Ex Parte Hardwicke et al

Board of Patent Appeals and Interferences

Nov 16, 2010

10682227 (B.P.A.I. Nov. 16, 2010)

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.
10/682,227 10/08/2003 Canan Uslu Hardwicke 126908-1 8130
41838 7590 11/16/2010
GENERAL ELECTRIC COMPANY (PCPI)
C/O FLETCHER YODER
P. O. BOX 692289
HOUSTON, TX 77269-2289
EXAMINER
KIM, TAE JUN
ART UNIT PAPER NUMBER
3741
MAIL DATE DELIVERY MODE
11/16/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CANAN USLU HARDWICKE, LIANG JIANG, SUNG JIN KIM
____________

Appeal 2009-008414
Application 10/682,227
Technology Center 3700
____________

Before: LINDA E. HORNER, JENNIFER D. BAHR, and FRED A.
SILVERBERG, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL1

1The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the "MAIL DATE"
(paper delivery mode) or the "NOTIFICATION DATE" (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-008414
Application 10/682,227

2
STATEMENT OF THE CASE
Canan Uslu Hardwicke et al. (Appellants) appeal under 35 U.S.C.
§ 134 (2002) from the Examiner's decision rejecting under § 102(b) claims
1, 2, 6, 7, 12, 15, 18, and 19 as anticipated by Prociw (US 6,495,207 B1, iss.
Dec. 17, 2002), under § 102(e) claims 1, 2, 6, 12, 15, 18, and 19 as
anticipated by Griffin (US 6,834,504 B2, iss. Dec. 28, 2004), and under §
103(a) claims 1, 2, and 6-11 as unpatentable over Umemura (JP 11-062549,
pub. Mar. 5, 1999) and Grandey (US 2,917,384, iss. Dec. 15, 1959) and/or
Brown (US 2003/0118762 A1, pub. Jun. 26, 2003), and claims 1, 2, 6-12,
15, 18, and 19 as unpatentable over Griffin and Gutmark (US 6,464,489 B1,
iss. Oct. 15, 2002). Claims 3-5, 13, 14, 16, 17, 20, 21, 23, and 24 have been
canceled. We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002).
Claim 1 is representative of the claimed invention:
1. A combustor and a combustor cap liner assembly, comprising:
a combustor having a combustor casing and a combustion liner
within the combustor casing, wherein the combustion liner is closed at
a forward end by the combustor[2] liner cap assembly, the combustor
including a cellular solid media disposed within the combustor liner
cap assembly and/or between the combustion liner cap assembly and
an end cover to the combustor and wherein the cellular solid media
comprises a metal foam.

2 The preamble recites a "combustor cap liner assembly" whereas the body
refers to "the combustor liner cap assembly" and "the combustion liner cap
assembly." Claim 15 likewise uses all three. We see no evidence that these
are anything other than different labels for the same object, and thus, for
purposes of this appeal, consider them as referring to the same element.
Claims should be drafted so as to use consistent claim language throughout.
For consistency, we refer to this element as "combustor liner cap assembly."
Appeal 2009-008414
Application 10/682,227

3
SUMMARY OF DECISION
We AFFIRM.

OPINION
1. Anticipation by Prociw
In relevant part, the Examiner found that Prociw describes a
combustor having a combustor casing 14, liner 13, and cellular solid metal
foam media 12, with the liner 13 closed at a forward end by a combustor
liner cap assembly that encloses the foam media 12. Ans. 4-5. In particular,
the Examiner found that the combustor liner cap assembly is the forward
end, or "head" of the combustor that closes off one end of the combustor.
Ans. 12. The Examiner notes that the combustor liner cap assembly is not
separately labeled and indicates the assembly's position with an arrow. Ans.
5. In figure I below, we have reproduced figure 2 of Prociw, with a circle
indicating the area that the Examiner has found, as explained below,
corresponds to the combustor liner cap assembly.
Appeal 2009-008414
Application 10/682,227

4
Figure I

Figure I is a reproduction of figure 2 of Prociw with a circle
around the area indicated by the Examiner to be the combustor
liner cap assembly, at the forward end of the combustion liner.
Finally, the Examiner found that Prociw describes the combustor liner cap
assembly having an effusion plate, circular plate, and burner tube. Ans. 4-5
(note marked drawing). Based on the Examiner's findings on pages 4-5 of
the Examiner's Answer, we have marked a circle on Figure I above
indicating the area in which all of these components (which are part of the
combustor liner cap assembly) are located.
Appellants argue that the cellular solid media 12 in Prociw is only
between walls 13 and 14 and thus not within the combustor liner cap
assembly or the locations recited in claim 15. Appeal Br. 7-8.
Issue
Does Prociw describe cellular solid media 12 disposed within the
combustor liner cap assembly, as required by claim 1, and/or within a space
Appeal 2009-008414
Application 10/682,227

5
defined by particular components of the combustor liner cap assembly, as
required by claim 15?
Analysis
The combustor liner cap assembly identified by the Examiner includes
the end of the combustor and a portion of liner 13 and casing 14 (with the
media 12 in between), as well as burner tube 8, effusion plate, and circular
plate (unlabeled). Ans. 5. A portion of media 12 is within the area of the
combustor identified by the Examiner as the combustor liner cap assembly.
Appellants do not present arguments as to why the Examiner's findings
regarding the combustor liner cap assembly are in error. Given that the area
indicated by the Examiner appears to cap off the end of the combustor and
contains similar components as Appellants' combustor liner cap assembly
(burner tube, effusion plate, media, etc), we are not persuaded by Appellants'
general allegation that the Examiner is in error. See Spec., paras. 23-25
(describing some features of Appellants' particular combustor liner cap
assembly 42).
Appellants' argument with respect to claim 15 is likewise
unpersuasive. Appellants' mechanical regurgitation of claim language
preceded by "[n]owhere does Prociw disclose …" does not tend to
demonstrate error in the rejection, given the Examiner's findings for each
claim element. It is unclear what, if any, reason Appellants have for
traversing the rejection because no analysis is provided; we decline to make
up our own. The Examiner found that Prociw describes the various
components of the combustor liner cap assembly of claim 15 (Ans. 5), which
Appellants do not challenge. Media 12 is depicted as dispersed between
these various surfaces, as indicated by the Examiner in the annotated
Appeal 2009-008414
Application 10/682,227

6
drawing at page 5 of the Examiner's Answer. A portion of media 12 is
depicted within the combustor liner cap assembly and is identified by the
Examiner on page 5 of the Answer. In effect, Appellants have merely
pointed out claim limitations and generally alleged that the prior art does
not teach these limitations. However, in view of the particular findings of
the Examiner, Appellants' mere allegations are not persuasive. See Ex parte
Belinne, 2009-004693, slip op. at 7, 8 (BPAI Aug. 10, 2009) (designated
as an "Informative Opinion"), http://www.uspto.gov/web/offices/
dcom/bpai/its/fd09004693.pdf (last visited Oct. 29, 2010) (citing 37 C.F.R. §
41.37 (c)(l)(vii) (2009)); see also id. at n. 2 ("A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim").
Conclusion
Appellants have not made any compelling arguments that the
Examiner erred in finding that Prociw describes cellular solid media 12
disposed within the combustor liner cap assembly as required by claim 1,
and within a space defined by particular components of the combustor liner
cap assembly as required by claim 15. Appellants argue claims 1, 2, 6, 7,
12, 15, 18, and 19 as a group. As such, claims 2, 6, 7, 12, and 16-19 fall
with claims 1 and 15. 37 C.F.R. § 41.37(c)(1)(vii) (2010). Therefore, we
sustain the Examiner's rejection of claims 1, 2, 6, 7, 12, 15, 18, and 19 as
anticipated by Prociw.

2. Anticipation by Griffin
The Examiner found, in relevant part, that Griffin describes a
combustor liner cap assembly (as indicated by the Examiner's marked-up
Appeal 2009-008414
Application 10/682,227

7
figures 1 and 2 of Griffin), made of the terminal portion of the combustor
liner 302 (in which the lower end of housing wall 205 is seated) and
components of the mixing section 200 and transition element 108, those
components encompassing a cellular metal foam (net-like structure 201).
Ans. 6-8. Further, the Examiner found that Griffin describes a circular plate
(transition element 108), burner tube (housing wall 205), and effusion plate
209 with the media disposed within. Ans. 6.
Appellants repeat several times that Griffin does not describe the
claimed elements (Appeal Br. 11-12) but fail to point out why the
Examiner's findings are incorrect. The Examiner identifies each claimed
element, and the media (201) is within the portion the Examiner found to
correspond to the combustor liner cap assembly of claims 1 and 15 (200, the
terminal portion of element 302, etc.). See Ans. 6-8. To the extent
Appellants rely on Griffin using different terminology from the claims, we
note that a reference need not describe a claim in exact words nor describe in
words what is shown in the drawings. See, e.g., In re May, 574 F.2d 1082,
1090 (CCPA 1978) (claim limitations need not be found ipsissimis verbis in
a reference); In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (drawings alone
can anticipate claim limitations). Appellants have merely pointed out claim
limitations and generally alleged that the prior art does not teach these
limitations. However, in view of the particular findings of the Examiner,
Appellants' mere allegations are not persuasive. See Belinne, slip op. at 7, 8.
Appellants next argue (Appeal Br. 11) that the media "is disposed
perpendicular to the flow path of the combustion gas," but the orientation of
the media is not relevant to claims 1 and 15. Appellants then set forth
relevant case law regarding inherency, but fail to make an argument as to
Appeal 2009-008414
Application 10/682,227

8
whether the Examiner properly met his burden. Appeal Br. 12. Appellants
discuss functional language (Reply Br. 4) but do not put forth any arguments
tending to demonstrate that the Examiner actually made an error in his
findings. Thus, Appellants have given no compelling reason why the
Examiner's findings may be in error.
We are not persuaded that the Examiner erred in finding that Griffin
anticipates the subject matter of claims 1 and 15. Appellants argue claims 1,
2, 6, 12, 15, 18, and 19 as a group. As such, claims 2, 6, 12, 18, and 19 fall
with claims 1 and 15. 37 C.F.R. § 41.37(c)(1)(vii) (2010). Therefore, we
sustain the Examiner's rejection of claims 1, 2, 6, 12, 15, 18, and 19 as
anticipated by Griffin.

3. Obviousness in view of Umemura and Grandey and/or Brown
The Examiner rejected claims 1, 2, and 6-11 as unpatentable over
Umemura in view of Grandey and/or Brown. The Examiner found that
Umemura describes an end cover and combustor liner cap assembly
(identified in an annotated drawing on page 11 of the Answer), and
"noise/vibration absorbing media 14 or 15" disposed within and/or between
the two. Ans. 9-11. Appellants again list claim language (Appeal Br. 14)
without making any argument as to how Umemura fails to describe structure
satisfying the claim language. This is unpersuasive for the reasons given
above. Appellants then rely on outdated case law3 in arguing that "[t]he

3 The Supreme Court has stated that a rigid insistence on teaching,
suggestion, or motivation is incompatible with its precedent concerning
obviousness. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). The
KSR opinion was handed down on April 30, 2007, after the notice of appeal
Appeal 2009-008414
Application 10/682,227

9
motivation to combine these references is not found in any of the
references." Appeal Br. 16. The Examiner, on the other hand, has provided
reasoning articulating why it would have been obvious to combine the
references as proposed. Ans. 9-10 (Grandey discloses materials used for
noise/sound attenuation (col. 1, ll. 20-21), Brown discloses a noise/vibration
absorbing media used in turbine applications (paras. 17 and 31)). The
Examiner's proposed combination thus appears to merely select a suitable
material according to its intended use. See In re Leshin, 277 F.2d 197, 199
(CCPA 1960) (holding that it is obvious to select a known material based
upon its known intended uses).
Appellants next argue that there is no evidence that a purported goal
of Umemura would be accomplished with the media taught in Grandey or
Brown. Appeal Br. 17. However, the Examiner found that the media in
Grandey and Brown are described as useful in noise attenuation (Ans. 9),
which is clearly a concern in Umemura. See Umemura, Abstract (noting the
invention is concerned with sound absorbing material 14) (Abstract
reproduced in Appeal Br. 15). As we mention above, the proposed
combination on its face is merely a substitution of suitable materials. To the
extent that Appellants are arguing that Grandey and/or Brown do not
explicitly state that they are materials for use in Umemura, we note that
"[c]ommon sense teaches . . . that familiar items may have obvious uses
beyond their primary purposes." KSR, 550 U.S. at 420. It is not a stretch to
consider noise attenuation materials in one machine as being potentially
useful noise attenuation materials in another.

(Feb. 23, 2007), but before the Appeal Brief (Jun. 28, 2007) and the Reply
Brief (Nov. 2, 2007).
Appeal 2009-008414
Application 10/682,227

10
Finally, Appellants argue that Grandey and Brown teach disposing a
cellular media in a premixer hot section, where the temperatures are higher
than the cap and inlet flow areas. Appeal Br. 17. To the extent that
Appellants are arguing that Grandey and Brown's materials are not suitable
for use in Umemura, we note that the Examiner has addressed this argument
(Ans. 20) and found it lacking technical merit. Ans. 20. Appellants do not
continue this line of argument in the Reply Brief.
Therefore, Appellants have not presented any compelling argument
that the Examiner erred in concluding that the subject matter of claim 1 is
obvious in view of Umemura and Grandey and/or Brown. Claims 2 and 6-
11 fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2010). Consequently, we
sustain the Examiner's rejection of claims 1, 2, and 6-11 as obvious in view
of Umemura and Grandey and/or Brown.

4. Obviousness in view of Griffin and Gutmark
The Examiner makes an alternative rejection to the anticipation
rejection based on Griffin discussed above, wherein the Examiner found that
to the extent that Griffin does not inherently describe a combustor casing
and end cover, Gutmark describes these features, and concluded it would
have been obvious to employ a combustor casing and end cover in the
Griffin combustor assembly, as conventional practice in the art. See Ans.
11-12, 19, 21. Appellants argue that Gutmark, like Griffin, fails to teach a
combustor liner cap assembly, an end cover, and a media disposed in the
locations claimed. Appeal Br. 18.
For claim 1, the media must be disposed "within the combustor liner
cap assembly." The Examiner found, in the Griffin anticipation rejection,
Appeal 2009-008414
Application 10/682,227

11
that media 202 is within the combustor liner cap assembly (made of
transition element 108, outlet 209, wire mesh 202, and top portion of
combustor chamber wall 302). Ans. 7-8. Thus, the Examiner has indicated
that the combustor liner cap assembly is that portion of Griffin that caps off
the liner 302, i.e., the top of 302, mixing section 200, and the lower end of
swirl generator 100, to include transition element 108. This portion of
Griffin is not explicitly labeled a "combustor liner cap assembly," but a
reference need not recite a claim in haec verba. The components (thus, an
"assembly") identified by the Examiner appear to cap off the top of the
combustor liner 302. Thus, the Examiner's finding appears reasonable.
Appellants have made no argument that the elements identified by the
Examiner in Griffin as a combustor liner cap assembly are not a combustor
liner cap assembly. See In re Dillon, 919 F.2d 688, 692 (Fed. Cir. 1990) (if
a prima facie case of obviousness is established, the burden shifts to the
applicant to come forward with arguments and/or evidence to rebut the
prima facie case). Therefore, we are not persuaded that the Examiner erred
in finding that Griffin describes a combustor liner cap assembly with a
media disposed within as required by claim 1.
For claim 15, the media must be disposed in a space defined by a
circular plate, burner tube, and effusion plate. The Examiner found that
elements 108, 205, and 209 of Griffin correspond to these limitations of
claim 15. Ans. 6. Appellants do not challenge these findings. Given that
media 202 is depicted as disposed between these items in figures 1 and 2 of
Griffin it would appear that, on its face, Griffin describes the claim
Appeal 2009-008414
Application 10/682,227

12
limitation. Thus we are not persuaded that the Examiner erred in finding
that Griffin describes a combustor liner cap assembly and media as recited in
claim 15. See Dillon, 919 F.2d at 692.
Appellants next argue that Griffin and Gutmark are "inconsistent."
Appeal Br. 18-19. To the extent that Appellants mean that Griffin and
Gutmark do not depict the exact same invention, we agree. Griffin
addresses the thermoacoustic issue using a net-like structure (col. 2, ll. 38-
53), whereas Gutmark addresses the thermoacoustic issue with loudspeakers
(col. 3, ll. 39-41). However, the two references are clearly alternative
solutions to a particular problem of the same machine (gas turbine), and the
rejection is under § 103, not § 102. Thus, the argument that the references
are "inconsistent," in the sense that they are different from one another, is
irrelevant. There is no requirement that the references used to demonstrate
obviousness must describe the same invention.
To the extent that Appellants may be arguing that the references are
not combinable, we note that the components in Gutmark that the Examiner
proposes to combine with the Griffin system (end cap, combustor casing; see
Ans. 19) are not directed to the loudspeaker solution presented in Gutmark,
but rather are part of the basic gas turbine engine. The Examiner's
combination does not propose to incorporate anything into the turbine of
Gutmark, such that Appellants' arguments on pages 19-20 of the Appeal
Brief are not directed toward a combination proposed by the Examiner.
Appellants do not provide any arguments directed to the Examiner's
proposed combination of incorporating the combustor liner and end cover of
Gutmark with the inner turbine components of Griffin. Therefore, we are
not persuaded that the Examiner erred in concluding that Griffin and
Appeal 2009-008414
Application 10/682,227

13
Gutmark, in combination, render obvious the claimed invention. Claims 2,
6-12, 18, and 19 fall with claims 1 and 15. 37 C.F.R. § 41.37(c)(1)(vii)
(2010). Consequently, we sustain the Examiner's rejection of claims 1, 2, 6-
12, 15, 18, and 19 as obvious in view of Griffin and Gutmark.

DECISION
We affirm the Examiner's decision to reject claims 1, 2, 6-12, 15, 18,
and 19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. §
1.136(a)(1)(iv) (2007).

AFFIRMED

hh

GENERAL ELECTRIC COMPANY (PCPI)
C/O FLETCHER YODER
P. O. BOX 692289
HOUSTON, TX 77269-2289