HAMILTON SUNDSTRAND CORPORATION

Patent Trials and Appeals BoardMar 2, 2021

2020002189 (P.T.A.B. Mar. 2, 2021)

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. 14/940,242 11/13/2015 Diana Giulietti 1510801.020US1(313558) 1315 61654 7590 03/02/2021 Locke Lord LLP P.O. BOX 55874 BOSTON, MA 02205 EXAMINER ROBINSON, MICHAEL ART UNIT PAPER NUMBER 1744 NOTIFICATION DATE DELIVERY MODE 03/02/2021 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): patent@lockelord.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DIANA GIULIETTI and KILEY J. VERSLUYS Appeal 2020-002189 Application 14/940,242 Technology Center 1700 ____________ Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and JAMES C. HOUSEL, Administrative Patent Judges. Opinion for the Board filed by Administrative Patent Judge COLAIANNI. Opinion Concurring filed by Administrative Patent Judge HOUSEL. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 4, and 6–10. We have jurisdiction under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Hamilton Sundstrand Corporation. Appeal Br. 2. Appeal 2020-002189 Application 14/940,242 2 We AFFIRM. Appellant’s invention is directed to a method of additive manufacturing that includes quality control (Spec. ¶ 1). Claim 1 is representative of the subject matter on appeal: 1. A method, comprising: receiving torque data of a powder recoater operatively connected to an additive manufacturing system, wherein the torque data includes torque data of the recoater when the recoater traverses a build area; determining a quality of one or more of an additive manufacturing process and/or product based on the torque data, wherein determining the quality includes determining if a powder recoat on the build area is incomplete by determining if a torque value decreases below a minimum threshold; and causing the powder recoater to recoat the build area. Appellant appeals the following rejections: 1. Claims 1, 2, 4, and 6–10 are rejected under 35 U.S.C. § 112(b) as indefinite. 2. Claims 1, 2, 4, 6–8, and 10 are rejected under 35 U.S.C. § 103 as unpatentable over Abe (US 2006/0208396 A1, published Sept. 21, 2006) in view of Kemperle (US 2014/0117575 A1, published May 1, 2014). 3. Claim 9 is rejected under 35 U.S.C. § 103 as unpatentable over Abe in view of Kemperle2 and Stucker (US 2014/0255666 A1, 2 We include Kemperle as part of the rejection because the Examiner indicated that its omission from the statement of the rejection was a typographical error (Ans. 8). We address this matter fully in this decision. Appeal 2020-002189 Application 14/940,242 3 published Sept. 11, 2014). 4. Claims 1, 2, 4, and 6–10 are rejected on the ground of nonstatutory double patenting as unpatentable over claims 1, 2, and 5–10 of U.S. Patent 10,328,6363. Appellant does not specifically dispute the nonstatutory double patenting rejection (Appeal Br. 5; Reply Br. 6). Therefore, we summarily affirm the Examiner’s double patenting rejection. FINDINGS OF FACT & ANALYSIS Rejection (1): 35 U.S.C. § 112(b) The Examiner determines that claim 1 is incomplete because it omits essential steps, where such omission amounts to a gap between steps (Final Act. 2). The Examiner determines that the step of “causing the powder coater to recoat” is indefinite because the step or device (i.e., a controller) that causes the recoating is not recited in claim 1 (Final Act. 2). The Examiner determines that the causing step renders claim 1 indefinite because it is not clear which, if any, step or device is capable of causing the recoater to recoat as claimed (Final Act. 3). Appellant argues that claim 1 does not omit any essential steps or elements (Appeal Br. 5). Appellant argues that a person of ordinary skill in the art would know how to cause the recoater to recoat (Appeal Br. 5). Appellant argues that any manner of activating the recoater to recoat is 3 Examiner stated that the formerly provisional double patenting rejection is now a non-provisional double patenting rejection because Application No. 14/993,546 has now issued as U.S. Patent 10,328,636 (Ans. 8). Appeal 2020-002189 Application 14/940,242 4 included in the claim (Appeal Br. 5). Appellant contends that claim 1 requires receiving torque data, determining a quality, and causing the powder recoater to recoat (Reply Br. 2). Appellant argues there is nothing unclear in the claim (Reply Br. 2). Claim 1 recites a method that comprises the steps: receiving torque data, determining quality and causing recoating. We find that the causing step is not necessarily dependent on the outcome of the receiving and determining steps. Claim 1 is broad in the sense that the recited causing the recoating step may occur any time in the process; the cause for recoating is not tied to the outcome of the determining step in the claim. Even though the claim may be broad, breadth is not indefiniteness. In re Gardner, 427 F.2d 786, 789 (CCPA 1970). We find that the claim is definite and reverse the Examiner’s § 112(b) rejection of claims 1, 2, 4, and 6–10. REJECTION (2): 35 U.S.C. § 103 The Examiner’s findings and conclusions regarding Abe and Kemperle are located on pages 3 to 5 of the Final Action. The Examiner finds that Abe teaches a powder building operation that includes driving a blade over a powder layer (Final Act. 4). The Examiner finds that when Abe’s blade encounters a protrusion abnormality and high torque exceeding a threshold value is measured, Abe removes the protrusion and recoats (Final Act. 4; Ans. 5). The Examiner finds that Abe does not disclose determining if the torque value decreases below a minimum threshold (Final Act. 3-4). The Examiner finds that Kemperle teaches measuring the current contact force by deflection of a tool and if the threshold exceeds some Appeal 2020-002189 Application 14/940,242 5 threshold or deviates from the expected value by a certain relative amount other actions may be taken (Final Act. 4). The Examiner finds that Kemperle teaches sensing divots or dents on a surface and filling them in with material to achieve a planar surface (Ans. 6). The Examiner finds Kemperle and Abe seek to achieve the same goal of achieving a planar surface by monitoring a coated surface for bumps or divots (Ans. 6). The Examiner finds that based upon the teachings of Abe and Kemperle, a person of ordinary skill in the art would have understood Abe’s “threshold and “absolute” values to include measuring for bumps and dents in a coated surface using positive (maximum) and negative (minimum) deviations values (Ans. 6). The Examiner concludes that it would have been obvious to modify Abe’s torque threshold measurement to include deviations below the threshold because it improves detecting the planarity of a surface (Final Act. 4–5). Appellant argues Kemperle does not specifically disclose that when a torque value falls below a minimum threshold, the powder recoating is determined to be incomplete (Appeal Br. 7). Appellant argues that Kemperle does not link a minimum threshold to incomplete recoating (Appeal Br. 7). Appellant argues that Kemperle’s “absolute” amount of contact force in paragraph 64 is not taught to be a minimum threshold value (Reply Br. 3). Appellant argues Kemperle only discloses a maximum value and will only measure torque deviations from that pre-determined maximum value (Reply Br. 4). Appellant contends that Kemperle discloses in paragraph 64 that the device responds to a single maximum threshold deviation only when outside of a range of error (Reply Br. 4). Appeal 2020-002189 Application 14/940,242 6 Claim 1 recites a series of three steps that are not necessarily related one to the other. In particular the steps of receiving torque data and determining quality based on the torque data are dependent one another. The determining step requires correlating the torque data with a minimum value to ascertain if an incomplete recoat in the build area occurred. The causing step, however, is not necessarily tied to the outcome from the determining step. The determining quality step “includes” determining whether the torque value is below a minimum threshold, but this step does not exclude also determining if the torque value is above a maximum threshold. In other words, the claim compares the received torque values to a pre-set minimum value. Based on our claim interpretation, we fail to see how claim 1 is patentably distinct from Abe as modified by Kemperle. Abe teaches measuring torque of the drive motor based upon resistance to blade 21 in an additive powder manufacturing process (Abe ¶ 52). If the blade encounters an abnormally sintered portion 19 and torque exceeds a predetermined threshold value, a control circuit stops and moves the blade back to allow the abnormally sintered region to be removed (Abe ¶ 52). After removal of the abnormally sintered region, a powdery layer is formed using the blade again (Abe ¶ 52). The only difference over Abe is the pre-setting of the threshold torque to a minimum as opposed to a maximum value. In our view, selection of minimum or maximum limits for a threshold value as part of an algorithm for determining whether a torque value is outside of these limits does not patentably distinguish over Abe. Kemperle supports the obviousness of this threshold setting. Kemperle teaches controlling a three dimensional printer based upon Appeal 2020-002189 Application 14/940,242 7 detected forces (Kemperle ¶ 50). Kemperle discloses that contact force may be used to determine planarity of the surface by measuring a maximum contact force or displacement across the surface and depositing an amount of build material at those locations on the surface that is proportional to the deviation of the contact force from the maximum contact force (Kemperle ¶ 56). Kemperle’s comparison of the actual contact force to the maximum determines the amount of material deposited. Kemperle’s Figure 3 shows the contact sensor 302 in contact with the object 304 (Kemperle ¶ 47). Kemperle teaches the process involves filling in gaps (e.g., dents) in the surface to achieve a planar surface (Kemperle ¶¶ 56, 58). Kemperle discloses that an equivalent process as disclosed in paragraph 56 can be used to fill in gaps in the surface with build material (Kemperle ¶ 56). Kemperle discloses that “the current contact force may be compared to other data such as a previous contact force or an expected contact force in order to determine an appropriate response.” (Kemperle ¶ 62). In other words, Kemperle teaches comparing an existing measured value to a preset expected value to determine an appropriate response. We understand Kemperle to teach setting a maximum contact force to measure deviations caused by protrusions along a surface (¶ 56). Kemperle’s equivalent method for detecting and filling dents or divots in the surface would have included setting a minimum value for the contact sensor and measuring drops in contact force measured as the contact sensor passes over the dents or divots in the surface (¶ 56; Fig. 3). Kemperle discloses in paragraph 64 that “where a detected current contact force exceeds some threshold or deviates from an expected value by a certain relative or absolute amount, other actions may be taken.” (emphasis added). This disclosure Appeal 2020-002189 Application 14/940,242 8 encompasses both an exceeding of a value on the one hand and a deviation which would reasonably include a value below an established threshold as well. Although Appellant argues that there is nothing in Kemperle to indicate an absolute value is a minimum threshold value, the Examiner reasonably finds for reasons discussed above that Kemperle’s teachings to measure for both bumps and dents would include maximum and minimum deviation values (Ans. 6). Therefore, the combined teachings of Abe and Kemperle would have suggested including a determination if a torque value decreases below a minimum threshold and recoating if such a condition is met. Appellant’s arguments have not established that the Examiner reversibly erred. We affirm the Examiner’s § 103 rejection of claims 1, 2, 4, 6–8, and 10 over Abe and Kemperle. REJECTION (3): 35 U.S.C. § 103 Claim 9 Claim 9 ultimately depends from claim 1. Therefore Appellant argues that the Examiner improperly rejects claim 9 over Abe in view of Stucker omitting Kemperle from the rejection (Appeal Br. 8). Appellant contends the omission of Kemperle from the combination of Abe and Stucker made it impossible for Appellant to respond to the rejection because the combination of references applied is unclear (Appeal Br. 8). The Examiner responds that the omission of Kemperle from the statement of rejection was a “typographical error” (Ans. 8). The Examiner explains that the rejection begins with “Abe as modified meets the claim” and refers to findings made above in that regard (Ans. 8; Final Act. 7). Appeal 2020-002189 Application 14/940,242 9 We find that because of the dependency of claim 9 on the claims rejected over Abe in view of Kemperle, the rejection of claim 9 is clear that Stucker was being applied to only address the additional subject matter of claim 9. In any event, the Examiner cured the omission in the Answer in stating that Kemperle is part of the rejection of claim 9 (Ans. 8). Although Appellant argues that this is a new ground of rejection, Appellant’s recourse is to petition that this restatement of the rejection constituted a new rejection (Reply Br. 5). See Manual of Patent Examining Procedure § 1002.02(c)(6) (9th ed. rev. 08.2017 Jan. 2018). Appellant has not petitioned to address the alleged new rejection. We are unpersuaded by Appellant’s arguments. Appellant argues for the first time in the Reply Brief that the Examiner misunderstood claim 9 (Reply Br. 6). Appellant argues that Stucker’s teaching to reduce laser power in response to increased temperature in the surrounding loose powder bed does not teach the subject matter of claim 9 (Reply Br. 6). Appellant’s arguments fail to address the Examiner’s specific findings regarding Abe and Stucker (Final Act. 7-8). The Examiner finds that Abe’s abnormally sintered protrusions are part swell and Stucker teaches reducing laser power when an error is detected (Final Act. 7). Appellant has not shown that the Examiner reversibly erred in determining that the combined teachings of Abe, Kemperle and Stucker would have suggested the subject matter of claim 9. On this record, we affirm the Examiner’s § 103 rejection of claim 9 over Abe, Kemperle and Stucker. Appeal 2020-002189 Application 14/940,242 10 DECISION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 6-10 112(b) Indefiniteness 1, 2, 4, 6–10 1, 2, 4, 6-8, 10 103 Abe, Kemperle 1, 2, 4, 6–8, 10 9 103 Abe, Kemperle, Stucker 9 1, 2, 4, 6-10 Nonstatutory Double Patenting 1, 2, 4, 6–10 Outcome 1, 2, 4, 6–10 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Appeal 2020-002189 Application 14/940,242 11 HOUSEL, Administrative Patent Judge, concurring Although I concur completely in both the reasoning and decision of the majority in all aspects, I write separately to express my view, respectfully, that, as presented on appeal, claim 1 recites a disembodied mental process in its first two recited steps that is unconnected to the physical process of its recited third step. As such, in my view, the recited physical process, i.e., “causing the powder recoater to recoat the build area,” is not limited in any way by the mental process of the first two steps. In this regard, in response to the Examiner’s position that claim 1 was indefinite because there is no clear indication for determining step to cause the recoating step, Appellant admits that the claim permits “any manner in which a user or machine can cause the recoater to recoat.” Appeal Br. 5. As the majority decision indicates, the result is a claim that is broad, not indefinite. This breadth, however, comes at a cost and that is, again in my view, that Abe alone meets the only actual requirement of this claim, i.e., it is undisputed that Abe causes the powder recoater to recoat the build area. Appellant’s attempt to distinguish over the prior art by arguing that Abe alone or in combination with Kemperle fails to teach or suggest causing recoating based on a determination if a torque value decreases below a minimum threshold is, therefore, without merit not only for the reasons given by the Examiner and the majority, to which I concur, but also as claim 1 makes no such requirement. Interestingly, though in my opinion unnecessary to reject claim 1, Abe also teaches the first step of claim 1, as well as much of the second step Appeal 2020-002189 Application 14/940,242 12 except for the pre-setting of a threshold torque to a minimum as opposed to or in addition to a maximum value. As the majority states, and I concur, selection of minimum or maximum limits for a threshold value as part of an algorithm for determining whether a torque value is outside of these limits does not patentably distinguish over Abe.