangman, 3 Fritscher,4 and BeeleÂ· 6 ' (2) Claims 18 and 20 under 35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Strangman, Fritscher, Beele, and Gupta; 5 (3) Claim 21under35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Strangman, Fritscher, Beele, and Movchan;6 (4) Claims 15, 17-20, 22, and 23 under 35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Gupta, Fritscher, and Beele; (5) Claim 21under35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Gupta, Fritscher, Beele, and Movchan; (6) Claims 15, 19, 22, and 23 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-59 3 The Examiner withdrew the provisional nonstatutory obviousness-type double patenting rejections of claims 15 and 17-23 based on Application 12/534,945 set forth in the Final Action. Ans. 2. 3 Strangman, US 2005/0013994 Al; published January 20, 2005 (''S trangman"). 4 Fritscher et al., 26TH ANNUAL CONFERENCE ON COMPOSITES, ADVANCED CERAMICS, MATERIALS, AND STRUCTURES: B 341-352 (2002) ("Fritscher"). 6 Beele et al., The evolution of thermal barrier coatings- status and upcoming solutions for today's key issues, 120-121 SURFACE AND COATINGS TECHNOLOGY 61-67 (1999) ("Beele"). 5 Gupta et al., US 2003/0152814 Al; published August 14, 2003 ("Gupta"). 6 Movchan et al., US 6,790,486 B2; issued September 14, 2004 ("Movchan"). 3 Appeal2013-009119 Application 12/971,370 of U.S. Patent 7,622,195 B2 issued to Schlichting et al. on November 24, 2009 ("Schlichting '195") in view of Fritscher and Beele; (7) Claims 18 and 20 on the ground of nonstatutory obviousness- type double patenting as being unpatentable over claims 1-59 of Schlichting '195, in view of Pritscher, Beele, and Gupta; (8) Claim 21 on the ground ofnonstatutory obviousness-type double patenting as being unpatentable over claims 1-59 of Schlichting '195 in view of Fritscher, Beele, and Movchan; (9) Claims 15, 18, 19, 22, and 23 on the ground ofnonstatutory obviousness-type double patenting as being unpatentable over claims 1-17 of U.S. Patent 8,080,283 B2 issued to Schlichting et al. on December 20, 2011 ("Schlichting '283"), in view of Gupta, Fritscher and Beele; (10) Claim 21 on the ground ofnonstatutory obviousness-type double patenting as being unpatentable over claims 1-17 of Schlichting '283 in view of Gupta, Fritscher, Beele, and Movchan; ( 11) Claims 15, 19, and 22 provisionally on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-38 of U.S. 2010/0047075 Al filed in the name of Schlichting et al. on November 2, 2009 ("Schlichting '075") in view of Fritscher and Beele; (12) Claims 18, 20, and 23 provisionally on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-38 of Schlichting '075 in view of Pritscher, Beele, and Gupta; (13) Claim 21 provisionally on the ground ofnonstatutory obviousness-type double patenting as being unpatentable over claims 1-38 of Schlichting '075 in view of Fritscher, Beele, and Movchan; 4 Appeal2013-009119 Application 12/971,370 ( 14) Claims 15, 17, 19, and 20 provisionally on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-22 of U.S. 2013/0260132 Al filed in the name of Hazel et al. on April 2, 2012 ("Hazel"); and (15) Claims 22 and 23 provisionally on the ground ofnonstatutory obviousness-type double patenting as being unpatentable over claims 1-22 of Hazel in view of Gupta. DISCUSSION Rejections (1 ), (2), and ( 4) As evidence of obviousness of the subject matter recited in claim 157 under 35 U.S.C. Â§ 103(a), the Examiner relies upon the combined teachings of either Strangman or Gupta, Fritscher, and Beele. Final Act. 3-6, 11-15. The Examiner finds, and Appellants do not dispute, that either Strangman or Gupta teaches a method of forming a thermal barrier coating comprising yttria or gadolinia stabilized zirconia in the form of columnar structure and an outer sealing or thermal insulation (sealing) layer comprising a ceramic material, such as yttria stabilized zirconia, yttria stabilized hafnia or yttria stabilized ceria, on a turbine engine component. Compare Final Act. 3-4, 7 As a preliminary matter, we note that Appellants have argued for patentability of the subject matter recited in dependent claims 17-20, 22, and 23 based only on the limitations in independent claim 15. App. Br. 4-6, 8. Appellants do not raise distinct arguments for the patentability of the subject matter recited in dependent claims 17-20, 22, and 23. Id. Accordingly, we direct our discussion to claim 15 for the purpose of addressing the propriety of the Examiner's Rejections (1), (2), and (4). See 37 C.F.R. Â§ 41.37(c)(l)(vii) (2012) (see 37 C.F.R. Â§ 41.37(c)(l)(iv) for the current Rule (same)). 5 Appeal2013-009119 Application 12/971,370 11-12 with App. Br. 4-6, 7-8. In particular, the Examiner finds that Strangman discloses applying a thermal barrier coating or thermal barrier coatings in the form of segmented columnar cubic yttria stabilized zirconia layer(s) on a gas turbine engine component via known deposition techniques, such as electron beam physical vapor deposition process (EB- PVD) or a plasma spray process, and then providing a continuous, relatively dense ceramic (yttria stabilized hafnia or yttria stabilized zirconia) sealant layer on the thermal barrier coating(s) via a suitable deposition process, such as plasma spray, under conditions inimical to the formation of the columnar yttria stabilized zirconia thermal barrier coating(s) to prevent, inhibit, or delay the penetration of molten glassy dust deposits or other contaminants into the thermal barrier coating(s). Final Act. 3--4; see also Strangman iii! 19-21, 50. The Examiner also finds that Gupta discloses using electron beam physical vapor deposition (EB-PVD) as a preferred deposition technique to apply a thermal barrier coating comprising the yttria stabilized zirconia (taught by Strangman) and/or gadolinia stabilized zirconia in the form of columnar structure on a gas turbine component and an air plasm spraying process as a preferred deposition technique to deposit a thermal insulation ceramic layer8 with a splat structure on the thermal barrier coating to improve interlocking of the thermal insulation ceramic layer to the thermal barrier coating. Final Act. 11-12; see, e.g., Gupta iii! 15, 16, 27, 30- 33, 35, 36. The Examiner recognizes that Strangman, unlike Gupta, does not 8 The Examiner finds, and Appellants do not dispute, that this thermal insulation coating taught by Gupta corresponds to the sealing ceramic layer recited in claim 15. Compare Final Act. 11-12 with App. Br. 7-8. 6 Appeal2013-009119 Application 12/971,370 mention the presence of a splat structure on its sealing layer as required by claim 15. Final Act. 4-6. The Examiner also recognizes that Strangman and Gupta do not specifically mention the porosities recited in claim 15 for their thermal barrier coating and sealing or insulation layer. Final Act. 4-6, 12- 14. To account for these shortcomings in Strangman or Gupta, the Examiner relies upon the disclosures of Fritscher and Beele. Id. Appellants contend that Fritscher and Beele do not remedy the deficiencies in Strangman or Gupta because the collective teachings of Strangman, Fritscher, and Beele or Gupta, Fritscher, and Beele would not have provided any reason or suggestion to employ a thermal barrier coating and a sealing or thermal insulation layer having the porosities recited in claim 15 on a gas turbine engine component. App. Br. 4-6, 7-8. We do not agree. As correctly found by the Examiner, Fritscher discloses an electron beam physical vapor deposited (EB-PVD) thermal barrier coating of partially yttria stabilized zirconia in the form of columnar structure on turbine air foils (gas turbine engine components) has a 20 volume % open porosity. Compare Final Act. 4, 12 with App. Br. 4-6, 7-8; Fritscher 341. In terms of this 20 volume % open porosity, Fritscher (341) explains that: The columnar structure of EB-PVD TBCs [ (electron beam physical vapor deposited thermal barrier coatings)] consists of standing alone columns with 20 vol.% open porosity [7]. The void space between the columns normally varies; it is more open in the course surface region and closer between the sub-Âµ sized slim columns in the bottom zone. The thickness of the coating can not shrink significantly as they have a low volume fraction of internal pores. The Examiner also finds, and Appellants do not dispute, that Beele explains 7 Appeal2013-009119 Application 12/971,370 in the context of applying partially yttria stabilized zirconia coatings and other coatings on a gas turbine engine component, "[s]tandard such APS [(air-plasma spray)] coatings have a typical porosity of 10-20%." Compare Final Act. 4, 13 with App. Br. 4-6, 7-8; Beele 61-62. According to the Examiner, Beele also reveals that while electron beam physical vapor deposition (EB-PVD) is useful (and advantageous) for forming a thermal barrier coating having a columnar microstructure, air-plasma spraying (APS) is useful for forming a laminar structure consists of splats parallel to the surface structure. Final Act. 4, 13; Beele 61-62. Through these findings, the Examiner demonstrates that the EB-PVD thermal barrier coating in the form of columnar structure useful for a gas turbine engine component taught by Strangman or Gupta, as explained by Fritscher and Beele, includes an EB-PVD yttria-stabilized zirconia thermal barrier coating having the porosity recited in claim 15 and the APS sealing or thermal insulation layer useful for a gas turbine engine component taught by Strangman or Gupta, as explained by Beele, includes an APS yttria stabilized zirconia or ceramic sealing or insulation layer having the porosity and splats recited in claim 15. Thus, notwithstanding Appellants' arguments to the contrary, we find that a preponderance of the evidence supports the Examiner's determination that the collective teachings of either Strangman, Fritscher, and Beetle or Gupta, Fritscher, and Beele would have led a person having ordinary skill in the art to employ such EB-PVD thermal barrier coating having the recited porosity and APS sealing or insulation layer having the recited porosity and splats on a gas turbine engine component, with a reasonable expectation of successfully providing desired thermal barrier functions. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) ("[W]hen a patent claims a 8 Appeal2013-009119 Application 12/971,370 structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result."); see also In re Fout, 675 F.2d 297, 301 (CCPA 1982) ("Express suggestion to substitute one equivalent for another need not be present to render such substitution obvious."). Appellants contend that one of ordinary skill in the art would not have been led to form Strangman's sealing layer having a porosity of 10-20% using an APS process because to do so would be contrary to Strangman's purpose. App. Br. 6. In support of this contention, Appellants argue that [i]f one were to form the Strangman outer layer with 10 to 20% porosity, then the dust would enter into pores of the modified sealing layer where it would not come in contact with the moisture in the combustion gases and thus would not evaporate [contrary to what Strangman wants to accomplish at its paragraph 34]. App. Br. 5-6. However, on this record, Appellants do not identify any credible evidence of record to support the argument that the pores of a sealing layer would be accessible to offending glassy dust particles, but would not be accessible to combustion gases containing moisture for evaporating the glass constituents of the glassy dust. App. Br. 6; see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (explaining that Appellants' mere attorney argument cannot take the place of objective evidence). Nor do Appellants argue or provide credible evidence that such pores would not allow the sealing layer to prevent or delay penetration of such offending glassy dust into the thermal barrier coating it covers contrary to Strangman's purpose. Compare App. Br. 5-6 with Strangman iJ 50. Accordingly, we affirm the Examiner's Rejections (1), (2) and (4). 9 Appeal2013-009119 Application 12/971,370 Rejections (3) and (5) Although Strangman or Gupta teaches using EB-PVD to deposit thermal barrier coatings in the form of columnar structure on a gas turbine engine component as indicated supra, neither mentions deposition conditions, such as those recited in claim 21, by which EB-PVD is accomplished. To remedy this deficiency, the Examiner refers to the disclosure ofMovchan. Final Act. 9, 15. The Examiner finds (Final Act. 9, 16) that: Movchan further provides that EB-PVD for depositing thermal barrier coatings provides evaporating a source with an electron beam in a chamber, and that as the source is gradually consumed by the deposition process, the ingot of the source is incrementally fed into the chamber to deposit the thermal barrier coating (column 4, lines 35-65). Movchan gives an example of EB-PVD deposition of thermal barrier coatings of columnar structure using pressure conditions of about 0.1 mtorr (10-4 Torr) vvith a temperature of about 900 degrees C (about 1650 degrees F) (column 6, line 45 through column 7, line 2). According to column 6, lines 47-57 of Movchan, the heating temperature of about 900 degrees C. (about l 650Â°F) is used in the context of a particular specimen and a particular ingot composition. Based on these findings, the Examiner concludes that one of ordinary skill in the art would have been led to employ the optimum EB-PVD deposition conditions, such as the heating temperature, feed rate, and pressure recited in claim 21, to deposit a thermal barrier coating in the method suggested by the collective teachings of Strangman, Fritscher, and Beele or Gupta, Fritscher, and Beele. Final Act. 15-17. 10 Appeal2013-009119 Application 12/971,370 Appellants contend that the applied prior art references would not have suggested the employment of the heating temperature of 1700 to 2000Â°F and the feed rate of 0.3 to 2.0 inches per hour recited in claim 21. App. Br. 7-9. In support of this contention, Appellants refer to Movchan's exemplified investigation directed to using about l 650Â°F which is lower than the minimum temperature of l 700Â°F recited in claim 21. Id. Appellants also contend that "[t]here is nothing in Movchan which says that the feed rate is result effective." App. Br. 7. Although Movchan is not limited by its example, it does exemplify one investigation in which a pressure of 0.1 millitorr and a temperature of about 900Â°C (about 1650Â°F), which is close to the l 700Â°F recited in claim 21, were used to coat a particular specimen with an ingot of zirconia stabilized by seven weight percent yttria that is introduced intermittently to provide an amount sufficient to form a desired thermal barrier coating thickness. Movchan, col. 6, 1. 47-col. 7, 1. 6. Movchan also discusses given coating materials having different vapor pressures that require different evaporation temperatures. Movchan, col. 2, 11. 33--49. Implicit in these teachings of Movchan is that the deposition temperature, pressure, and feed rate are known result effective variables for EB-PVD. See KSR, 550 U.S. at 418 (In making an obviousness determination one "can take account of the inferences and creative steps that a person of ordinary skill in the art would employ"). Moreover, Strangman or Gupta, by virtue of teaching the employment of EB-PVD to deposit thermal barrier coatings in the form of columnar structure, without specifying any deposition conditions for conducting EB-PVD, implies that it was well within the ambit of one of ordinary skill in the art to determine the optimum deposition conditions for 11 Appeal2013-009119 Application 12/971,370 conducting EB-PVD for given thermal barrier coatings at the time of the invention. KSR, 550 U.S. at 421 ("A person of ordinary skill is ... a person of ordinary creativity, not an automaton."); Ball Aerosol & Specialty Container, Inc. v. Ltd. Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (Explaining that the obviousness inquiry must take account of the "routine steps" that a person of ordinary skill in the art would employ.). Thus, we find no reversible error in the Examiner's determination that one of ordinary skill in the art would have been led to employ the optimum deposition conditions, such as those recited in claim 21, for EB-PVD to deposit given thermal barrier coating materials on a gas turbine engine component in the method suggested by the collective teachings of Strangman, Fritscher, and Beele or Gupta, Fritscher, and Beele. Accordingly, we also affirm the Examiner's Rejections (3) and (5). Rejections (6) through (10)9 As to the obviousness-type double patenting rejections set forth in Rejections ( 6)-(8), the claims of Schlichting '195 recite a method of coating an article, such as a gas turbine engine component (see, e.g., claims 1 and 48 of Schlichting '195), comprising applying a ceramic compound, such as yttria stabilized zirconia, (corresponding to the thermal barrier coating 9 As a preliminary matter, we note that Appellants have argued for patentability of the subject matter recited in dependent claims 17-23 based on the limitations in independent claim 15. App. Br. 9-11. Appellants state that"[ w ]ith respect to the obviousness type double patenting rejections, dependent claims 17-23 stand or fall with independent claim 15." App. Br. 11. Accordingly, we limit our discussion to claim 15. See 37 C.F.R. Â§ 41.37(c)(l)(vii) (2012). 12 Appeal2013-009119 Application 12/971,370 recited in claim 15 of the instant application) on an article, such as a gas turbine engine component, via an electron beam physical vapor deposition process (see, e.g., claims 1, 4, 5, 29, 30, and 48 of Schlichting '195) 10 and then applying at least one inert (ceramic) compound having a porosity of no more than 20% by volume (corresponding to the recited sealant layer) via an air plasma spraying process (see, e.g., claims 1, 10, and 33 of Schlichting '195). 11 The Examiner recognizes that the claims of Schlichting '195 do recite the porosity of the resulting yttria stabilized zirconia (ceramic compound) coating and the presence of splats on the resulting at least one inert compound layer having a porosity of no more than 20% by volume. To remedy these deficiencies, the Examiner relies upon the disclosures of Fritscher and Beele. Final Act. 19-20. As in the obviousness rejections, supra, the Examiner finds, and Appellants do not dispute, that Fritscher discloses an electron beam physical vapor deposited (EB-PVD) thermal barrier coating of partially yttria stabilized zirconia in the form of columnar structure on turbine air foils (gas turbine engine components) has a 10 Notwithstanding Appellants' argument to the contrary, claims 1, 4, and 5 of Schlichting '195 recite applying a ceramic compound on an article via an electron beam physical vapor deposition process, and claims 29, 30, and 48 of Schlichting '195 define the ceramic compound as including yttria stabilized zirconia and the article as including various gas turbine engine components. 11 Appellants do not dispute the Examiner's finding that the inert compound recited in claims 1, 10, and 23 of Schlichting '195 is a ceramic material that is applied to the ceramic compound, i.e., yttria stabilized zirconia material, via an air plasma spraying. Compare Final Act. 19 with App. Br. 9. Thus, contrary to Appellants' argument, the claims of Schlichting '195 recite a ceramic layer corresponding to the sealant (ceramic) layer recited in claim 15 of the instant application on the top of the yttria stabilized zirconia coating. 13 Appeal2013-009119 Application 12/971,370 20 volume% open porosity. Compare Final Act. 4, 12, 19 with App. Br. 4- 6, 7-9; Fritscher 341. The Examiner also finds, and Appellants do not dispute, that "[s]tandard such APS [(air-plasma spray)] coatings have a typical porosity of 10-20%" and "is laminar and consists of splats parallel to the surface structure." Compare Final Act. 4, 13, 20 with App. Br. 4-6, 7-9; Beele 61-62. Through these findings, the Examiner demonstrates that the EB-PVD yttria stabilized zirconia coating useful for a gas turbine engine component recited in the claims of Schlichting '195, as explained by Fritscher, is inclusive of an EB-PVD yttria stabilized zirconia thermal barrier coating having the porosity recited in claim 15 and the APS sealing (inert) layer having a porosity of no more than 20% by volume useful for a gas turbine engine component recited in the claims of Schlichting '195, as explained by Beele, is inclusive of an APS ceramic sealing layer having the porosity and splats recited in claim 15. Thus, we concur with the Examiner that the subject matter of claim 15 of the instant application would not be patentably distinct from the invention suggested by the claims of Schlichting '195 and the teachings of Fritscher and Beele. Accordingly, we affirm the Examiner's Rejections (6) through (8). As to the obviousness-type double patenting rejections set forth in Rejections (9) and ( 10), claim 1 of Schlichting '283 recites "[a] method for providing a component with protection against sand related distress" which comprises depositing a layer of a yttria-stabilized zirconia material corresponding to the thermal barrier coating recited in claim 15 on a 14 Appeal2013-009119 Application 12/971,370 substrate and forming an outer ceramic layer made of rare earth metal oxides resistant to molten silicate corresponding to the sealant layer recited in claim 15. See also Final Act. 26. The specification of Schlichting '283 defines "component" or "substrate" in its claim 1 as a gas turbine engine component, defines "a layer of a yttria-stabilized zirconia material" as a thermal barrier coating, and defines "depositing" as performing EB-PVD or air plasma spray. See, e.g., Schlichting '283, col. 1, 11. 40--42; col. 2, 11. 27-28, 32-35, 44-46; In re Vogel, 422 F.2d 438, 441 (CCPA 1970) (explaining that the patent's specification can be used as a dictionary to determine the meaning of terms in the patent's claim.) The Examiner also finds, and Appellants do not dispute, that: Gupta shows the conventional use of such coatings on turbine substrates and the conventionality of EB-PVD application of an underlying stabilized zirconia and plasma spraying a top coat ... and conditions for doing so . . . . [The] Fritscher article teaches that EB-PVD TBC's (thermal barrier coatings) conventionally have a columnar strt1cture \'l1ith 20 volume % open porosity (page 341 ). . . . [The] Beele article teaches that standard APS ... structure is laminar and consists of splats parallel to the surface structure (page 62, column 2, and Figure l(a), which would show a tortuous path through the ceramic layer). Compare Final Act. 26-27 with App. Br. 9-10. Based on these findings, the Examiner concludes that the subject matter of claim 15 of the instant application is not patentably distinct from the invention suggested by the claims of Schlichting '283 and the disclosures of Gupta, Fritscher, and Beele. Appellants contend that "[t]he claims of the instant application, as well as the disclosure of the instant application, do not discuss forming an 15 Appeal2013-009119 Application 12/971,370 outer sealing layer from the materials claimed in the '283 patent." App. Br. 10. However, claim 15 of the instant application recites "a ceramic outer sealing layer" which is used to limit "molten sand penetration into said thermal barrier coating." Such language in claim 15 of the instant application does not preclude a ceramic coating formed of rare earth metal oxides that is resistant to molten sand penetration as recited in the claims of Schlichting '283. Accordingly, we affirm the Examiner's Rejections (9) and (10). Rejections (11) through (15) As to the provisional obviousness-type double patenting rejections set forth in Rejections (11)-(15), they are moot inasmuch as the claims of the applications on which these provisional obviousness-type double patenting rejections are based are currently abandoned and no longer pending. Accordingly, we dismiss the Examiner's Rejections (11) through (15). DECISION Upon consideration of the record, and for the reasons given in the Final Action, Answer, and above, it is ordered that: The decision of the Examiner to reject claims 15, 17, 19, 22, and 23 under 35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Strangman, Fritscher, and Beele, is AFFIRMED; FURTHER, the decision of the Examiner to reject claims 18 and 20 under 35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Strangman, Fritscher, Beele, and Gupta is AFFIRMED; 16 Appeal2013-009119 Application 12/971,370 FURTHER, the decision of the Examiner to reject claim 21under35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Strangman, Fritscher, Beele, and Movchan is AFFIRMED; FURTHER, the decision of the Examiner to reject claims 15, 17-20, 22, and 23 under 35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Gupta, Fritscher, and Beele is AFFIRMED; FURTHER, the decision of the Examiner to reject claim 21under35 U.S.C. Â§ 103(a) as unpatentable over the combined teachings of Gupta, Fritscher, Beele, and Movchan is AFFIRMED; FURTHER, the decision of the Examiner to reject claims 15, 19, 22, and 23 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-59 of Schlichting '195 in view of Fritscher and Beele is AFFIRMED; FURTHER, the decision of the Examiner to reject claims 18 and 20 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-59 of Schlichting '195 in view of Fritscher, Beele, and Gupta is AFFIRMED; FURTHER, the decision of the Examiner to reject claim 21 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-59 of Schlichting' 195, Fritscher, Beele, and Movchan is AFFIRMED; FURTHER, the decision of the Examiner to reject claims 15, 18, 19, 22, and 23 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-17 of Schlichting '283 in view of Gupta, Fritscher and Beele is AFFIRMED; 17 Appeal2013-009119 Application 12/971,370 FURTHER, the decision of the Examiner to reject claim 21 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-17 of Schlichting '283 in view of Gupta, Fritscher, Beele, and Movchan is AFFIRMED FURTHER, the decision of the Examiner to reject claims 15 and 17- 23 provisionally on the ground of nonstatutory obviousness-type double patenting based on claims 1-38 of Schlichting '075 or claims 1-22 of Hazel is DISMISSED; and FURTHER, that no time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ l.136(a)(l )(iv). AFFIRMED 18