Ex Parte Wood

Patent Trial and Appeal Board

Jun 27, 2017

12735536 (P.T.A.B. Jun. 27, 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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/735,536 07/26/2010 Norman Wood JHN-5065-86 5102
23117 7590 06/29/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
HAWK, STEVEN
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
06/29/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NORMAN WOOD
Appeal 2015-003736
Application 12/735,5361
Technology Center 3600
Before PHILIP J. HOFFMANN, ROBERT L. KINDER, and
BRUCE T. WIEDER, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35U.S.C. § 134 from the final
rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Appellant’s claimed “invention relates to an aerodynamic structure
comprising a shock bump extending from its surface.” (Spec. 1,11. 6—7.)
1 According to Appellant, the real party in interest is Airbus Operations
Limited. (Appeal Br. 4.)
Appeal 2015-003736
Application 12/735,536
Claims 1 and 5 are the independent claims on appeal. Claim 1 is
illustrative. It recites (emphasis added):
1. An aerodynamic structure including a surface, said
structure comprising a three dimensional shock bump extending
from said surface, wherein the shock bump is asymmetrical about
a plane of asymmetry, and wherein the plane of asymmetry:
d. passes through a centre of the shock bump,
e. is parallel with the free stream direction of said
aerodynamic structure, and
f. extends at a right angle to the surface of the aerodynamic
structure.
REJECTIONS
Claim 1 is rejected under 35 U.S.C. § 102(b) as anticipated by Bogue
(US 7,118,071 B2, iss. Oct. 10, 2006).
Claims 1—3, 6—13, and 16—20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bogue and H. Ogawa et al., Shock/Boundary-Layer
Interaction Control Using Three-dimensional Bumps for Transonic Wings,
AIAA 2007-324, 3967 (hereinafter “Ogawa”).
Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Bogue, Ogawa, and Schmidt (US 2007/0018055 Al, pub. Jan. 25,
2007).2
Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bogue, Ogawa, and Kuethe (US 3,578,264, iss.
May 11, 1971).
2 Because claim 4 depends from claim 1, we treat the omission of reference
to Ogawa in the caption to the rejection of claims 4 and 5 as a typographical
error. (See Final Action 7.)
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Appeal 2015-003736
Application 12/735,536
ANALYSIS
Claim 1 is rejected as anticipated by Bogue. The Examiner finds that
Bogue discloses “a three dimensional shock bump (430b) extending from
the surface.” (Final Action 2.)
Appellant argues that shock bump 430b is a two-dimensional (2-D)
shock bump and not a three-dimensional (3-D) shock bump. (Appeal
Br. 10-11.) More specifically, Appellant argues that
[f]rom a review of the Holden reference,[3] it is clearly
understood by those of ordinary skill that “2-D shock bumps”
and “3-D shock bumps” are different structures. The “2-D
bumps” are discussed on page 2, column 1 of Holden and the
“3-D bumps” are discussed on page 3, first column of Holden.
{Id. at 10.) Appellant further argues, with respect to Bruce,3 4 that “Bruce
defines a 2D shock bump as having a ‘bump shape [that] is constant in the
span-wise direction’ of a wing. Bruce defines a 3D shock bump as having a
‘finite width’ as compared to the span of a wing. Exhibit 2, Bruce, p. 2.”
(Reply Br. 3—4.) Specifically, Bruce discusses previous studies “using an
array of finite width — or three dimensional (3-D) — SCBs [shock control
bumps] instead of a single 2-D device.” (Bruce 2.)
The Examiner, however, “maintains that the plain meaning of the term
‘three dimensional’, as understood by one of ordinary skill in the art at the
time of the invention, is the well-known definition of an object having the
dimensions of a height, a width and a depth - i.e., having three
3 H. A. Holden & H. Babinsky, Shock/Boundary Layer Interaction Control
Using 3D Devices, AIAA 2003-0447 (hereinafter “Holden”).
4 P.J.K. Bruce & H. Babinsky, An experimental study into the flow physics of
three-dimensional shock control bumps, AIAA 2011-855 (hereinafter
“Bruce”).
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Appeal 2015-003736
Application 12/735,536
dimensions.” (Answer 3.) Additionally, the Examiner finds that Appellant
has not “clearly set forth a special definition of the term ‘three
dimensional.’” (Answer 4.) Therefore, “the Examiner is obligated to use
the ordinary and plain meaning of the term.” (Id.)
Appellant argues that although the Examiner’s assertion that the term
“three dimensional” is not defined in the Specification is true, it “is
irrelevant. There was no need to define 3D shock bump in the application
because the term was already known to persons of ordinary skill in the art.”
(Reply Br. 3, citing Bruce 2.)
We agree with Appellant. As an initial matter, we note that it is
difficult to envision a shock bump, i.e., a physical object, that does not have
a height, a width, and a depth. Thus, if we accept the Examiner’s
interpretation of the claim term “three dimensional,” it is not clear how the
term further limits the claim. Moreover, both Holden and Bruce distinguish
between 2-D and 3-D shock bumps. (See Holden 2—3; see also Bruce 2.)
And Bruce, in describing “so-called . . . (2-D) SCBs (where the bump shape
is constant in the span-wide direction),” makes clear that such a 2D SCB has
a height, a width, and a depth. (See Bruce 2.)
“We have made clear . . . that the ordinary and customary meaning of
a claim term is the meaning that the term would have to a person of ordinary
skill in the art in question at the time of the invention.” Phillips v. AWH
Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). In view of the above, we are
persuaded that the Examiner erred in determining that one of ordinary skill
in the art would have understood the term “three dimensional shock bump”
to simply mean a shock bump “having the dimensions of a height, a width
and a depth.” (See Answer 3, emphasis omitted.) Indeed, the specification
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Appeal 2015-003736
Application 12/735,536
and cited references support that the term “three dimensional shock bump”
has a special meaning to a person of ordinary skill in the art that would take
the Examiner’s interpretation in this case beyond the broadest reasonable
interpretation. See AquaTexIndus., Inc. v. Techniche Sols., 419 F.3d 1374,
1382 (Fed. Cir. 2005). Because the Examiner relies on this erroneous claim
construction in finding that shock bump 430b of Bogue is a three
dimensional shock bump, we reverse the rejection of claim 1 under § 102.
Claim 1 and dependent claims 2—4 and 6—20 are also rejected as
obvious. However, the Examiner again relies on shock bump 430b of Bogue
and, presumably, also on the finding that it is a three dimensional shock
bump. (See Final Action 3—9; see a Iso Appeal Br. 12—13.) Therefore, for
the reasons discussed above, we also reverse the rejections of claims 1—4 and
6—20 under § 103.
Independent claim 5 recites: “An aerodynamic structure having a
surface, said structure comprising a shock bump extending from said
surface, wherein the shock bump has no plane of symmetry.”
The Examiner finds that “the combination of Schmidt with Bogue
further disclose [sic] an aerodynamic structure (410, of Bogue) having a
surface (418) including a shock bump (Figure 8 of Schmidt) extending from
the surface (418, of Bogue), wherein the shock bump (Figure 8, of Schmidt)
has no plane of symmetry.” (Final Action 8.)
Appellant disagrees and argues:
The Examiner’s statement that Schmidt discloses a wave shaped
feature that has no plane of symmetry is based solely on the wave
shape shown in Figure 8 of Schmidt. Schmidt does not
characterize the wave shape shown in Figure 8 as having no
plane of symmetry and there is no reason to believe that the shape
has no plane of symmetry. Schmidt at para 0015 describes
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Appeal 2015-003736
Application 12/735,536
Figure 8 as a drip bent 90 degrees. A bend of 90 degrees should
have a plane of symmetry that bisects the drip. A 90 degree bend
of a symmetrical drip (see Fig. 7) would not destroy the
symmetry of the drip.
(Reply Br. 2—3.)
We agree with Appellant. Schmidt discloses that “FIG. 7 shows a
wave form tile the shape of a drip” and “FIG. 8 shows a wave form tile the
shape of a drip bent 90°.” (Schmidt || 14—15.)
Although Schmidt does not further describe the shapes in Figures 7
and 8, we are persuaded that Figure 7 shows a drip shape through which a
plane of symmetry could be drawn and that merely bending the drip would
not destroy all planes of symmetry.
Therefore, we are persuaded that the Examiner erred in rejecting
claim 5.
DECISION
The Examiner’s rejection of claim 1 under 35 U.S.C. § 102(b) is
reversed.
The Examiner’s rejections of claims 1—20 under 35 U.S.C. § 103(a)
are reversed.
REVERSED
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