Ex Parte 6,663,347 et al

Patent Trial and Appeal Board

Nov 1, 2013

95000431 (P.T.A.B. Nov. 1, 2013)

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.
95/000,431 01/29/2009 6,663,347 038569/340597 5913
26239 7590 11/04/2013
FISH & RICHARDSON P.C.
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
TILL, TERRENCE R
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
11/04/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE PATENT TRIAL AND APPEAL BOARD
____________

HONEYWELL INTERNATIONAL, INC.
Requester
1

v.

BORGWARNER, INC.
Patent Owner and Appellant
____________

Appeal 2013-007701
Reexamination Control 95/000,431
Patent 6,663,347 B2
Technology Center 3900
____________

Before CHUNG K. PAK, JEFFREY B. ROBERTSON, and
RAE LYNN P. GUEST, Administrative Patent Judges.

GUEST, Administrative Patent Judge.

DECISION ON APPEAL

1
Honeywell International, Inc. (Requester) did not participate in this
appeal. See Requester’s Notice of Withdrawal From the Proceeding,
filed August 11, 2011.
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2

This is a decision on appeal by BorgWarner, Inc.
2
(hereinafter “Patent
Owner”) from the Patent Examiner’s decision to reject pending claims 1-7 in
an inter partes reexamination of U.S. Patent 6,663,347 B2 (hereinafter “the
’347 Patent”).
3
The Board’s jurisdiction for this appeal is under 35 U.S.C.
§§ 6(b), 134(b), and 315(a).
We AFFIRM.
I. BACKGROUND
A request for inter partes reexamination under 35 U.S.C. §§ 311-318
and 37 C.F.R. §§ 1.902-1.997 for the ‘347 Patent was filed January 29, 2009
by Requester (Request for Inter Partes Reexamination). An oral hearing
was held on October 2, 2013. A transcript of the oral hearing will be entered
into the record in due course.
The ’347 Patent is directed to a titanium compressor wheel having
both aerodynamic efficiency and manufacturability. ’347 Patent, col. 4,
ll. 8-21. More particularly, the ’347 Patent is directed to a simplified blade
design, which is aerodynamically comparable, and yet can be produced in an
investment casting process using a wax pattern easily producible at low cost
from an automated and pullable die. Id. at col. 4, ll. 46-53.
Claims 1-7 are pending and stand rejected. Right of Appeal Notice 3-
10, mailed August 27, 2012 (hereinafter “RAN”); PO App. Br. 5. The
claims are all original claims which have not been amended during
reexamination. Claim 1, 5 and 7 are the independent claims. Claim 1 is
representative and reads as follows:

2
See Patent Owner Appeal Brief 3, filed November 26, 2012 (hereinafter
“PO App. Br.”).
3
The ’347 Patent issued December 16, 2003, to David Decker et al.
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1. A titanium centrifugal compressor wheel formed by an
investment casting process, and including:
a hub defining an axis of rotation, and
a plurality of backswept aerodynamic blades carried on
the surface of said hub and defining air passages between
adjacent blades,
wherein each of said air passages is defined by from one
to three solid die inserts which can be inserted between and
pulled from between said blades without deformation of said
dies or blades.
PO App. Br. 35, Claim App’x.
The claims stand rejected as follows;
1. Claims 1, 3-5 and 7 under 35 U.S.C. § 102(b) as anticipated by
Hofmeister (RAN 3-4);
4

2. Claims 1 and 3-7 under 35 U.S.C. § 103(a) as unpatentable over
Hofmeister in view of Solar (RAN 5-6);
5

3. Claim 2 under 35 U.S.C. § 103(a) as unpatentable based on the
rejections to claim 1 above further in view of Hyll (RAN 6-7 and
8-9);
6

4. Claims 3 and 7 under 35 U.S.C. § 103(a) as unpatentable based on
the rejections to claim 1 above further in view of Fabiani (RAN 7-
8 and 9-10).
7

4
EP 0 728 545 A2, published August 28, 1996, and naming Heinz
Hofmeister et al. as inventors (hereinafter “Hofmeister”). All reference to
Hofmeister is to the English language translation of record.
5
Alvin N. Hammer, Evaluation of Cast Titanium Alloy Compressor
Components, Volume 1, published by U.S. Department of Commerce,
National Technical Information Service on behalf of Solar Turbines
International (November 1981) (hereinafter “Solar”).
6
US 4,706,928, issued November 17, 1987, to John Hyll.
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1. ANTICIPATION BY HOFMEISTER
Claims 1, 3-5 and 7 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Hofmeister.
Independent claim 1 recites, inter alia, a titanium centrifugal
compressor wheel with air passages between blades designed such that
“from one to three solid die inserts . . . can be inserted between and pulled
from between said blades without deformation of said dies or blades.”
Independent claims 5 and 7 recite, inter alia, a titanium centrifugal
compressor wheel (a) having a “leading edge” which is “substantially a
straight edge” and (b) having blades designed such that one or more solid die
inserts “can be inserted between adjacent blades and retracted along a radial
or curved path.” Dependent claim 3 recites that “the number of die inserts
necessary to define the air passage between said blades is two.” PO App.
Br. 35-36, Claim App’x.
The Requester argued, and the Examiner agreed, that Hofmeister
describes a titanium centrifugal compressor wheel which meets all the
limitations of the independent claims. RAN 3-4. The Examiner determined
that the claims provide no limitation with respect to the term “pulled” or the
phrase “along a radial or curved path” so as to preclude the dies being pulled
in an ‘“S’ curve,” as described by Hofmeister. RAN 35. Indeed, the lead
cams 10 of Figure 2 of Hofmeister define the movement of the mold parts 5
away from the molded structure in an “S-shaped” curve including an

7
DE 1806757, published May 21, 1970, and naming Nicola Fabiani as the
sole inventor. All reference to Fabiani is to the English language translation
of record.
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inflection point 44. Hofmeister, col. 10, ll. 26-28 and 35-39. Figure 2 of
Hofmeister is reproduced below.

Figure 2 depicts a top view of the transport mechanism 30 of a
compressor blade wheel mold with a partially cutaway view of the
underlying tension plate 7. The blade interspace mold segments 5 are
illustrated by way of example in the starting position A and in the demolding
position B. Hofmeister, col. 5, ll. 2-8, col. 6, l. 56 to col. 7, l. 3, and col. 9,
ll. 49-52.
With respect to claims 5 and 7, the Requester argued, and the
Examiner agreed, that Hofmeister teaches a compressor blade wheel with a
blade having a leading edge that is substantially a straight edge because
“[t]he term substantially allows for some degree of curvature to the leading
edge.” RAN 3 and 19.
Patent Owner contends that a correct interpretation of the claims,
based on statements in the ’347 Patent, require that the dies be pulled along a
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“straight radial path” or along a “simple or compound curve.” PO App.
Br. 14.
Patent Owner further contends that Hofmeister fails to teach a blade
with a leading edge that is “substantially a straight edge.” PO App. Br. 21
and 25-26. Patent Owner contends that the term “substantially a straight
edge” requires (a) an “absence of dips or humps” and (b) a curvature that
“does not interfere with pullability of die inserts.” Id.
With respect to claim 3, Patent Owner further argues that Hofmeister
fails to teach two die inserts defining an air passage between blades.
PO App. Br. 26.
Accordingly, much of our discussion for this rejection focuses on
claim interpretation.
During reexamination, “claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d
831, 833 (Fed. Cir. 1990)).
“[W]e look to the specification to see if it provides a definition for
claim terms, but otherwise apply a broad interpretation.” In re ICON Health
and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). “[L]imitations are
not to be read into the claims from the specification.” In re Van Geuns, 988
F.2d 1181, 1184 (Fed. Cir. 1993). ‘“[R]eading a claim in the light of the
specification,’ to thereby interpret limitations explicitly recited in the claim,
is a quite different thing from ‘reading limitations of the specification into a
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claim,’ to thereby narrow the scope of the claim by implicitly adding
disclosed limitations which have no express basis in the claim.” In re
Prater, 415 F.2d 1393, 1404 (CCPA 1969).
When the Specification expresses a clear disavowal or disclaimer of
coverage extended by a claim, the claim is read as having such limited scope
as expressly stated by the Specification. See In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004); In re Am. Acad. of Science Tech Ctr., 367 F.3d at
1369. However, “[m]ere criticism of a particular embodiment encompassed
in the plain meaning of a claim term is not sufficient to rise to the level of
clear disavowal.” Thorner v. Sony Computer Entertainment America LLC,
669 F.3d 1362, 1366 (Fed. Cir. 2012) (citing Epistar Corp. v. Int’l Trade
Comm’n, 566 F.3d 1321, 1335 (Fed. Cir. 2009)).
Therefore, we look to the specification for a definition of claim terms,
but otherwise apply a broad interpretation.

“pulled” and “retracted along a radial or curved path”
The ’347 Patent does not define the term “pulled” but provides a
definition for the term “pullable,” namely “can be withdrawn radially or
along a curvature.” ’347 Patent, col. 6, ll. 54-57. In light of this definition,
we find it reasonable to interpret the term “pulled” in claim 1 to be
consistent with the express language of claims 5 and 7, namely “retracted
along a radial or curved path.” However, we disagree with Patent Owner
that the term “curvature” or the phrase “along a . . . curved path” should be
more narrowly interpreted to preclude an “S-shaped” curve as taught by
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Hofmeister, because, as further explained infra, an “S-shaped” pattern has “a
curvature” and an “S-shaped” path is “a curved path.”
The ‘347 Patent does not expressly define “curvature.” Accordingly,
we turn to the plain meaning of the term. The term “curvature” means “the
state of being curved” and the term “curve” means “deviation from a straight
line or plane surface without sharp breaks or angularity.”
8
Thus, the “S-
shaped” or “inflected” path, by which the die inserts of Hofmeister are
removed, falls within the broadest reasonable interpretation of the claims,
inasmuch as such paths constitute a smooth curved shape without sharp
angles or breaks.
The ’347 Patent states that the die inserts “must be extractable along a
straight line or simple curve” in the context of “aspects that were taken into
consideration” in making a die insert retractable. ’347 Patent, col. 6, l. 57-
col. 7, l. 3 and col. 7, ll. 49-57. While some or all of these considerations
may have been considered in designing the compressor wheel exemplified in
the figures of the ’347 Patent, claim 1 only requires that dies are “pulled”
which is expressly defined as radially or along a curvature. No other of
these listed “considerations” of the compressor wheel are recited in claim 1
to warrant narrowing the scope of the claims to the particularly designed
compressor wheel of the ’347 Patent.
9
For example, the ’347 Patent also
describes wide “blade spacing” and limited “rake and/or backsweep” so as to

8
See Merriam Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/curvature and http://www.merriam-
webster.com/dictionary/curve, accessed October 28, 2013.
9
Claim 5 and claim 7 further recite another of these considerations, namely
that the leading edge is substantially straight, which we discuss in detail
infra.
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not “impede extraction of the inserts along a straight line or a simple curve.”
See ’347 Patent, col. 6, ll. 60-62 and col. 8, ll. 27-30. We decline to read
into the claims any blade spacing, rake or backsweep, and, accordingly, we
decline to read into the claims any particular curvature by which the die
inserts must be removed, as these features are not recited in the claims.
Patent Owner has directed us to no persuasive rationale as to why these
considerations should be read into the claims.
While the ’347 Patent provides a particular embodiment via Figures 7-
10 in which the dies are pulled “radially” or “along some simple or
compound curve” (col. 6, ll. 18-19; col. 9, ll. 1-7), neither the language of
the claims nor the definition of “pullable” discussed above limit the claimed
retraction path to a straight radial path, a single curved path, or a compound
curved path as argued by Patent Owner. The mere presence of exemplary
paths is not a disavowal or disclaimer as to any other shape that may be
defined as “a curvature” or “a curved path.”
We note that the U.S. District Court for the District of North Carolina,
Asheville Division, in the case styled BorgWarner Inc. v. Honeywell Int’l,
Inc., Civil Case No. 1:07cv184, interpreted the term “pulled” in the
’347 Patent as “withdrawn radially or along a curvature to render the pattern
easily removable from the die.” PO App. Br., Related Proceedings App’x,
Exhibit 2 at 51. The District Court further defined “easily removable” to
mean “withdrawn a sufficient distance from the closed position so as to clear
the periphery of the wax pattern so that the pattern may be easily removed
from the die.” Id. at 47. Our interpretation is consistent with the District
Court interpretation. Specifically, there is insufficient evidence to suggest
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the S-shaped path taught by Hofmeister does not reflect a path by which the
dies are easily removed from the wax pattern. In fact, Hofmeister states that
“the horizontal guiding of the mold segments on the cam plate facilitates
precise withdrawal of the mold segments from the three-dimensionally
shaped areas between the individual blades, thereby avoiding damage to the
three-dimensionally curved blade contour.” Hofmeister, col. 4, ll. 3-9.
Hofmeister teaches “a simple and exact demolding process for the blade
interspaces” that “allows for the casting or injection process to be
automated.” Id. at col. 11, ll. 3-8. Accordingly, we find that Hofmeister
teaches easy removal of the die inserts for the withdrawal of the wax pattern
from the mold.
Patent Owner places much emphasis on the statement in Hofmeister
that its backsweep is such that “it is no longer possible to merely pull out the
blade interspace segments 5.” Hofmeister, col. 5, ll. 35-48. However,
Hofmeister describes overcoming this problem using the mold described
therein having an S-shaped pathway to remove the die inserts. Id. at col. 48-
51 (“At this point the invention employs the mold illustrated in Figures 1-3
for manufacturing the described centrifugal compressor impeller 20.”).
Accordingly, Patent Owner’s contentions in this regard are not persuasive.
Patent Owner further contends that the District Court, in a decision on
Summary Judgment, further defined the term “pulled” as being along a
“simple or compound curve” by distinguishing the claims from the “zig zag
withdrawal” of inserts in a piece of prior art the District Court refers to as
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“Holset Wheel.”
10
See PO App. Br. 23-24 and Related Proceedings App’x,
Exhibit 3 at 28-29. In that decision, the Court stated that it “construed this
term [“pulled”] to mean that the inserts were ‘withdrawn radially or along a
curvature,’ not a series of curvatures, as now contended by Honeywell.” Id.
For the reasons discussed above, we consider an “S-shaped curve” to
be “a curvature” in the same manner that one would describe a sine or cosine
as a curve despite its inflection points.
Moreover, we need not defer to the District Court’s interpretation, as
the District Court uses a different standard in interpreting claims. See In re
Am. Acad. of Sci. Tech. Ctr., 367 F.3d at 1369 (“[I]t is error for the Board to
‘appl[y] the mode of claim interpretation that is used by courts in litigation,
when interpreting the claims of issued patents in connection with
determination of infringement and validity.”’). We do not consider the
District Court’s interpretation of “a curvature” as “not a series of curvatures”
to be the broadest reasonable interpretation read in light of the specification
as it would be interpreted by one of ordinary skill in the art. A general rule
of claim interpretation is that the term “a” means “one or more.” Baldwin
Graphic Systems, Inc. v. Siebert, 512 F.3d 1338, 1341 (Fed. Cir. 2008)
(“That ‘a’ or ‘an’ can mean ‘one or more’ is best described as a rule, rather

10
The “Holset Wheel” reference is not before us in this proceeding, and
Patent Owner has provided no sufficient evidence that the prior art before us
describes the same “zig zag withdrawal” pattern disclosed in the reference
considered by the District Court. We understand a zigzag shape to be
distinguishable from an “S-shaped” curve, due to a zigzag shape having
abrupt or angled turns. See Merriam Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/zigzag, accessed October 28,
2013 (“one of a series of short sharp turns, angles, or alterations in a
course”).
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than merely as a presumption or even a convention. The exceptions to this
rule are extremely limited: a patentee must ‘evince[ ] a clear intent’ to limit
‘a’ or ‘an’ to ‘one.’”) (quoting KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d
1351, 1356 (Fed.Cir.2000)). The ’347 Patent expresses no clear intent to
limit the curvature to a simple curve or a compound curve. Mere exemplary
embodiments of a straight curve or a compound curve cannot be reasonably
attributed to an intent to disclaim all other curved paths that provide for easy
removal of a die insert. From Phillips v. AWH Corp., 415 F.3d 1303, 1323
(Fed. Cir. 2005) (en banc) (“[A]lthough the specification often describes
very specific embodiments of the invention, we have repeatedly warned
against confining the claims to those embodiments.”).

“substantially straight edge”
The ’347 Patent does not define the phrase “substantially straight” and
does not limit the scope of the phrase to any particular degree of
straightness. However, the ’347 Patent states that
the leading edge 17 of the blades are essentially straight, having
no dips or humps which would impede radial extraction of die
inserts. That is, there may be a slight rounding up 18 (i.e.,
continuation of the blade along the blade pitch) where the blade
joins the hub, but this curvature does not interfere with
pullability of die inserts.
’347 Patent, col. 8, ll. 1-6. The ’347 Patent also references Figure 4 as
showing “a substantially straight shoulder of the blade from neck 18 to
tip 19.” ’347 Patent, col. 8, ll. 34-37. Figure 4 is reproduced below for
clarity.
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Figure 4 depicts a side profile view of one full blade 14 and one
splitter blade 15 of a compressor wheel. ’347 Patent, col. 6, ll. 3-5; col. 7,
ll. 65-67.
The word “substantially” has been construed many times by our
reviewing court. It can be a term of approximation or a term of magnitude
with meaning varying from “significantly” or “considerably” to “largely” or
“essentially.” See Deering Precision Instruments L.L.C. v. Vector
Distribution Sys. Inc., 347 F.3d 1314, 1321 (Fed. Cir. 2003). While the
modifier “substantially” certainly does broaden the term “straight” to some
degree, it “cannot be allowed to negate the meaning of the word it modifies.”
See In re Hauserman, Inc., 892 F.2d 1049, 15 USPQ2d 1157, 1158 (Fed.
Cir. 1989) (unpublished)(quoting Arvin Industries, Inc. v. Berns Air King
Corp., 525 F.2d 182, 185 (7th Cir. 1975) and citing Borg-Warner Corp. v.
Paragon Gear Works, Inc., 355 F.2d 400, 404 (1st Cir. 1965)).
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We determine that the phrase “substantially straight” allows for some
curvature to the leading edge of the blade, but must be sufficiently straight
such that any curvature to the leading edge does not interfere with pullability
of die inserts. As discussed above, we find the blades of Hofmeister provide
that the die inserts used therein are “pullable.” Patent Owner has presented
no meaningful evidence that any curvature of the leading edge of the blade
of Hofmeister particularly impedes the pullability of the die inserts, and such
a finding would be contrary to teachings of the S-shaped path by which
Hofmeister’s die inserts can be pulled.
Based on our review of Figure 4 of Hofmeister, we also find that the
leading edge of the blade of Hofmeister is substantially straight, with a
curvature formed where the blade meets the hub. Figure 4 of Hofmeister is
reproduced below.

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Figure 4 of Hofmeister depicts a top view of a centrifugal compressor
impeller. Hofmeister, col. 5, ll. 13-17. Figure 4 has been annotated to add a
dotted line illustrating a substantially straight leading edge.
Hofmeister states that “angle 24” is “between the leading edge 26 and
the trailing edge 25 of the full blade 22.” Hofmeister, col. 5, ll. 39-41.
Accordingly, Figure 4 provides a straight line defining the leading edge 26
as a portion of angle 24. Figure 4 has been annotated with a dotted line on
another blade, similar to the line defining the leading edge portion of
angle 24, to show where the blade appears to be substantially straight with
curvature occurring closer to the hub.
Accordingly, we find that Hofmeister’s blade has a leading edge
meeting the “substantially straight” requirement of claims 5 and 7.

Claim 3
With respect to claim 3, we disagree with Patent Owner that
Hofmeister fails to teach two die inserts defining an air passage between
blades. See PO App. Br. 26. The Examiner has found that Hofmeister
“teaches two solid die inserts 15 and 16, which are inserted between adjacent
full blades 22” such that “the interface between inserts 15 and 16 form the
splitter blade 21.” RAN 25.
We agree with the Examiner that the two die inserts recited in claim 3
do not preclude the use of two such die inserts to characterize the formation
of a splitter blade, similar to the splitter blades 15 described in the ’347
Patent. We find it of no moment that Hofmeister describes disadvantages of
“molds composed of multiple parts or individual segments,” since
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Hofmeister expressly discloses a mold comprised of multiple die inserts 15
and 16.

Patent Owner does not separately argue the patentability of claim 4.
Thus, claim 4 falls with claim 1 from which it depends.
For the reasons discussed above, we find that Hofmeister anticipates
claims 1, 3-5 and 7 of the ’347 Patent.

2. OBVIOUSNESS BASED ON HOFMEISTER AND SOLAR
Claims 1, 3-5 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hofmeister in view of Solar. The Examiner provided
fact-based reasoning for rejecting the claims. RAN 5-6. Patent Owner
identifies no defect in the Examiner’s fact-finding or reasoning over those
discussed above with respect to Hofmeister. PO App. Br. 30. The rejection
is affirmed for the reasons set forth by the Examiner.

3,4. REJECTIONS OF CLAMS 2, 3, AND 7
Claims 2, 3 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hofmeister in view of additional prior art. The Examiner
provided fact-based reasoning for rejecting the claims. RAN 6-10. Patent
Owner identifies no defect in the Examiner’s fact-finding or reasoning over
those discussed above with respect to Hofmeister. PO App. Br. 31-33. The
rejection is affirmed for the reasons set forth by the Examiner.

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TIME PERIOD FOR RESPONSE
In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under
37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a)
of this section, for requesting further rehearing under paragraph (d) of this
section, and for submitting comments under paragraph (c) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after
November 2, 2002 may not be taken “until all parties' rights to request
rehearing have been exhausted, at which time the decision of the Board is
final and appealable by any party to the appeal to the Board.” 37 C.F.R.
§ 41.81. See also MPEP § 2682 (8th ed., Rev. 7, July 2008).

AFFIRMED

ak

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PATENT OWNER:

Fish & Richardson, P.C.
P.O. Box 1022
Minneapolis, MN 55440-1022

THIRD-PARTY REQUESTER:

Donald M. Hill, Jr.
Alston & Bird, LLP
Bank of America Plaza
101 South Tryon Street
Suite 4000
Charlotte, NC 28280-4000