Ex Parte Strock et al

Patent Trial and Appeal Board

Jan 12, 2017

13586099 (P.T.A.B. Jan. 12, 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.
13/586,099 08/15/2012 Christopher W. Strock 17788-US;
67097-1887PUS1
7629
54549 7590 01/17/2017
TART SON OASKFY fr OT DS/PR ATT fr WHTTNFY
EXAMINER
400 West Maple Road
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FIGG, TRAVIS M
Birmingham, MI 48009 ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
01/17/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER W. STROCK,
MICHAEL MALONEY, DAVID A. LITTON,
BENJAMIN JOSEPH ZIMMERMAN, and BRIAN T. HAZEL
Appeal 2015-006540
Application 13/586,099
Technology Center 1700
Before DONNA M. PRAISS, CHRISTOPHER C. KENNEDY, and
MICHAEL G. McMANUS, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF CASE
Appellants2 appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1, 3—12, 18, and 20-22 under 35 U.S.C. § 103(a) as
follows:
1 In this decision, we refer to the Specification filed Aug. 15, 2012 (Spec.),
the Final Office Action appealed from mailed Oct. 1, 2014 (Final Act.), the
Appeal Brief filed Feb. 12, 2015 (App. Br.), the Examiner’s Answer mailed
Apr. 23, 2015 (Ans.), and the Reply Brief filed June 22, 2015 (Reply Br.).
2 The real party in interest is identified by Appellants as United
Technologies Corporation. App. Br. 1.
Appeal 2015-006540
Application 13/586,099
1. Claims 1, 4, 7—12, and 21 over Anoshkina3 and Stamm4;
2. Claim 3 over Anoshkina, Stamm, and Kulkami5;
3. Claims 5 and 6 over Anoshkina, Stamm, and Tholen6;
4. Claims 18 and 20 over Anoshkina and Tholen; and
5. Claim 22 over Anoshkina, Stamm, and Guo.7
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The invention relates to “a thermal barrier coating (TBC) that can be
applied to a component of a gas turbine engine.” Spec. 11. More
particularly, the invention relates to a component having an outer layer
deposited on at least a portion of the TBC which includes a material that
absorbs energy in response to an impact event along at least a portion of the
outer layer. Id. 1 5. Claims 1 and 18 are illustrative (subject matter in
dispute italicized):
1. A component, comprising:
a substrate;
a thermal barrier coating deposited on at least a portion of
said substrate; and
an outer layer deposited on at least a portion of said
thermal barrier coating, wherein said outer layer includes a
material that absorbs energy in response to an impact event along
at least a portion of said outer layer, wherein said outer layer is
3 Anoshkina et al., US 2008/0145629 Al, published June 19, 2008
(“Anoshkina”).
4 Stamm, US 2009/0311508 Al, published Dec. 17, 2009 (“Stamm”).
5 Kulkami, US 2009/0074961 Al, published Mar. 19, 2009 (“Kulkami”).
6 Tholen et al., US 2009/0097970 Al, published Apr. 16, 2009 (“Tholen”).
7 Xu et al., Development of gradient thermal barrier coatings and their hot-
fatigue behavior, 130 Surface and Coatings Tech. 133—39 (2000) (“Guo”).
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Application 13/586,099
an outermost layer and includes a second porosity that is greater
than a first porosity of said thermal barrier coating.
18. A component, comprising:
a substrate;
a thermal barrier coating deposited on at least a portion of
said substrate; and
an outer layer deposited on at least a portion of said
thermal barrier coating, wherein said outer layer includes a
material that resists energy in response to an impact event along
at least a portion of said outer layer, wherein said material
includes at least one of zirconia, hafnia and alumina and resists
energy by reflecting particulate matter during said impact event.
Claims App’x at App. Br. 8, 9. Dependent claims 3, 4, and 5 each depend
from claim 1. Claim 3 requires the outer layer includes a modulus of
elasticity that is reduced compared to that of the TBC. Claims 4 and 5
require that the material of the outer layer includes a high toughness
composition and hafnia, respectively.
Appellants do not separately argue the patentability of dependent
claims 6—12, 20, and 21. App. Br. 3—9. In accordance with 37 C.F.R.
§ 41.37(c)(l)(iv), claims 7—12 and 21 will stand or fall together with
independent claim 1, claim 6 will stand or fall together with claim 5, and
claim 20 will stand or fall with claim 18.
OPINION
Claim 1
Regarding claim 1, the Examiner finds that Figure 1 of Anoshkina
discloses substrate 12, TBC layer 21 deposited on the substrate with or
without bonding layer 16, and second and third TBC layers 25 and 26, which
the Examiner identifies as the outer layer required by claim 1 “made out of a
ceramic insulating material in which said outer layer is designed to absorb
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impact or shock energy that can arise in the event of a foreign object damage
(FOD) impact.” Final Act. 4—5 (citing Anoshkina, Fig. 1, abstr., || 1, 10-
12, 15). Below is Figure 1 of Anoshkina as annotated by the Examiner. Id.
at 6.
Figure 1 of Anoshkina is a cross-sectional view of a multi-layered TBC
system. Anoshkina | 6.
The Examiner further finds that second layer 25 has a higher amount
of pores than TBC layer 21, “[therefore, the porosity of the out[er]layer
includes a second porosity that is greater than that of the TBC layer (21).”
Final Act. 5 (citing Anoshkina 13—15). The Examiner also finds that it
would have been obvious to a skilled artisan to use an outermost TBC
ceramic layer with a greater porosity than an inner TBC ceramic layer with a
lesser porosity to better withstand thermal and mechanical stresses in view
of Stamm’s teaching that an outer ceramic barrier layer with greater porosity
than an inner barrier layer is better able to withstand thermal and mechanical
stresses. Id. at 5—6 (citing Stamm || 8, 23).
Appellants contend that the Examiner’s rejection of claim 1 is in error
because “the outermost layer 26 of Anoshkina includes a less porous region
than the underlying TBC layers 21, 25.” App. Br. 3. According to
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Appellants, “modifying the outermost layer 26 to be more porous would
result in less material available to absorb the FOD impact. Therefore, the
amount of energy transferred to the TBC sublayers would be undesirably
increased rather than decreased” {id. at 3 4) and would render Anoshkina
“unsatisfactory for its intended purpose” {id. at 3). Appellants also argue
that the Examiner’s designation of TBC layers 25 and 26 of Anoshkina
together as the outermost layer “contradicts] the Examiner’s statement in
the Final Office Action that ‘Anoshkina does not explicitly teach the outer
layer with a higher porosity is an outermost layer.” Id. at 4. Appellants
contend that the Examiner’s interpretation of the claims “is overbroad and
effectively reads the ‘outermost’ limitation out of the claims.” Id. (citing
Figure 2 of the Specification showing outermost layer 32 as the layer
disposed furthest from substrate 28).
The Examiner responds that the outer layer of Anoshkina is layers 25
and 26 together, not 26 alone, and that “the claim does not require the
porosity of [the] outermost layer to be within the outermost surface of said
layer.” Ans. 13. In addition, the Examiner finds that claim 1 recites
“comprising” which “does not preclude the outer layer (25 and 26) being
interpreted as an outermost layer which includes a second porosity that is
greater than the first porosity.” Id. The Examiner finds this interpretation of
the outermost layer consisting of multiple layers within the outer layer
consistent with the Specification which states “the outer layer 32 can be
applied with varying parameters and compositions in a plurality of
individual coating passes using a SPS technique.” Id. at 14 (quoting Spec.
| 51). The Examiner also responds that Anoshkina does not explicitly state
that the outer layer, as labeled in the Examiner’s annotated Figure 1 above,
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is an outermost layer, “the term ‘outermost’ is relative terminology,” and
“Stamm was merely used to teach the advantages of the outmost [sic] layer
having a higher porosity compared to the inner layers to better withstand
thermal and mechanical stresses.” Id. at 15.
In the Reply Brief, Appellants argue that “[i]f each coating pass is a
layer as the Examiner appears to suggest, the ‘outermost layer’ would be the
outermost surface or the top-most coating pass of the layer. The Examiner
appears to confuse the term ‘outer layer’ with ‘outermost layer.’” Reply Br.
3.
Appellants’ arguments are unpersuasive because claim 1 recites “said
outer layer is an outermost layer.” Therefore the Examiner is not confusing
the two when the claim states that the outer layer is an outermost layer.
Consistent with paragraph 51 of the Specification, the outer layer “can be
applied with varying parameters and compositions in a plurality of
individual coating passes using a SPS technique.” Spec. | 51. Appellants
do not identify any error in the Examiner’s finding, based on this disclosure
in the Specification, that “multiple layers may be utilized to form a single
outer layer.” Ans. 15. Appellants direct us to Figure 3 accompanying the
Specification to show that the outer layer is shown to be “disposed furthest
from the substrate” (App. Br. 4; Reply Br. 2), but Figure 3 does not support
Appellants’ argument that “[i]f each coating pass is a layer ... the
‘outermost layer’ would be the outermost surface or the top-most coating
pass of the layer” (Reply Br. 3). It is well settled that arguments of counsel
cannot take the place of factually supported objective evidence. See, e.g., In
re Huang, 100 F.3d 135, 139-40 (Fed. Cir. 1996); In re De Blauwe, 736
F.2d 699, 705 (Fed. Cir. 1984).
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Claim 1 further recites that the outer layer “includes a second porosity
that is greater than a first porosity of said thermal barrier coating.” Because
the outer layer may comprise multiple layers and it is not disputed that layer
25 of Anoshkina has a porosity that is greater than that of the thermal barrier
coating 21, the Examiner’s finding that “the outer layer of Anoshkina (25
and 26). . . includes a second porosity that is greater than a first porosity of
the thermal barrier coating (21) may be considered an outermost layer”
(Ans. 15) is supported by the record.
In the absence of any error in the Examiner’s findings, we do not find
the Appellants’ arguments sufficient to justify a reversal of the Examiner’s
rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that
even if the examiner had failed to make a prima facie case, the Board would
not have erred in framing the issue as one of reversible error because it has
long been the Board’s practice to require an appellant to identity the alleged
error in the examiner’s rejections).
In sum, Appellants have not persuaded us of reversible error in the
Examiner’s finding that the combination of Anoshkina and Stamm teaches a
component having the outer layer required by claim 1.
Claim 3
Appellants contend that the Examiner’s rejection of claim 3 is in error
based on the same arguments made with respect to claim 1 and for the
reason that Kulkami fails to cure these deficiencies. App. Br. 5. Appellants’
arguments are not persuasive for the same reasons discussed above with
respect to claim 1.
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Claim 4
Regarding claim 4, which depends from claim 1 and recites “said
material includes a high toughness composition,” the Examiner finds that
“Anoshkina teaches the second and third TBC layers (outer layers) may be
made from ceramic insulating materials and are designed to absorb impact
and shock energy.” Final Act. 6 (citing Anoshkina 14, 15). The
Examiner further finds that “the prior art products necessarily possess the
characteristics of the claimed product” because they are the same or
substantially the same structure or composition or produced by identical or
substantially identical processes. Id.
Appellants’ argument concerning the Examiner’s rejection of claim 4
is that “[t]he Examiner cannot guess that the TBC layers of Anoshkina are
made from a ‘high toughness composition’ [when] Anoshkina only describes
that the coating is made of a ceramic insulating material.” App. Br. 5.
Appellants also argue that the fact that “TBC layer 26 is designed to act as a
sacrificial layer that is substantially destroyed (i.e., fractured) during impact
events[,]” indicates that Anoshkina “teaches against the conclusion that its
layers are made of a ‘high toughness composition.’” Id.
The Examiner responds that “Appellant also utilizes ceramic based
material” therefore “it would be expected that the structure set forth by
Anoshkina would have the same toughness as the structure set forth in claim
1.” Ans. 16. The Examiner further responds that “something destroyed is
not necessarily fractured” based on a Merriam-Webster definition of
“destroyed” meaning “to damage (something) so badly that it cannot be
repaired.” Id. at 17.
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In the Reply Brief, Appellants argue that “there is no explicit mention
that the materials of Anoshkina or Stamm are made from high toughness
compositions.” Reply Br. 3. Appellants also argue that the composition and
structure of Anoshkina is not the same as in claim 1 “because Anoshkina
teaches that the outermost layer is less porous whereas claim 1 requires that
the outermost layer is more porous.” Id.
We are not persuaded by Appellants’ arguments because, based on
this record, the outer layer as required by claim 1 encompasses both layers
25 and 26 of Anoshkina and constitutes the outermost layer as discussed
above in connection with claim 1. Appellants do not dispute that layer 25 of
Anoshkina in the outer layer is designed to absorb impact and shock energy
(Ans. 16). Nor do Appellants dispute the Examiner’s underlying finding of
fact that the material of the outer layer is ceramic based in the claimed
component {id. (citing claim 6)) and the cited art {id. (citing Anoshkina
14, 15)). Thus, the Examiner has provided the record with a
preponderance of evidence including commonalities shared by the outer
layer materials of the prior art and the claimed component which justifies
requiring Appellants to prove that the ceramic insulating material of
Anoshkina does not necessarily or inherently possess the claimed
characteristic of high toughness. See In re Best, 562 F.2d 1252, 1255
(CCPA 1977) (“[T]he PTO can require an applicant to prove that the prior
art products do not necessarily or inherently possess the characteristics of his
claimed product. . . . Whether the rejection is based on ‘inherency’ under 35
U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103, jointly or
alternatively, the burden of proof is the same, and its fairness is evidenced
by the PTO’s inability to manufacture products or to obtain and compare
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prior art products.” (footnote omitted)). No such proof has been provided by
Appellants.
In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claim 4 would have been obvious in view of
Anoshkina and Stamm.
Claim 5
Appellants contend that the Examiner’s rejection of claim 5 is in error
based on the same arguments made with respect to claim 1 and for the
reason that Tholen fails to cure these deficiencies. App. Br. 5—6. In
addition, Appellants assert that “[tjhere is no evidence that hafnia would be
suitable for the TBC layer 26 of Anoshkina.'” Id. at 6. Appellants’
arguments are not persuasive for the same reasons discussed above with
respect to claim 1. Furthermore, Appellants do not dispute the Examiner’s
findings that Stamm teaches the use of hafnia as a suitable material for TBC
layers and Tholen teaches that hafnia based oxides have improved thermal
properties such as sintering resistance. Ans. 17; Final Act. 10 (citing Stamm
61-63; Tholen 119).
In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claim 5 would have been obvious in view of
Anoshkina, Stamm, and Tholen.
Claim 18
The Examiner finds that Anoshkina teaches the structure set forth in
claim 18 and that it would have been obvious to one having ordinary skill in
the art at the time of the invention to use a zirconia based ceramic material in
the outer layer in view of Anoshkina’s “teaching] the use of ceramics for
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the second and third TBC layers (outer layers)” combined with Tholen’s
teaching that zirconia based ceramics are a conventional coating for use in
TBCs for gas turbine engines. Final Act. 12—13 (citing Anoshkina Fig. 1,
10-13, 15, 16, 28; Tholen 4—5, 17). Regarding the claim requirement that
“said material. . . resists energy by reflecting particulate matter during said
impact event,” the Examiner finds that to be “merely intended use of the
claimed article and is thus given no patentable weight.” Id. at 12.
Appellants contend that the Examiner’s rejection of claim 18 is in
error because “Anoshkina absorbs energy rather than resisting it” and
supports its argument with the fact that “the TBC coating system of
Anoshkina is designed to be a sacrificial layer and lacks zirconia, hafnia or
alumina that resists energy by deflecting particulate matter during an impact
event.” App. Br. 6.
The Examiner responds that Tholen provides the motivation to use
zirconia because it is a conventional coating in TBC layers and its
advantages are well known. Ans. 18. The Examiner also responds that “the
porosity is tied to the impact or shock energy absorption properties” and
“[o]ne of ordinary skill in the art would look to Anoshkina in view of Tholen
to utilize zirconia based ceramic coatings in the TBC layer in addition to
optimizing the porosity to achieve the desired impact or shock energy
absorption properties which are tied to properties such as ‘toughness.’” Id.
Appellants do not dispute the Examiner’s findings with respect to optimizing
porosity to achieve the desired properties, but argue that “there is no
teaching in either Anoshkina or Tholen that ties the use of zirconia, hafnia or
alumina to a TBC capable of resisting energy by reflecting particular matter
during an impact event.” Reply Br. 4.
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We are not persuaded by Appellants’ arguments because Appellants
are distinguishing the cited prior art separately rather than the combination
of Anoshkina and Tholen on which the rejection of claim 18 is based. It is
not disputed that Tholen teaches zirconia based ceramics are a conventional
coating for use in TBCs and that Anoshkina teaches the use of ceramic
insulating material and that impact or energy absorption is tied to the
porosity. Final Act. 12—13. Therefore, Tholen’s zirconia based ceramic is
tied to Anoshkina’s structure based on Anoshkina’s teaching to use ceramic
insulating material. Appellants’ argument that Anoshkina absorbs energy
rather than resisting it is not persuasive because it presumes without any
supporting evidence that “resisting] energy by reflecting particulate matter
during [an] impact event” as recited in claim 18 is not the same as
“absorb[ing] impact or shock energy that can arise in the event of a [foreign
object damage] FOD impact” as taught by Anoshkina (Anoshkina ^fl[ 15,
17). Appellants’ argument does not provide a basis for us to determine that
the foreign object impact described by Anoshkina is not also resisted and the
foreign object reflected by the ceramic material of Anoshkina’s outer layer.
In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claim 18 would have been obvious in view of
Anoshkina and Tholen.
Claim 22
Regarding claim 22, which depends from claim 1 and recites “wherein
an interface between said thermal barrier coating and said outer layer is
graded,” the Examiner finds that “the combination of Anoshkina and Stamm
does not explicitly teach the interface between said thermal barrier coating
and said outer layer is graded.” Final Act. 14. The Examiner finds that it
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would have been obvious for one of ordinary skill at the time of the
invention “to form a graded interface between the outer layer and the inner
TBC coatings to improve the resistance to hot-corrosion of the article” as
taught by Guo which discloses gradient TBC layers formed of zirconia and
alumina based ceramics. Id. at 15 (citing Guo Abstr., Section 3.3).
Appellants contend that the Examiner’s rejection of claim 22 is in
error because “none of the cited prior art teaches ‘an interface between said
thermal barrier coating and said outer layer is graded.’” App. Br. 7.
According to Appellants, “Guo only teaches TBC layers formed of zirconia
and alumina based ceramics that resist hot corrosion.” Id.
The Examiner responds that “Guo clearly teaches a gradient TBC
layer which means the TBC layers are ‘graded.’” Ans. 18. The Examiner
further responds that Guo provides the motivation for grading the TBC layer
to improve resistance to hot corrosives, thus when the TBC barrier coating
of the combination of Anoshkina and Stamm is graded to improve hot
corrosion resistance (layer 21 in Anoshkina), it is located at the interface to
the outer layers. Appellants do not dispute the Examiner’s findings with
respect to Guo in the Reply Brief.
We are not persuaded by Appellants’ arguments because the
preponderance of the evidence supports the Examiner’s finding that a graded
TBC barrier coating as taught by Guo would provide a graded interface
between the thermal barrier coating (layer 21 of Anoshkina) and the outer
layer (layers 25 and 26 of Anoshkina).
In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claim 22 would have been obvious in view of
Anoshkina, Stamm, and Guo.
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CONCLUSION
We sustain the Examiner’s rejections.
DECISION
The Examiner’s decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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