Ex Parte Winston et al

Patent Trial and Appeal Board

Sep 29, 2017

12985672 (P.T.A.B. Sep. 29, 2017)

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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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