Ex Parte Fukuda

Patent Trial and Appeal Board

Nov 28, 2017

14070811 (P.T.A.B. Nov. 28, 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.
14/070,811 11/04/2013 Koki FUKUDA OBA-51835 1850
116 7590 11/30/2017
PFARNF fr GORDON T T P
EXAMINER
1801 EAST 9TH STREET JONES, CHRISTOPHER P
SUITE 1200
CLEVELAND, OH 44114-3108 ART UNIT PAPER NUMBER
1776
NOTIFICATION DATE DELIVERY MODE
11/30/2017 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):
patdocket@peame.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KOKI FUKUDA
Appeal 2017-002540
Application 14/070,811
Technology Center 1700
Before KAREN M. HASTINGS, JAMES C. HOUSEL,
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1-10, 15, and 16.3 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 In this decision, we refer to the Specification filed November 4, 2013
(“Spec.”), the Non-Final Office Action mailed November 27, 2015 (“Non-
Final Act.”), the Appeal Brief filed April 19, 2016 (“Appeal Br.”), the
Examiner’s Answer mailed October 25, 2016 (“Ans.”), and the Reply Brief
filed November 29, 2016 (“Reply Br.”).
2 Appellant is the Applicant, Mitsubishi Aircraft Corp., which, according to
the Appeal Brief, is the real party in interest. Appeal Br. 3.
3 The rejections of claims 11-14 and 17 under pre-AIA 35 U.S.C. § 103(a)
were withdrawn by the Examiner in the Answer. Ans. 2-3.
Appeal 2017-002540
Application 14/070,811
The claims are directed to a system that supplies gas enriched with
nitrogen to an aircraft fuel tank. Spec. 1, ^ 1. Claim 1, reproduced below
from the Claims Appendix of the Appeal Brief, is illustrative of the claims
on appeal.
1. A nitrogen enriched air supply system which supplies
nitrogen enriched air that is enriched with nitrogen to a fuel
tank of an aircraft, the system comprising:
a nitrogen enrichment unit that produces the nitrogen
enriched air upon supply of bleed air from a flight engine of the
aircraft;
a flow regulation unit that controls a supply of the
nitrogen enriched air to the fuel tank;
a residual fuel detector that detects an amount of residual
liquid fuel remaining in the fuel tank during a flight of the
aircraft; and
a control unit that controls the supply in the flow
regulation unit and acquires information regarding the amount
of residual liquid fuel detected by the residual fuel detector,
wherein the control unit controls the supply in the flow
regulation unit so as to obtain a supply flow rate Fs having a
predetermined relationship with a required amount Fn of the
nitrogen enriched air required to be supplied to the fuel tank in
at least a part of a descent phase of the aircraft, the required
amount Fn being dependent upon the amount of residual liquid
fuel remaining in the fuel tank.
Appeal Br. 12 (Claims Appendix).
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1: Claims 1-10 under pre-AIA 35 U.S.C. § 103(a) over
Leigh et al. (US 2005/0115404 Al, published June 2, 2005) (“Leigh”) in
2
Appeal 2017-002540
Application 14/070,811
view of Chen et al. (US 2005/0286054 Al, published December 29, 2005)
(“Chen”);
Rejection 2: Claims 15 under pre-AIA 35 U.S.C. § 103(a) over Leigh
in view of Chen and Manatt (US 4,556,180, issued December 3, 1985)
(“Manatt”);
Rejection 3: Claim 16 under pre-AIA 35 U.S.C. § 103(a) over Leigh
in view of Chen and Loss et al. (US 2005/0224654 Al, published October
13, 2005) (“Loss”).
DISCUSSION
Appellant argues the claims as a group, including separately rejected
claims 15 and 16. Appeal Br. 7-11. Thus, we select claim 1 as
representative of the rejected claims, and the remaining claims on appeal
will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Upon consideration of the evidence on this record and each of
Appellant’s contentions, we find that the preponderance of evidence
supports the Examiner’s conclusion that the subject matter of Appellant’s
claims is unpatentable over the applied prior art. We sustain the Examiner’s
§ 103(a) rejections essentially for the reasons set out by the Examiner in the
Non-Final Office Action and Answer. We add the following.
As an initial matter, the Examiner concludes that the claim requires
the control unit to control the supply in the flow regulation unit that
functions “so as to obtain” some predetermined relationship between the
supply flow rate, Fs, and some required amount of nitrogen enriched air, Fn.
Ans. 4-5 (Construing “so as to obtain” as equivalent to “resulting in.”).
Because Appellant’s Specification does not define what constitutes a
3
Appeal 2017-002540
Application 14/070,811
“predetermined relationship,” the Examiner concludes that any relationship
between the supply flow rate and some “required amount Fn of the nitrogen
enriched air required to be supplied to the fuel tank in at least a part of a
descent phase of the aircraft” satisfies this claim limitation. Id. at 3. The
Examiner also concludes that because the Specification does not define what
constitutes a “required amount,” the claimed “required amount” is construed
as any amount. Id. at 4.
The Examiner finds that Leigh discloses an air supply system that
supplies nitrogen enriched air to a fuel tank of an aircraft. Final Act. 2
(citing Leigh Abstract). The Examiner finds that Leigh’s Figure 1 depicts a
system that includes a nitrogen enrichment unit that produces nitrogen
enriched air upon supply of bleed air from a flight engine of the aircraft
(bleed air inlet 12a), and an air separation module (ASM) that includes a
flow regulation unit that controls the supply of the nitrogen enriched air to
the fuel tank (flow control valve 46 and flow control orifices 48 and 50), and
a control unit that controls the supply in the flow regulation unit (a flow
control shut-off valve actuator 44). Final Act. 2 (citing Leigh 22; Fig. 1).
The Examiner finds that Chen discloses a fuel level sensor
(corresponding to the claimed residual fuel detector) that can be used in
tandem with air separation module (ASM) sensors for oxygen and flow rate
to determine the time required for the inerting system to purge the ullage
gases to an acceptable level. Final Ac. 2-3 (citing Chen 46). Based on
this teaching, the Examiner finds that one of ordinary skill in the art would
have been led to modify Leigh’s system to include a fuel level sensor in
tandem with ASM sensors for oxygen and flow rate, as taught by Chen, to
4
Appeal 2017-002540
Application 14/070,811
determine the time required for the inerting system to purge the ullage gases
to an acceptable level. Final Act. 3.
Because Leigh’s system, as modified by Chen, includes all the
structural elements required by claim 1 ’s system, the Examiner finds that
Leigh’s modified system is capable of controlling “the supply in the flow
regulation unit so as to obtain a supply flow rate Fs having a predetermined
relationship with a required amount Fn of the nitrogen enriched air required
to be supplied to the fuel tank in at least a part of a descent phase of the
aircraft, the required amount Fn being dependent upon the amount of
residual liquid fuel remaining in the fuel tank.” Final Act. 3; Ans. 5.
Appellant argues that “nothing in Chen indicates that the flow rate is
variable, much less variable according to a predetermined relationship with
the amount of Fn of the nitrogen enriched air required” where “the
predetermined relationship is dependent upon the amount of residual fuel
remaining in the fuel tank.” Appeal Br. 8. Appellant also argues that “the
claimed control unit is required to be specifically configured with a
predetermined relationship between a supply flow rate Fs and a specific
variable Fn based on the residual liquid fuel in the fuel tank.” Id. at 9-10.
Appellant’s arguments are not persuasive because Appellant is
arguing limitations not recited in the claim. Claim 1 recites:
the control unit controls the supply in the flow regulation unit so
as to obtain a supply flow rate Fs having a predetermined
relationship with a required amount Fn of the nitrogen enriched
air required to be supplied to the fuel tank in at least a part of a
descent phase of the aircraft, the required amount Fn being
dependent upon the amount of residual liquid fuel remaining in
the fuel tank.
5
Appeal 2017-002540
Application 14/070,811
As shown above, claim 1 does not require that the flow rate be variable, let
alone variable according to a predetermined relationship with the amount of
the nitrogen enriched air, Fn. Nor does claim 1 require that the control unit
“be specifically configured” to perform a particular function.4 Limitations
not appearing in the claims cannot be relied upon for patentability. In re
Self, 671 F.2d 1344, 1348 (CCPA 1982). Rather, as the Examiner points
out, claim 1 simply requires that the control unit “controls the supply in the
flow regulation unit” with the result being some relationship between the
supply flow rate, Fs, and some required amount of nitrogen enriched air, Fn.
Ans. 4-5.
Appellant’s argue that the combination of Leigh and Chen does not
teach, or otherwise renders obvious, a control unit that controls the supply in
the flow regulation unit “so as to obtain a supply flow rate Fs having a
predetermined relationship with a required amount Fn of the nitrogen
enriched air required to be supplied to the fuel tank in at least a part of a
descent phase of the aircraft, the required amount Fn being dependent upon
4 We find that the facts of the cases cited by Appellant distinguishable from
the present case because unlike the claims at issue in both Ex Parte Fisher,
2012 WL 3903344 (BPA1 2012), and Typhoon Touch Techs., Inc. v. Dell.,
Inc., 659 F.3d 1376, 1380 (Fed. Cir. 2011), the present claims do not require
that the control unit is “configured to” control the supply in the flow
regulation unit. Moreover, claims reciting “configured to” without
sufficiently definite structure for performing the various recited functions
have been held to be indefinite under 35 U.S.C. § 112, second paragraph,
where the Specification fails to disclose an algorithm corresponding to the
recited function. See, e.g., Ex parte Lakkala, 2013 WL 1341108, *2 (PTAB
2013) (expanded panel) (informative) (holding that “a processor . . .
configured . . . to” perform various functions is a “means-plus-function”
limitation). We note that Appellant’s Specification does not appear to
disclose such an algorithm for performing the recited control function.
6
Appeal 2017-002540
Application 14/070,811
the amount of residual liquid fuel remaining in the fuel tank” as required by
claim 1. Appeal Br. 10.
Appellant’s argument is not persuasive of reversible error. Appellant
does not dispute the Examiner’s finding that Leigh in combination with
Chen discloses the structural limitations of claim 1. Compare Final Act. 2^1
with Appeal Br. 7-11. Nor does Appellant challenge the Examiner’s reason
for modifying Leigh in view of Chen. Id. As the Examiner correctly points
out, the claim requires the control unit to control the supply in the flow
regulation unit resulting in some relationship between the flow rate, Fs, and
some required amount of nitrogen enriched air, Fn, required to be supplied
to the fuel tank in at least a part of a descent of the aircraft. Ans. 4-5.
Because Leigh’s control unit controls the supply in the flow regulation unit
(Leigh ^ 22), we agree with the Examiner that Leigh’s control unit would
necessarily obtain, or at least be capable of obtaining, a supply flow rate, Fs,
having some relationship with a required amount of nitrogen enriched air, Fn
during all stages of flight, including the descent phase. Ans. 3. Appellant
does not persuasively argue or direct us to sufficient evidence that Leigh’s
modified apparatus is not capable of performing the functionally defined
limitations. In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997).
Thus, on this record, we determine that the preponderance of the
evidence weighs most heavily in favor of obviousness of the subject matter
recited in claims 1-10, 15, and 16.
DECISION
For the above reasons, the rejections of claims 1-10, 15, and 16 are
affirmed.
7
Appeal 2017-002540
Application 14/070,811
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
8