MTU Aero Engines AG

Patent Trials and Appeals BoardNov 9, 2020

14707419 - (D) (P.T.A.B. Nov. 9, 2020)

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. 14/707,419 05/08/2015 Thomas HESS 011235.67739US 9148 23911 7590 11/09/2020 CROWELL & MORING LLP INTELLECTUAL PROPERTY GROUP P.O. BOX 14300 WASHINGTON, DC 20044-4300 EXAMINER VO, TUNG T ART UNIT PAPER NUMBER 2425 NOTIFICATION DATE DELIVERY MODE 11/09/2020 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): edocket@crowell.com mloren@crowell.com tche@crowell.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte THOMAS HESS, ALEXANDER LADEWIG, STEVEN PIORUN, and GUENTER ZENZINGER ____________________ Appeal 2019-003375 Application 14/707,419 Technology Center 2400 ____________________ Before ERIC S. FRAHM, CATHERINE SHIANG, and CARL L. SILVERMAN, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–9, 11–13, 15, 16. Claims 10 and 14 have been canceled (see Amendment filed March 28, 2018, pp. 3, 4). 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 (2017). “The word ‘applicant’ when used in this title refers to the inventor or all of the joint inventors, or to the person applying for a patent as provided in §§ 1.43, 1.45, or 1.46.” 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as MTU Aero Engines AG (Appeal Br. 1). Appeal 2019-003375 Application 14/707,419 2 INVENTION Appellant’s invention, entitled “DEVICE AND METHOD FOR GENERATIVE PRODUCTION OF AT LEAST ONE COMPONENT AREA OF A COMPONENT” (Title), is directed to “generative manufacturing methods (so-called rapid manufacturing and/or rapid prototyping methods) in which the component is constructed layer-by-layer by additive manufacturing methods based on a powder bed” (Spec. ¶ 3). As disclosed by Appellant: In particular generative manufacturing methods (so- called rapid manufacturing and/or rapid prototyping methods) in which the component is constructed layer- by-layer by additive manufacturing methods based on a powder bed are known. Mainly metallic components can be manufactured, for example, by laser and/or electron beam fusion or sintering methods in which at least one powdered component is first applied to a component platform in the region of a build-up and joining zone of the device. Next the component material is fused and/or sintered locally layer-by-layer by supplying energy by at least one high-energy beam, for example, an electron beam or a laser beam to the component material in the region of the build-up and joining zone. The high- energy beam is controlled as a function of layer information on the respective component layer to be produced. After being fused and/or sintered, the component platform is lowered layer-by-layer by a predefined layer thickness. Next the steps defined above are repeated until the final completion of the component. Spec. ¶ 3. Appeal 2019-003375 Application 14/707,419 3 Independent apparatus claim 1 is illustrative of the invention and is reproduced below, with bracketed lettering and emphases added to disputed portions of the claim. 1. A device for generative production of a component area of a component, comprising: a powder feed, wherein a powder layer is applyable by the powder feed to a build-up and joining zone of a component platform that is lowerable; a radiation source, wherein a high-energy beam is generatable by the radiation source and wherein the powder layer is fusable and/or sinterable locally in an area of the build-up and joining zone by the high-energy beam to form a component layer; a camera system, wherein a stereoscopic image of a surface of the component layer is producible by the camera system for three-dimensional evaluation of the surface of the component layer; and [A] an evaluation device connected to the camera system, wherein a quality of the surface of the component layer is ascertainable by the evaluation device on a basis of the stereoscopic image; [B] wherein the camera system and the evaluation device ascertain and monitor the quality of the surface of the component layer continuously during production of the component layer. Appeal Br. 11, Claims Appendix (emphases and bracketed lettering added). EXAMINER’S REJECTION The Examiner rejected claims 1–9, 11–13, 15, and 16 under 35 U.S.C. § 103 as being unpatentable over the combination of Ashton et al. (US 2016/0236279 A1; published Aug. 18, 2016 and filed Sept. 23, 2014) (hereinafter, “Ashton”) and Kerekes (US 2002/0104973 A1; published Aug. Appeal 2019-003375 Application 14/707,419 4 8, 2002).2 Final Act. 2–8; Ans. 3–9. Issues on Appeal3 Based on Appellant’s arguments in the Appeal Brief (Appeal Br. 4–9) and the Reply Brief (Reply Br. 1–5), the following two issues are presented on appeal: (1) Has Appellant shown the Examiner erred in rejecting claims 1–9, 12, 13, and 15 as being obvious over the combination of Ashton and Kerekes because the combination fails to teach or suggest ascertaining and monitoring the quality of the surface of a component layer continuously during production of the component layer, as recited in limitations A and B of representative independent claim 1? (2) Has Appellant shown the Examiner erred in rejecting dependent claims 11 and 16 as being obvious over the combination of Ashton and Kerekes because the combination fails to teach or suggest “the component is a component of a turbine or of a compressor,” as recited in claims 11 and 16? 2 Although the Examiner omitted claim 13 in the heading of the statement of the rejection found at page 2 of the Final Rejection, this was an inadvertent and therefore harmless error, as can be seen from the discussion of claim 13 on the merits in the body of the Final Rejection (see Final Act. 8). 3 Appellant primarily presents arguments as to independent claims 1 and 12 (see Appeal Br. 4–9). Appellant relies on the arguments presented for claim 1 as to the patentability of remaining dependent claims 2–9, 13, and 15 (see Appeal Br. 9). Accordingly, we select independent claim 1 as representative of the group of claims (claims 1–9, 13, and 15) rejected for obviousness over the combination of Ashton and Kerekes. Our analysis therefore addresses claim 1, and dependent claims 11 and 16 which were separately argued (see Appeal Br. 9; Reply Br. 4). Appeal 2019-003375 Application 14/707,419 5 ANALYSIS We have reviewed Appellant’s arguments in the Briefs (Appeal Br. 4– 9; Reply Br. 1–5), the Examiner’s rejection (Final Act. 2–8; Ans. 3–9), and the Examiner’s response to Appellant’s arguments (Ans. 9–12). Appellant’s arguments have not persuaded us of error in the Examiner’s rejection of all of the disputed claims under 35 U.S.C. § 103. At the outset, we note that Appellant discloses and claims constructing a component layer-by-layer by additive manufacturing methods based on a powder bed using a radiation source such as a laser beam, and a lowerable platform (see Spec. ¶ 3), as does Ashton (see Abstract; Fig. 1; ¶¶ 5–7, 59). Therefore, Appellant’s contention that “Appellant’s invention and Ashton are directed to different purposes, and thus, operate differently” (Appeal Br. 7), is not persuasive. With regard to representative claim 1, we concur with the conclusions reached by the Examiner, and adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2–6; see also Ans. 3–7), and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 9– 11). With regard to dependent claims 11 and 16, we also concur with the conclusions reached by the Examiner, and adopt as our own (1) the findings and reasons set forth by the Examiner in (a) the action from which this appeal is taken (Final Act. 8; see also Ans. 8–9), and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 11–12). We highlight certain teachings and suggestions Appeal 2019-003375 Application 14/707,419 6 of the references, as well as certain ones of Appellant’s arguments as follows. Claim 1 Appellant presents several arguments asserting the Examiner’s rejection of claim 1 relying upon the combination of Ashton and Kerekes is in error (Appeal Br. 4–9; Reply Br. 1–4). The issue presented by these arguments is whether the Examiner erred in finding the base combination of Ashton and Kerekes teaches or suggests ascertaining, monitoring, and evaluating surface quality of a component layer using a stereoscopic image continuously during production of the component layer as recited in limitations A and B of claim 1, and as commensurately recited in remaining independent claim 12. Appellant recognizes that Ashton “discloses continuously scanning of a laser beam to solidify the powder layer” (Appeal Br. 8) (emphasis added). In addition, Ashton detects spectra qualities of the layers during construction “for feedback control during the solidification process” (Abstract), to be used to generate geometric data used to compare the object to the input build data (see ¶ 30). One of ordinary skill in the art would understand the need to monitor progress of the build continuously in order to prevent build errors and/or waste of building materials (i.e., powder). As Appellant recognizes, Kerekes “monitors a surface height [i.e., a quality] of a layer” (Appeal Br. 8 citing Kerekes ¶ 58). Kerekes teaches taking stereoscopic images of a component layer as an object is being constructed in three dimensions (Abstract; ¶¶ 30, 58), and provides strong suggestions to monitor the construction of the object continuously — such as by (i) increasing build speed “by eliminating the time involved in depositing Appeal 2019-003375 Application 14/707,419 7 build material in excess for each layer that must be removed as waste” (¶ 21); and (ii) generating height data (i.e., the recited “quality of the surface of the component layer”) “to establish feedback data that is then utilized to selectively dispense the build material in desired locations on the layer such as in low areas to achieve a desired thickness, and to avoid dispensing material in locations that may have excess material” (¶ 25); so as to (iii) dimensionally normalize each layer of the object formed “without generating waste material and thereby eliminate the need for a waste collection tank and waste umbilical” (¶ 20). The Examiner’s conclusion of obviousness is based on the finding that the combination of both Ashton and Kerekes would predictably lead one of ordinary skill in the art to continuously monitor and evaluate the object being built (see Ans. 10–11). In light of the Examiner findings, as well as the findings discussed above, we are not persuaded by Appellant’s arguments that Ashton and Kerekes do not teach or suggest limitations A and B recited in claim 1. As a result, Appellant has not sufficiently shown that the Examiner erred in finding Ashton teaches or suggests limitations A and B, and therefore erred in finding the combination of Ashton and Kerekes teaches or suggests the ordered combination of claim 1. Therefore, Appellant has not shown the Examiner’s rejection based on the combination of Ashton and Kerekes to be in error, and we sustain the Examiner’s rejection of representative claim 1, as well as claims 2–9, 13, and 15 grouped therewith, based upon the combination of Ashton and Kerekes. Appeal 2019-003375 Application 14/707,419 8 Claims 11 and 16 In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the Examiner to establish a factual basis (see In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988)), and provide articulated reasoning in the rejection possessing a rational underpinning to support the legal conclusion of obviousness (KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006))). An improved product in the art is obvious if that “product [is] not [one] of innovation but of ordinary skill and common sense.” KSR, 550 U.S. at 421. Based on the record before us, the Examiner has established a factual basis along with articulated reasoning having a rational underpinning to support the legal conclusion of obviousness for claims 11 and 16 (Final Act. 8; see also Ans. 8–9, 11–12). See KSR, 550 U.S. at 418. We agree with the Examiner (see Final Act. 8; Ans. 11–12) that paragraphs 11 and 30 of Kerekes suggest using a three-dimensional building process across a broad spectrum of objects, and turbines or compressors would have been a predictable object or class of objects to build. See In re Graves, 69 F.3d 1147, 1152 (Fed. Cir. 1995) (citing In re LeGrice, 301 F.2d 929, 936 (CCPA 1962)) (confirming the longstanding interpretation that the teachings of a reference may be taken in combination with knowledge of the skilled artisan to put the artisan in possession of the claimed invention even though the patent does not specifically disclose certain features.). This is especially true when considering the three-dimensional building environment that uses layer deposition to gradually build an object as taught by both Ashton and Kerekes, and specifically metallic objects built by depositing metal powder layers as taught by Kerekes (see ¶¶ 5, 7). Appeal 2019-003375 Application 14/707,419 9 Appellant’s arguments have not persuaded us of error in the Examiner’s rejection of dependent claims 11 and 16. Accordingly, we sustain the Examiner’s rejections of clams 11 and 16 based upon the combination of Ashton and Kerekes. CONCLUSION We affirm the Examiner’s rejection of claims 1–9, 11–13, 15, 16 under 35 U.S.C. § 103.4 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–9, 11–13, 15, 16 103 Ashton, Kerekes 1–9, 11– 13, 15, 16 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). See 37 C.F.R. §§ 41.50(f), 41.52(b) (2013). AFFIRMED 4 We note that because Appellant has not yet perfected their EU priority claim to the May 9, 2014 filing date of record, Ashton’s PCT filing date of September 23, 2014 predates Appellant’s US filing date of May 8, 2015. Should there be further prosecution of this application, and should Appellant perfect priority to the EU priority claim of May 9, 2014, we recommend the Examiner consider whether Ashton is a valid prior art reference capable of being applied to the claims of the instant application. See 37 C.F.R. § 1.55; 35 U.S.C. § 102(d).