Ex Parte Winston et alDownload PDFPatent Trial and Appeal BoardSep 29, 201712985672 (P.T.A.B. Sep. 29, 2017) Copy Citation 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. 12/985,672 01/06/2011 Kenneth W. Winston 57805US01; 4792 67097-2304PUS1 54549 7590 10/03/2017 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 EXAMINER GOYAL, ARUN ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 10/03/2017 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 KENNETH W. WINSTON, ANDRE M. AJAMI, and DAVID LLOYD RIPLEY Appeal 2016-006285 Application 12/985,672 Technology Center 3700 Before STEVEN D.A. McCARTHY, CHARLES N. GREENHUT, and JEFFREY A. STEPHENS, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 2 3seek our review under 35 U.S.C. § 134(a) from the Examiner’s Final Office Action rejecting claims 1—14 and 16—21.2,3 We have jurisdiction under 35 U.S.C. § 6(b). 1 The real party in interest is identified as United Technologies Corporation. App. Br. 1. 2 Claim 15 was canceled in an Amendment filed September 28, 2014. 3 The Final Action (mailed June 26, 2015) (“Final Act.”) is supplemented by an Advisory Action (mailed Aug. 18, 2015) (“Adv. Act.”). We also refer to Appeal 2016-006285 Application 12/985,672 We affirm-in-part. Claimed Subject Matter The claimed subject matter relates to increasing fuel delivery to a turbomachine combustor until achieving light-off. Spec. para. 1. Claims 1, 9, and 17 are independent. Claim 1, reproduced below, illustrates the claimed subject matter. 1. A method of fuel delivery to a turbomachine, comprising: reaching a light-off speed of a turbomachine; delivering fuel to a combustor of the turbomachine at a first rate; increasing a rate of the delivering, wherein the combustor achieves light-off at a fuel flow rate on or in-between the first rate and a second rate that is greater than the first rate, wherein the first rate corresponds to a lowest fuel flow command that could produce a combustor light-off and the second rate corresponding to a highest fuel flow command that could produce a combustor light-off; and adjusting fuel delivery components to provide fuel to the combustor at the first rate and then increasing the rate to achieve light-off without exceeding the second rate. Rejections* * 4 1. Claims 1, 2, 6, 9, 10, and 12 stand rejected under 35 U.S.C. § 102(b) as anticipated by O’Connor (US 6,988,368 B2, issued Jan. 24, 2006). Final Act. 3^4. the Appeal Brief (filed Nov. 15, 2015 (“App. Br.”) and the Examiner’s Answer (mailed Apr. 18, 2016) (“Ans.”). 4 We consider the rejection of claims 1—14 and 16—21 under 35 U.S.C. §112, second paragraph, as indefinite to be withdrawn. The Final Action rejected these claims for a lack of antecedent basis for the limitations “the lowest fuel flow” and “the highest fuel flow” in claims 1, 9, and 17, and for 2 Appeal 2016-006285 Application 12/985,672 II. Claims 1, 2, 4—6, 9, 10, and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKelvey (US 7,000,405 B2, issued Feb. 21, 2006). Final Act. 5—7. III. Claims 3, 14, and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKelvey and Goldberg (US 6,836,086 Bl, issued Dec. 28, 2004). Final Act. 7-8. IV. Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKelvey and Falke et al. (US 5,907,949, issued June 1, 1999) (“Falke”). Final Act. 8-9. V. Claims 11, 13, and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKelvey and Hu et al. (US 2009/0077973 Al, published Mar. 26, 2009) (“Hu”). Final Act. 9-10. VI. Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable over O’Connor. Final Act. 10. VII. Claims 3, 4, 14, and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over O’Connor and Goldberg. Final Act. 10-11. VIII. Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over O’Connor and Falke. Final Act. 11—12. IX. Claims 11, 13, and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over O’Connor and Hu. Final Act. 12—13. the limitation “the flow” in claim 13. Final Act. 2. Appellants’ Amendment After Final amended each of these terms as suggested by the rejection. Amendment After Final 2—3, 5 (filed Aug. 5, 2015). The Examiner indicates in the Advisory Action that the amendments will be entered. Adv. Act. 1. Although the Examiner’s Answer states that every ground of rejection from the Final Action is maintained, Ans. 2, neither Appellants nor the Examiner address the indefiniteness rejection under § 112. 3 Appeal 2016-006285 Application 12/985,672 X. Claims 17—20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Goldberg and O’Connor. Final Act. 13—14. XI. Claims 17—20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Goldberg and McKelvey. Final Act. 14—16. DISCUSSION Rejection I— Claims 1, 2, 6, 9, 10, and 12 as anticipated by O’Connor Appellants argue O’Connor does not disclose “adjusting fuel delivery components to provide fuel to the combustor at the first rate and then increasing the rate to achieve light-off without exceeding the second rate,” as recited in claim 1. App. Br. 4—5. Appellants do not challenge the Examiner’s finding that Figure 6 of O’Connor shows a first fuel flow rate and a second fuel flow rate that is higher than the first. See App. Br. 4. Appellants contend, however, that Figure 6 of O’Connor shows fuel flow as a function of gas generator speed percentage and, as a result, does not show that the second rate occurs subsequent to the first. Id. Appellants’ argument does not show error in the Examiner’s rejection. We agree with the Examiner’s finding that O’Connor’s Figure 6 is a conversion of Figure 3, and that speed in Figure 6 corresponds to time in Figure 3. Final Act. 4. O’Connor states that the fuel flow rate curve in Figure 3 is a function of time, and teaches that “[djuring a start-up process, the gas generator speed gradually increases and is also a function of time.” O’Connor col. 8,11. 7—9; see Ans. 2. “Therefore, the varying fuel flow rate as a function of time can be changed to a function of gas generator speed by applying a mathematic calculation . . . .” O’Connor col. 8,11. 9—12. Because O’Connor teaches that the gas generator speed generally increases during the 4 Appeal 2016-006285 Application 12/985,672 startup process shown in Figure 6, one of skill in the art would have understood that the higher speeds moving to the right of the graph in Figure 6 generally correspond to later times. This is further supported by the general correspondence in shape of the fuel flow rate curve in Figures 3 and 6. In view of this evidence, we are not informed of error in the rejection by Appellants’ conclusory assertion [t]hat a mathematical calculation can convert a fuel flow rate as a function of time to a fuel flow rate as a function of gas generator speed does not mean that the portion of the curve 76' in Fig. 6 relied on as teaching the claimed “second rate” occurs subsequent to the portion relied on as teaching claimed ‘'first rate" App. Br. 4. A preponderance of the evidence supports the Examiner’s finding that O’Connor discloses “adjusting fuel delivery components to provide fuel to the combustor at the first rate and then increasing the rate to achieve light-off without exceeding the second rate,” as recited in claim 1. Appellants also argue the portion of O’Connor’s Figure 6 that the Examiner identifies as the “second rate” is not a “second rate corresponding to a highest fuel flow command that could produce a combustor light-off,” as recited in claim 1. App. Br. 5. In particular, Appellants contend “O’Connor clearly teaches fuel flow levels Fi that are higher than what the Examiner considers to teach the claimed second rate and are capable of producing a combustor light-off.” Id. O’Connor’s Figure 6 depicts “[a] hypothetical light-off zone 94 and its central area 96 for rapid light-off.” O’Connor col. 8,11. 16—17 (bolding omitted). We agree with Appellants that the hypothetical light-off zone 94 includes fuel rates higher than the “second rate” labeled by the Examiner in the annotated figure. Final Act. 3. The Examiner finds, however, that the 5 Appeal 2016-006285 Application 12/985,672 claimed fuel flow command “corresponding to a highest fuel flow . . . command that could produce a combustor light-off’ is met by O’Connor’s teaching of “a light-off zone having a minimum fuel rate and a maximum fuel rate.” Id. Thus, the Examiner relies on more than the “second rate” labeled in annotated Figure 3, and Appellants’ arguments implicitly acknowledge that the maximum hypothetical rate within light-off zone 94 corresponds to the “highest fuel flow command that could produce a combustor light-off.” App. Br. 5. In addition, the Examiner’s labeled “second rate” is greater than the first rate and is also the highest rate actually applied. See O’Connor Fig. 6. Interpreting claim 1 ’s “highest fuel flow command that could produce a combustor light-off’ to encompass the highest command still within the light-off zone is reasonable. The claim refers to a “fuel flow command,” which implies an actual command within the capabilities of the system, not necessarily the highest hypothetical fuel flow rate without any reference to the actual fuel flow rate profile delivered by the system. Thus, even if the Examiner considers the claimed “highest fuel flow command” to be the highest peak of the spikes shown in Figure 6, Appellants have not informed us of error in the rejection of claim 1 on this basis. Accordingly, for the reasons discussed above and by the Examiner, we are not informed of error in the Examiner’s rejection of claim 1 under 35 U.S.C. § 102(b) as anticipated by O’Connor. Thus, we sustain the rejection of claim 1. Appellants argue that the rejection of independent claim 9 and dependent claims 2, 6, 10, and 12 on the same ground is in error for the same reasons argued in support of claim 1. App. Br. 3, 6. Thus, for the same 6 Appeal 2016-006285 Application 12/985,672 reasons as claim 1, Appellants do not inform us of error in the rejection of these claims, and we sustain the rejection. Rejections II—V andXI— Obviousness based on McKelvey Each of the Examiner’s rejections based on McKelvey relies on the finding that, because McKelvey teaches that the fuel-air ratio between time periods U and t2 is “suitable for ignition,” the fuel-air ratio outside of this time period is not suitable for ignition. Ans. 3 (quoting McKelvey col. 2,1. 26) (emphasis added by Examiner)); see also Final Act. 5 (citing McKelvey col. 2,11. 24—32, col. 7,1. 61—col. 8,1. 6). We agree with Appellants, however, that the cited portions of McKelvey do not indicate that the fuel-air ratio between time periods U and t2 is the only range of fuel-air ratios suitable for ignition. See App. Br. 7. Thus, we are unable to determine from McKelvey whether, when the fuel control valve is open at time ti, fuel is delivered at a first rate that “corresponds to a lowest fuel flow command that could produce a combustor light-off,” as recited in claim 1, and similarly recited in independent claims 9 and 17. Therefore, the Examiner’s findings are not supported by a preponderance of the evidence. In view of the foregoing, we do not sustain the rejections under 35 U.S.C. § 103(a) over McKelvey and other references, as set forth in Rejections II—V and XI. Rejection VI— Claim 5 as obvious over O’Connor Claim 5 depends from claim 1 and recites “increasing the rate of the delivering [of fuel to a combustor] by between 10-25 lb/hr/sec.” Appellants argue the Examiner has not shown any identified solution involving increasing the rate of the delivering in this way, and argue that “[t]o rely on 7 Appeal 2016-006285 Application 12/985,672 a rationale based on a finite number of identified, predictable solutions, the Examiner must, at a minimum, show that the solution is identified and predictable in the art.” App. Br. 10. We agree with Appellants that the Examiner’s statement in the Final Action regarding a finite number of identified, predictable solutions does not sufficiently support with evidence or explain why it would have been obvious to increase the fuel flow at the rate specified in the claim. In the Answer, the Examiner states that Appellants “had not argued the rejection of Claim 5 [in] any of the previous responses and therefore the arguments were never considered.” Ans. 5 (emphasis omitted). This explanation, however, is insufficient to cure the deficiency in the rejection. In view of the foregoing, we do not sustain the rejection of claim 5 under 35 U.S.C. § 103(a) as obvious over O’Connor. Rejection VII— Claims 3, 4, 14, and 16 as obvious over O’Connor and Goldberg Appellants argue claims 3,4, 14, and 16 are patentable based on their dependence from claims 1 or 9, and provide additional argument only as to claim 4. App. Br. 10. Thus, we sustain the rejection of claims 3, 14, and 16 for the same reasons that we sustain the rejection of claims 1 and 9 as anticipated by O’Connor. We next address the additional argument as to claim 4. Claim 4 depends from claim 1 and recites “maintaining speed of the turbomachine using a motor.” Appellants argue “[t]he Examiner has not presented a prima facie case of obviousness against claim 4 as the rejection fails to provide a legally sufficient reason that would cause the skilled person to make the proposed modification.” App. Br. 10. “That Goldberg 8 Appeal 2016-006285 Application 12/985,672 teaches a motor does not mean it would be obvious to modify McKelvey to include such a motor,” argue Appellants. Id. The Examiner finds that the purpose of Goldberg’s motor is to maintain the engine speed within a light-off window, and that one of ordinary skill in the art would have wanted to use Goldberg’s motor in O’Connor for this reason. Ans. 5 (citing Goldberg col. 5,11. 1—12). The Examiner, therefore, articulates reasoning with rational underpinning for modifying O’Connor to include Goldberg’s motor. Appellants do not persuasively challenge this reasoning. Accordingly, for the reasons discussed above and by the Examiner, we are not informed of error in the Examiner’s rejection of claims 3,4, 14, and 16 under 35 U.S.C. § 103(a) as obvious over O’Connor and Goldberg. Thus, we sustain the rejection of claims 3, 4, 14, and 16. Rejection VIII— Claims 7 and 8 as obvious over O ’Connor and Falke Claim 7 depends from claim 1 and recites “delivering [fuel to a combustor] for at least four seconds before increasing.” Claim 8 depends from claim 7 and recites “delivering [fuel to a combustor] for at least four seconds at the second rate.” The Examiner finds Falke teaches an initial rate WfiNiTiAL is held for seven seconds, and that one of ordinary skill in the art would have modified O’Connor’s engine to deliver fuel for at least four seconds before increasing “in order to account for the actual fuel flow supplied to the combustion chamber deviating slightly from the commanded fuel flow as taught by Falke, col. 4,11. 65—col. 5,11. 3.” Final Act. 11. 9 Appeal 2016-006285 Application 12/985,672 Appellants argue that the “delivering . . . before increasing” recited in claim 7 refers to delivering at the “first rate” recited in claim 1, and that even if O’Connor were modified to include fnsrmal from Falke, it would not deliver fuel at the claimed “first rate” for at least four seconds because Falke’s WfiNiTiALrate is not a lowest fuel flow command that could produce combustor light-off. App. Br. 10. We agree with Appellants that the Examiner has not shown the limitations of claim 7 are taught by the combination of O’Connor and Falke. As with Falke, the initial rate in O’Connor is also not the “first rate” that corresponds to a lowest fuel command that could produce combustor light- off. To the extent the rejection proposes holding O’Connor’s “first rate,” which occurs along one of several “spikes” in the fuel flow rate, this rate is delivered after the fuel flow rate has been increased beyond the initial rate and the Examiner’s reasoning does not address why one of skill in the art would have delivered that particular rate for at least four seconds before increasing. Thus, the combined teachings of O’Connor and Falke relied on by the Examiner do not teach delivering at the first rate for at least four seconds before increasing. In view of the foregoing, we do not sustain the rejection of claim 7 under 35 U.S.C. § 103(a) as obvious over O’Connor and Falke, and we do not sustain the rejection of claim 8, which depends from claim 7. Rejection IX— Claims 11, 13, and 21 as obvious over O’Connor and Hu Appellants argue claims 11, 13, and 21 are patentable because they depend from claim 9. App. Br. 11. For the same reasons that we sustain the rejection of claim 9 as anticipated by O’Connor, we sustain the rejection of 10 Appeal 2016-006285 Application 12/985,672 claims 11, 13, and 21 under 35 U.S.C. § 103(a) as obvious over O’Connor and Hu. Rejection X— Claims 17—20 as obvious over Goldberg and O ’Connor Appellants argue O’Connor does not teach “wherein a first rate corresponds to a lowest fuel flow command that could produce a combustor light-off and a second rate corresponding to a highest fuel flow command that could produce a combustor light-off,” as recited in claim 17, for the same reasons argued in support of claim 1. App. Br. 11. Appellants further contend “[t]he Examiner has admitted, in the Advisory Action, that [Appellants’] arguments with respect to this lack of teaching in O’Connor were persuasive.” Id. As noted by the Examiner, the Advisory Action referred to by Appellants was mailed on December 23, 2014, prior to the Final Action on appeal. Ans. 5—6. The Final Action maintains the rejection, and for the reasons given above with respect to claim 1, Appellants have not informed us of error in the Examiner’s finding that O’Connor teaches the disputed limitations of claim 17. Thus, we sustain the rejection of claims 17—20 under 35 U.S.C. § 103(a) as obvious over Goldberg and O’Connor. 11 Appeal 2016-006285 Application 12/985,672 DECISION We do not sustain any rejection of claims 5,1, and 8. We affirm the Examiner’s rejection of claims 1—4, 6, 9-14, and 16—21 except as to grounds specifically reversed hereinabove. See 37 C.F.R. § 41.50(a)(1).5 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-IN-PART 5 The affirmance of the rejection of a claim on any of the grounds specified constitutes a general affirmance of the decision of the examiner on that claim, except as to any ground specifically reversed. 12 Copy with citationCopy as parenthetical citation