United Technologies Corporation

Patent Trials and Appeals Board

Aug 4, 2020

2019005684 (P.T.A.B. Aug. 4, 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.
15/339,159 10/31/2016 Michael D. Greenberg 1213-95269 8535
11943 7590 08/04/2020
Getz Balich LLC
10 Waterside Drive, Suite 205
Farmington, CT 06032
EXAMINER
SHAKERI, HADI
ART UNIT PAPER NUMBER
3723
NOTIFICATION DATE DELIVERY MODE
08/04/2020 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):
shenry@getzbalich.com
uspto@getzbalich.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL D. GREENBERG,
JOHN P. TIRONE III, MICHAEL C. PEZZETTI JR., and
MARK B. GOSSNER
__________

Appeal 2019-005684
Application 15/339,159
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, 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 1, 6–8, and 13–17. Claims 2–5 and 9–
12 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

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 United
Technologies Corp. Appeal Brief (“Appeal Br.”) 3, filed Mar. 7, 2019.
Appellant indicates that “United Technologies Corporation [has] changed its
Appeal 2019-005684
Application 15/339,159

2
CLAIMED SUBJECT MATTER
The claimed subject matter relates to “[f]asteners [that] are used to
join/mate various aircraft and engine components.” Spec. ¶ 2.2
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A system comprising:
a fastener that includes:
a head that includes a feature pattern to
accommodate installation and removal of the fastener,
wherein the feature pattern is recessed into the head and
includes a center portion defined by an intersection of a
first axis and a second axis where the first axis is
orthogonal to the second axis, and at least four lobes
symmetrically emanating from the center portion where
each of the four lobes includes an equal lobe surface area
along a plane parallel to a distal surface on the head, and
where each lobe has a distal radial lobe end that is distal
from the center portion, where when each of the distal
radial lobe ends is in alignment with an associated one of
the first and second axis more of the lobe surface area for
each of the at least four lobes is located on the clockwise
side of the associated first and second axis than on the
counter clockwise side of the associated first and second
axis;
wherein the feature pattern is biased to provide a first
torque capability in the installation of the fastener and a second
torque capability in the removal of the fastener, and
wherein the second torque capability is greater than the
first torque capability.

name to Raytheon Technologies Corporation.” See Real Party-in-Interest
Notice, filed Apr. 23, 2020.
2 Specification (“Spec.”), filed Oct. 31, 2016.
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3
REJECTIONS3
I. Claims 1, 6–8, and 13–17 stand rejected under 35 U.S.C. § 112(a), as
failing to comply with the written description requirement.
II. Claims 1, 8, 13, and 14 stand rejected under 35 U.S.C. § 102(a)(1) as
anticipated by Stacy (US 6,367,458 B1, issued Apr. 9, 2002).
III. Claims 1, 8, 13, and 14 stand rejected under 35 U.S.C. § 103 as
unpatentable over Applicant’s Admitted Prior Art (“AAPA”)4 and Stacy.
IV. Claim 6 stands rejected under 35 U.S.C. § 103 as unpatentable over
Stacy, or AAPA, Stacy, and Gaillard (US 8,740,533 B2, issued June 3,
2014).
V. Claims 15 and 16 stand rejected under 35 U.S.C. § 103 as
unpatentable over Stacy, or AAPA, Stacy, and Simmons (US 4,187,892,
issued Feb. 12, 1980).
VI. Claim 16 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Stacy, or AAPA, Stacy, and Hoy (US 5,259,280, issued Nov. 9, 1993).
VII. Claim 17 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Stacy, or AAPA, Stacy, and Morgan (US 6,016,727, issued Jan. 25,
2000).

3 The rejection of claims 1, 6–8, and 13–17 under 35 U.S.C. § 112(b), as
indefinite, has been withdrawn by the Examiner. Examiner’s Answer
(“Ans.”) 9, dated May 17, 2019; see also Final Office Action (“Final Act.”)
3, dated Oct. 5, 2018.
4 The Examiner cites to paragraph 24 of the Specification and Figures 3A
and 4A of the subject application as being indicative of Applicant’s
Admitted Prior Art (“AAPA”). See Final Act. 5.
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Application 15/339,159

4
ANALYSIS
Rejection I – Written Description
The Examiner finds that the Specification fails to support claim 1’s
limitation
where[in] when each of the distal radial lobe ends is in alignment
with an associated one of the first and second axis more of the
lobe surface area for each of the at least four lobes is located on
the clockwise side of the associated first and second axis than on
the counter clockwise side of the associated first and second axis.

Final Act. 2; Appeal Br. 17 (Claims App.). The Examiner asserts that
“while drawings may be used to define[] elements and structural
relationships between elements, [they] cannot be scaled to provide support
for the newly recited feature.” Final Act. 3.
Appellant contends that Figures 3B and 4B of the subject application
disclose this limitation. Appeal Br. 9–10. Figure 3B is reproduced below.

Figure 3B depicts fastener feature pattern E’ with lobes 302a’–302d’. Spec.
¶ 24; Appeal Br. 9–11.
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As an initial matter, we note that although it can be said that each of
the lobes depicted in Figure 3B has a single “distal radial lobe end,” that is
not the case for the lobes depicted in Figure 4B. Further, with respect to the
recitation of “in alignment,” we construe the limitation “each of the distal
radial lobe ends is in alignment with an associated one of the first and
second axis” as each distal radial lobe apex intersects or overlays one of the
first and second axis.
In rejecting a claim under 35 U.S.C. § 112, first paragraph, for lack of
adequate descriptive support, it is incumbent upon the Examiner to establish
that the originally-filed disclosure would not have reasonably conveyed to
one having ordinary skill in the art that Appellant had possession of the now
claimed subject matter. Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d
1336, 1351 (Fed. Cir. 2010) (en banc). Adequate description under 35
U.S.C. § 112, first paragraph, does not require literal support for the claimed
invention. Purdue Pharma L.P. v. Faulding, Inc., 230 F.3d 1320, 1323
(Fed. Cir. 2000) (“In order to satisfy the written description requirement, the
disclosure as originally filed does not have to provide in haec verba support
for the claimed subject matter at issue.”); In re Herschler, 591 F.2d 693, 701
(CCPA 1979); In re Edwards, 568 F.2d 1349, 1351–52 (CCPA 1978); In re
Wertheim, 541 F.2d 257, 262 (CCPA 1976). Rather, it is sufficient if the
originally-filed disclosure would have conveyed to one having ordinary skill
in the art that Appellant had possession of the concept of what is claimed. In
re Anderson, 471 F.2d 1237, 1242 (CCPA 1973). Thus, “written description
is about whether the skilled reader of the patent disclosure can recognize that
what was claimed corresponds to what was described.” Alcon Research Ltd.
v. Barr Labs., Inc., 745 F.3d 1180, 1191 (Fed. Cir. 2014).
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Additionally, we note that “things patent drawings show clearly are
[not] to be disregarded.” In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972)
(emphasis in original). Here, in regard to our construction for the terms
“distal radial lobe end” and “in alignment,” as discussed above, a skilled
artisan would have recognized that Appellant’s Figure 3B discloses “more of
the lobe surface area for each of the at least four lobes is located on the
clockwise side of the associated first and second axis than on the counter
clockwise side of the associated first and second axis,” under the conditions
as claimed. This limitation does not depend on whether Figure 3B is drawn
to scale.5 As such, we conclude that Appellant has possession of the subject
matter of claim 1.
For these reasons, we do not sustain the Examiner’s rejection of claim
1, and claims 6–8, and 13–17 depending therefrom,6 for failing to comply
with the written description requirement.

Rejection II – Anticipation by Stacy
Appellant does not offer arguments in favor of dependent claims 8,
13, and 14 separate from those presented for independent claim 1. Appeal

5 In the Answer, the Examiner responds by asserting that the term “in
alignment” renders the claim indefinite. Ans. 9–10. However, as noted
above at footnote 3, the indefiniteness rejection has been withdrawn. Id. at
9; Reply Br. 1. Nonetheless, in light of our construction as discussed above,
we do not agree that the limitation at issue is unsupported by Figure 3B of
the subject application.
6 We note that claim 6 is dependent on canceled claim 5, rather than claim 1.
See Appeal Br. 17 (Claims App.).
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Br. 12–14. We select claim 1 as the representative claim, and claims 8, 13,
and 14 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Stacy discloses a system comprising a
fastener head having all the limitations of claim 1. Final Act. 4. More
particularly, the Examiner finds that Stacey discloses that the fastener head
includes a feature pattern in which “more of the lobe surface area for each of
the at least four lobes is located on the clockwise side of the associated first
and second axis than on the counter clockwise side of the associated first and
second axis,” under the conditions as claimed. Id. (citing Stacy 4:49–55;
Figs. 8A–8E, 11A–11B); Ans. 10–11 (citing Stacy Figs. 8C, 10A, 11A–11B,
13B).
Appellant argues that in Figures 10A and 11A, Stacy does not disclose
lobes having the surface area as claimed. Appeal Br. 12–14; Reply Br. 4.7
We agree with Appellant that Stacy’s Figures 10A and 11A do not
show lobes having the bisected surface area as claimed. However, the
Examiner also references Figure 13B of Stacy (see above), and that figure is
reproduced below (with added axes) next to Appellant’s Figure 3B, for
comparison purposes.

7 Reply Brief (“Reply Br.”), filed July 17, 2019.
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Figure 13B of Stacy “is an end view of [a] head of [a] fastener.” Stacy
5:12–13. As depicted, a distal radial lobe apex of Figure 13B of Stacy
intersects or overlays one of the axes as required by claim 1. This annotated
figure clearly shows that more of the lobe surface area for each of the at least
four lobes is located on the clockwise side of the associated first and second
axis than on the counter clockwise side of the associated first and second
axis, much in the same manner as shown in Appellant’s Figure 3B. See Ans.
11. As such, Appellant’s contentions do not apprise us of Examiner error in
relying on Figure 13B of Stacy.
For these reasons, we sustain the Examiner’s rejection of claims 1, 8,
13, and 14 as anticipated by Stacy.

Rejection III – Obviousness over AAPA and Stacy
Appellant does not offer arguments in favor of dependent claims 8,
13, and 14 separate from those presented for independent claim 1. Appeal
Br. 14–15. We select claim 1 as the representative claim, and claims 8, 13,
and 14 stand or fall with claim 1.
Alternative to the above rejection involving Figure 13B of Stacy, the
Examiner finds that Figure 3A of the subject application, i.e., Applicant’s
Admitted Prior Art (“AAPA”), further illustrates a system comprising a
fastener head having most of the limitations of claim 1. Final Act. 5; see
also Spec. ¶ 24, Fig. 3A. The Examiner states that Figure 3A of AAPA
shows a feature pattern having “more of the lobe surface area, for each of the
at least four lobes is located on the counterclockwise side of the associated
first and second axis than on the clockwise side of the associated first and
second axis,” as claimed. Id. at 5–6.
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The Examiner notes that with the feature pattern of Figure 3A, a
driver is configured to be biased to provide more torque in the installation
direction than in the removal direction of the fastener. Id. at 5–6; see also
Spec. ¶¶ 24–25. The Examiner, however, finds that Stacy is not restricted to
only the embodiments illustrated, but also discloses “a system having lobed
features” in which “the spiral surfaces may be arranged to have different arc
length and orientations so that the torque capacity can be higher in one
direction than the other.” Id. at 6 (citing Stacy 3:5–10). The Examiner
concludes that it would have been obvious to a skilled artisan to modify
AAPA’s system by reversing the feature pattern of Figure 3A, “so that it is
biased in the counterclockwise direction as taught by Sta[c]y, [] since it has
been held that a mere reversal of the essential working parts of a devise
involves only routine skill in the art.” Id. (citing In re Einstein, 46 F.2d 373
(CCPA 1931)). In other words, with the Examiner’s proposed modification,
the resulting feature pattern would have “more of the lobe surface area for
each of the at least four lobes [] located on the clockwise side of the
associated first and second axis than on the counter clockwise side of the
associated first and second axis,” as claimed.
Appellant contends that “[t]his rejection is tainted by insidious
hindsight” because of “[t]he Examiner’s sole reliance on the precedent in
Einstein as a factual basis for concluding that the subject matter of claim 1
would have been obvious.” Appeal Br. 14. Appellant intimates that the
Examiner improperly uses a per se rule. Id. at 15 (citing In re Ochai, 71
F.3d 1565, 1572 (Fed. Cir. 1995)). According to Appellant, “the Examiner
has failed to provide the required articulated reasoning with the necessary
rational underpinning to support the legal conclusion of obviousness.” Id.
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Appellant further argues again that Stacy’s Figure 11A does not disclose the
lobe arrangement of claim 1. Reply Br. 4
We agree with Appellant that is improper to use a per se rule in
making an obviousness rejection and that Stacy’s Figure 11A does not
disclose the lobe arrangement of claim 1 as discussed above. Here,
however, the rejection is not based on “[t]he Examiner’s sole reliance on the
precedent in Einstein,” as Appellant would appear to have us believe. See
Appeal Br. 14–15. As explained above, Stacy’s Figure 13B discloses the
lobe arrangement of claim 1, i.e., “more of the lobe surface area for each of
the at least four lobes is located on the clockwise side of the associated first
and second axis than on the counter clockwise side of the associated first and
second axis.” See Appeal Br. 17 (Claims App.). Further, Stacy discloses
that
[i]n many applications, it is very important that the fastener must
be capable of withstanding several cycles, as in applications
where the fasteners must be removed in order to repair or replace
parts or to remove and replace access panels. The fastener drive
system ideally should be capable of such repeated cycling,
particularly in environments where the recess may become
contaminated, painted, corroded or otherwise adversely affected
in use. In such environments, it is essential that the drive system
maintain driving engagement while applying torque in a removal
direction. It may be necessary for the drive system to be capable
of applying even higher levels of torque when removing the
fastener, as may occur when the fastener is over-torqued during
initial assembly, or where corrosion develops at the interface at
the engaged threads, or if thermal cycling of the assembled
components has placed increased stress on the fastener.

Stacy 1:37–53 (emphases added); see also Ans. 11–12. Stacy further
discloses that
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the spiral surfaces may be arranged to have different arc lengths
and orientations so that the torque capacity can be higher in one
direction than in the other. A screw thus can be made capable
of transmitting higher torque loads in a removal direction than
in the installation direction so that sufficient torque can always
be applied to overcome the torque that was previously applied
during installation.

Stacy 3:7–14 (emphases added); see also Ans. 12. In view of Stacy’s
explicit teaching of “transmitting higher torque loads in a removal direction
than in the installation direction” by having “different arc lengths and
orientations,” Appellant does not explain why the Examiner’s rationale––
reversing the feature pattern of Figure 3A f AAPA to provide more torque in
the opposite direction––lacks “the required articulated reasoning with the
necessary rational underpinning” (Appeal Br. 15).8 We thus find that the
Examiner’s rejection is based on sound technical reasoning and evidence
disclosed in the cited prior art, rather than improper hindsight reconstruction.
Accordingly, none of Appellant’s contentions apprise us of Examiner error.
For these reasons, we sustain the rejection of claims 1, 8, 13, and 14
as unpatentable over AAPA and Stacy.

8 We note that Stacy’s reason for having the claimed lobe arrangement is
similar to that of Appellant. See Spec. ¶ 3 (“Once a fastener is installed, it
generally takes more torque to remove the fastener than was required during
installation for the following reasons: (1) static friction is higher than
dynamic friction (e.g., the coefficient of friction at rest is larger than the
coefficient of friction during motion), (2) the fastener may be subject to
corrosion over time (which can cause the fastener to bind/seize), and (3)
contamination (e.g., dirt, sand, etc.) may serve to counteract the torque that
is applied.”).
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Rejections IV – VII Obviousness over Stacy, or AAPA, Stacy, and any of
Galliard, Simmons, Hoy, or Morgan
Appellant does not present arguments for these rejections. Appeal Br.
7–16. As we find no deficiencies in the Examiner’s rejection of independent
claim 1 as anticipated by Stacy or as unpatentable over AAPA and Stacy for
the reasons discussed above, we likewise sustain the Examiner’s
obviousness rejections of claims 6, 15, 16, and 17 over the variously
indicated combinations of cited art.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 6–8,
13–17
112(b) Written
Description
1, 6–8, 13–17
1, 8, 13,
14
102(a)(1) Stacy 1, 8, 13, 14
1, 8, 13,
14
103 AAPA, Stacy 1, 8, 13, 14
6 103 (Stacy or
APPA, Stacy),
Galliard
6
15, 16 103 (Stacy or
APPA, Stacy),
Simmons
15, 16
16 103 (Stacy or
APPA, Stacy),
Hoy
16
17 103 (Stacy or
APPA, Stacy),
Morgan
17
Overall
Outcome
1, 6, 8, 13–17 7
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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 IN PART