Ex Parte Davis et al

Patent Trial and Appeal Board

Nov 15, 2017

13368677 (P.T.A.B. Nov. 15, 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.
13/368,677 02/08/2012 Todd A. Davis PA-021281U;67097-1761PUS1 1027
54549 7590 11/17/2017
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
SUTHERLAND, STEVEN M
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
11/17/2017 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 TODD A. DAVIS and BRIAN P. CIGAL
Appeal 2017-001512
Application 13/368,6771
Technology Center 3700
Before STEFAN STAICOVICI, MICHAEL L. HOELTER, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Todd A. Davis and Brian P. Cigal (“Appellants”) appeal under
35 U.S.C. § 134(a) from the Examiner’s decision in the Final Action (dated
Feb. 29, 2016, hereinafter “Final Act.”) rejecting claims 1—8 and 11—20. We
have jurisdiction over this appeal under 35 U.S.C. § 6(b).
1 According to Appellants’ Appeal Brief (hereinafter “Appeal Br.”),
filed June 16, 2016, United Technologies Corporation is the real party
in interest. Appeal Br. 2.
Appeal 2017-001512
Application 13/368,677
SUMMARY OF DECISION
We AFFIRM.
INVENTION
Appellants’ invention relates to “the location of a speed sensor probe
in a gas turbine engine.” Spec. para. 2.
Claims 1,17, and 19 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A gas turbine engine comprising:
a fan;
a fan drive gear system coupled to drive the fan about an
engine central axis;
a compressor section including a first compressor and a
second compressor aft of the first compressor;
a turbine section including:
a first turbine coupled to drive a first spool, the
first spool being coupled at a first axial position to a
compressor hub that is coupled to drive the first
compressor and the first spool being coupled at a second
axial position to a fan drive input shaft that is coupled to
drive the fan drive gear system, and a second turbine
coupled through a second spool to drive the second
compressor; and
a speed sensor probe operable to determine a rotational
speed of the first spool, the speed sensor probe being located
axially aft of the first axial position and the second axial
position and also axially between an aft-most stage of the first
compressor and the second compressor.
REJECTIONS
I. The Examiner rejected claims 12—14 and 16 under 35 U.S.C.
§ 112, second paragraph, as being indefinite.
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Application 13/368,677
II. The Examiner rejected claims 1—3, 6, 7, and 11—20 under
35 U.S.C. § 103(a) as being unpatentable over Jane’s Aero
Engines, pp. 510-512 (ed. Bill Gunston, 2000) (hereinafter
“Jane”) and Rowe (US 2004/0187473 Al, published Sept. 30,
2004).
III. The Examiner rejected claims 4 and 5 under 35 U.S.C. § 103(a)
as being unpatentable over Jane, Rowe, and Nelson et al. (US
4,854,120, issued Aug. 8, 1989, hereinafter “Nelson”).
IV. The Examiner rejected claim 8 under 35 U.S.C. § 103(a) as
being unpatentable over Jane, Rowe, and Ralston et al. (US
4,716,723 issued Jan. 5, 1988, hereinafter “Ralston”).
ANALYSIS
Rejection I
The Examiner finds that the limitations “greater than 2.3:1” of claims
12 and 14, “greater than 2.5:1” of claim 13, and “greater than 6” of claim 16,
recite “an open range and do[] not include an upper limit.” Final Act. 2—3.
Thus, according to the Examiner, “[although there are current practical
design constraints for the upper limit,” nonetheless, a person of ordinary
skill in the art, “would not know the upper limit of the claimed range for
engines in the future, making an inherent upper limit. . . unclear.” Id.
Appellants argue that not reciting an upper limit does not in itself
make the claims indefinite. Appeal Br. 4 (citing In re Fisher, 427 F.2d 833
(CCPA 1970) and Ex Parte Feulner et al., Appeal 2013-010469 (PTAB Oct.
23, 2015)). According to Appellants, in Fisher, the court held that an open-
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Application 13/368,677
ended numerical ratio is definite, and in Feulner, the Board stated, ‘“[a]
claim ... is not made unclear simply because an upper boundary is not
specified.’” Id. Appellants further contend that a person of ordinary skill in
the art “would recognize that bypass ratios and gear reduction ratios have
inherent upper limits based on the practical physical limitations and basic
architecture of a bypass turbine engine.” Id. at 5. Appellants explain that
“[a]n infinite bypass ratio and an infinite gear reduction ratio would be
unachievable and impractical because no air would be provided into the core
engine (for an infinite bypass ratio) and there would be no power transferred
through the gear (for an infinite gear reduction ratio).” Id.', see also Reply
Brief 2 (dated Nov. 8, 2016, hereinafter “Reply Br.”).
The Examiner responds that “[tjhere is not an inherent upper limit for
a gear reduction ratio or a bypass ratio” and Appellants have “not provided
evidence on the record that the upper limit for the claimed ranges exists.”
Examiner’s Answer 2 (dated Sept. 9, 2016, hereinafter “Ans.”). According
to the Examiner, “Appellants’] argument that ‘there are practical limits to
the ratios’ is a mere allegation without factual support in the record.” Id.
The Examiner further opines that in contrast to the disputed limitations,
Fisher “provides an inherent upper limit to the range” and “Board decisions
are not [only] precedential,” but “the range in [Feulner] ... is for hydraulic
diameters . . . [and not] gear reduction ratios and bypass ratio of the fan
drive turbine claimed in the instant application.” Id. at 2—3.
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
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Appeal 2017-001512
Application 13/368,677
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986). In this case, we
agree with Appellants that there is no “ambiguity or anything about the
absence of upper limits to the [claimed] ratios that is unclear.” Reply Br. 3.
By not specifying an upper limit to the claimed ratios of claims 12—14 and
16, the claims are merely broad, not indefinite. See In re Johnson, 558 F.2d
1008, 1016 n. 17 (CCPA 1977) (breadth is not indefiniteness). In other
words, the claims are not made unclear simply because an upper boundary is
not specified. Here, the claims expressly reach any gear reduction ratio or
bypass ratio having values greater than 2.3:1 and 6, respectively, no matter
how large the ratios may be. Hence, the scope of the claims, although it is
broad, is nonetheless clear.
In conclusion, for the foregoing reasons, we do not sustain the
rejection under 35 U.S.C. § 112, second paragraph, of claims 12—14 and 16
as being indefinite.
Rejection II
Appellants have not presented arguments for the patentability of
claims 2, 3, 6, 7, and 11—20 apart from claim 1. See Appeal Br. 7—8.
Therefore, in accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 1
as the representative claim to decide the appeal of the rejection of these
claims, with claims 2, 3, 6, 7, and 11—20 standing or falling with claim 1.
The Examiner finds that Jane discloses a gas turbine engine including,
inter alia,
a fan (solid shroudless fan); a fan drive gear system (fan drive
gear system) coupled to drive the fan about an engine central
axis; a compressor section (LPC and High Compressor)
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Appeal 2017-001512
Application 13/368,677
including a first compressor (LPC) and a second compressor
(High Compressor); a turbine section (High Turbine and Low
Pressure Turbine) including: a first turbine (Low pressure
turbine) coupled to drive a first spool (fig. below), the first
spool being coupled at a first axial position to a compressor hub
(fig. below) that is coupled to drive the first compressor and the
first spool being coupled at a second axial position to a fan
drive input shaft (fig. below) that is coupled to the fan drive
gear system, and a second turbine (high turbine) coupled
through a second spool (fig. below) to drive the second
compressor.
Final Act. 3^4. Shown below is the Examiner’s annotated version of the
figure at the bottom of Jane’s page 511:
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The Examiner’s annotated version of the figure at the bottom of Jane’s page
511 shows a fan, a fan drive system, low and high pressure compressors, low
and high pressure turbines, and first and second axial positions. Id. at 5.
The Examiner further finds that Jane fails to disclose “a speed sensor probe
aft of the first and second axial positions and between an aft-most stage of
the first compressor and the second compressor that measures the speed of
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Application 13/368,677
the first spool.” Id. at 4. Nonetheless, the Examiner finds that Rowe
discloses “using a speed sensor (84) between a first and second compressor
section (53 and 54) that measures the speed of the first spool (spool
connected to 53) and sends the rotational speed of the spool to a controller
(84 connected to controller 102).” Id. According to the Examiner, Rowe’s
sensor 84 is “axially aft of a compressor hub {point of connection of
compressor 53 to the shaft in figure 3).” Advisory Action 2 (dated Apr. 14,
2016, hereinafter “Adv. Act.”) (emphasis added). Thus, the Examiner
concludes that
[i]t would have been obvious to one of ordinary skill in the art
at the time of invention to place the speed sensor of Rowe
between the first and second compressor sections of Jane, as
taught by Rowe, in order to determine the speed of the first
spool and use the speed to control the supply of fuel to the
combustor.
Final Act. 4 (citing Rowe para. 24); see also Rowe, Fig. 3.
Appellants argue that the Examiner’s rejection is incomplete because
“it is unclear where the alleged ‘point of connection’ is in [either] Rowe [or
Jane] or how the sensor is allegedly axially aft of such point when Rowe
does not describe the point or a relative position between the point and the
sensor.” Appeal Br. 8. According to Appellants, “in Fig. 3 of Rowe, the
sensor appears to be forward of the [compressor] hub, contrary to the recited
limitations.” Id.
As Rowe’s drawings are not indicated being drawn to scale, we
appreciate that Rowe does not disclose with specificity where the shaft of
the second spool, formed by intermediate pressure turbine 57 and
intermediate pressure compressor 53, connects to intermediate pressure
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Application 13/368,677
compressor 53. See Rowe, paras. 47^49, Fig. 3. However, we are not
persuaded by Appellants’ arguments because such arguments attack Jane
and Rowe individually, whereas the rejection as articulated by the Examiner
is based on a combination of Jane and Rowe. Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
In this case, the Examiner is correct in that Jane discloses “a first axial
position connecting the compressor hub to the first spool.” Ans. 3. As the
Examiner correctly finds, Jane discloses “a first turbine (Low pressure
turbine) coupled to drive a first spool... the first spool being coupled at a
first axial position to a compressor hub . . . that is coupled to drive the first
compressor” LPC. See Final Act. 3^4; see also the Examiner’s annotated
version of the figure at the bottom of Jane’s page 511. The Examiner is also
correct in that Rowe discloses speed sensor 84 located between an aft-most
stage of first and second compressors 53, 54. See Ans. 3; see also Rowe,
Fig. 3. We thus agree with the Examiner “that when the speed sensor [84] of
Rowe is placed between the aft-most stage of the first compressor [LPC] and
the second compressor [High Compressor] of Jane’s . . . [gas turbine
engine], as taught by Rowe, the speed sensor [84] will be located axially aft
of the first axial position of Jane’s . . . [gas turbine engine]. Ans. 3. In other
words, when modifying Jane’s gas turbine engine to include Rowe’s speed
sensor 84, in the Examiner’s rejection the speed sensor 84 would be located
aft of a “first axial position,” where a first spool couples to first compressor
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Appeal 2017-001512
Application 13/368,677
LPC, and also between the aft-most stage of the first compressor LPC and
the High Compressor.
Appellants also argue that although the Examiner’s rejection provides
reasoning to combine the disclosures of Jane and Rowe, namely, “to
determine speed,” the Examiner does not identify any reason for providing
Rowe’s speed sensor at the claimed location in Jane’s engine. See Reply Br.
3. According to Appellants, “the mere desire to measure speed does not
require the purported sensor location of Rowe.” Id. Appellants explain that
“one would not put the sensor of Rowe immediately aft of the LPC if there
were a desire to measure speed,” because “[tjhere appears to be a bearing
radially inboard of that location . . . and thus there is nowhere from which to
read the speed.” Id. at 4 (emphasis added).
We are not persuaded by Appellants’ arguments because the
Examiner is not purporting to position Rowe’s sensor 84 “immediately aft of
the LPC,” of Jane, but rather “between the first and second compressor
sections of Jane,” that is, in the region between compressor LPC and High
Compressor. See Final Act. 4. Appellants’ assertion that in the Examiner’s
modification “there is nowhere from which to read the speed” is unsupported
attorney argument and cannot take the place of evidence in the
record. Reply Br. 4; see also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997) (emphasis added). We must attribute skill to the hypothetical person
described in 35 U.S.C. § 103(a). In re Sovish, 769 F.2d 738, 742 (Fed. Cir.
1985). The fact that some judgment and mechanical skill may be required to
select the appropriate location to position Rowe’s sensor 84 in the region
between Jane’s compressor LPC and High Compressor in order to arrive at
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Application 13/368,677
the recited combination does not necessarily mean that such combination
constitutes a nonobvious invention. Graham v. John Deere Co. of Kansas
City, 383 US 1, 10—12 (1966) (discussing Hotchkiss v. Greenwood, 11 How.
248 (1851)). The Examiner’s modification of Jane’s gas turbine engine is
derived from Rowe, which discloses the use of a speed sensor 84 located
between first and second compressor sections 53, 54 of a gas turbine engine
to measure the speed of a first spool connected to compressor 53 and hence
control the amount of fuel provided to combustor 55. See Final Act. 4; see
also Rowe, paras. 24, 47-49, Fig. 3. Accordingly, a person of ordinary skill
in the art of gas turbine engines would have known where to position
Rowe’s speed sensor 84 in the region between Jane’s compressor FPC and
High Compressor, in order, “to determine the speed of the first spool and use
the speed to control the supply of fuel to the combustor.” See Final Act. 4.
Fastly, we note that the Examiner’s reasoning to provide Rowe’s
sensor 84 to Jane’s gas turbine engine, at the claimed location, is not only to
determine speed, as Appellants argue, but also to “use the speed to control
the supply of fuel to the combustor.” Id. (citing Rowe, para. 24). As such,
the Examiner’s modification is an improvement to Jane’s gas turbine engine
to add Rowe’s speed sensor 84 at the claimed location to lead to a
predictable result, namely, “to determine the speed of the first spool and use
the speed to control the supply of fuel to the combustor” (see Final Act. 4).
Moreover, the modification is well within the skill of a person having
ordinary skill in this art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007) (“[I]f a technique has been used to improve one device, and a person
of ordinary skill in the art would recognize that it would improve similar
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Application 13/368,677
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.”). Appellants have not persuasively
shown error in the Examiner’s reasoning.
In conclusion, for the foregoing reasons, we sustain the rejection
under 35 U.S.C. § 103(a) of independent claim 1 as unpatentable over Jane
and Rowe. Claims 2, 3, 6, 7, and 11—20 fall with claim 1.
Rejections III and IV
As to Rejections III and IV, Appellants rely on the same arguments
discussed supra, with respect to Rejection II. See Appeal Br. 7—8.
Accordingly, for the same reasons as discussed above, we likewise
sustain the rejections under 35 U.S.C. § 103(a) of claims 4 and 5 as
unpatentable over Jane, Rowe, and Nelson, and of claim 8 as unpatentable
over Jane, Rowe, and Ralston.
SUMMARY
The Examiner’s decision to reject claims 12—14 and 16 under
35 U.S.C. § 112, second paragraph, is reversed.
The Examiner’s decision to reject claims 1—8 and 11—20 under
35 U.S.C. § 103(a) 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
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