Ex Parte Xu

Patent Trial and Appeal Board

Oct 18, 2017

13066827 (P.T.A.B. Oct. 18, 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.
13/066,827 04/25/2011 Cheng Xu H0023099 9137
93153 7590 10/20/2017
HONEYWELL/GRIECCI
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
MCCAFFREY, KAYLA M
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
10/20/2017 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):
patentservices-us @ honey well, com
pto @ griecci. com
sherry, vallabh @ honey well. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHENG XU
Appeal 2016-0042781
Application 13/066,827
Technology Center 3700
Before JOHN C. KERINS, LEE L. STEPINA, and SEAN P. O’HANLON,
Administrative Patent Judges.
O’HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Cheng Xu (Appellant) appeals under 35U.S.C. § 134 from the
Examiner’s February 4, 2015, non-final decision (“Non-Final Act.”)
rejecting claims 1—5 and 7—27. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
1 The Appeal Brief identifies Honeywell International, Inc. as the real party
in interest. Appeal Br. 3.
Appeal 2016-004278
Application 13/066,827
SUMMARY OF THE DECISION
We AFFIRM-IN-PART.
SUMMARY OF THE INVENTION
Appellant’s disclosure is directed to “a mixed or radial flow
turbocharger wheel having contoured surfaces for secondary flow control.”
Spec. 11. Claim 1, reproduced below from page 25 (Claims Appendix) of
the Appeal Brief, is illustrative of the claimed subject matter:
1. A turbocharger wheel, comprising:
a hub of a radial flow configuration, being characterized
by an axis of rotation; and
a plurality of blades, each blade having a hub edge
adjoining the hub, a shroud edge opposite the hub edge, a
leading edge, and a trailing edge;
wherein the wheel is configured to rotate around the axis
of rotation in a given direction with respect to its leading edge
during turbocharger operation such that the leading edge is
upstream of the trailing edge, and such that each blade is
characterized by a pressurized surface and a suction surface;
wherein the cross-sectional shape of each suction surface,
when taken perpendicular to the flow direction at a streamwise
location, is characterized by a blade intermediate portion, a
concave inner portion that is closer to the hub edge than the
blade intermediate portion, and a concave outer portion that is
closer to the shroud edge than the blade intermediate portion;
and
wherein the blade intermediate portion is characterized
by a curvature that is both less concave than the inner portion,
and less concave than the outer portion.
2
Appeal 2016-004278
Application 13/066,827
REJECTIONS
I. Claims 1—5 and 7—10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ghizawi (US 7,147,433 B2, issued Dec. 12, 2006)
and Burton (US 2008/0152504 Al, published June 26, 2008).
II. Claims 11—13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Burton, and Parsons (US 899,319, issued Sept.
22, 1908).
III. Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Burton, and Jansen (US 5,215,439, issued June
1, 1993).
IV. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Burton, and Hausammann (US 2,918,254,
issued Dec. 22, 1959).
V. Claim 16 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Burton, Hausammann, and Jansen.
VI. Claim 17 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Burton, Hausammann, Jansen, and Parsons.
VII. Claims 18—24 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi and Parsons.
VIII. Claim 25 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Parsons, and Jansen.
IX. Claim 26 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Parsons, and Hausammann.
X. Claim 27 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ghizawi, Parsons, Hausammann, and Jansen.
3
Appeal 2016-004278
Application 13/066,827
ANALYSIS
Rejection I
Claims 1 and 7—10
The Examiner finds that Ghizawi discloses a turbocharger wheel
substantially as recited in independent claim 1, but does not disclose the
recited inner, intermediate, and outer portions of the suction surface. Non-
Final Act. 4—5. The Examiner finds that Burton discloses a blade (multi­
lean vane 122) with a suction surface having a shape such that intermediate
portion 176 thereof is less concave than either end section 174, 178, and
reasons that it would have been obvious to one of ordinary skill to “to
modify the blade of [Ghizawi] with a curving profile as taught by [Burton]
in order to reduce the effects of secondary flow.” Id. at 5 (citing Burton
13).
Appellant traverses, arguing that “Burton pertains to the profile of an
axial stator vane” and “the aerodynamics of an axial stator blade [are]
significantly different than the aerodynamics of a radial turbine blade.”
Appeal Br. 12; see also Reply Br. 3. According to Appellant, “an axial
stator blade does not spin, and is configured to have air travel across the
blade without applying forces in a lateral direction (i.e., in a direction
perpendicular to the flow direction, across the length of the blade between its
root and outer edge),” and, “[o]n the other hand, a radial turbocharger blade,
such as is claimed in claim 1, is configured to turn air between the radial and
axial directions.” Appeal Br. 12. Thus, Appellant asserts, “the preferred
cross-sectional shape [s] of the two blades across the blade from root to tip
would not be expected to be similar” and “a person of skill in the art would
4
Appeal 2016-004278
Application 13/066,827
not find it obvious to modify the radial turbine wheel blade of Ghizawi with
the profile of the Burton axial stator blade.” Id. at 12—13.
Appellant’s arguments are unpersuasive of error. The assertions that a
stator and rotor are so different that a skilled artisan would not apply the
teachings of one to the other is unsupported by any evidence or declaration.
It is well settled that arguments of counsel cannot take the place of factually
supported objective evidence. See, e.g., In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984). Rather, as correctly noted by the Examiner (see Non-Final
Act. 2—3; Ans. 2—3), Ghizawi and Burton are both directed to the same
problem as Appellant’s application — reducing pressure losses. See, e.g.,
Ghizawi 7:39—51; Burton 13; Spec. 13. Thus, the Examiner’s
determination that one of skill in the art would combine the teachings of
Burton with those of Ghizawi is supported by a rational underpinning.
Appellant’s arguments are presented in conclusory fashion with no
supporting evidence or persuasive technical reasoning, and thus fail to
apprise us of error in the Examiner’s rejection.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 1 and its dependent claims 7—10, which are not argued separately, as
being unpatentable over Ghizawi and Burton.
Claims 2—5
Independent claim 2 recites a turbocharger wheel and, in addition to
including the recitations of claim 1, also requires:
wherein the cross-sectional shape of each suction surface, when
taken perpendicular to the flow direction at the streamwise
location, is further characterized at the streamwise location by a
shape defined by a smoothly varying curve that extends across
5
Appeal 2016-004278
Application 13/066,827
the concave inner portion, the intermediate portion and the
concave outer portion, with no inflection points, added to a
cyclical component that extends across the concave inner
portion, the intermediate portion and the concave outer portion,
having at least two inflection points, two of which respectively
delineate the border between inner portion and the blade
intermediate portion, and the border between the blade
intermediate portion and the outer portion.
Appeal Br. 26 (Claims App.).
The Examiner relies on Ghizawi and Burton in rejecting claim 2
similarly as with regard to the rejection of claim 1, and further finds that
Ghizawi discloses a streamwise cross-sectional shape defined by a smoothly
varying curve added to a cyclical component. Non-Final Act. 6 (citing
Burton, Fig. 5). The Examiner further determines that the streamwise cross-
sectional shape recitation is a product-by-process limitation and, therefore,
“has not been given patentable weight.” Id. at 7; see also id. at 3; and Ans.
3.
Appellant traverses, first arguing that claim 2 is allowable for the
same reasons as claim 1 because claim 2 includes all of the recitations of
claim 1. Appeal Br. 13. This argument is unpersuasive for the reasons set
forth above.
Appellant also argues that the recited cross-sectional shape of the
suction surface is a structural limitation, not a method-type limitation. Id. at
14; see also Reply Br. 3.
“A product-by-process claim is ‘one in which the product is defined at
least in part in terms of the method or process by which it is made.’”
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1315 (Fed. Cir.
2006) (citing Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141,
6
Appeal 2016-004278
Application 13/066,827
158 n. (1989)). Here, claim 2 recites that the cross-sectional shape of the
suction surface is defined by a smoothly varying curve added to a cyclical
component, both of which extending across the inner, intermediate, and
outer portions. Appeal Br. 26 (Claims App.). This describes and further
limits the recited suction surface, and, thus, is a structural limitation; the
claim does not require any particular method or process by which the blades,
or the suction surfaces of the blades, is to be made. Therefore, we agree
with Appellant that the Examiner’s determination to the contrary is in error.
Appellant also argues that although the rejection relies on Burton’s
Figure 5 as disclosing the recited suction surface cross-sectional shape as
being defined by a smoothly varying curve added to a cyclical component,
the rejection “fails to identify how it discloses the two curves.” Appeal Br.
13-14.
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (emphasis
added) (cited with approval mKSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007)). We are persuaded that the rejection does not satisfy these
requirements.
The Examiner’s rejection does little more than recite the final
“wherein” clause of claim 2 and state that the recitations are shown in
Burton Figure 5. The Examiner does not explain how this figure shows the
recited smoothly varying curve or cyclical component, or how each of these
curve components extends across the recited inner, intermediate, and outer
7
Appeal 2016-004278
Application 13/066,827
portions. Nor does the Examiner cite to any written description of the curve
depicted in Figure 5 or offer any further explanation in the Examiner’s
Answer. At most, we understand Burton’s Figure 5 to show a smoothly
varying curve extending along the length thereof with an added component
in the central portion thereof. Whether this added component is cyclical or
whether it extends across inner, intermediate, and outer portions of Burton’s
multi-lean vane 122, however, has not properly been established by the
Examiner and is not readily apparent from our review of Burton.
Accordingly, for the foregoing reasons, we do not sustain the rejection
of claim 2 and its dependent claims 3—5 as being unpatentable over Ghizawi
and Burton.
Rejection III
With respect to the rejection of claim 14, Appellant relies on the
arguments presented above in regard to the rejection of claim 1. Appeal Br.
15. Accordingly, for the same reasons as discussed above, we also sustain
the rejection of claim 14 as being unpatentable over Ghizawi, Burton, and
Jansen.
Rejection IV
Claim 15 depends directly from claim 1 and further requires, in
relevant part:
between the hub edges of each successive pair of blades,
the hub forms a hub end-wall extending between the inlet
surface and the outlet surface;
wherein the cross-sectional shape of each hub end-wall,
when taken parallel to the flow direction and represented
8
Appeal 2016-004278
Application 13/066,827
meridionally, is further characterized at the cross-stream
location by a shape defined by a smoothly varying curve that
extends across the concave upstream portion, the streamwise
intermediate portion and the concave downstream portion, with
no inflection points, added to a cyclical component that extends
across the concave upstream portion, the streamwise
intermediate portion and the concave downstream portion,
having at least two inflection points, two of which respectively
delineate the border between the upstream portion and the
streamwise intermediate portion, and the border between the
streamwise intermediate portion and the downstream portion.
Appeal Br. 29 (Claims App.).
The Examiner relies on Ghizawi and Burton as discussed above with
respect to the rejection of claim 1, and further finds that this combination of
references does not disclose the cross-sectional shape of the hub end-wall
surface having a meridional cross-sectional shape defined by a smoothly
varying curve added to a cyclical component as recited in claim 15. Non-
Final Act. 10. The Examiner finds that Hausammann discloses a hub
surface having downstream, intermediate, and upstream portions having a
shape defined by a smoothly varying curve added to a cyclical component.
Id. at 10-11 (providing a copy of Hausammann Figure 3a annotated to show
concave and convex surfaces). The Examiner clarifies that it is the
combination of Hausammann’s cyclic component added to the smoothly
varying curve of Ghizawi’s hub surface that results in the recited meridional
surface shape. Ans. 4. The Examiner reasons that it would have been
obvious to one of ordinary skill to modify Ghizawi’s hub with
Hausammann’s contoured surface “to reduce frictional losses of the flow
stream at the hub surface.” Non-Final Act. 12 (citing Hausammann, 1:58—
60). The Examiner further determines that the cross-sectional end-wall
9
Appeal 2016-004278
Application 13/066,827
shape recitation is a product-by-process limitation and, therefore, “has not
been given patentable weight.” Id. at 11; see also Ans. 5.
Appellant traverses, first arguing that “Hausammann does not define
the cross-sectional shape of each hub end-wall when taken parallel to the
flow direction and represented meridionally.” Appeal Br. 17 (emphasis
omitted).
Although Appellant does not offer an explicit definition of
meridionally, we understand this term to mean a projection onto the plane
defined by the rotational axis and the radial direction (which is defined by
the blades extending away from the hub). See Spec. 148, Fig. 7; see also
Ghizawi 5:41—43, Fig. 3. With the term thus defined, we agree with the
Examiner that Hausammann Figure 3a illustrates a meridional cross-
sectional view of hub surface 4, regardless of whether Hausammann
explicitly describes the view as such. See Ans. 4; Hausammann Figs. 1—3a.
Appellant also argues that the recited shape of the cross-sectional
shape of the end-wall is a structural limitation, not a method-type limitation.
Appeal Br. 17. We agree for the same reasons as set forth above regarding
the rejection of claim 2.
Appellant also argues that “Hausammann fails to disclose a shape that
includes a component that is a smoothly varying curve with no inflection
points extending across the upstream, intermediate and downstream
portions.” Id.', see also Reply Br. 4.
Although Appellant may be correct that Hausammann alone does not
disclose the recited hub end-wall shape, we are unpersuaded of error because
the Examiner relies on the combination of the smoothly varying curve of
10
Appeal 2016-004278
Application 13/066,827
Ghizawi’s hub surface added to Hausammann’s cyclic component. Ans. 4.
Appellant’s arguments are not persuasive because they attack the individual
teachings of Hausammann and do not address what the combination of
references teaches, as explained by the Examiner. “Nonobviousness cannot
be established by attacking references individually where the rejection is
based upon the teachings of a combination of references.” In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Finally, Appellant argues that “Hausammann fails to teach that the
frictional losses are reduced by the shape of the hub surface,” and, thus, the
Examiner’s rationale for combining Hausammann with Ghizawi and Burton
is improper. Appeal Br. 17. Appellant asserts that “as a whole, ... the
Hausammann invention reduces friction losses by overcoming the
requirement of a high number of small length blades, which allows for
greater blade spacing, and thereby removes the hub conditions that occur
with blades that are too close.” Id. at 18. Continuing, Appellant asserts that
such a teaching is inapplicable to the turbocharger wheel of claim 15
because radial turbines “are not known to require a large number of closely
spaced blades.” Id.
Hausammann discloses that its contoured hub surface provides an
asymmetrical pressure distribution on its partition walls (i.e., blade surfaces).
Hausammann 4:73—5:24. As noted by Appellant, this, in turn, reduces
friction losses. Id.', see also Appeal Br. 18. Thus, in considering
Hausammann’s teachings as a whole, we agree with the Examiner that
incorporating Hausammann’s hub end-wall contour into Ghizawi’s hub
would act, at least to some degree, to redirect pressure forces on its blades
11
Appeal 2016-004278
Application 13/066,827
and thereby reduce losses. See Ans. 5. We further note that this is the same
purpose Appellant discloses for the recited hub end-wall shape. See, e.g.,
Spec. 148.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 15 as being unpatentable over Ghizawi, Burton, and Hausammann.
Rejection V
With respect to the rejection of claim 16, Appellant relies on the
arguments presented above in regard to the rejection of claim 15. Appeal
Br. 19. Accordingly, for the same reasons as discussed above, we also
sustain the rejection of claim 16 as being unpatentable over Ghizawi,
Burton, Hausammann, and Jansen.
Rejection IX
With respect to the rejection of claim 26, Appellant relies on the
arguments presented above in regard to the rejection of claim 15. Appeal
Br. 20-23. Accordingly, for the same reasons as discussed above, we also
sustain the rejection of claim 26 as being unpatentable over Ghizawi,
Parsons, and Hausammann.
Rejection VII
Independent claim 18 recites a turbocharger wheel having a hub and a
plurality of blades similarly to that of claim 1, and further requires:
wherein the cross-sectional shape of each suction surface,
when taken perpendicular to the flow direction, is characterized
by a cropped comer extending along the shroud edge of the
suction surface; and
12
Appeal 2016-004278
Application 13/066,827
wherein the cross-sectional shape of each pressurized
surface, when taken perpendicular to the flow direction, is
characterized by a comer that is not cropped along the shroud
edge of the pressurized surface.
Appeal Br. 31 (Claims App.).
The Examiner finds that Ghizawi discloses a turbocharger wheel
substantially as recited in claim 18, but does not explicitly disclose a
cropped comer extending along the shroud edge of the suction surface.
Non-Final Act. 13—14. The Examiner finds that Parsons discloses a suction
surface having a cross-sectional shape perpendicular to the flow direction
that includes a cropped comer extending along the shroud edge, and reasons
that it would have been obvious to one of ordinary skill to include Parson’s
cropped comer with Ghizawi’s blade “to reduce stress at the outer edge of
the blade during operation due to friction.” Id. at 14 (citing Parsons, 1:26—
32). The Examiner explains that in embodiment “f’ of Figure 2, Parsons
teaches “the radially outer edge of the blade adjacent the shroud is cropped,
i.e. cutback, on the suction side only, wherein this cutback, or chamfer, is
along the entire shroud edge.” Ans. 6.
Appellant traverses, arguing that “Parsons fails to disclose [a] blade
tip cropped on a suction side but not on a pressure side.” Appeal Br. 20.
Parsons discloses a turbine blade in which the ends are narrowed to
reduce skin friction between the blade and the shroud, which may be caused
by the presence of a liquid (e.g., water in a steam turbine). Parsons 1:23—38.
Figure 2 represents six modified cross-sections of the turbine blade. Id. at
1:91—93. In embodiment f, the convex surface of the blade includes a
straight taper. Id. at 2:3 4. We note that, like Appellant’s blade, the convex
13
Appeal 2016-004278
Application 13/066,827
side of Ghizawi’s blade is the suction surface. See Ghizawi 5:13—31, Fig. 2;
Spec. 133, Fig. 2. Therefore, we agree with the Examiner that Parsons
teaches a cropped comer on only the suction surface of a blade. Appellant’s
conclusory argument fails to apprise us otherwise.
Appellant presents a new argument in the Reply Brief that was not
made in the Appeal Brief. See Reply Br. 6 (regarding the use of Parson’s
blade in Ghizawi’s turbine). This argument is untimely and will not be
considered, as Appellant fails to show good cause as to why the argument
could not have been timely presented in the Appeal Brief. See 37 C.F.R.
§ 41.41(b)(2). We further note that the absence of any opportunity for the
Examiner to respond to this untimely argument precludes meaningful
appellate review.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 18 and its dependent claims 19—24, which are not argued separately,
as being unpatentable over Ghizawi and Parsons.
Rejection II
With respect to the rejection of claims 11—13, Appellant relies on the
argument presented above in regard to the rejection of claim 18. Appeal Br.
15. Accordingly, for the same reasons as discussed above, we also sustain
the rejection of claims 11—13 as being unpatentable over Ghizawi, Burton,
and Parsons.
Rejection VI
With respect to the rejection of claim 17, Appellant relies on the
arguments presented above in regard to the rejection of claim 18. Appeal
14
Appeal 2016-004278
Application 13/066,827
Br. 19. Accordingly, for the same reasons as discussed above, we also
sustain the rejection of claim 17 as being unpatentable over Ghizawi,
Burton, Hausammann, Jansen, and Parsons.
Rejection VIII
With respect to the rejection of claim 25, Appellant relies on the
arguments presented above in regard to the rejection of claim 18. Appeal
Br. 20. Accordingly, for the same reasons as discussed above, we also
sustain the rejection of claim 25 as being unpatentable over Ghizawi,
Parsons, and Jansen.
Rejection X
With respect to the rejection of claim 27, Appellant relies on the
arguments presented above in regard to the rejections of claims 18 and 26.
Appeal Br. 24. Accordingly, for the same reasons as discussed above, we
also sustain the rejection of claim 27 as being unpatentable over Ghizawi,
Parsons, Hausammann, and Jansen.
DECISION
The Examiner’s decision to reject claims 1—5 and 7—10 as being
unpatentable over Ghizawi and Burton is affirmed as to claims 1 and 7—10
and reversed as to claims 2—5.
The Examiner’s decision to reject claims 11—13 as being unpatentable
over Ghizawi, Burton, and Parsons is affirmed.
The Examiner’s decision to reject claim 14 as being unpatentable over
Ghizawi, Burton, and Jansen is affirmed.
15
Appeal 2016-004278
Application 13/066,827
The Examiner’s decision to reject claim 15 as being unpatentable over
Ghizawi, Burton, and Hausammann is affirmed.
The Examiner’s decision to reject claim 16 as being unpatentable over
Ghizawi, Burton, Hausammann, and Jansen is affirmed.
The Examiner’s decision to reject claim 17 as being unpatentable over
Ghizawi, Burton, Hausammann, Jansen, and Parsons is affirmed.
The Examiner’s decision to reject claims 18—24 as being unpatentable
over Ghizawi and Parsons is affirmed.
The Examiner’s decision to reject claim 25 as being unpatentable over
Ghizawi, Parsons, and Jansen is affirmed.
The Examiner’s decision to reject claim 26 as being unpatentable over
Ghizawi, Parsons, and Hausammann is affirmed.
The Examiner’s decision to reject claim 27 as being unpatentable over
Ghizawi, Parsons, Hausammann, and Jansen 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)(l)(iv).
AFFIRMED-IN-PART
16