Ex Parte Lord et al

Patent Trial and Appeal Board

Oct 11, 2017

14091862 (P.T.A.B. Oct. 11, 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.
14/091,862 11/27/2013 Wesley K. LORD 23383US-AA;67097-2094PUS2 7982
54549 7590 10/13/2017
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
LEGENDRE, CHRISTOPHER RYAN
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
10/13/2017 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WESLEY K. LORD, ROBERT E. MALECKI,
YUAN J. QIU, BECKY E. ROSE, and JONATHAN GILSON
Appeal 2016-002203
Application 14/091,8621
Technology Center 3700
Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Wesley K. Lord et al. (“Appellants”) appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision in the Final Action (dated Jan.
27, 2015, hereafter “Final Act.”) rejecting claims 1—20. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
1 United Technologies Corporation is the applicant as provided in 37
C.F.R. § 1.46 and is identified as the real party in interest in
Appellant’s Appeal Brief (filed June 17, 2015, hereafter “Appeal
Br.”). Appeal Br. 1.
Appeal 2016-002203
Application 14/091,862
SUMMARY OF DECISION
We REVERSE.
INVENTION
Appellants’ invention relates to a gas turbine engine. Spec.,
para. 2.
Claims 1 and 16 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A gas turbine engine assembly, comprising:
a fan including a plurality of fan blades, a diameter
of the fan having a dimension D that is based on a
dimension of the fan blades, each fan blade having a
leading edge; and
an inlet portion forward of the fan, a length of
the inlet portion having a dimension L between a
location of the leading edge of at least some of the fan
blades and a forward edge on the inlet portion,
wherein a dimensional relationship of LID is
between about 0.2 and about 0.45.
REJECTIONS
I. The Examiner provisionally rejected claims 1—11, 13,
and 14 under the judicially created doctrine of
obviousness-type double patenting as being unpatentable
over claims 1—11, and 14 of co-pending U.S. Patent
Application No. 13/721,095 (hereafter “’095
Application”).
II. The Examiner provisionally rejected claim 12 under the
judicially created doctrine of obviousness-type double
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Application 14/091,862
patenting as being unpatentable over claim 1 of the ’095
Application and Rowlands (US 6,071,077, iss. June 6,
2000).
III. The Examiner provisionally rejected claim 15 under the
judicially created doctrine of obviousness-type double
patenting as being unpatentable over claim 1 of the ’095
Application and Suciu et al. (US 2013/0195645 Al, publ.
Aug. 1,2013).
IV. The Examiner provisionally rejected claim 16 under the
judicially created doctrine of obviousness-type double
patenting as being unpatentable over claim 15 of the ’095
Application and Grabowski et al. (US 2010/0162683 Al,
publ. July 1, 2010, hereafter “Grabowski”).
V. The Examiner provisionally rejected claim 17 under the
judicially created doctrine of obviousness-type double
patenting as being unpatentable over claim 15 of the ’095
Application, Grabowski, and Stockman et al. (US
5,058,617, iss. Oct. 22, 1991, hereafter “Stockman”).
VI. The Examiner provisionally rejected claim 19 under the
judicially created doctrine of obviousness-type double
patenting as being unpatentable over claim 20 of the ’095
Application and Grabowski.
VII. The Examiner provisionally rejected claim 20 under the
judicially created doctrine of obviousness-type double
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Application 14/091,862
patenting as being unpatentable over claim 15 of the ’095
Application, Grabowski, and Rowlands.
VIII. The Examiner rejected claims 1—10, 16, and 17 under 35
U.S.C. § 103(a) as being unpatentable over Jain et al.
(US 8,402,739 B2, iss. Mar. 26, 2013, hereafter “Jain”),
Ehrich (US 3,843,277, iss. Oct. 22, 1974), Stockman,
Harris (US 4,240,250, iss. Dec. 23, 1980), and an
engineering expedient.
IX. The Examiner rejected claims 12 and 20 under 35 U.S.C.
§ 103(a) as being unpatentable over Jain, Ehrich,
Stockman, Harris, an engineering expedient, and
Rowlands.
X. The Examiner rejected claims 1,11, 13—16, 18, and 19
under 35 U.S.C. § 103(a) as being unpatentable over
Hasel et al. (US 8,449,247 Bl, iss. May 28, 2013,
hereafter “Hasel”), Ehrich, Stockman, Harris, and an
engineering expedient.
ANALYSIS
Rejections I—VII
Appellants do not challenge the merits of the Examiner’s
obviousness-type double patenting rejections. See Appeal Br. 8. Rather,
“Appellants wish to defer the filing of a terminal disclaimer until the claims
of the instant application are finalized and until the present claims of the
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Application 14/091,862
’095 Application are allowed.” Id. Accordingly, we decline to reach the
merits of the obviousness-type double patenting rejections.
Rejection VIII
The Examiner finds that Jain discloses substantially all of the
limitations of independent claims 1 and 16, but fails to disclose “a
dimensional relationship of L/D . . . between about 0.2 and about 0.45.”
Final Act. 16, 22. Nonetheless, the Examiner further finds that (1) Ehrich
discloses “a gas turbine inlet characterized by a length (L). . . and a fan
diameter (D3)”; (2) Stockman discloses a gas turbine engine inlet (nacelle)
having dimensions optimized for “both acoustic performance . . . and
size/weighfand (3) Harris discloses “optimizing the length-to-diameter
ratio of a gas turbine engine inlet duct” for sound suppression and
minimizing weight. Id. at 16—17 (citing Ehrich, Fig. 2; Stockman, col. 1,11.
17—24, col. 7,11. 65—68, col. 8,11. 1—14; Harris, Abstract). Thus, the
Examiner concludes that because
both Stockman and Harris disclose that the nacelle length and
diameter are result effective variables which achieve a
recognized result (i.e., - minimizing size and weight of the
nacelle inlet), and Harris discloses that a dimensional
relationship between inlet length and fan diameter is a result-
effective variable which achieves a recognized result (i.e. —
minimizing size/weight of a nacelle inlet portion while
maintaining sufficient noise suppression capability), and it has
been held that discovering an optimum value of a result effective
variable involves only routine skill in the art (see MPEP
2144.05), it would have been obvious to one having ordinary
skill in the art before the effective filing date of the claimed
invention to modify the inlet length and fan diameter, in terms of
a dimensional relationship therebetween of a ratio, of Jain, for
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Application 14/091,862
the purpose of optimizing the inlet dimensions based on the
design considerations of noise suppression and size/weight of the
inlet section and, hence, the nacelle.
Id. at 17—18.
Appellants argue that “[t]he cited references do not teach a ratio of
inlet length (L) to fan diameter (D) nor keeping such ratio within a particular
range.” Appeal Br. 4. According to Appellants, (1) Ehrich is concerned
with a ratio of length Li of a throat area 32 to a throat diameter Di; (2)
Stockman discloses dimensions and ratios of inlet 24 in regards to a lip 62
and a throat 42 in reference to air flow 20; and (3) Harris is concerned with a
length between a forward edge 48 and a rear edge of inlet 10. Id. at 5.
In response, the Examiner takes the position that a person skilled in
the art would have readily “define[d] the length parameter in [the] length-to-
diameter ratio as between the forward edge of the nacelle/inlet section and
the leading edge of the fan blade since the space between these locations is
illustrative of an inlet.” Examiner’s Answer 30 (dated Oct. 28, 2015,
hereafter “Ans.”). The Examiner further contends that the same person
skilled in the art would have readily “define [d] the diameter parameter in
[the] length-to-diameter ratio as the fan blade diameter . . . [as] this
dimension is illustrative of the cross-sectional area of the air inlet flow path”
because this dimension “is a critical design parameter of gas turbine engines
that affects acoustics[] and the size of the inlet section of the nacelle.” Id.
Thus, according to the Examiner, because (1) Ehrich “discloses the identical
length dimension [L] and diameter dimension [D] as claimed;” (2) Harris
recognizes that inlet optimization is based on a length-to-diameter ratio; and
(3) Stockman “correlates nacelle length and diameter to overall size/weight
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and acoustics,” the combined teachings of the applied references “provides a
factual basis ... to consider the claimed length-to-diameter ratio to be a
known result-effective variable that is recognized for affecting the
size/weight of the nacelle/inlet section and the acoustics thereof.” Id. at 30-
31.
Although we agree with the Examiner that Ehrich discloses a length
dimension L, as called for by each of independent claims 1 and 16, we do
not agree with the Examiner’s finding that Ehrich also discloses a fan
diameter, as called for by these claims. See Final Act. 16, 23; see also Ans.
30. Even though Ehrich’s diameter D3, as evidenced in its Figure 2, may
appear to be the diameter of fan blades 28, such an interpretation of Ehrich is
inconsistent with the express disclosure of Ehrich, which states that diameter
D3 is a diameter of inlet passageway 32 “at the fan blade leading edges 28'.”
See Ehrich, col. 4,11. 11—14.2 In other words, Ehrich’s diameter D3 does not
represent the diameter of fan blades 28, but rather characterizes the diameter
of inlet passageway 32 at the location of fan blade leading edges 28'.
Furthermore, like Ehrich, neither Stockman nor Harris discloses a fan
diameter D, as called for by each of independent claims 1 and 16. See
Appeal Br. 5. Specifically, Stockman discloses optimizing a variety of
dimensions of scroop inlet 24 (nacelle) such as, crown 50, keel 52, sides 58,
60, scarf angle S, droop angle D, contraction ratio of lip 62, diffuser 44, and
throat 42, in order to obtain scroop inlet 24 (nacelle) having “preferred
2 Ehrich specifically states that “[t]he inlet passageway 32 thereafter
converges toward the outer radial tips of the fan blades 28 so as to
approach a diameter D3 at the fan blade leading edges 28'.”
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aerodynamic and acoustic performance.” Stockman, col. 7,1. 65—col. 8,1.
10, Fig. 4. However, Stockman does not disclose anything about the
diameter of fan 30. Similarly, even though Harris discloses a desire to
reduce the length-to-diameter ratio of a nacelle inlet, Harris likewise does
not disclose anything about a fan diameter. Harris, col. 2,1. 67—col. 3,1. 2.
As such, because none of Ehrich, Stockman, or Harris discloses a fan
diameter D, as called for by each of independent claims 1 and 16, we do not
agree with the Examiner’s position that the combined teachings of the
applied prior art “provides a factual basis for . . . considering] the claimed
length-to-diameter ratio to be a known result-effective variable.” Ans. 30—
31.
It is well established that an artisan must be presumed to know
something about the art apart from what the references disclose. See In re
Jacoby, 309 F.2d 513, 516 (CCPA 1962). In this case, we appreciate that a
person of ordinary skill in the art would recognize that the cross-section of a
nacelle/inlet section of a gas turbine engine could be defined by a length
Liniet and a diameter Diniet. We agree with the Examiner that based on the
combined teachings of Ehrich, Stockman, and Harris, the person of ordinary
skill in the art would further recognize that Lmiet and Diniet constitute result-
effective variables that affect aerodynamic and acoustic performance of a
gas turbine engine.
However, the claimed fan diameter D is not the same parameter as the
inlet diameter Dm* and the Examiner has not set forth persuasive evidence
or technical reasoning to show that they are interchangeable in their effect
on aerodynamic and acoustic performance of a gas turbine engine. As none
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Application 14/091,862
of Ehrich, Stockman, and Harris discloses a fan diameter, and the Examiner
has not set forth persuasive evidence or technical reasoning that the fan
diameter is the same as the inlet diameter Dmiet or can be correlated to Dmiet,
the claimed fan diameter D does not constitute a result-effective variable.
Accordingly, the claimed ratio L/D is likewise not a result-effective variable
whose optimization is within the grasp of one of ordinary skill in the art.
See In re Applied Materials, Inc., 692 F.3d 1289, 1295—96 (Fed.Cir.2012)
(citations and quotations omitted).
We, thus, agree with Appellants that the Examiner’s reliance on Dmiet
in finding that the claimed fan diameter D also constitutes a result-effective
variable that affects aerodynamic and acoustic performance of a gas turbine
engine is based on speculation, and hence, is conclusory and not supported
by a preponderance of the evidence. See Reply Brief 3 (filed Dec. 14, 2015,
hereafter “Reply Br.”). As such, the Examiner’s legal conclusion of
obviousness is not supported by sufficient factual evidence, and thus, cannot
stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (holding that
“[t]he legal conclusion of obviousness must be supported by facts. Where
the legal conclusion is not supported by facts it cannot stand.”).
In conclusion, for the foregoing reasons, we do not sustain the
rejection of independent claims 1 and 16, and their respective dependent
claims 2—10 and 17, under 35 U.S.C. § 103(a) as unpatentable over Jain,
Ehrich, Stockman, Harris, and an engineering expedient.
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Rejections IX and X
The Examiner’s reliance on the disclosures of Hasel and Rowlands
does not remedy the deficiencies of the Ehrich, Stockman, and Harris
combination discussed supra. See Final Act. 25—33. Therefore, for the
same reasons as discussed above, we also do not sustain Rejections IX and
X.
SUMMARY
The Examiner’s decision to reject claims 1—20 under 35 U.S.C.
§ 103(a) is reversed.
REVERSED
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