Ex Parte Gomez et al

Patent Trial and Appeal Board

Aug 21, 2018

13760604 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/760,604 02/06/2013
23280 7590 08/23/2018
Davidson, Davidson & Kappel, LLC
589 8th A venue
16th Floor
New York, NY 10018
FIRST NAMED INVENTOR
Sergio Elorza Gomez
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.
5038.1134 5379
EXAMINER
WHITE, DWAYNE J
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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):
ddk@ddkpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERGIO ELORZA GOMEZ and TIM SCHNEIDER 1
Appeal2017-007987
Application 13/760,604
Technology Center 3700
Before: DANIEL S. SONG, LEE L. STEPINA, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision to reject claims 1-7, 9, 10, and 17. We have jurisdiction under 35
U.S.C. § 6(b ).
We REVERSE.
1 Appellants' Appeal Brief indicates that MTU Aero Engines AG is the real
party in interest. Appeal Br. 2.
Appeal2017-007987
Application 13/760,604
CLAIMED SUBJECT MATTER
The claims are directed to a turbomachine. Spec. ,r 2. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A turbomachine comprising:
at least one blade-row group arranged in a main flow
path including an upstream row of blades and a downstream
row of further blades adjacent to each other in a main flow
direction, a narrowest cross section and a degree of overlap
between the blades of the upstream row and the further blades
of the downstream row varying starting at a center of the main
flow path in the direction of a main flow limiter;
wherein the degree of overlap increases steadily in the
direction of the main flow limiter.
Appeal Br. (Claims App. 1).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Eckert
Shipes
Spranger
Guemmer
us 2,938,662
us 3,830,587
us 5,002,001
US 2010/0303629 Al
REJECTIONS
May 31, 1960
Aug. 20, 1974
Mar. 26, 1991
Dec. 2, 2010
(I) Claims 1 and 5 are rejected under 35 U.S.C. § 102(b) as
anticipated by Spranger.
(II) Claims 1 and 5 are rejected under 35 U.S.C. § 102(b) as
anticipated by Eckert.
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Application 13/760,604
(III) Claim 9 is rejected under 35 U.S.C. § 102(b) as anticipated by
Shipes.
(IV) Claims 9 and 10 are rejected under 35 U.S.C. § 102(b) as
anticipated by Guemmer.
(V) Claims 2--4, 6, 7, and 17 are rejected under 35 U.S.C. § 103(a)
as unpatentable over either of Spranger and Eckert.
OPINION
Re} ection (I); Spranger
The Examiner finds that Spranger discloses all the elements recited in
claim 1, including (i) an upstream row of blades and a downstream row of
further blades adjacent to each other in a main flow direction and (ii) that a
degree of overlap between the blades of the upstream row and the further
blades of the downstream row varies, starting at a center of the main flow
path in the direction of a main flow limiter. Final Act. 8 ( citing Spranger,
Figs. 2, 3).
In response to Appellants' allegation that Spranger does not disclose
element (i) (Appeal Br. 5), the Examiner explains, in combination with
providing annotated versions of Figures 2 and 6 of Spranger, that the
structure depicted in Figure 2 of Spranger is one group of blades. Ans. 2-5.
According to the Examiner, Spranger teaches that the structure depicted in
Figure 2 of Spranger is to be implemented multiple times around an axis of
rotation, similar to how propeller blade 20 is provided at three locations on
propeller 21 depicted in Figure 6 of Spranger. See id. Thus, according to
the Examiner, when in such a configuration, a plurality of blade elements 3
on the far left-hand side of Figure 2 of Spranger would qualify as an
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Application 13/760,604
upstream row, and an adjacent plurality of blade elements 3 would qualify as
a downstream row, as recited in claim 1. Id.
Appellants contend that by referring to Figure 6 of Spranger, the
Examiner is improperly combining different embodiments of Spranger to
support an anticipation rejection. Reply Br. 2. 2 Thus, according to
Appellants, the Examiner's discussion of providing multiple instances of the
structure depicted in Figure 2 of Spranger is 'just wrong and purely
hypothetical." Id.
Appellants' arguments on this point fail to apprise us of Examiner
error. A reference can anticipate a claim even if it "d[ oes] not expressly
spell out" all the limitations arranged or combined as in the claim, if a
person of skill in the art, reading the reference, would "at once envisage" the
claimed arrangement or combination. In re Petering, 301 F .2d 67 6, 681
(CCPA 1962), Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d
1376, 1381 (Fed. Cir. 2015); see also In re Preda, 401 F.2d 825, 826 (CCPA
1968) (noting that "in considering the disclosure of a reference, it is proper
to take into account not only specific teachings of the reference but also the
inferences which one skilled in the art would reasonably be expected to draw
therefrom").
We agree with the Examiner that Spranger teaches that the structure
depicted in Figure 2 is implemented in a way similar to how propeller blades
21 are attached to propeller 20 in Figure 6 of Spranger. In this regard, in
describing the embodiment of Figure 2, Spranger states, "[ s ]uch blade heads
1 are suitable, particularly for gas turbine engines, in which the blade base
2 Appellants' Reply Brief does not include page numbers. Our citations to
the Reply Brief use the title (identification) page as page 1.
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Application 13/760,604
10 is fastened to the armature of the rotor." Spranger, 3: 19-22 ( emphasis
omitted). Further, Spranger states, "[i]t is also possible, for other
turboengines, to configure blade elements 3 and blade base 10 as a one-piece
structure formed of a high temperature-resistant ceramic material." Id. at
3:24--27 (emphasis omitted). We understand the reference to turbine engines
to mean that blade base 10 is attached at multiple locations on the armature
of the rotor, not that only a single instance of blade base 10 is attached. See
id. at 1 :45-50.
Appellants also argue that Spranger fails to disclose element (ii) of
claim 1, regarding the degree overlap varying starting at the center of the
main flow path in the direction of a main flow limiter. Appeal Br. 5.
In response, the Examiner refers to Figure 3 of Spranger and finds that
the dashed lines "are used to indicate the forward extent of the downstream
blades," and "the triangular area between the dashed and solid lines
represents the amount of overlap ( which increases steadily in the direction of
the main flow limiter)." Ans 5.
In reply, Appellants focus on the requirement that the degree of
overlap vary starting at a center of the main flow path, and Appellants
contend that the Examiner has not addressed this limitation sufficiently.
Reply Br. 2.
Appellants' argument on this point turns on the interpretation of the
phrase "starting at a center of the main flow path" in claim 1. The
Examiner, in finding that Figure 3 of Spranger discloses that the degree of
overlap of the upstream and downstream blades varies, starting at the center
of the main flow path, implicitly construes this requirement to mean that the
required variance exists at the center of the main flow path. In other words
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Application 13/760,604
the Examiner reads the phrase "varying starting at a center of the main flow
path" as varying at a center of the main flow path, which encompasses
structures that vary in overlap before the center of the main flow path. We
agree with the Examiner's finding that the degree of overlap between the
pertinent blades in Figure 3 of Spranger varies at the center of the main flow
path. See Spranger, Figs. 2-3. However, in light of the Specification, the
broadest reasonable interpretation of "varying starting at a center of the main
flow path" in claim 1 is that the variance starts at this location, not that such
variance merely exists at this location. Specifically, the broadest reasonable
interpretation of the word "starting" in the above-noted phrase is beginning.
This interpretation is consistent with the Specification and Figures. For
example, the Specification explains "[a]s can be seen in Figure 8, according
to the invention, the narrow cross section Dmin can vary starting at the
center 54 of the main flow path or at the center line of intersection in the
direction of a main flow limiting means or main flow limiter 56." Spec. ,r 42
( emphasis added). In claim 1, both the cross-section and the degree of
overlap are required to vary "starting at a center of the main flow path."
Thus, the description of the starting point of the varying cross-section
informs the analysis of what the "starting point" is. Appellants' Figure 8
depicts the center of the main flow path 54 as a line and depicts the cross-
section Dmin only below this line. Thus, no variance of the cross-section is
depicted beginning before this line.
The Specification continues to use the term "starting at the center" in
this manner when referring to the degree of overlap. See Spec. ,r,r 4 7-51. In
particular, paragraph 51 explains that, starting at center 54 of the main flow
path, the degree of overlap can change in a first manner in the direction of
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the hub (the inward direction) and change in a second manner in the
direction of the housing (the outward direction). Thus, the Specification
focuses on a change in the degree of cross-section beginning at the center of
the main flow path, specifically, that at the point immediately before the
center of the main flow path, the specific change in the degree of overlap
(increasing or decreasing) is not occurring. Thus, the broadest reasonable
interpretation of "a degree of overlap between the blades of the upstream
row and the further blades of the downstream row varying starting at a
center of the main flow path" in claim 1 is that immediately before the
center of the main flow path, this specific change is not occurring.
The plain language of claim 1 supports this interpretation inasmuch as
there is a presumption that the word "starting" in claim 1 limits the claim
scope in some way; in other words, allowing the word "starting" to mean
merely "at" or "continuing" would render "starting" entirely superfluous,
and such a result is disfavored. Merck & Co. v. Teva Pharm. USA, Inc., 395
F.3d 1364, 1372 (Fed. Cir. 2005) ("A claim construction that gives meaning
to all the terms of the claim is preferred over one that does not do so.");
Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410 (Fed. Cir.
2004) ("[I]nterpretations that render some portion of the claim language
superfluous are disfavored.").
Under the broadest reasonable interpretation of claim 1, a
preponderance of the evidence does not support a finding that Spranger
teaches that a degree of overlap between the blades of the upstream row and
the blades of the downstream row varies, starting at a center of the main
flow path. As explained by the Examiner, "[ t ]he triangular area between the
dashed and solid lines [in Figure 3 of Spranger] represents the amount of
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overlap (which increases steadily in the direction of the main flow limiter)."
Ans. 5. It is not apparent, from Figure 3 or the other portions of Spranger
discussed by the Examiner, that the variance of the degree of overlap
between the blades of the upstream row and the further blades of the
downstream row starts at (i.e., does not begin before) the center of the main
flow path. Rather, the overlap appears to change along the majority of the
length of the blades, and, therefore, seems to start before the center of the
main flow path. Accordingly, we do not sustain the Examiner's rejection of
claims 1 and 5 as anticipated by Spranger.
Re} ection (II); Eckert
The Examiner finds that Eckert discloses upstream and downstream
rows of blades (blades 12 and 11, respectively) that have a degree of overlap
that varies in the manner recited in claim 1. See Final Act. 8-9 ( citing
Eckert, Figs. 1 and 2). Appellants contest this finding, asserting that blades
12 are less than half the height of blades 11, and, therefore, no overlap
between these blades exists at the center of the main flow path. Appeal Br.
6. Therefore, according to Appellants, the degree of overlap between blades
11 and 12 of Eckert cannot start to vary at the center of the main flow path.
Id.
In response, the Examiner finds that the drawings in Eckert are not
disclosed as drawn to scale, and, therefore, cannot be relied upon to
determine the relative heights of blades 11 and 12. Ans. 7-8 (citing
Hockerson-Halberstadt, Inc. v. Avia Group Int'!, 222 F.3d 951,956 (Fed.
Cir. 2000)). Additionally, the Examiner finds that "the center of the main
flow path" may be a region larger than the mathematical center line of the
flow path. See id. 8-9.
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Appellants have the better position. That fact that the drawings may
not be relied upon to determine the specific extent to which blade 12 of
Eckert overlaps blade 11 is at least as detrimental to the Examiner's findings
regarding these blades as it is to Appellants' argument. Specifically, the
Examiner has the initial burden to show that blades 11 and 12 of Eckert
overlap as claimed, and the Figures in Eckert do not support such a showing.
Rather, these Figures appear to depict blade 12 as having a height less than
half that of blade 11. We also disagree with the Examiner's determination
that "the center" of the main flow path can be reasonably understood be a
"central region" so large that blades 11 and 12 overlap as recited in claim 1.
See Ans. 8-9. In this regard, we see no basis in the Specification supporting
a construction of the term "a center of the main flow path" that comports
with the large "central region" depicted in the Examiner's annotated version
of Figure 1 of Eckert (see id. at 8). Thus, the Examiner's finding that Eckert
discloses the variance in a degree of overlap recited in claim 1 is based on an
unreasonably broad claim interpretation. Consequently, we do not sustain
the Examiner's rejection of claims 1 and 5 as anticipated by Eckert.
Rejection (III); Shipes
Independent claim 9 recites, in part:
a narrowest cross section and a degree of overlap between the
blades of the upstream row and the further blades of the
downstream row varying starting at a center of the main flow
path in the direction of a main flow limiter; wherein the degree
of overlap increases in the direction of the main flow limiter and
then decreases.
Appeal Br. (Claims App. 1-2).
In finding that Shipes discloses all the elements required by claim 9,
the Examiner relies on Figure 1 of Shipes to teach that the cross-section
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varies as recited and relies on Figure 2 of Shipes to teach that the overlap
between upstream and downstream blades varies as recited. Final Act. 9.
Reproducing a portion of Figure 1 of Shipes, Appellants state, "[i]t is
abundantly clear that there is no overlap between the upstream row of blades
19 and the downstream row of blades 20." Appeal Br. 7.
We disagree with Appellants on this point because, as the Examiner
points out, the rejection relies on Figure 2 (not Figure 1) of Shipes to depict
the overlap between blades relied upon in the rejection. See Ans. 10-12.
We agree that Figure 2 of Shipes depicts overlap between the upstream and
downstream blades.
Appellants also argue that to the extent a degree of overlap between
blades varies on Shipes, it does not do so "in the direction of a main flow
limiter" as required because the hub of Shipes cannot be considered a main
flow limiter. Appeal Br. 8. Therefore, according to Appellants, extending in
the direction of the hub is not the same as extending in the direction of the
main flow limiter. Id.
We disagree with Appellants on this point because Appellants'
Specification supports a construction of the "the main flow limiter" as being
the hub. See Spec. ,r 42 (stating, "The at least one main flow limiting means
constitutes an area of the turbomachine on the hub side or housing side, and
it is, for example, directly a hub section or housing section or a blade shroud
band.").
In the Reply Brief, Appellants contend that Shipes does not disclose
that a narrowest cross-section varies, starting at a center of the main flow
path in the direction of a main flow limiter. See Reply Br. 4.
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It appears that, in the rejection of claim 9, the Examiner relies on the
same unreasonably broad interpretation of "starting at a center of the main
flow path" as the one discussed above regarding Rejection (I). Specifically,
in finding that Figure 1 of Shipes teaches that the cross-section varies,
starting at the center of the main flow path, the Examiner's interpretation
appears to allow a change in cross-section along the entire length of the
blades. See Shipes, Fig. 1. As Figure 1 of Shipes does not support a finding
that the change in cross-section begins at the above-noted center of the main
flow path, we do not sustain the rejection of claim 9 as anticipated by
Shipes.
Rejection (JV); Guemmer
The Examiner's rejection of claims 9 and 10, based on Guemmer, also
relies on the same unreasonably broad claim interpretation discussed above
regarding Rejection (I). See Final Act. 9-10. Specifically, the Examiner
cites Fig. 4 of Guemmer as teaching the "degree of overlap" element of
claim 9. Id. at 10. We do not agree that, under the broadest reasonable
interpretation of claim 9 in light of the Specification, Figure 4 of Guemmer
depicts the required starting point for the variance in the degree of overlap
between blades. Accordingly, we do not sustain the rejection of claims 9
and 10 as anticipated by Guemmer.
Rejection (V); Spranger or Eckert
The Examiner's reliance on design choice does not remedy the
deficiencies discussed above regarding Rejections (I) and (II). See Final
Act. 10-11. Accordingly, for the same reasons discussed above regarding
Rejections (I) and (II), we do not sustain the Examiner's rejection of claims
2--4, 6, 7, and 17 as unpatentable over Spranger or Eckert.
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DECISION
The Examiner's decision to reject claims 1-7, 9, 10, and 17 is
reversed.
REVERSED
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