Ex parte Banks et al.

Board of Patent Appeals and Interferences

Mar 18, 1998

07887002 (B.P.A.I. Mar. 18, 1998)

Application for patent filed May 22, 1992.1
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte DANIEL W. BANKS, RICHARD M. WOOD
and STEVEN X. S. BAUER
________________
Appeal No. 95-4237
Application 07/887,0021
________________
ON BRIEF
________________
Before ABRAMS, STAAB and McQUADE, Administrative Patent
Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-6,
all the claims in the application.
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Appellants’ invention pertains to a device for
controlling the pressure load on a member caused by movement
of the member relative to a fluid, such member being, for
example, a forebody, canopy, fuselage, wing, or tail of an
aircraft. Independent claim 1, a copy of which is appended to
appellants’ brief, is illustrative of the subject matter on
appeal.
The references of record relied upon by the examiner in
support of rejections under 35 U.S.C. § 102(b) and 35 U.S.C.
§ 103 are:
Eknes 3,794,274 Feb. 26, 1974
Anxionnaz 3,951,360 Apr. 20,
1976
Lurz 4,664,345 May 12,
1987
Clites 4,726,548 Feb. 23, 1988
Miller et al. (Miller) 4,991,797 Feb. 12, 1991
The following rejections are before us for review:
(a) claims 1-6 under 35 U.S.C. § 102(b) as being
anticipated by Anxionnaz;
(b) claims 1-6 under 35 U.S.C. § 102(b) as being
anticipated by Miller;
(c) claims 1-5 under 35 U.S.C. § 102(b) as being
anticipated by Eknes;
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(d) claims 1-5 under 35 U.S.C. § 102(b) as being
anticipated by Lurz; and
(e) claims 1-6 under 35 U.S.C. § 103 as being
unpatentable over Clites in view of Lurz.
The rejections are explained on pages 3-7 of the answer.
The opposing viewpoints of appellants are set forth on
pages 5-11 of the brief.
The § 102 rejections based on Anxionnaz, Miller or Eknes
(rejections (a), (b) and (c))
We will not sustain any of these rejections.
Claim 1, the sole independent claim on appeal, calls for
a porous outer skin separated from a solid inner surface by a
plenum “such that fluid from a high pressure area on the
surface of the member enters the plenum through the porous
outer skin and exits the plenum through the porous outer skin
into a low pressure area on the surface of the member.” Claim
1 further calls for a transpirational control device “for
controlling flow through the porous outer skin by regulating
the conditions in the plenum such that the pressure load on
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Application 07/887,002
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the member is controlled.”
In rejecting claim 1 as being anticipated by Anxionnaz,
Miller or Eknes, the examiner considers the blower 14 of
Anxionnaz, the elements 12, 34 of Miller, and the valves 22a,
22b of Eknes as corresponding to the claimed transpirational
control device. The examiner also takes the position that the
holes or pores in the outer surface of each of the references
will allow flow to move in either direction depending on the
pressure differential present (answer, pages 3 and 4). In
this latter regard, the examiner further explains on pages 6-7
that
[w]hat is being claimed is that . . . a member
subject to pressure loads has a porous surface where
flow can go in and out, which is true of any surface
with holes in it and is setting in a flow that
fluctuates[,] thus fluctuating the pressure around
it and thus flow in and out of the holes. It is
also noted as stated above that the claims do not
specify any structure or means that would cause flow
in and out of the same holes as continually argued
by the Appellant.
Based on the above, it is apparent that the examiner’s
anticipation rejections based on Anxionnaz, Miller and Eknes
raise a question of inherency with respect to the reference
structures. Inherency may not be established by probabilities
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or possibilities. The mere fact that a certain thing may
result from a given set of circumstances is not sufficient.
In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA
1981). We are mindful that there is a line of cases
represented by In re Swinehart, 439 F.2d 210, 213, 169 USPQ
226, 229 (CCPA 1971) which indicates that where an examiner
has reason to believe that a functional limitation asserted to
be critical for establishing novelty in the claimed subject
matter may, in fact, be an inherent characteristic of the
prior art, the examiner possesses the authority to require an
applicant to prove that the subject matter shown to be in the
prior art does not possess the characteristic relied on.
Nevertheless, before shifting the burden to appellant, the
examiner must provide some evidence or scientific reasoning to
establish the reasonableness of the examiner’s belief that the
functional limitation is an inherent characteristic of the
prior art. In the case before us, no such evidence or
reasoning has been set forward with respect to Anxionnaz,
Miller or Eknes.
Anxionnaz pertains to a device for preventing the
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boundary layer over the surface of a body of an aircraft in
flight from acquiring the thickness of which changeover into
turbulence can be produced (column 1, lines 44-48). To this
end, a series of rearwardly facing orifices 3 are provided in
the wing of the aircraft, which orifices communicate with one
of several hollow interior portions 12 (see Figures 8 and 9)
of the wing. Portions 12 are in fluid communication with the
low pressure or suction side of a blower 14 driven by a motor
15. The blower lowers the pressure in the hollow interior
wing portions 12 such that a portion of the boundary layer
flow is drawn off through each of the orifices 3. The blower
delivers the drawn off flow to a propulsion nozzle 17 oriented
in the opposite direction to that of the absolute velocity of
the aircraft. A plurality of independently adjustable hinged
flaps can be provided at the connection between each portion
12 and the blower so that the flow from the respective
portions can be independently varied.
Miller relates to “cooling of aerodynamically heated
surfaces,” and in particular to “surface cooling for infrared
signature reduction using a combination of pressure and
temperature induced phase change of a coolant from liquid to
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vapor in a transpiration cooled skin” (column 1, lines 6-11).
For this purpose, liquid coolant under pressure is provided
from a storage tank 10 through valves 40 to a plurality of
plenum chambers 50. The liquid coolant is maintained in
contact with the inner surface 48 of the porous skin of the
vehicle. The liquid coolant flows through the porous skin
toward the outer surface thereof, but vaporizes before it
reaches the outer surface. “The transpired vapor 30 exits
through the aerodynamic surface of the skin, is entrained into
the boundary layer flow and is swept downstream along the
outer surface of the skin providing a film cooling region 32
on adjacent solid wall sections 20 as shown in FIG. 1” (column
4, lines 17-22). Storage tank 10 is kept under pressure by a
pressure vessel 12. Control of liquid coolant flow to the
plenum chambers is accomplished by a pressure regulator 34
provided between the pressure vessel and the storage tank.
Eknes pertains to a device for reducing sonic boom
intensity. The device comprises nose portion 11 having a
porous outer skin 15 separated from a solid inner surface 14
by a plenum 16. Air entering the plenum via the holes 13 in
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the nose portion is directed by directional valves 22a, 22b
either (1) along the length of the fuselage until it exits
through tail portion 17, or (2) to channels in the wings 20
and then to the jet engine compressors 21. Depending on the
cross-section of the nose surface, an air pump or similar
device may be utilized in the plenum (column 3, lines 12-18).
In Figure 9, Eknes discloses an alternative embodiment wherein
the plenum chamber does not extend beyond the nose, and
wherein exit apertures 13a are provided on the fuselage skin
15 substantially to the rear of the intake apertures 13 such
that fluid flow exists out of the plenum. In this alternative
embodiment, “the continuous passageways along the length of
the fuselage 12 are eliminated, but a substantial degree of
venting of the surface area of the nose 11 remains” (column 5,
lines 39-42).
Turning to the examiner’s rejections, we appreciate the
point the examiner is trying to make with respect to the
theoretical possibility of fluid flow into and out of the
holes 3 of Anxionnaz’s device, the porous skin of Miller, and
the holes 13 of Eknes’s device. However, the examiner’s
position that the reference structures would be capable of
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functioning in the manner set forth in claim 1 does not appear
to take into account the reference structures in their
entirety. In this regard, Anxionnaz’s blower 14 “maintain[s]
a pressure slightly lower than that which is created by the
speed of flow at the inlets to these orifices [3]” (column 1,
lines 65-68) so that a small fraction of boundary layer flow
is drawn in through each of the orifices (column 2, line 65
through column 3, line 5). The blower delivers this air flow
in the opposite direction to the propulsion nozzle 17 (column
6, lines 36-38). This operation certainly would appear to
have an impact on the ability of the orifices 3 of Anxionnaz
to function in the manner called for in claim 1. Further, the
presence of the liquid coolant in the plenum chambers and
pores of Miller would appear to have an impact on the ability
of Miller’s porous skin to function in the manner called for
in claim 1. As to Eknes, the operation of the jet engine
compressors when plenum air is directed into channels 19, and
the presence of the large exit port in the tail portion of the
aircraft when plenum air is directed along the fuselage, would
likewise appear to have an impact on the ability of Eknes’s
Appeal No. 95-4237
Application 07/887,002
With respect to Eknes, while Figure 9 thereof2
illustrates fluid flow both into the plenum chamber via holes
13 and out of the plenum chamber via holes 13a, the examiner
is not understood to be relying on this embodiment in his
anticipation rejection. In any event, this embodiment does
not appear to include anything that can be regarded as
corresponding to the transpirational control device required
by claim 1.
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device to function in the manner called for in claim 1. In2
light of these disclosures, the examiner anticipation
rejections based on Anxionnaz, Miller or Eknes are, at best,
speculative. Accordingly, a prima facie case of anticipation
based on Anxionnaz, Miller or Eknes has not been established.
See In re Oelrich, supra.
The § 102 rejection based on Lurz
(rejection (d))
We will sustain this rejection.
Lurz pertains to a method for stabilizing laminar flow
over a disturbance in the surface contour of a body in the
flow, e.g., where sheet metal layers overlap in the surface of
an aircraft wing. This is accomplished by providing a suction
inlet section 6 in the form of a series of small openings in
the body just upstream from the surface disturbance 1 in a
high pressure zone 4, a blowing outlet section 6’ in the form
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of a series of small openings in the body just downstream from
the surface disturbance in a low pressure zone 3, and an
interconnection defined by quieting chambers 8, 8’, flow
channel 2 and throttle valve 7 for interconnecting the inlet
and outlet sections. In operation, a portion of the boundary
layer flow upstream of the surface disturbance is drawn off
through the suction section 6, passes through the chamber 8,
throttle valve 7, flow channel 2 and chamber 8’, and is blown
out the blowing section 6’. The throttle valve is stated to
control the flow quantity through the channel 2 (column 4,
lines 47-49). “The transport of boundary material layer
through the flow channel 2 is assured due to the pressure
differential )C between the suction inlet zone 4 and the blowp
outlet zone 3” (column 4, lines 49-52).
In rejecting claim 1 as being anticipated by Lurz, the
examiner has found, and appellants have not disputed, that (1)
the inlet and outlet sections 6, 6’ constitute a porous outer
skin, (2) the inner surface of the channel 2 constitutes a
solid inner surface, (3) the flow channel 2 itself constitutes
a plenum separating the porous outer skin from solid inner
surface, and (4) the throttle valve 7 constitutes a
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transpirational control device. As to the flow of fluid with
respect to the porous skin and plenum in Lurz, clearly the
sections 6, 6’ and interconnection 2, 7, 8, 8’ of Lurz are
arranged such that fluid from a high pressure area (high
pressure zone 4) on the surface of the member enters the
plenum (flow channel 2) through the porous outer skin (at
suction inlet 6) and exits the plenum through the porous outer
skin (at blowing outlet 6’) into a low pressure area (low
pressure zone 3) on the surface of the member 5, as called for
by claim 1. In addition, in that the throttle valve 7 of Lurz
controls a condition (flow quantity) in the plenum that
affects pressure upstream and downstream of the surface
disturbance 1, the valve reasonably appears to be capable of
controlling pressure load on the member 5, at least to some
degree, as called for in the last paragraph of claim 1. In
light of the foregoing, the examiner’s rejection of claim 1 as
being anticipated by Lurz is well founded.
Appellants’ arguments on pages 10-11 of the brief with
respect to the rejection based on Lurz are not persuasive that
the examiner erred in rejecting claim 1 as being anticipated
by Lurz. While we appreciate that there may very well be
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differences in operation between Lurz’s device and appellants’
disclosed device, these alleged differences are not reflected
in claim language appellants have chosen to use. The law of
anticipation does not require that the reference teach
specifically what an appellant has disclosed and is claiming
but only that the claims on appeal “read on” something
disclosed in the reference, i.e., all limitations of the claim
are found in the reference. See Kalman v. Kimberly-Clark
Corp., 713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983),
cert. denied, 465 U.S. 1026 (1984), (and overruled in part on
another issue) 775 F.2d 1107, 227 USPQ 577 (Fed. Cir. 1985).
This is the case here with respect to the Lurz reference, in
our view.
We will also sustain the examiner’s § 102 rejection of
claim 3 based on Lurz since appellants state (brief, page 4)
that this claim will stand or fall with base claim 1. In
addition, we will sustain the examiner’s § 102 rejection of
claim 2 based on Lurz since appellants have not argued this
dependent claim with any reasonable degree of specificity
apart from claim 1. See, for example, In re Nielson, 816 F.2d
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1567, 1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987).
As to claims 4 and 5, appellants state on page 10 of the
brief that “[t]he present invention is not used to control
boundary layer separation [as in Lurz] and the holes are
larger than 1000 microns (Claims 4 and 5).” Neither of claims
4 and 5 calls for the perforations in the outer skin to be
larger than 1000 microns, and this limitation cannot be read
thereinto. In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ
541, 550-551 (CCPA 1969). Accordingly, appellants’ statement,
to the extent it may considered a separate argument for
patentability of claims 4 and 5, is not commensurate in scope
with the invention as claimed. In that features not claimed
may not be relied upon in support of patentability (In re
Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982)), as
argued, we will also sustain the examiner’s rejection of
claims 4 and 5 as being anticipated by Lurz.
The § 103 rejection based on Clites and Lurz
(rejection (e))
We will not sustain this rejection.
An objective of Clites is to provide a simple means for
controlling the boundary layer air flow over an airfoil, with
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no moving parts or airfoil shape changes being required
(column 1, lines 27-30). To this end, perforations are
provided in the airfoil, and the interior of the airfoil is
sectioned off by partitions into a forward chamber 25 and a
rearward chamber 26, with the chambers in communication via a
plenum chamber 127 at the tip of the airfoil. In addition, an
air outlet 31 is formed in the plenum chamber at the outermost
end of the airfoil. In operation, air enters the forward
chamber via the perforations in response to forward travel of
the airfoil through the atmosphere, exits through the plenum
chamber 127 and air outlet 31, and in the process “induce[s]
air to enter the second [rearward] chamber via perforations or
slots 30, efficiently removing boundray [sic, boundary] layer
air from over the [rear of the] airfoil” (column 2, lines 59-
63).
In rejecting claims 1-6 as being unpatentable over Clites
in view of Lurz, the examiner has considered that it would
have been obvious “to provide the chambers of Clites with a
valve as taught by Lurz [at valve 7] since it would provide
additional control” (answer, page 6). Implicit in the
rejection is the examiner’s position that the proposed
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modification would result in a device that corresponds in all
respects to that which in claimed.
In view of the disparate structures and objectives of
Lurz and Clites, it is not clear to us why one of ordinary
skill in the art would have found the proposed modification
desirable, and thus obvious. Further, it is not clear how a
throttle valve like that disclosed by Lurz at valve 7 would be
incorporated into Clites, nor is it apparent that the
resulting structure would function in the manner called for in
claim 1. In light of these deficiencies in the rejection, we
cannot sustain this rejection.
Summary
Rejections (a), (b), (c) and (e) are reversed.
Rejection (d), namely, the rejection of claims 1-5 as
being anticipated by Lurz, is affirmed.
The decision of the examiner is affirmed-in-part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
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NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
LAWRENCE J. STAAB ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOHN P. McQUADE )
Administrative Patent Judge )
Appeal No. 95-4237
Application 07/887,002
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Kimberly A. Chasteen
Nasa Langley Research Center
Mail Stop 212
Hampton, VA 23681-0001