Ex Parte Dionne

Patent Trial and Appeal Board

Oct 14, 2016

12048431 (P.T.A.B. Oct. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/048,431 03/14/2008
57221 7590 10/17/2016
BACHMAN & LAPOINTE, P.C. (PWC)
900 CHAPEL STREET
SUITE 1201
NEW HAVEN, CT 06510-2814
FIRST NAMED INVENTOR
Luc DIONNE
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2993-359us-l-l-l JR/as 4878
EXAMINER
XAVIER, VALENTINA
ART UNIT PAPER NUMBER
3647
MAILDATE DELIVERY MODE
10/17/2016 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 THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUC DIONNE
Appeal2014-005632
Application 12/048,431
Technology Center 3600
Before LINDA E. HORNER, JILL D. HILL, and MARK A. GEIER,
Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Luc Dionne (Appellant)1 seeks our review under 35 U.S.C. § 134 of
the Examiner's decision, as set forth in the Final Action, dated April 30,
2013 ("Final Act."), rejecting claims 60-63 under 35 U.S.C. § 102(b) as
anticipated by U.S. Patent 5,265,408, issued November 30, 1993 to Sheoran
et al. ("Sheoran"). Claims 1-34 and 42-48 are canceled, and claims 35--40,
49-59, and 65 are allowed. Final Act. 1. Claim 64 is objected to as being
1 Appellant identifies the real party in interest as Pratt & Whitney Canada
Corp., a wholly owned subsidiary of United Technologies Corporation.
Appeal Br. 1.
Appeal2014-005632
Application 12/048,431
dependent upon a rejected base claim.2 Final Act. 4. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Appellant's claimed subject matter relates to "cooling systems for
auxiliary power units on airplanes." Spec., para. 2. Claim 60 is the sole
independent claim on appeal and is reproduced below.
60. A method of improving airflow through an educted
heat exchanger, the method comprising the steps of:
providing a gas turbine exhaust flow;
using the exhaust flow to entrain a heat exchange air flow
through a heat exchanger and into the exhaust flow, the heat
exchanger airflow and the exhaust flow mixing together at a
mixing plane; and
iniectirn.! nressurized sur!.!e bleed air into the !.!as turbine
J '-' _._ '-' '-'
exhaust flow,
wherein said injection occurs upstream of the mixing
plane.
ANALYSIS
Independent claim 60 recites, in pertinent part, "the heat exchanger
airflow and the exhaust flow mixing together at a mixing plane" and
"injecting pressurized surge bleed air into the gas turbine exhaust flow,
wherein said injection occurs upstream of the mixing plane." Appeal Br. 9
2 We do not review the objection to claim 64, except to note that claim 64
does not depend from a rejected base claim. Rather, claim 64 depends from
allowed claim 35. Appeal Br. 9-10 (Claims App.).
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Appeal2014-005632
Application 12/048,431
(Claims App.). The Examiner found that Sheoran discloses the method of
claim 60 including "injecting pressurized surge bleed air into the gas turbine
exhaust flow (via surge conduit 68 by joining an exhaust ejector- the
conical portion attached downstream of 32) upstream of the mixing plane."
Final Act. 3 (referring to Sheoran, Fig. 1 ). The Examiner annotated Figure 1
of Sheoran to depict the location of the mixing plane.
Reproduced above is Figure 1 of Sheoran annotated by the Examiner
with a line labeled "MP" to indicate the location of the claimed "mixing
plane." Id. The outlet of surge conduit 68 is located upstream of the
location of the mixing plane identified by the Examiner.
Appellant introduced three declarations by the inventor, Luc Dionne,
in support of the argument that the Examiner erred in identifying the
location of the mixing plane of Sheoran. First Declaration Under 3 7 C.F .R.
§ 1.132 by Luc Dionne, signed March 22, 2012 ("First Dec."); Supplemental
Declaration Under 37 C.F.R. § 1.132 by Luc Dionne, signed January 10,
2013 ("Second Dec."); and Supplemental Declaration Under 37 C.F.R.
§ 1.132 by Luc Dionne, signed April 3, 2014 ("Third Dec."). The Third
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Appeal2014-005632
Application 12/048,431
Declaration was filed for the first time with Appellant's Reply Brief and is
untimely. 37 C.F.R. § 41.4l(b)(l) ("A reply brief shall not include ... any
new or non-admitted affidavit or other Evidence."). As such, we do not
consider the Third Declaration in reaching our decision in this appeal. In the
First Declaration and the Second Declaration, Appellant attests, in pertinent
part, that "[t]he mixing plane is clearly understood in the art to be where the
mixing begins." First Dec., para. 11; Second Dec., para. 10. In the Second
Declaration, Appellant further attests that in Figure 2 of Sheoran, "the
mixing plane would be the plane containing the trailing edge 75." Second
Dec., para. 6. Appellant argues that the Examiner's finding "ignores the
clear teaching of the more detailed Sheoran et al. FIG. 2 ... [in which] the
asserted surge bleed air is introduced at 96 which is downstream of the
mixing plane at 75." Reply Br. 9; see also First Dec., para. 16.
We agree with Appellant's reading of Sheoran. The Examiner erred
in interpreting the schematic illustration of Figure 1 of Sheoran in a vacuum
without resort to the remainder of the disclosure in Sheoran. See Ans. 5
("Examiner has not referred to ... Figure 2 of Sheoran"). Figure 2 of
Sheoran is "a cross-section of the aft portion of the [auxiliary power unit] in
[Figure] l." Sheoran, col. 2, 11. 57-58. As argued by Appellant, Figure 2
makes clear that the location marked by the Examiner with the label "MP" is
not the mixing plane, and that the "surge bleed air is introduced at 96[,]
which is downstream of the mixing plane". Appeal Br. 7; Reply Br. 9; see
also First Dec., para. 16. In particular, Sheoran discloses, with reference to
Figure 2, that exhaust flow 48 and cooling flow 58 mix in the area referred
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Appeal2014-005632
Application 12/048,431
to as mixing duct 54, which is located just downstream of lobe trailing edge
75. Sheoran, col. 4, 11. 30-35; Fig. 2. Sheoran further discloses that surge
bleed flow 56 is introduced into the mixing duct 54 downstream of lobe
trailing edge 75. Sheoran, col. 4, 11. 41--49, Fig. 2. Thus, Sheoran does not
disclose injecting surge bleed flow upstream of the mixing plane, as recited
in independent claim 60.
For this reason, we do not sustain the rejection of independent claim
60, or its dependent claims 61-63, under 35 U.S.C. § 102(b) as anticipated
by Sheoran.
DECISION
The decision of the Examiner to reject claims 60-63 is REVERSED.
REVERSED
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