13307741 (P.T.A.B. Mar. 19, 2018)

Ex Parte Miller et al

Patent Trial and Appeal BoardMar 19, 2018

13307741 (P.T.A.B. Mar. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/307,741 11130/2011 16139 7590 Reising Ethington PC 755 W. Big Beaver Road Suite 1850 Troy, MI 48084 03/21/2018 FIRST NAMED INVENTOR Daniel N. Miller 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. 7134.3038.002, TA-01309 5729 EXAMINER MEADE, LORNE EDWARD ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 03/21/2018 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): j ones@reising.com USPTOmail@reising.com USPTOmail@gmx.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL N. MILLER, NEAL D. DOMEL, and DAN J. BARUZZINI Appeal2017-007685 Application 13/307,741 1 Technology Center 3700 Before RICHARD H. MARSCHALL, ARTHUR M. PESLAK, and SEAN P. O'HANLON, Administrative Patent Judges. MARSCHALL, Administrative Patent Judge. DECISION ON APPEAL Daniel N. Miller et al. (Appellants) seek our review under 35 U.S.C. Â§ 134 of the Examiner's final decision rejecting claims 1-13. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Appellants identify Lockheed Martin Corporation as the real party in interest. Appeal Br. 2. Appeal2017-007685 Application 13/3 07, 7 41 THE CLAIMED SUBJECT MATTER Appellants' claimed subject matter relates "to exhaust impingement cooling and the reduction of heating effects of an exhaust plume on an impinged surface." Spec. i-f 1. Claim 1, reproduced below, is the only independent claim on appeal and is representative of the claimed subject matter. 1. An exhaust impingement cooling device for reducing heating effects of an exhaust plume on an impinged surface, the device comprising: an exhaust nozzle exit screen positioned across an exhaust plume flow path, and including a plurality of flowpath diverging apertures configured to spread at least a portion of an exhaust plume that is being emitted along the exhaust plume flow path from an exhaust plume source; and a plurality of flow control jets arrayed within the exhaust plume flow path in respective positions where their operation will entrain a flow of exhaust plume gases through the exhaust nozzle exit screen, thereby increasing the momentum and mixing of the exhaust plume with cooler ambient air. Appeal Br. 14 (Claims App.). THE REJECTIONS Appellants seek review of the following rejections: 1. Claims 1-5 and 8-13 under 35 U.S.C. Â§ 102(b) as anticipated by Graziosi (US 6,896,475 B2, iss. May 24, 2005). 2. Claims 1---6 and 8-13 under 35 U.S.C. Â§ 103(a) as unpatentable over Graziosi. 3. Claim 7 under 35 U.S.C. Â§ 103(a) as unpatentable over Graziosi and Chiekh (Maher Ben Chiekh et al., Synthetic jet control for 2 Appeal2017-007685 Application 13/3 07, 7 41 flows in a diffuser: vectoring, spreading and mixing enhancement, JOURNAL OF TURBULENCE, 2-12 (2003)). ANALYSIS Anticipation Claim 1 requires "a plurality of flow control jets arrayed within the exhaust plume flow path." Appeal Br. 14 (Claims App.). The Examiner construed "flow control jets" as encompassing "a jet of air" or "a stream of fluid" from a discrete hole rather than a structure, such as the body defining the hole producing the jet of air or stream of fluid. Ans. 18; see also Adv. Act. 2 (mailed Feb. 2, 2016). In support of the construction, the Examiner found that "flow control jets" did not have a specific meaning in the art, Appellants' specification depicted the jets schematically in figures, and the specification's description of specific types of jets was not limiting on claim 1. Ans. 12-18. The Examiner found that Graziosi discloses the claimed flow control jets in a number of embodiments, including those depicting injection ports 412 located outside the flow path but injecting air or gas into the flow path. Final Act. 4; Graziosi Fig. 14. The Examiner also found that Graziosi's flow control jets were "within" the exhaust plume flow path. See Final Act. 4. Appellants argue that the Examiner incorrectly construed "control jets" to cover fluid flow. Appeal Br. 8-9. Appellants contend that the specification consistently refers to control jets 28 as structure rather than mere fluid flow. See id. at 9. Appellants also contend that the specification describes functions of control jets 28 that structures perform, and that transient fluid flow cannot perform. Id. Appellants argue that, when 3 Appeal2017-007685 Application 13/3 07, 7 41 properly construed, Graziosi's mechanical jet structures are not "arrayed within an exhaust plume flow path" as required by claim 1 because those structures lie outside the flow path. Id. at 9--10. We agree with Appellants that the Examiner erred in construing "flow control jets" to encompass jets of air or fluid flow, without any structure. The language itself suggests that "flow control jets" connotes structure because transient fluid flows are not generally viewed as controlling flow. See Appeal Br. 14 (Claims App.). Similarly, claim 1 refers to "operation" of the flow control jets entraining a flow of exhaust plume gases through the screen, and transient fluid flows are not generally viewed as subject to "operation." Id. Accordingly, the language of claim 1 itself strongly suggests that the "flow control jets" require structure. The specification also supports Appellants' construction because it consistently refers to flow control jets 28 as including structure, and the Examiner does not point to any portion of the specification that suggests mere fluid flow amounts to "flow control jets." See Spec. i-fi-120-27. Moreover, several descriptions of the flow control jets 28 would not be logical if the term applied to mere fluid flow. For example, the specification describes the jets in "positions," their "operation," "the amount of impedance the jets introduce when they are not actively augmenting mass flow," and an actuator to "selectively actuate the control jets 28." Id. at i-fi-120-21, 26. Transient fluid flows do not impede flow when not present, and they cannot be actuated or operated in any conventional sense. Further, the specification refers to specific types of flow control jets 28 that are unquestionably structural in nature. Id. at i-fi-122-24. The Examiner suggests 4 Appeal2017-007685 Application 13/3 07, 7 41 that dependent claims requiring specific types of flow control jets support the Examiner's construction, but, at most, the doctrine of claim differentiation suggests that "flow control jets" should not be limited to the specific types of jets called for in the dependent claims, not that the limitation requires no structure at all. See Ans. 17-18. Based on the foregoing, we disagree with the Examiner's construction of "flow control jets" and conclude that the limitation requires some structure rather than mere jets of air or fluid flow. The Examiner does not make any findings regarding the flow control jets with this construction in mind, or contend that Graziosi's physical structures that make up its jets are within the exhaust plume flow path. Final Act. 3--4. Accordingly, we do not sustain the rejection of claim 1 as anticipated by Graziosi, or claims 2-5 and 8-13 that depend directly or indirectly from claim 1. Obviousness The Examiner found, as an alternative to the anticipation rejection of claims 1-5 and 8-13, that the same claims would have been obvious because one of skill in the art would have modified the structure shown in Graziosi's Figure 5 with a plurality of flow jets disclosed in other portions of Graziosi. Final Act. 4--5. The Examiner also rejected claim 6 in view of Graziosi under 35 U.S.C. Â§ 103(a), and claim 7 in view of Graziosi and Chiekh under 35 U.S.C. Â§ 103(a). Id. at 9-12. The Examiner's obviousness rejections did not address the deficiencies in the claim construction or findings related to the "flow control jets" as discussed above. See id.; Ans. 19-20. Accordingly, we do not 5 Appeal2017-007685 Application 13/3 07, 7 41 sustain the rejections of claims 1-13 under 35 U.S.C. Â§ 103(a) for the same reasons discussed above in the anticipation analysis. DECISION We reverse the decision of the Examiner to reject claims 1-13. REVERSED 6