MTU Aero Engines AGDownload PDFPatent Trials and Appeals BoardNov 20, 20202020002763 (P.T.A.B. Nov. 20, 2020) Copy Citation 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. 15/204,181 07/07/2016 André WERNER 6570-P50304 5501 13897 7590 11/20/2020 Abel Schillinger, LLP 5929 Balcones Drive Suite 300 Austin, TX 78731 EXAMINER PRAGER, JESSE M ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 11/20/2020 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): hmuensterer@abel-ip.com mail@Abel-IP.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDRÉ WERNER, MANUEL PUSCH, PHILIPP UTZ, and HEINRICH WALTER Appeal 2020-002763 Application 15/204,181 Technology Center 3700 Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 19–38. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 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 MTU Aero Engines AG. Appeal Br. 3. Appeal 2020-002763 Application 15/204,181 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to sealing fin armoring and a method for applying the armoring to the sealing fin of a blade. Claims 19 and 33 are independent. Claim 19, reproduced below with emphasis added, is illustrative of the claimed subject matter: 19. A method for coating a sealing fin of a blade of a turbomachine with armoring, wherein the method comprises applying onto the sealing fin a slurry which comprises particles of MCrAlY or particles for forming an MCrAlY layer, where M represents nickel and/or cobalt, and aluminizing the sealing fin having the slurry applied thereon, and wherein the method further comprises depositing a layer formed of hard material on the aluminized sealing fin. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Wydra US 7,101,448 B2 Sept. 5, 2006 Boeck US 2013/0149165 A1 June 13, 2013 Walter US 2013/0189429 A1 July 25, 2013 Strock US 2016/0305442 A1 Oct. 20, 2016 Werner2 DE 102005038374 A1 Feb. 15, 2007 REJECTIONS3 I. Claims 19–24, 26–28, 30–34, and 36–38 are rejected under 35 U.S.C. § 103 as unpatentable over Boeck, Werner, and Wydra. 2 Our citations to Werner refer to the English-language translation made of record on June 13, 2019. 3 A rejection of claims 21, 26, 27, and 38 under 35 U.S.C. § 112(a), as failing to comply with the written description requirement and a rejection of claim 31 under 35 U.S.C. § 112(b) as indefinite are withdrawn in the Answer. Ans. 3; see also Final Act. 2–3. Appeal 2020-002763 Application 15/204,181 3 II. Claims 23–25 and 35 are rejected under 35 U.S.C. § 103 as unpatentable over Boeck, Werner, Wydra, and Strock. III. Claim 29 is rejected under 35 U.S.C. § 103 as being unpatentable over Boeck, Werner, Wydra, and Walter. OPINION Rejection I; Obviousness Based on Boeck, Werner, and Wydra Claim 19 The Examiner finds that Boeck applies an armor coating to a sealing fin of a blade, but does not use a slurry, does not form a MCrAlY layer and a hard material layer on the MCrAlY layer, and does not aluminize. Final Act. 4. The Examiner finds that Werner applies a MCrAlY layer to a blade, aluminizes the tip, and then forms a hard material on the aluminized tip. Id. The Examiner also finds that Wydra discloses a coating process that uses a slurry containing MCrAlY. The Examiner concludes that it would have been obvious to modify the method of Boeck by applying a MCrAlY layer, aluminizing, and depositing a layer formed of hard material on the aluminized sealing fin, as taught by Werner, “to provide a method for producing a wear-resistant temperature, oxidation and corrosion resistant, abrasive protective layer which is relatively simple and inexpensive to carry out.” Final Act. 5 (citing Warner ¶ 4). The Examiner also determines that it would have been obvious to apply the MCrAlY layer as a slurry, as taught by Wydra, “to provide a high quality cladding for a blade tip region in an easy and inexpensive manner.” Id. (citing Wydra, 1:66–2:3; 2:35–43). Hard Material Appellant argues that the claims require “a layer formed of hard material,” whereas Werner’s layer relied upon by the Examiner “is not a Appeal 2020-002763 Application 15/204,181 4 layer formed of hard material but a layer of a MCrAlY matrix having hard material particles embedded therein.” Appeal Br. 10. The Examiner responds that MCrAlY is a hard material. Ans. 3. In the alternative, the Examiner asserts that the layer of Warner “is formed” of a hard material because the hard particles are a “constituent of the layer.” Id. According to the Examiner, both of the offered alternatives are consistent with the Specification. Ans. 4. Appellant replies that neither alternative is consistent with the Specification. Reply Br. 2–4. Specifically, Appellant argues that MCrAlY is not considered to be a hard material, because the Specification discloses that hard particles are added to MCrAlY to add a wear protection function. Reply Br. 2 (citing Spec. 5:7–9). Appellant asserts that the Specification also discloses different embodiments in which one embodiment has MCrAlY and the other embodiment adds hard material particles to the MCrAlY layer. Reply Br. 3 (citing Spec. 9:14–25). According to Appellant, the Specification makes clear that “the hard material (particles or layer) and the MCrAlY (particles or layer) recited in the instant claims are different materials.” Id. Appellant further argues that the phrase “formed of” requires more than just the inclusion of the hard material in the layer, and instead requires that “the layer formed of hard material is a layer which contains nothing but hard material.” Reply Br. 4 (citing Spec. 9:5–12)(emphasis added). According to Appellant, because the Specification and claims distinguish between a layer formed of hard material and a layer that comprises hard material particles one of ordinary skill in the art would not consider a layer Appeal 2020-002763 Application 15/204,181 5 formed of hard material and a layer that includes hard material particles to be the same. Id. We are persuaded by Appellant’s argument that MCrAlY is not a hard material as recited. However, we agree with the Examiner’s alternative finding, namely, that the pertinent claim limitation is met by the inclusion of hard particles. In other words, we disagree with Appellant’s claim interpretation in which the phrase “formed of” in claim 19 requires “nothing but” hard material. See Reply Br. 4. The Specification discloses “an oxidation-resistant MCrAlY layer.” Spec. 5:2. The Specification further discloses adding hard material particles, “so that, besides the oxidation resistance, the applied MCrAlY can at the same time also fulfill the function of the wear protection layer.” Spec. 5:7– 9. Based on this disclosure, the Specification appears to require the addition of a material other than MCrAlY to provide the attributes of a hard material, e.g., wear protection. Thus, the Specification appears to distinguish between MCrAlY and a hard material. Moreover, Werner does as well. Werner discloses applying a further layer that “consists of an MCrAlY matrix with embedded hard material particles.” Warner ¶ 7. Given that both the Specification and Werner disclose adding hard material particles to MCrAlY, one of ordinary skill in the art would not understand MCrAlY by itself to be a hard material consistent with how this term is used in the Specification and art. However, we do not agree with Appellant that inclusion of hard material particles is excluded by the use of the phrase “formed of” in claim 19. The Examiner’s position is that Warner’s layer “is formed” of a hard material because the hard particles are a “constituent of the layer.” Ans. 3. Appeal 2020-002763 Application 15/204,181 6 Appellant relies on page 9, lines 5–12 of the Specification as support for its position that the term “formed of” requires nothing but hard material. There, the Specification discloses that “[a] hard material layer, for example an oxide-ceramic layer comprising titanium oxide and aluminum oxide is applied by means of a spraying method.” Spec. 9:5–6 (emphasis added). The Specification further discloses, “[t]he hard material layer may be formed from one or more constituents and may comprise oxides, carbides and/or nitrides. In particular, the hard material layer may be formed from aluminum oxide and/or titanium oxide.” Spec. 5:20–22 (emphasis added). Inclusion of words “may” and “comprise/comprising,” which are open- ended, suggests that materials other than those specifically enumerated are contemplated. The Examiner’s finding is, thus, consistent with the Specification. Rib Coating Appellant further contends that “merely because WERNER mentions the coating of the tip of a blade this would [not] render it obvious to one of ordinary skill in the art to coat the radially outer rib arrangement with at least one rib disclosed in BOECK by the method disclosed in WERNER.” Appeal Br. 11 (emphasis omitted). Appellant’s argument is not persuasive because Boeck already coats the rib (“on each of the radially outer end faces of ribs 2 . . . there is disposed a coating 3”), and the Examiner proposes to apply the coating to the rib based on Werner’s method. Boeck ¶ 27; see also Final Act. 4. Appellant does not attack the Examiner’s reasoning for the combination, stated above, which we find to be reasonable because it comes directly from Werner. See Werner ¶ 4; see also Final Act. 5. Appeal 2020-002763 Application 15/204,181 7 Coating Method Appellant argues that because Boeck only uses a thermal spraying method, there is no motivation to replace Boeck’s method with a slurry and with Warner’s (regular) spraying, brushing or dipping. Appeal Br. 11. According to Appellant, the underlying objective of Boeck is increasing the coating in the radial outward direction in order to reduce the gap between ribs. Id. at 12–14 (citing Boeck ¶¶ 5–10, 16–18, 28, 29). Appellant asserts that using a slurry would not achieve this reduction and would render Boeck “unsuitable for the intended purpose.” Id. at 14. The Examiner responds that because the intended purpose of Boeck is to provide an abrasive coating for a tip of a sealing fin, and because Boeck’s blade would continue to operate as a sealing fin with an abrasive coating on the tip, the proposed modification does not render the prior art unsatisfactory for its intended purpose. Ans. 6–7. Appellant replies that Boeck requires a coating with a contour that can only be applied by spraying not by using a slurry. Reply Br. 4–5. Appellant’s arguments on this point are unavailing for two reasons. First, we agree with the Examiner that Boeck would still function as a sealing fin. Second, even if Boeck were to require a contour, Appellant has provided only attorney argument that no contour would result and lacks persuasive evidence supporting the attorney argument. By contrast, a side- by-side comparison of Appellant’s Figure 2 and Boeck’s Figure 2, reproduced below, appears to directly contradict Appellant’s assertion. Appeal 2020-002763 Application 15/204,181 8 Appellant’s Figure 2 (left) shows, in a cross section through a sealing fin 2, one embodiment of armoring 30 such as is used for the armoring of a rotor blade. Spec. 8:17–18. Boeck’s Figure 2 (right) shows an enlargement of the excerpt of shroud 1 with a rib arrangement. Boeck ¶ 27. Boeck discloses that because “the axial distance (horizontal in FIG. 2) increases between outer flanks 3.1 of the outer contour of a coating 3; the coating will be broader radially outwardly in the axial direction. Correspondingly, a gap s between the outer flanks of adjacent coatings is reduced.” Boeck ¶ 29. Although we appreciate that it may be difficult to form the underlying slurry layer with a contour, this layer is then coated with a hard material layer based on the disclosure in Warner. Given the similarity Appeal 2020-002763 Application 15/204,181 9 in appearance between Boeck’s coating 3.1 and Appellant’s hard material layer 33, we do not agree that Boeck as modified by Warner would not or could not have an increase in the coating in the radial outward direction in order to reduce the gap between ribs. Accordingly, we do not agree that the proposed modification would render Boeck unsatisfactory for its intended purpose. We have considered all of Appellant’s arguments in support of the patentability of independent claim 19, but find the Examiner has the better position. For the foregoing reasons, Appellant does not apprise us of error in the Examiner’s rejection of independent claim 19. Claims 23, 24, 33, and 34—Aluminum Oxide Aside from the unpersuasive arguments discussed above, Appellant asserts that Werner does not disclose the specifically recited materials of claims 23, 24, 33, and 34, such as aluminum oxide/titanium oxide. Appeal Br. 14–15. The Examiner responds that the rejection relies on Wydra, not Werner, to disclose aluminum oxide, and reiterates that the phrase “formed of is not exclusive language, and that the claim does not require that the layer only be formed of aluminum oxide and/or titanium oxide.” Ans. 8. The Examiner has the better position. The phrase “and/or” in claims 23 and 33 requires that one or both materials are present. Here, the Examiner finds that “Wydra discloses the hard material comprises aluminum oxide.” Final Act. 6 (citing Wydra, 2:27). Wydra discloses “us[ing] particles of BN, SiC or Al2O3, since these particles are harder.” Wydra, 2:27–28. Thus, Appellant’s arguments as to Warner do not apprise us of Appeal 2020-002763 Application 15/204,181 10 error based on the combination of Boeck, Warner, and Wydra. We sustain the rejection of claims 23, 24, 33, and 34 Claims 20–22, 26–28, 30–32, and 36–38 Appellant does not argue separately for the other dependent claims. See Appeal Br. 8–15. Accordingly, we sustain the rejection of claims 20– 22, 26–28, 30–32, and 36–38 as unpatentable over Boeck, Werner, and Wydra. Rejections II and III Rejections II and III are based on the combination of Boeck, Werner, and Wydra, with the addition of Strock for Rejection II and the addition of Walter for Rejection III. Appellant asserts that Strock and Walter do not cure the deficiencies of Rejection I. Appeal Br. 15–17. For the reasons set forth above, however, we are not apprised of any deficiency in Rejection I. For rejection II, Appellant also asserts that the ceramic filled metallic layer of Strock “is not formed of hard material but merely contains (a relatively low volume fraction of) ceramic particles embedded in a metallic matrix (similar to what is disclosed in WERNER).” Appeal Br. 16. For the reasons set forth above, we do not agree that a layer formed of hard material contains nothing but hard materials. Accordingly, we sustain the rejections of claims 23–25 and 35 as unpatentable over Boeck, Werner, Wydra, and Strock (Rejection II) and claim 29 as unpatentable over Boeck, Werner, Wydra, and Walter (Rejection III). Appeal 2020-002763 Application 15/204,181 11 CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 19–24, 26– 28, 30–34, 36–38 103 Boeck, Werner, Wydra 19–24, 26–28, 30–34, 36–38 23–25, 35 103 Boeck, Werner, Wydra, Strock 23–25, 35 29 103 Boeck, Werner, Wydra, Walter 29 Overall Outcome: 19–38 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation