Ex Parte Kohlenberg et al

Patent Trial and Appeal Board

Nov 28, 2017

13340798 (P.T.A.B. Nov. 28, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/340,798 12/30/2011 Gregory A. Kohlenberg 50640US05;
67097-901PUS5
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54549 7590 11/30/2017
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EXAMINER
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11/30/2017 ELECTRONIC
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY A. KOHLENBERG,
SEAN P. ZAMORA, and FREDERICK M. SCHWARZ
Appeal 2016-004398
Application 13/340,798
Technology Center 3700
Before JENNIFER D. BAHR, JAMES P. CALVE, and
FREDERICK C. LANEY, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gregory A. Kohlenberg et al. (Appellants)1 appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision, set forth in the Final Action (May 1,
2015, hereinafter “Final Act.”), rejecting claims 1—4, 6, 7, 11-14, and 16.2
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
1 According to the Appeal Brief (Sept. 25, 2015, hereinafter “Appeal Br.”),
the real party in interest is United Technologies Corporation. Appeal Br. 1.
2 Claims 5 and 8 were cancelled subsequent to the Final Action, in an
Amendment filed June 29, 2015, and entered in the Advisory Action dated
July 16, 2015. Claims 9, 10, and 15 were cancelled in an Amendment filed
February 17, 2015, prior to the Final Action.
Appeal 2016-004398
Application 13/340,798
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is the only independent claim and is
illustrative of the claimed subject matter.
1. A nacelle assembly for a high-bypass gas turbine engine
comprising:
a core nacelle defined about an engine centerline axis;
a fan nacelle mounted at least partially around said core
nacelle to define a fan bypass flow path for a fan bypass airflow;
a gear system driven by a core engine within the core
nacelle to drive a fan within said fan nacelle, wherein said fan is
configured to rotate at a corrected fan tip speed of less than 1150
ft/second; and
a fan variable area nozzle axially movable relative said fan
nacelle to vary a fan nozzle exit area and adjust a fan pressure
ratio of said fan bypass airflow during engine operation within a
range less than 1.45, said fan variable area nozzle operable
to vary said fan nozzle exit area by 20%.
REJECTIONS3
I. Claims 11-14 and 16 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.
II. Claims 1—4, 6, 7, 11-14, and 16 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kohlenberg (US 2009/0053058 Al,
published Feb. 26, 2009) and Rosen (US 3,747,343, issued July 24,
1973).
3 The rejection of claims 5 and 8 under 35 U.S.C. § 112, fourth paragraph,
set forth on pages 3—4 of the Final Action is not before us for review because
claims 5 and 8 have been cancelled.
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Application 13/340,798
DISCUSSION
Rejection I—Indefiniteness
The basis for the Examiner’s rejection of claims 11-14 and 16 under
35 U.S.C. § 112, second paragraph, is that these claims recite open-ended
ranges with no recited upper limit. Final Act. 3. According to the
Examiner, “[t]he open ended numerical range is indefinite because it is
unclear what [are] the boundaries of what would constitute infringement of
the resultant patent” and “[t]he open-ended claim language renders the claim
vague and indefinite, because the metes and bounds of the claim cannot be
ascertained with the certainty that the law requires.” Ans. 2.
For the reasons set forth on pages 3 and 4 of the Appeal Brief and
pages 1-3 of the Reply Brief, the Examiner’s stated position that claims 11-
14 and 16 are indefinite is untenable. Aside from the absence of a limitation
defining an upper boundary, the Examiner does not point to anything about
the claim language itself that is unclear. As well articulated in Ex parte
Feulner, Appeal No. 2013-010469, slip op. at 4-5 (PTAB Oct. 23, 2015)
(footnote omitted):
A claim, however, is not made unclear simply because an
upper boundary is not specified. Exxon Research and
Engineering Co. v. U.S., 265 F.3d 1371, 1382 (Fed. Cir. 2001),
abrogated on other grounds by Nautilus, Inc. v. Biosig
Instruments, Inc., 134 S. Ct. 2120 (2014). In Exxon Research,
the Federal Circuit found that “[t]he claims [did] not contain any
limitation on the maximum particle size, and no limitation is
required as a matter of definiteness.” Id. “Thus, the claims
expressly reach any composition with catalyst particles having
an average diameter greater than five microns, no matter how
large the particles may be; as such, there is no indefmiteness as
to the scope of [the] limitation.” Id. Rather than finding the
scope of the claim unclear because the particle size could extend
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Application 13/340,798
to infinity, the Federal Circuit held that the definiteness
requirements of 35 U.S.C. § 112 2 were satisfied because the
claim scope, albeit broad, was clear. Id.
Much like the claims in Exxon Research, claims 11-14 and 16
expressly recite ranges covering values greater than, or greater than or equal
to, a recited minimum, no matter how large those values may be. The fact
that, in practice within the context of the claimed invention, there may be
practical upper limits of the claimed ranges (see Reply Br. 3), does not
impart any indefmiteness as to the scope of the claim. “A patent claim to a
fishing pole would not be invalid on indefmiteness grounds if it contained a
limitation requiring that the pole be ‘at least three feet long,’ even though a
50 foot long fishing pole would not be very practical.” Exxon Research, 265
F.3d at 1382.
For the above reasons, we do not sustain the rejection of claims 11-14
and 16 under 35 U.S.C. § 112, second paragraph.
Rejection II—Obviousness
The issue presented in the appeal of the obviousness rejection is
whether it would have been obvious to modify Kohlenberg, in view of the
combined teachings of Kohlenberg and Rosen, to have a fan pressure ratio of
less than 1.45 to make the fan aerodynamically efficient and abate noise
generation as taught by Rosen, and to operate the fan in a range of fan tip
speeds less than 1150 ft/sec. to abate noise generation as also taught by
Rosen. See Final Act. 6, 9; Ans. 4; Appeal Br. 5-6.
Appellants argue that the applied references “teach away from the
proposed modification^]. ” Appeal Br. 5. More specifically, Appellants
contend that Rosen’s disclosure of fixed features (i.e., fixed fan pressure
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Application 13/340,798
ratio, fixed fan tip speed, and fixed ratio of stator vanes to fan blades), which
“do not change to tailor engine operation to current operating conditions,”
are “[i]n contrast” to Kohlenberg’s disclosure of adjusting “the nozzle exit
area to enable optimal engine performance at different engine operating
conditions” and “in direct contrast to the intended operation of Kohlenberg’s
gear driven engine and [VAFN].”4 Id. at 6.
Rosen’s teachings with respect to fan pressure ratio and fan tip speed
are not in contrast to, or inconsistent with, Kohlenberg’s teaching of using a
VAFN to vary the area of the fan nozzle exit area to provide optimized
engine operation over a range of flight conditions. See Kohlenberg 27-
28. Kohlenberg teaches designing the fan for a particular flight condition—
typically cruise at 0.8M and 35,000 feet—and operating a VAFN to
effectively vary the fan nozzle exit area to adjust fan bypass air flow for
efficient engine operation at other flight conditions, such as landing and
takeoff. Id. In other words, Kohlenberg teaches designing the fan to
optimize engine operation for a particular flight condition (typically cruise
condition) and providing the VAFN to permit optimization of engine
operation at other flight conditions that vary from the design flight
condition. However, Kohlenberg does not specify particular fan pressure
ratio or fan tip speed values for the fan for the design flight condition.
Rosen teaches that an aerodynamically efficient fan achieving larger noise
reductions can be designed by providing a fan pressure ratio between 1.05
and less than 1.30 and fan tip speeds of around 600-800 ft/sec. (less than
sonic tip speed). Rosen 1:50—66, 3:15-18. It would have been obvious to
4 Appellants use the acronym “VAFN” for the “fan variable area nozzle”
used to change the bypass flow path area. Spec. ^ 2.
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design Kohlenberg’s fan using such a combination of fan pressure ratio and
fan tip speed in order to attain the advantages taught by Rosen (i.e.,
aerodynamic efficiency and improved noise abatement) for particular flight
conditions (e.g., cruise conditions), while still using Kohlenberg’s VAFN to
vary the fan nozzle exit area to adjust fan bypass air flow for efficient engine
operation at other flight conditions, such as landing and takeoff. The fact
that Rosen does not teach using a VAFN like Kohlenberg to optimize engine
operation for other flight conditions would not have discouraged skilled
artisans from designing Kohlenberg’s fan using the fan pressure ratio and
fan tip speed taught by Rosen for optimized performance at the design flight
condition. Thus, the references do not teach away from the proposed
combination.
Appellants argue that “modification of Kohlenberg to include Rosen’s
fixed fan pressure ratio, fan tip speed and fixed ratio between stator vanes
and fan blades would eliminate the need for a variable area fan nozzle and
therefore no rational reason to support the proposed modification is present.”
Appeal Br. 6. We do not agree with Appellants. Modification of
Kohlenberg to include the fan pressure ratio, fan tip speed, and ratio of stator
vanes to fan blades as taught by Rosen to optimize engine performance at a
particular flight condition, such as cruise, would not eliminate the need for a
variable area fan nozzle to adjust fan bypass air flow for efficient engine
operation at other flight conditions, such as landing and takeoff.
Appellants submit that the Examiner is impermissibly ignoring
Rosen’s teachings with regard to the ratio of stator blades to fan blades.
Appeal Br. 6-7; see Rosen 4:13-17 (teaching that, in addition to the low tip
speed and pressure ratio range between 1.05 and 1.3, “the number of stator
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vanes should be less than the number of fan blades and preferably the count
should be substantially 1:2 and the axial spacing between the rotor and stator
should be 2 rotor blades widths”). This is not the case. See Ans. 4 (the
Examiner’s proposed modification includes incorporating all fan parameters,
including those directed to fan blade count, that contribute to the noise
reduction taught by Rosen).
Appellants additionally argue that “modification of Kohlenberg to
further include the variable pitch fan blades instead of, or even in addition,
to the VAFN completely changes and alters the intended configuration of the
disclosed Kohlenberg device.” Appeal Br. 7. This argument does not
identify error in the rejection because the Examiner does not propose
modifying Kohlenberg to replace the VAFN with variable pitch fan blades.
See Ans. 5-6 (emphasizing the rejection proposes modifying Kohlenberg’s
fan to operate with a fan pressure ratio of less than 1.45 and a fan tip speed
of less than 1150 ft/sec., with a fan blade count from 6-13, as taught by
Rosen, while maintaining Kohlenberg’s VAFN to enable efficient engine
operation at other than the design flight condition).
For the above reasons, Appellants’ arguments do not apprise us of
error in the Examiner’s determination that it would have been obvious to
modify Kohlenberg, in view of the combined teachings of Kohlenberg and
Rosen, to have a fan pressure ratio to make the fan aerodynamically efficient
and abate noise generation as taught by Rosen, and to operate the fan in a
range of fan tip speeds less than 1150 ft/sec. to abate noise generation as also
taught by Rosen. Accordingly, we sustain the rejection of independent claim
1, as well as dependent claims 2-4, 6, 7, 11-14, and 16, for which
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Appellants rely solely on the arguments presented for claim 1 (Appeal Br.
7), as unpatentable over Kohlenberg and Rosen.
DECISION
The Examiner’s decision rejecting claims 11-14 and 16 under
35 U.S.C. § 112, second paragraph is REVERSED.
The Examiner’s decision rejecting claims 1—4, 6, 7, 11-14, and 16
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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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