Ex Parte Ali

Patent Trial and Appeal Board

Jul 11, 2016

13406712 (P.T.A.B. Jul. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/406,712 02/28/2012
54549 7590 07113/2016
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
Amr Ali
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PA21060U;67097-1769PUS1 6335
EXAMINER
VERDIER, CHRISTOPHER M
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
07/13/2016 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):
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AMR ALI
Appeal2014-007522
Application 13/406,712
Technology Center 3700
Before STEFAN STAICOVICI, ARTHUR M. PESLAK, and
SEAN P. O'HANLON, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Amr Ali ("Appellant") appeals under 35 U.S.C. § 134(a) from the
Examiner's final decision rejecting claims 1-22. 1 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant submits the real party in interest is United Technologies
Corporation. Appeal Br. 1.
Appeal2014-007522
Application 13/406,712
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A geared turbomachine assembly, comprising:
an acoustic treatment that is in an unducted area of a
geared turbomachine.
REJECTIONS2
1) Claims 1-7, 11-15, and 19-22 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Gantie (US 2010/0038476 Al, pub.
Feb. 18, 2010) and Hurwitz (US 2009/0060704 Al, pub. Mar. 5,
2009).
2) Claims 8, 9, 16, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gantie, Hurwitz, and Morin (US 7,540,354 B2,
iss. June 2, 2009).
3) Claims 10 and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gantie, Hurwitz, and Seda (US 6,619,030 Bl,
iss. Sept. 16, 2003).
4) Claims 1-3, 5, 11-15, and 19-22 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Tester (US 2007/0251212 Al, pub.
Nov. 1, 2007) and Hurwitz.
5) Claims 8, 9, 16, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tester, Hurwitz, and Morin.
6) Claims 10 and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tester, Hurwitz, and Seda.
2 The Examiner withdrew a rejection of claims 4 and 7 under 35 U.S.C.
§ 112, second paragraph. Ans. 2.
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Application 13/406,712
7) Claims 1-3 and 5-22 are provisionally rejected on the ground of
nonstatutory double patenting over Claims 1, 3, 6, 7, 9-16, and 18-
22 of co-pending U.S. Application No. 13/593,814.3
8) Claim 4 is provisionally rejected on the ground of nonstatutory
double patenting over claim 4 of co-pending U.S. Application No.
13/593,814 and Gantie.
9) Claims 1-12 and 14--22 are provisionally rejected on the ground of
nonstatutory double patenting claims 1, 4--11, and 14--22 of co-
pending U.S. Application No. 13/739,493.4
10) Claim 13 is provisionally rejected on the ground of nonstatutory
double patenting over claim 11 of co-pending U.S. Application No.
13/593,814 and Tester.
DISCUSSION
Rejection 4: Obviousness of Claims 1-3, 5, 11-15, and 19-22 over
Tester and Hurwitz
The Examiner finds that Tester discloses all the limitations of each of
these claims other than "the turbomachine is geared (claim 1 ), and does not
disclose that the fan is driven by a geared architecture (claims 11, 19, and
21 )." Final Act. 13. The Examiner finds that Hurwitz discloses "a gas
turbine engine having a fan 20 that is driven by a geared architecture 22, for
the purpose of allowing the turbine to drive the fan." Id. at 14. The
Examiner concludes that it would have been obvious to a person of ordinary
3 U.S. Application No. 13/593,814 is also on appeal. See Appeal No. 2014-
007768.
4 U.S. Application No. 13/739,493 is also on appeal. See Appeal No. 2014-
007508.
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Appeal2014-007522
Application 13/406,712
skill in the art "to form the turbomachine of Tester such that the
turbomachine is geared, and such that the fan is driven by a geared
architecture, as taught by Hurwitz, for the purpose of allowing the turbine to
drive the fan." Id.
Appellant does not dispute the Examiner's factual findings but
contends that the Examiner's reason for modifying Tester, i.e., allowing the
turbine to drive the fan, is not legally sufficient because "Tester already
includes a turbine that drives a fan" and modifying Tester with Hurwitz's
geared architecture "is unnecessary." Appeal Br. 10. Further, Appellant
argues that "[t]he Examiner is simply selecting features from the prior art
using the claims as a guide." Id.
The Examiner responds that geared turbomachines "are well-known in
the art," and the combination of Tester and Hurwitz "is a simple substitution
of one known drive arrangement for another drive arrangement." Ans. 17.
We determine Appellant's contentions to be unpersuasive for the
following reasons. Appellant does not provide any persuasive argument or
technical reasoning to support a distinction in acoustic treatment if the
turbomachine is geared as opposed to one that is not geared. Regardless of
whether gearing is "unnecessary" as argued by Appellant, the result of both
geared and non-geared turbomachines is predictably identical, i.e., the
turbine drives the fan. Furthermore, "when a patent claims a structure
already known in the prior art that is altered by the mere substitution of one
element for another known in the field, the combination must do more than
yield a predictable result." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 416
(2007). The Examiner finds that the geared drive system of Hurwitz would
have been a suitable substitute for the drive system of Tester. Appellant
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Application 13/406,712
provides no persuasive reason why a person of ordinary skill in the art could
not have implemented such a substitution. Neither does Appellant provide
any persuasive reason why the results of the substitution would have been
unpredictable. The Examiner is correct in concluding that such a
substitution would have been obvious. Appellant, thus, fails to persuasively
apprise us of error in the Examiner's rationale, quoted above, for the
combination of Tester and Hurwitz, which we determine to be reasonable
and supported by the disclosure in the cited references. See Id. ("The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results."). To the extent
that Appellant argues the Examiner improperly used hindsight, the argument
is of no import where the Examiner states a rationale for the modification
that we determine is supported adequately by sufficient facts. See In re
Cree, 818 F.3d 694, 702, n.3 (Fed. Cir. 2016). We, thus, sustain the
rejection of claims 1-3, 5, 11-15, and 19-22.
Rejections 5 & 6: Claims 8-10 and 16--18
Appellant argues that these claims, dependent on claim 1 or claim 11,
are patentable for the same reasons Appellant argued for claims 1 and 11,
and neither of the additional references cited in these rejections, Morin and
Seda, cure the alleged error in the rejections of claims 1 and 11. Appeal Br.
10-11. As stated above, Appellant's arguments in connection with claim 1
(and claim 11) are not persuasive. Because Appellant does not apprise us of
any other errors in connection with rejections 5 and 6, we sustain the
rejections of claims 8-10 and 16-18 for the same reasons stated above for
claim 1.
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Appeal2014-007522
Application 13/406,712
Rejections 1-3: Obviousness of Claims 1-7, 11-15, and 19-22 over Gantie
and Hurwtiz; of Claims 8, 9, 16, and 17 over Gantie, Hurwitz, and Morin;
and of Claims 10 and 18 over Gantie, Hurwitz, and Seda
The Examiner finds that Gantie discloses all the limitations of
independent claims 1, 11, and 19 other than a geared
turbomachine/architecture. Final Act. 10-11. In particular, the Examiner
finds that Gantie discloses "an acoustic treatment 40 that is in an unducted
area (near 38')" that "is axially aft of a fan cowl 32." Id. at 10.
Appellant contends, inter alia, that Gantie does not disclose an
"acoustic treatment that is in an unducted area of a geared turbomachine,"5
as per claim 1, an "acoustic treatment establishing a portion of the core cowl
aft the fan cowl," as per claim 11, and "attenuating noise axially aft of a fan
cowl," as per claim 19. Appeal Br. 3, 5, and 7. Appellant argues that
Gantie's acoustic treatment is "within the pipe." Id. at 3. We understand
Appellant's reference to "the pipe" as referring to Gantie's element 36
forming part of core cowl 32. Appellant submits that Gantie discloses
reducing "the modes of acoustic energy propagating by rotating within the
pipe." Id., (citing Gantie i-f 31 ). Based on paragraph 31 of Gantie, Appellant
argues that Gantie "does not teach or suggest an acoustic treatment aft of a
fan cowl." Id.
The Examiner responds that Gantie discloses "an acoustic treatment
40 that is in an unducted area (to the right of 38')." Ans. 4. The Examiner
5 The Specification discloses that "[t]he unducted area represents the
portions of the gas turbine engine 20 axially outside the fan cowl 66." Spec.
i-f 45; see also Fig. 1.
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Application 13/406,712
relies on paragraph 33 of Gantie, which states the "the inside wall 40 and/or
the outside wall 42 are covered at least partially by a coating whose purpose
is to absorb a portion of the sound energy." Id. (citing Gantie, i-f 33).
Gantie discloses a fan cowl 32. 6 Gantie i-f 2, Fig. 1. Gantie also
discloses inside wall 40 (core cowl) that surrounds engine 16. Id. i-f 3.
Gantie does not disclose that the entirety of inside wall 40 is covered by the
acoustic coating. Id. i-f 33. Gantie is directed to improving the effectiveness
of acoustic treatment in the area between inside wall 40 and outside wall 42.
Id. i-fi-113-14. As illustrated in Figure 5 of Gantie, the acoustic treatment is
accomplished by multiple reflections of acoustic beam 52 between inside
and outside walls 40 and 42. Id. Fig. 5, i-f 40. In the unducted area, aft the
trailing end of fan cowl 32, there can be no acoustic treatment by the
reflection of an acoustic beam between two walls, thus, casting doubt on
whether the acoustic coating on inside wall 40 extends to the unducted area,
as the Examiner proposes. While we appreciate the Examiner's reference to
Paragraph 33 of Gantie, the Examiner's finding that Gantie's acoustic
treatment on inside wall 40 extends to the unducted area is based on
speculation and thus is not supported by a preponderance of the evidence.
As the rejection is based on an erroneous factual finding, the conclusion of
obviousness cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) (Holding that "[t]he legal conclusion of obviousness must be
supported by facts. Where the legal conclusion is not supported by facts it
cannot stand.").
6 The unducted portion of Gantie is the area axially aft of the trailing end of
fan cowl 32. See Gantie, Fig. 1.
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Application 13/406,712
In conclusion, for the foregoing reasons, we do not sustain the
rejection under 35 U.S.C. § 103(a) of claims 1-7, 11-15, and 19-22 as
unpatentable over Gantie and Hurwitz.
With respect to rejections 2 and 3, the Examiner's use of Morin and
Seda does not cure the deficiency of Gantie and Hurwitz discussed supra.
Accordingly, for the same reasons as discussed above, we also do not sustain
the rejections under 35 U.S.C. § 103(a) of claims 8, 9, 16, and 17 as
unpatentable over Gantie, Hurwitz, and Morin and of claims 10 and 18 as
unpatentable over Gantie, Hurwitz, and Seda.
Rejections 7-10- Provisional Double Patenting Claims 1-22
Appellant does not contend that the provisional double patenting
rejections are erroneous. See Appeal Br. 12. Appellant, thus waived any
argument of error, and we, thus, summarily sustain rejections 7-10 for
claims 1-22. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
The Examiner's decision rejecting claims 1-22 is AFFIRMED.
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)(l )(iv).
AFFIRMED
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