Ex Parte Snyder et al

Patent Trial and Appeal Board

Jul 18, 2018

13725137 (P.T.A.B. Jul. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/725, 137
11943 7590
O""Shea Getz P.C.
FILING DATE
12/21/2012
07/20/2018
10 Waterside Drive, Suite 205
Farmington, CT 06032
FIRST NAMED INVENTOR
Timothy S. Snyder
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.
PA-0023259-US 6976
EXAMINER
BURKE, THOMAS P
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
07/20/2018 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):
uspto@osheagetz.com
shenry@osheagetz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY S. SNYDER, RANDAL G. MCKINNEY,
and JAMES B. HOKE
Appeal2017-007797
Application 13/725,137 1
Technology Center 3700
Before WILLIAM V. SAINDON, ERIC C. JESCHKE, and
ANTHONY KNIGHT, Administrative Patent Judges.
KNIGHT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Office action
dated January 4, 2016 ("Final Act."), and as further explained in the
Advisory Action dated March 9, 2016, rejecting claims 14, 15, and 18-21.2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is the applicant, United
Technologies Corporation. Br. 3.
2 Claims 1-13 were withdrawn in response to a restriction requirement and
claims 16 and 17 were canceled. Br. 3. The limitations of claim 16 were
incorporated into claim 14 by an amendment filed February 24, 2016.
Appeal2017-007797
Application 13/725, 137
CLAIMED SUBJECT MATTER
The claims are directed to a gas turbine engine combustor section.
Spec. ,r 1. Claim 14, reproduced below, is illustrative of the claimed subject
matter:
14. A combustor of a gas turbine engine comprising:
a first liner assembly with a first quench hole and a
multiple of trim holes downstream thereof; and
a second liner assembly opposed to the first liner assembly
and radially outboard of the first liner assembly, the second liner
assembly including a second quench hole,
wherein the second and first quench holes are configured
to split a quench flow in a ratio that is generally two-thirds to
one-third, respectively, and
wherein said multiple of trim holes are axially aligned with
said second quench hole.
REJECTIONS
The Examiner made the following rejections:
Claims 14, 15, and 18-21 stand rejected under 35 U.S.C. § I02(b) as
being anticipated by or, in the alternative, obvious under 35 U.S.C. § I03(a)
over Howell et al. (US 2005/0081526 Al, published Apr. 21, 2005)
("Howell").
OPINION
Claims 14, 15, and 18-20
Appellants present arguments for independent claim 14, but do not
present separate arguments for dependent claims 15 and 18-20 subject to
this rejection. See Br. 6-10. These claims will be treated as a group, with
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claim 14 being representative, in accordance with 37 C.F.R.
§ 4I.37(c)(l)(iv) (2015). Claims 15 and 18-20 stand or fall with claim 14.
The reiection o(claim 14 as anticipated by Howell
The Examiner finds that Howell discloses, inter alia, "a first liner
assembly (44) with a first quench hole (130) and a multiple of trim holes
(140)." Final Act. 4. The Examiner further finds that Howell discloses a
second liner assembly (40) including a second quench hole (120). Id. The
Examiner finds that Howell also discloses "wherein the second and first
quench holes are configured to split a quench flow in a ratio that is generally
two-thirds to one-third, respectively," (id.) and "wherein said multiple of
trim holes (140) are axially aligned[] with said second quench hole (120)"
(id. at 6).
Appellants argue that "Howell fails to teach or suggest that the
openings 140 ... of the inner liner 44 ... are axially aligned with the
openings 120 .... " Br. 6. (underlining deleted) (emphasis added).
Appellants argue that "[t]here is no teaching in Howell for inferring that the
opening 120 is axially aligned with the boxed-openings 140, or stated
differently, that the drawings of Howell are drawn to scale relative to one
another." Id. at 8 (providing an annotated version of Figure 4 of Howell).
The Examiner explains that the drawings of Howell disclose the first
and second liner assemblies with the second quench hole 120, and the
multiple trim holes 140 are axially aligned with the second quench hole 120.
Ans. 2-3 (citing Howell, Figs. 3 and 4, annotated by the Examiner). The
Examiner further explains that Howell teaches that the trim holes are in axial
alignment with the second quench hole because the axes of the trim holes
and the axis of the second quench hole are coplanar-i.e., "along a same
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Application 13/725, 137
axial plane." Id. at 3. Additionally, the Examiner states that, "although
areas 3 and 4 are not physically located on centerline 7 6 ... the centerline 7 6
is used as evidence that the trim holes [] and the opening (120) are located
on the same axial plane." Id.
We first construe the language of claim 14, and in particular the
phrase, "wherein said multiple of trim holes are axially aligned with said
second quench hole." Br. 12 (Claims App'x.) (emphasis added). "[T]he
PTO applies to the verbiage of the proposed claims the broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in applicant's specification." In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
Following the guidance in Morris, we look to the Specification for
enlightenment. At various points in the Specification, Appellants refer to the
quench hole as being axially aligned with the trim holes but do not provide
further description. See e.g., Spec. ,r 18 ("In a further embodiment of any of
the foregoing embodiments, the multiple of trim holes are axially aligned
with a quench hole in an opposed liner assembly."). Appellants'
Specification offers little guidance in interpreting this phrase.
We thus look to Appellants' drawings to assist us in interpreting the
phrase. In this regard, it should be kept in mind that although patent
drawings are not meant to be blueprints (see In re Andersen, 743 F.2d 1578,
1581 (Fed. Cir. 1984) ("[p]atent drawings are not working drawings.")
(Citation omitted), overruled on other grounds, In re Etter, 756 F.2d 852,
858-59 (Fed. Cir. 1985)), when a specification does not sufficiently address
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the claim language at issue, drawings may be used to aid in construction
(see, e.g., Aspex Eyewear. Inc. v. Marchan Eyewear. Inc., 672 F.3d 1335,
1348 (Fed. Cir. 2012). An annotated copy of Appellants' Figure 15, is
provided below.
PIG'. 15
Appellants' "Figure 15 is an expanded perspective partial sectional
view of a combustor sector with trim holes according to one non-limiting
embodiment." Spec. ,r 36. Figure 15 is annotated to illustrate the outer and
inner combustor liners 60 and 62, respectively, swirler 90, first quench hole
122, second quench hole 124, and trim holes 126. See Spec. ,r,r 61, 68.
Claim 14 requires that the trim holes are contained in the first liner assembly
having the first quench hole. See Br. 12 (Claims App'x.). Further, claim 14
requires that the second liner assembly include the second quench hole.
See id. Describing Figure 15, the Specification discloses that quench holes
122 and 124 are axially opposed but spaced circumferentially offset with
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"the multiple of trim holes 126 [] circumferentially offset from the quench
hole 124. See Spec. ,r,r 61---62.
We construe the limitation at issue as requiring that the axes of the
multiple trim holes and the axis of the second quench hole be in the same or
parallel planes; this construction is be consistent with the Specification and
Drawings (see In re Zietz, 893 F.2d 319,321 (Fed. Cir. 1989)) (see, e.g.,
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1997)
( claim interpretation excluding the preferred embodiment is rarely, if ever,
correct)). This construction is broader than, but encompasses, the
Examiner's construction of the phrase "axially aligned" to mean that the axis
of the second quench hole and the axes of the multiple trim holes must all be
in the same plane. Appellants do not disagree with the Examiner's
construction, but rather argue that the Examiner's reliance on the figures of
Howell is improper and that the figures of Howell do not disclose the
limitation at issue under the Examiner's construction. Br. 6-8. For the
reasons below, we disagree.
To assist in our discussion, a copy of Howell Figure 2 is provided
below illustrating a cross-sectional view at the position of the center
longitudinal axis of symmetry 7 6 of Howell. See Howell ,r,r 19, 10. The
version of Figure 2 of Howell below has also been annotated by the Board to
remove some of the reference numerals and indicate the inner and outer liner
assemblies, the positions of the primary dilution openings 120, 130 (the
identified second and first quench holes respectively), and the impingement
jets 140 (the identified trim holes).
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Application 13/725, 137
Figure 2 of Howell, reproduced above, is a cross-sectional view of a
jet engine combustion chamber showing the interior structure along the same
vertical plane. Howell ,r 10. Howell, Figure 2, discloses an outer liner 40
and an inner 44 with primary dilution openings 120 and 130, respectively.
The center longitudinal axis of symmetry 7 6 is illustrated as extending
through the swirler 90 and into the combustion chamber.
Appellants argue that "[t]here is no teaching in Howell for inferring
that the opening 120 is axially aligned with the boxed-openings 140, or
stated differently, that the drawings of Howell are drawn to scale relative to
one another." Br. 8. Appellants' argument belies the fact that Figure 2 of
Howell shows the axis of the identified second quench hole (i.e., primary
dilution opening 120) and the axes of the identified multiple trim holes (i.e.,
impingement jets 140) in the same plane-i.e., the plane of view of Figure 2
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of Howell. Although patent drawings not designated as drawn to scale
should not generally be relied on for measurements or to define precise
proportions of depicted elements if the specification is silent on the issue,
see Hockerson-Halberstadt, Inc. v. Avia Grp. Int'!, Inc., 222 F.3d 951,956
(Fed. Cir. 2000), that does not mean "that things patent drawings show
clearly are to be disregarded," In re Mraz, 455 F.2d 1069, 1072 (CCPA
1972). We determine that, by including dotted lines specifically indicating
the location of the relied-upon axes, Figure 2 provides sufficient particularity
to support the Examiner's finding. See Mraz, 455 F.2d at 1072 (stating that
figures in prior art may be relied on for aspects shown with "great
particularity"); see also Final Act. 6 (relying on Figures 1--4 of Howell to
support the relevant finding).
Thus, because the identified aspects of Howell satisfy under even the
Examiner's narrower construction of "axially aligned" (which falls within
the scope of the construction discussed above), we agree with the Examiner
that Howell illustrates all of the limitations of claim 14 including the
impingement jets or trim holes 140 axially aligned with the primary dilution
opening or second quench 120. Accordingly, Appellants' arguments do not
apprise us of error in the Examiner's rejection of claim 14 as anticipated by
Howell.
The reiection of claim 14 as obvious over Howell
Appellants argue that, in this alternative basis to reject claim 14, the
Examiner has used improper hindsight. Br. 9. However, Appellants do not
identify, nor do we discern, any knowledge that the Examiner relied upon
that was gleaned from Appellants' disclosure and that was not, otherwise,
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within the level of ordinary skill at the time of the invention. See In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (so long as a conclusion of
obviousness is based on a reconstruction that "takes into account only
knowledge which was within the level of ordinary skill at the time the
claimed invention was made and does not include knowledge gleaned only
from [Appellants'] disclosure, such a reconstruction is proper").
Accordingly, we sustain the Examiner's rejection of claim 14 as obvious
over Howell.
The reiection of claims 15 and 18-20
Claims 15 and 18-20 depend from claim 14. See Br. 12 (Claims
App'x.). We sustain the rejection of claim 14 based upon the reasoning
discussed supra, we likewise sustain the rejection of claims 15 and 18-20.
The reiection of claim 21
Claim 21 recites that "the first liner assembly and the second liner
assembly are configured to obtain a pattern factor on the order of less than
0.3 and a radial profile factor of approximately 0.1." Br. 12 (Claims
App 'x. ). The Examiner finds that claim 21 is obvious over Howell in that
Howell teaches an equation related to pattern factor. Final Act. 8 ( citing
Howell ,r,r 20-26). The Examiner determined that "since the general
conditions of the claim, i.e.[,] that a low value of pattern factor is desirable
in order to minimize the distortion in combustor exit temperature, were
disclosed in the prior art by Howell, it is not inventive to discover the
optimum workable range by routine experimentation .... " Id. Further, as
to the "the functional recitation 'configured to obtain a pattern factor on the
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order of less than 0.3 and a radial profile factor of approximately 0.1 [,]"' the
Examiner stated that "it has been held that ' [ A Jpparatus claims cover what a
device is, not what a device does."' Id. ( citation omitted). Appellants argue
that Howell describes an equation for a pattern factor but does not describe a
radial profile factor. Br. 10. Appellants argue, "the Examiner has failed to
sustain the burden of factually establishing a prima facie rejection." Id.
The examiner must provide sufficient evidence or scientific reasoning
to establish there is a sound basis for the examiner's belief that the
functional limitation is an inherent characteristic of the prior art. See In re
Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). The fact that a certain result or
characteristic may occur or be present in the prior art is not sufficient to
establish the inherency of that result or characteristic. In re Rijckaert, 9 F.3d
1531, 1534 (Fed. Cir. 1993). In relying upon the theory of inherency, the
examiner must provide a basis in fact and/or technical reasoning to
reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art.
Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990).
The Examiner has provided technical arguments and evidence to show
that pattern factors are used in the design of jet engines. See Final Act. 7-8
( citing Howell ,r,r 20-26). The examiner does not provide sufficient
technical arguments and/or evidence that radial profiles are used in the
design of jet engines. See Final Act. 8-9. We have carefully considered the
Examiner's arguments and note that the phrase "configured to obtain ... a
radial profile factor of approximately 0.1" defines structure. See In re
Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014) (holding that "configured
to" means that a device is designed to work in a particular way.). Indeed,
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even if this expression could be held to be directed to a manner of use, the
examiner would bear the burden of showing that the structures provided by
the references possessed the capabilities requisite to meet the terms of the
claims. See In re Casey, 370 F.2d 576, 579 (CCP A 1967) ("The rationale of
the board clearly deducible from the language employed is that the Kienzle
apparatus as it obviously must be constructed would inherently perform all
of the functions called for in claim 1. "). The Examiner has not established
that the radial profile factor is an inherent characteristic of the combustor
disclosed in Howell's jet engine or that operation of that combustor will
necessarily result in the claimed radial profile factor. Accordingly, we do
not sustain the rejection of claim 21.
DECISION
For the above reasons, the Examiner's rejection of claims 14, 15, and
18-20 is affirmed.
For the above reasons, the Examiner's rejection of claim 21 is
reversed.
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).
AFFIRM-IN-PART
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