Ex Parte Wadley et al

Patent Trial and Appeal BoardAug 18, 2017

12596548 (P.T.A.B. Aug. 18, 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. 12/596,548 05/26/2010 Haydn N.G. Wadley 070239.000028 2668 134006 7590 08/22/2017 Vorys, Sater, Seymour and Pease LLP (UVA) 1909 K St., NW Ninth Floor Washington, DC 20006 EXAMINER RUBY, TRAVIS C ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 08/22/2017 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 following e-mail address(es): vmdeluc a @ 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 HAYDN N.G. WADLEY and DOUGLAS T. QUEHEILLALT Appeal 2015-005549 Application 12/596,5481 Technology Center 3700 Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and SHEILA F. McSHANE, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1—15 and 17—35. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. According to Appellants, “the invention relates to structures that are adapted to manage high heat loads as well as to handle large static and dynamic forces. The inventive structures are particularly suited for aerospace applications.” Spec. 12. Claims 1 and 23 are the sole 1 According to Appellants, “[t]he real party in interest... is University of Virginia Patent Foundation.” Appeal Br. 1. Appeal 2015-005549 Application 12/596,548 independent claims on appeal. Below, we reproduce claim 1 as illustrative of the appealed claims. 1. A structural arrangement, comprising: an open-cell lattice-structure core; a surface layer comprising a cellular sub-structure; and a heat-transferring working fluid disposed within said core or said surface layer; wherein the surface layer further comprises an outer arrangement that has lower thermal conductivity than the cellular sub-structure of said surface layer. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: I. claims 1—8, 13—15, 19, and 20 under 35 U.S.C. § 103(a) as unpatentable over Ervin (US 2006/0163319 Al, pub. July 27, 2006) and Queheillalt (US 2004/0123980 Al, pub. July 1, 2004); II. claims 9-12 and 18 under 35 U.S.C. § 103(a) as unpatentable over Ervin, Queheillalt, and Wadley (Haydn N.G. Wadley, Multifunctional periodic cellular metals, Phil. Trans. R. Soc. A 364, 31-68 (2004)); III. claims 17, 21, and 22 under 35 U.S.C. § 103(a) as unpatentable over Ervin, Queheillalt, and Wortman (US 2005/0266163 Al, pub. Dec. 1, 2005); IV. claims 23—28, 33, and 34 under 35 U.S.C. § 103(a) as unpatentable over Sypeck (US 2004/0154252 Al, pub. Aug. 12, 2004) and Ervin; 2 Appeal 2015-005549 Application 12/596,548 V. claims 29 and 30 under 35 U.S.C. § 103(a) as unpatentable over Sypeck, Ervin, and Queheillalt; VI. claims 31 and 32 under 35 U.S.C. § 103(a) as unpatentable over Sypeck, Ervin, and Wadley; and VII. claim 35 under 35 U.S.C. § 103(a) as unpatentable over Sypeck, Ervin, and Klett (US 7,166,237 B2, iss. Jan. 23, 2007). ANALYSIS Rejection I Independent claim 1 recites, among other recitations, “a surface layer comprising a cellular sub-structure.” Appeal Br., Claims App. In the Final Office Action, the Examiner finds that Ervin teaches the above recitation, reasoning that “[e]very surface inherently has a cellular sub-structure since everything in existence is comprised of cells. Thus, since Ervin teaches a surface, that surface of Ervin must have a cellular sub-structure.” Final Office Action (“Final Action”) 20-21. We are persuaded by Appellants, however, that “[the Examiner’s above] statement... is in error. [LJiving organisms ... are comprised of cells. Materials[,] on the other hand[,] are comprised of atoms and molecules, not cells.” Appeal Br. 4. In reply to Appellants’ argument, the Examiner still finds that Ervin teaches a surface layer comprising a cellular sub-structure, reasoning that “cellular” (absent any specific definition in the specification and given the broadest reasonable interpretation) is defined as “consisting of small compartments or rooms[.]” Therefore, the panel of Ervin having a porous layer as taught in [paragraph 30 would be comprised of multiple small compartments (i.e. the porous layer creates numerous compartments in the layer) and 3 Appeal 2015-005549 Application 12/596,548 would therefore be considered a “cellular sub-structure[.]” Thus it can be seen that Ervin teaches a cellular sub-structure. Answer 3. We find error in the Examiner’s determination, however. More specifically, the Examiner does not support adequately, with evidence or a persuasive line of technical reasoning, the determination that a layer with pores would be recognized as teaching Appellants’ claimed cellular sub structure. See Reply Br. 1. For example, even if we agree with the Examiner’s determination that a prior art reference’s disclosure of a layer with small compartments would teach the claimed cellular structure, it is not clear that Ervin’s porous layer refers to such a structure. Thus, based on the foregoing, we do not sustain the rejection of independent claim 1. Further, we do not sustain the rejection of claims 2—8, 13—15, 19, and 20 that depend from claim 1, and which the Examiner rejects based on the same rationale as claim 1. Rejection II Appellants argue the rejection of dependent claims 9—12 and 18 is erroneous because Wadley does not remedy the deficiency in the combination of Ervin and Queheillalt in the rejection of claim 1. Appeal Br. 5—6. We disagree with Appellants, however, and agree with the Examiner’s finding that Wadley discloses a cellular sub-structure. Final Action 8—9. Thus, we sustain the rejection of claims 9-12 and 18. Rejection III Appellants argue the rejection of dependent claims 17, 21, and 22 is erroneous because Wortman does not remedy the deficiency in the rejection of claim 1. Appeal Br. 5—6. Inasmuch as the Examiner does not find that Wortman teaches a cellular sub-structure, we do not sustain the rejection of claims 17, 21, and 22. 4 Appeal 2015-005549 Application 12/596,548 Rejections IV—VII Independent claim 23 recites, among other recitations, “the outermost face layer being fabricated from a material having a thermal conductivity that is lower than a thermal conductivity of said cellular structure.” Appeal Br., Claims App. In the rejection of the claim, the Examiner finds that Sypeck discloses both an outermost face layer and a cellular structure. See, e.g., Answer 6. The Examiner finds that Ervin teaches numerous materials that, according to Ervin, may be used to “fabricat[e] ... at least one of the truss units, truss layer, and/or panels.” See, e.g., id. The Examiner determines that it would have been obvious to fabricate Sypeck’s outermost face layer from one of Ervin’s materials (i.e., Ti-6AI-4V) (Final Action 14; Answer 6) that has a lower thermal conductivity, while fabricating Sypeck’s cellular structure from another one of Ervin’s materials (i.e., titanium) (Final Action 14; Answer 6) that has a higher thermal conductivity. Based on our review, however, we agree with Appellants that [Ervin’s] disclosure in no way can be read as teaching or suggesting ... to modify Sypeck to manufacture “an outermost face layer spaced from and joined to the substrate by means of a cellular structure, the outermost face layer being fabricated from a material having a thermal conductivity that is lower than a thermal conductivity of said cellular structure” as claimed. Reply Br. 3. Thus, we do not sustain the rejection of claim 23. Further, inasmuch as the Examiner does not establish that any other reference remedies the deficiency in claim 23’s rejection, we also do not sustain the rejections of claims 24—35 that depend from claim 23. 5 Appeal 2015-005549 Application 12/596,548 DECISION We REVERSE the Examiner’s obviousness rejections of claims 1—8, 13-15, 17, and 19-35. We AFFIRM the Examiner’s obviousness rejection of claims 9—12 and 18. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 6