Ex Parte Hasel et alDownload PDFPatent Trials and Appeals BoardMar 26, 201915184253 - (D) (P.T.A.B. Mar. 26, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 15/184,253 06/16/2016 Karl L. Hase! 54549 7590 03/28/2019 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 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. 61113US14;67097-1733PUS13 2732 EXAMINER EDGAR, RICHARD A ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 03/28/2019 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 KARL L. HASEL, JOSEPH B. STAUBACH, BRIAND. MERRY, GABRIEL L. SUCIU, and CHRISTOPHER M. DYE 1 Appeal2018-006066 Application 15/184,253 Technology Center 3700 Before JAMES P. CALVE, BRETT C. MARTIN, and NATHAN A. ENGELS, Administrative Patent Judges. CAL VE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Office Action finally rejecting claims 1, 4--10, 12-17, 19-24, and 26-33. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 United Technologies Corporation is identified as the real party in interest (Appeal Br. 1) and also is the applicant pursuant to 37 C.F.R. § 1.46. Appeal2018-006066 Application 15/184,253 CLAIMED SUBJECT MATTER Claims 1, 10, 17, and 24 are independent. Claim 1 is reproduced below. 1. A gas turbine engine comprising: a fan section; a core engine, a bypass passage, and a bypass ratio defined as the volume of air passing into the bypass passage compared to the volume of air passing into the core engine, wherein the bypass ratio is greater than or equal to about 8 at crmse power; a gear arrangement configured to drive the fan section, the gear arrangement defining a gear reduction ratio of greater than about 2.3: 1; a lubrication system and a compressed air system in fluid communication with the gear arrangement; a compressor section, comprising both a low pressure compressor section and a high pressure compressor section; a turbine section configured to drive the gear arrangement, the turbine section including a low pressure turbine with an inlet, an outlet, and a low pressure turbine pressure ratio greater than about 5: 1, wherein the low pressure turbine pressure ratio is a ratio of a pressure measured prior to the inlet as related to a pressure at the outlet prior to any exhaust nozzle; wherein an overall pressure ratio is: provided by the combination of a pressure ratio across the low pressure compressor section and a pressure ratio across the high pressure compressor section; and greater than about 50, measured at sea level and at a static, full-rated takeoff power; and wherein the pressure ratio across the high pressure compressor section is greater than about 7, measured at sea level and at a static, full-rated takeoff power. Appeal Br. 16 (Claims App.). 2 Appeal2018-006066 Application 15/184,253 REJECTIONS 2 Claims 1, 4--10, 12-17, 19-24, and 26-33 are rejected under 35 U.S.C. § 112(b) as indefinite. Claims 10 and 12-15 are rejected under 35 U.S.C. § 102(a)(l) as anticipated by Sheridan (US 5,433,674, iss. July 18, 1995). Claim 16 is rejected under 35 U.S.C. § 103 as unpatentable over Sheridan and Schwark (US 7,762,086 B2, iss. July 27, 2010). ANALYSIS Claims 1, 4-10, 12-17, 19-24, and 26--33 As Indefinite. The Examiner determines that the limitations "cruise power" and "a static, full-rated takeoff power," which are recited in each of independent claims 1, 10, 1 7, and 24, render those claims indefinite. 3 Final Act. 6-7. In particular, the Examiner finds that "cruise power" appears to be defined as a quantification of the power (thrust) produced by the engine at a specified altitude, and this value is an unspecified fraction of the maximum power of the engine. Id. at 7. The Examiner finds that engines sizes differ and have different associated maximum power ratings at particular altitudes so "the use of 'cruise power' per se is highly variable, and unspecific." Id. The Examiner interprets "a static, full-rated takeoff power" to be the maximum power produced by an engine and this value is variable and unspecific. Id. 2 The Examiner withdrew rejections of: (1) claims 1 and 4 under 35 U.S.C. § 103 as unpatentable over Schwark (US 7,762,086 B2, iss. July 27, 2010) and the Applicant's Admitted Prior Art (AAPA); (2) claims 5-9, 17, 19-23, and 31-33 under 35 U.S.C. § 103 as unpatentable over Schwark, AAP A, and Sheridan (US 5,433,674, iss. July 18, 1995); and (3) claims 24 and 26-30 under 35 U.S.C. § 103 as unpatentable over Sheridan and AAPA. Ans. 2. 3 The Examiner also determines that claims 9, 23, and 32 are indefinite because of their recital of "a static, full-rated takeoff power." Final Act. 7. 3 Appeal2018-006066 Application 15/184,253 Appellant argues that the Examiner admits that the terms "cruise power" and "a static, full-rated takeoff power" are understood; therefore, "the Examiner must admit that the claims are clear." Appeal Br. 4 ( citing Final Act. 2). Appellant also argues that the meaning of "a static, full-rated takeoff power" is clear because the Examiner interprets this limitation to mean "the maximum power of the engine" and does not dispute that each engine has a maximum power or thrust rating that could be determined readily by a skilled artisan. Id. at 5. Appellant argues that the Examiner admits that "cruise power" is a fraction of the maximum power and does not dispute that a skilled artisan would determine cruise power of a particular engine. Id. In response, the Examiner explains that the terms "cruise power" and "a static, full-rated takeoff power" recite operating variables of a turbofan engine, but the value of those variables is not constant and changes with the thrust-class of the engine, pilot operating the engine, the type of aircraft to which the engine is attached, number of engines being operated, and other factors, all of which "would also logically change the value of: 'a static, full- rated takeoff power' and 'cruise power."' Ans. 3. The Examiner also finds that "cruise power" is understood as the power produced by an engine at a designed cruising speed and a specified altitude and this power differs for different engine sizes and is highly variable and unspecific. Final Act. 7. The United States patent laws provide that "[t]he specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention." 35 U.S.C. § 112(b). 4 Appeal2018-006066 Application 15/184,253 For claims in an application that has not issued as a patent, "[a] claim is indefinite when it contains words or phrases whose meaning is unclear." In re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014). Furthermore, During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow .... The reason is simply that during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed .... An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process. In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989), quoted in Packard, 751 F.3d at 1313. Because applicants are in the best position to resolve any ambiguity in the patent claims, patent examiners should demand that they do so in appropriate circumstances so the application can be amended during prosecution rather than attempting to resolve the ambiguity in litigation. Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255 (Fed. Cir. 2008), quoted in Packard, 751 F.3d at 1313. However, merely claiming broadly does not render a claim indefinite as long as its meaning is clear. See In re Gardner, 427 F.2d 786, 788 (CCPA 1970) ("Breadth is not indefiniteness."); see also Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587 F.3d 1339, 1352 (Fed. Cir. 2009) (same). "cruise power" Independent claims 1, 10, 1 7, and 24 recite "a bypass ratio defined as the volume of air passing into the bypass passage compared to the volume of air passing into the core engine" "greater than or equal to about 8 at cruise power." See Spec. ,r,r 16, 27, 36, 47 (describing this ratio). 5 Appeal2018-006066 Application 15/184,253 The claims thus recite a gas turbine engine with a bypass ratio range of greater than or equal to about 8 at cruise power. The claims also limit the scope of the bypass ratio range to situations where the gas turbine engine operates at "cruise power." The issue becomes whether a skilled artisan would understand what is meant by "cruise power" in light of the Specification such that the skilled artisan could determine the bypass ratio of a gas turbine engine at cruise power. Stated another way, when read in light of the Specification, claim 1 must provide objective boundaries for those of skill in the art to determine what is meant by "cruise power" and when a gas turbine is operating at cruise power such that the bypass ratio of that engine can be calculated to determine if it falls within the claimed bypass ratio range. See Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014). The claims do not define "cruise power." Nor does the Specification provide a definition of "cruise power." The term "cruise power" is used in the Specification only one time where the bypass ratio is disclosed as greater than or equal to about 8 at cruise power. Spec. ,r 73. Original claim 1 recites the bypass ratio range this way. The Specification also discloses: The fan section 14 of the engine 10 is designed for a particular flight condition -- typically cruise at about 0.8 Mach and about 35,000 feet. The flight condition of 0.8 Mach and 35,000 ft, with the engine at its best fuel consumption - also known as "bucket cruise Thrust Specific Fuel Consumption ('TSFC')" - is the industry standard parameter of lbm of fuel being burned divided by lbf of thrust the engine produces at that minimum point. Id. ,r 51. Claim 1 does not require cruise power to be measured at any particular speed or altitude, however. 6 Appeal2018-006066 Application 15/184,253 The Examiner indicates that "'cruise power' is recognized as the power produced by the engine when the engine is at a designed cruising speed" and "[a] quantification of the power (thrust) produced by the engine at a specified altitude appears to define the cruise power." Final Act. 7. Appellant appears to accept this finding of the Examiner by arguing that the Examiner does not dispute that one could determine the cruise power of a particular engine because the maximum power can be determined. Appeal Br. 5. Appellant cites no evidence of an industry standard, understanding in the art, or disclosure in the Specification to aid in the interpretation of the term "cruise power." See id. at 4---6. "Well known industry standards need not be repeated in a patent." Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1367 (Fed. Cir. 2011). In this case, we have no evidence that "cruise power" is an industry standard or that it has a particular method of calculation that is known in the art. Even if we consider cruise power to be the power produced at a flight condition that the Specification discloses is "typical" of cruise, i.e., about 0.8 Mach and about 35,000 feet (Spec. ,r 51 ), it is not clear whether this flight condition also includes the engine operating at its best fuel consumption, i.e., "bucket cruise Thrust Specific Fuel Consumption," which is described as the industry standard parameter of lbm of fuel being burned divided by lbf of thrust the engine produces at that minimum point (id.). The Examiner also finds that cruise power varies for different aircraft and engine configurations even if a particular speed and altitude is used to calculate it. This concern appears reasonable given that the thrust required of an engine to provide an aircraft flight condition of 0.8 Mach at 35,000 feet conceivably could vary with the aircraft ( e.g., weight, friction, wind resistance profile, and the like). 7 Appeal2018-006066 Application 15/184,253 The Examiner also appears to treat "cruise power" to be synonymous with thrust or at least related to thrust. See Final Act. 7 ("A quantification of the power (thrust) produced by the engine at a specified altitude appears to define the cruise power."). Appellant notes that the Examiner "continues to interpret 'power' to mean thrust (Final at pp. 2 and 7)," but Appellant does not indicate whether that interpretation is in error. Appeal Br. 5 (noting "the Examiner does not dispute that each engine has a maximum power or thrust rating of an engine that can be readily determined by one of ordinary skill in the art (see Final at pp. 2-3)"). In the Reply Brief, Appellant cites numerous articles submitted with Information Disclosure Statements during prosecution as evidence of the industry understood meaning of takeoff power. Reply Br. 3--4. However, Appellant does not provide any evidence of an industry standard or industry understanding of the term "cruise power" and how it is calculated. As a result, we determine that the meaning of "cruise power" when interpreted in light of the claims and Specification is unclear. There is no objective standard provided to determine or calculate cruise power such that a skilled artisan could determine the engine bypass ratio at "cruise power." "a static, full-rated takeoff power" The Examiner interprets "a static, full-rated takeoff power" to mean "the maximum power produced by the engine." Final Act. 7. Appellant notes that "the Examiner does not dispute that each engine has a maximum power or thrust rating of an engine that can be readily determined by one of ordinary skill in the art (see Final at pp. 2-3)." Appeal Br. 5. Instead, the Examiner finds that different engine sizes produce different power, so the use of this limitation is variable and unspecific. Final Act. 7. 8 Appeal2018-006066 Application 15/184,253 The claims recite "an overall pressure ratio" as the combination of the pressure ratios across the low pressure compressor section and high pressure compressor section that is "greater than about 50, measured at sea level and at a static, full-rated takeoff power." The Specification describes the overall pressure ratio as "the pressure of the air entering the low compressor section 18 should be compressed as much or over 3 5 times by the time it reaches the outlet of the high compressor section 22" when the overall pressure ratio is 35: 1. Spec. ,r 62. The Specification also discloses that "[i]t is known in [the] prior art that an overall pressure ratio (when measured at sea level and at a static, full-rated takeoff power) of at least 35:1 is desirable." Id. Therefore, the Specification provides some evidence of an industry understanding of overall pressure ratios of gas turbine engines calculated "at sea level and at a static, full-rated takeoff power" as claimed. However, the Specification does not indicate whether a ''full-rated takeoff power" is the maximum power ( or thrust) an engine can generate in a static condition or some other thrust or power value of the engine. The Reply Brief cites numerous articles, the titles of which indicate content related to takeoff ratings, takeoff conditions, and takeoff ratings such as "rated for 60,000 takeoff' and "take-off rated at 6,700lb." Reply Br. 3. It is not clear from this evidence whether a takeoff rating means the maximum power an engine can generate at static conditions at sea level or some other power rating of the engine. If maximum power is an inherent quality of an engine takeoff rating, then it is unclear what is meant by a ''full-rated takeoff power" as claimed. Appellant points to no evidence that "full-rated" is used to denote maximum takeoff power of an engine. Because these articles are cited for the first time in the Reply Brief, we also lack the Examiner's input. 9 Appeal2018-006066 Application 15/184,253 If we exclude evidence cited in the Reply Brief because Appellant has not shown good cause for citing it for the first time in the Reply Brief when the Examiner has maintained the same indefiniteness rejection as to "a static, full-rated takeoff power" throughout prosecution, we have little evidence of the meaning of that term from the Specification and industry understanding. See 37 C.F.R. § 4I.41(b). We would benefit from the Examiner's expertise in evaluating Appellant's arguments and these references, which Appellant submitted with IDS' s in 2016 and 2017. Reply Br. 3. As discussed for the "cruise power" limitation, we have the opportunity during prosecution to clarify the meaning and scope of claim terms that later may be enforced in infringement suits. Breadth does not necessarily make a claim indefinite, but lack of clarity in claim meaning does make a claim indefinite. If full-rated simply means maximum takeoff power, that meaning can and should be clarified in the record. Clarification should be made as to whether full-rated involves an industry standard static test or is simply an acknowledgement of a manufacturer's published specification for a gas turbine engine. In other words, a full-rated power might involve a pilot revving an engine up to the maximum takeoff power that the manufacturer has set for that engine or it might mean a pilot can rev an engine up to some absolute maximum power level that is greater or less than the manufacturer's rated takeoff power level. The Specification provides no guidance as to the meaning of this term or how it is determined. Furthermore, the use of the term "static" implies that there may be a non-static "takeoff power" that is determined as an aircraft is moving. There is insufficient record evidence to guide our interpretation of this limitation with the necessary clarity and objectivity required by the patent law governing the definiteness of claims. 10 Appeal2018-006066 Application 15/184,253 References cited in the Reply Brief seem to support the Examiner's finding that "static, full-rated takeoff power" lacks a specific meaning and may be affected by many variables. Ans. 3. For example, Appellant argues that "[t]he record includes many examples of takeoff power ratings specified for the particular engine." Reply Br. 3. This statement indicates that a particular engine has multiple takeoff power rating~. The Specification does not indicate which takeoff power rating is claimed or how that takeoff power is determined. A W endus article lists a single takeoff rating for each of two particular engines. See id. (Wendus discloses a STF1043 turbofan is "rated for 60,000 takeoff' and "the ALF502R-3 is take-off rated at 6,700lb"). This evidence implies that a particular engine has a single takeoff power rating, but Wendus does not indicate whether that rating is a "static" and/or a "full- rated" takeoff power as claimed. A Janes reference is relied on to define "rating" as "[a]ny of several defined levels of power or thrust published for a particular type or model of engine, qualified according to the regime: take-off, maximum climb, maximum cruise (continuous), OEI contingency, and so on." Id. This disclosure appears to conflict with another Janes reference that states "many examples of takeoff power ratings specified for the particular engine." Id. It also creates confusion as to the meaning of full-rated takeoff power, even if takeoff power is a single, published value for an engine. 4 Thus, we determine that this limitation is indefinite and we sustain the rejection of claims 1, 4--10, 12-17, 19-24, and 26-33 as indefinite. 4 It also creates confusion as to the meaning of "cruise power." Is "cruise power" a maximum cruise power, a continuous cruise power, a fuel efficient bucket cruise power (Spec. ,r 51 ), or another type of cruise power, and how is it calculated? 11 Appeal2018-006066 Application 15/184,253 Claims 4, 6, 8, 13-16, 19, 20, 22, 23, 26, 27, 28, 30 For the most part these dependent claims recite different bypass ratios and overall pressure ratios, which the Examiner determines are indefinite as they depend ultimately on the indefinite limitations of "cruise power" and "a static, full-rated takeoff power." Final Act. 8; Ans. 3. Appellant argues that these limitations are definite because the meaning of cruise power and full take-off power are definite as discussed above. Appeal Br. 6-7. Because we sustain the rejection of these limitations for indefiniteness, this argument is not persuasive, and we also sustain the rejection of claims 4, 6, 8, 13-16, 19, 20, 22, 23, 26, 27, 28, and 30 as being indefinite on this ground. Claims 10 and 12-15 As Anticipated by Sheridan The Examiner finds that Sheridan discloses all the claimed structure of the gas turbine engine to include high and low pressure turbines 14, 15, and planetary gear train 26 coupling low pressure shaft 24 to fan 18. Final Act. 11. The Examiner reasons that because Sheridan discloses all structural features of the claimed engine, Sheridan necessarily is capable of achieving the claimed pressure and bypass ratios recited in claim 10 because Appellant has not identified any features of the claimed engine that result in the engine exhibiting the claimed ratios. Ans. 9; Final Act. 12. Appellant argues that the Examiner has not established the claimed pressure ratios are "necessarily present" in Sheridan, nor does the Examiner have a sound basis to believe that Sheridan's engine and the claimed engine are the same in order to shift the burden to Appellant to rebut a presumption of inherency. Appeal Br. 8-9. Appellant also argues that the claimed ratios are known structural characteristics of gas turbine engines that dictate airfoil geometry, airfoil counts, and duct geometry. Id. at 9-1 O; Reply Br. 5---6. 12 Appeal2018-006066 Application 15/184,253 The Examiner lacks a sound basis for finding that Sheridan inherently discloses the claimed compressor pressure ratios, fan pressure ratios, bypass ratios, and turbine pressure ratios based on Sheridan's disclosure of high and low pressure turbines 14, 15, and planetary gear train 26. See Final Act. 11. Claim 1 recites other structures - fan section, core engine, bypass passage, lubrication system, compressed air system, and compressor section - but the Examiner makes no findings regarding Sheridan's disclosure of any of these features. Id.; see Ans. 9. The Examiner correctly finds that Sheridan discloses a planetary gear train 26 that conveys rotary motion of one compressor to the fan by reducing the rotational speed of the low pressure compressor to a speed more suitable for efficient operation of fan 18. Sheridan, 3:13--47. This feature appears to correspond to Appellant's use of a geared turbofan architecture with fan 14 connected to low pressure compressor 18 through a speed reduction device such as gearbox 62. Spec. ,r 60. This arrangement allows the speeds of the low pressure compressor to be increased relative to a traditional two spool direct drive arrangement of compressor and fan to enable a novel worksplit in the amount of compression allocated between low pressure section 18 and high pressure section 22. Id.; Fig. 5 (area S3). However, the Examiner has not explained sufficiently how this feature of Sheridan necessarily results in Sheridan's gas turbine engine having the claimed ratios. Nor may the ratios be treated as indefinite limitations and ignored. See Ans. 8-9; see also In re Aoyama, 656 F.3d 1293, 1298 (Fed. Cir. 2011) (noting that "a claim cannot be both indefinite and anticipated" (citation omitted)). For the foregoing reasons, we do not sustain the rejection of claims 10 and 12-15 as being anticipated by Sheridan. 13 Appeal2018-006066 Application 15/184,253 Claim 16 As Unpatentable Over Sheridan and Schwark Appellant argues the patentability of claim 16 because it depends from claim 15, which Appellant argues is allowable. Appeal Br. 11. Because we do not sustain the rejection of claim 15, we also do not sustain the rejection of claim 16, which depends therefrom, where the Examiner's reliance on Schwark to teach a gear reduction ratio recited in claim 16 does not cure all of the deficiencies of Sheridan noted above for claim 15. DECISION We affirm the rejection of claims 1, 4--10, 12-17, 19-24, and 26-33 as being indefinite on all grounds asserted by the Examiner. We reverse the prior art rejections of claims 10 and 12-16. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 14 Copy with citationCopy as parenthetical citation