Ex Parte Rosenkrans et al

Patent Trial and Appeal Board

Dec 12, 2016

13340747 (P.T.A.B. Dec. 12, 2016)

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.
13/340,747 12/30/2011 William E. Rosenkrans PA3931USAA;67097-778PUS2 3380
54549 7590 12/14/2016
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
EASTMAN, AARON ROBERT
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
12/14/2016 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):
ptodocket @ cgolaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte
WILLIAM E. ROSENKRANS and ROBERT J. MORRIS1
Appeal 2014-006623
Application 13/340,747
Technology Center 3700
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
ROBERT L. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1—22. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellants identify United Technologies Corporation as the real party
in interest. App. Br. 1.
Appeal 2014-006623
Application 13/340,747
Appellants ’ Invention
Appellants’ invention generally relates “to a flutter sensing system for
a gas turbine engine.” Spec. 1,11. 10-11. The “gas turbine engine assembly
includes a nacelle, a core engine casing within the nacelle, a low pressure
turbine having a pressure ratio that is greater than five, and a bypass passage
established between the nacelle and the core engine casing.” Id. Abstract.
An objective of the invention is “to provide a gas turbine engine having a
closed-loop flutter sensing system which achieves reduced flutter operation
and minimizes performance losses of the gas turbine engine.” Id. at 2,11.
17-19.
Claims on Appeal
Claims 1, 9, and 21 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal:
1. A gas turbine engine assembly, comprising:
a nacelle;
a core engine casing within the nacelle;
a low pressure turbine having a pressure ratio that is greater than
five; and
a bypass passage established between the nacelle and the core
engine casing, wherein about 80% or more of airflow entering
the engine is moved through the bypass passage.
App. Br. 10 (Claims Appendix). Notably, claim 21 does not have the
limitation of claim 1 requiring “a low pressure turbine having a
pressure ratio that is greater than five.” Instead, claim 21 recites a
sensor operable to detect an airfoil flutter condition and a controller
operable to move a flap assembly of a variable area fan nozzle. Id. at
12.
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Application 13/340,747
Examiner’s Rejections
The following rejections are before us for review.
I. Claims 1—20 and 22 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the enablement requirement.
II. Claims 1, 2, 5, 6, 9, 12, 13, 16, and 18 are rejected under 35
U.S.C. § 102(b) as being anticipated by Klees (US 3,792,584, issued Feb.
19, 1974).
III. Claims 3, 4, 10, 11, and 17 are rejected under 35 U.S.C.
§ 103(a) by Klees and Law (US 7,021,042 B2, issued Apr. 4, 2006).
IV. Claims 7, 8, 14, 15, and 20-22 are rejected under 35 U.S.C.
§ 103(a) by Klees and Eveker (US 6,582,183 B2, issued June 24, 2003).
V. Claim 19 is rejected under 35 U.S.C. § 103(a) by Klees and
Lair (US 2005/0086927 Al, pub. Apr. 28, 2005).
ANALYSIS
Rejection I Enablement
The Examiner rejects claims 1—20 and 22 because the claims contain
“subject matter which was not described in the specification in such a way as
to enable one skilled in the art to which it pertains, or with which it is most
nearly connected, to make and/or use the invention without undue
experimentation.” Ans. 2; see Final Office Act. 2 (Aug. 5, 2013) (“no
direction has been provided by the inventors as to how to achieve the
claimed pressure ratio”). The Examiner finds “the specification does not
provide any of the necessary structure or measurements such that one of
ordinary skill in the art would be able to make a gas turbine engine having
the pressure ratio as claimed without undue experimentation.” Ans. 2. The
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Application 13/340,747
Examiner explains that the variables needed to determine the pressure ratio
are not disclosed in the application, thus it would be impossible to know
what is being sought out for protection. Id. We have considered Appellants’
arguments to the contrary but find them unpersuasive.
“[T]o be enabling, the specification of a patent must teach those
skilled in the art how to make and use the full scope of the claimed invention
without ‘undue experimentation.’” In re Wright, 999 F.2d 1557, 1561 (Fed.
Cir. 1993) (internal citations omitted). Appellants’ claims are presumably
broad, capturing any “low pressure turbine having a pressure ratio that is
greater than five.” See MagSil Corp. v. Hitachi Global Storage
Technologies, Inc., 687 F.3d 1377, 1381 (Fed. Cir. 2012) (“a patentee
chooses broad claim language at the peril of losing any claim that cannot be
enabled across its full scope of coverage”). Thus, Appellants’ Specification
at the time of filing must teach one of ordinary skill in the art how to make
and use a low pressure turbine across the scope of the claimed pressure ratio
range.
The Specification is void of any teaching as to what structure or
function dictates or controls pressure ratio in a low pressure turbine. The
Specification only states: “The low pressure turbine 22 has a pressure ratio
that is greater than five, in one example.” Spec. 5,11. 28—29. There is no
indication of how a pressure ratio is determined or what factors would lead
to the pressure ratio being greater than five. The one statement about
pressure ratio in the Specification lacks details needed to make or use a low
pressure turbine with a pressure ratio that is greater than five.
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Application 13/340,747
Appellants do not cite to any specific portion of the Specification as
enabling the scope of the claim language. See App. Br. 4—5; Reply Br. 2.
Instead, Appellants contend “a worker of reasonable skill in the art could
make a gas turbine engine having a low pressure turbine with a pressure
ratio that is greater than five in view of [Appellants’] disclosure and the
information known in the art without undue experimentation.” App. Br. 4.
Appellants seem to suggest that achieving a pressure ratio greater than five
is just something a person of ordinary skill in the art would understand.
Appellants contend:
A person having skill in this art would be able to determine the
metes and bounds of these claim terms. Pressure ratios are a
common parameter associated with gas turbine engines and the
structures necessary to achieve such ratios would be identifiable
by a person of skill in the art.
Id. at 5. Appellants also contend “the specification need not contain a fully
detailed example if the invention is otherwise disclosed in such a manner
that one skilled in the art would be able to practice it without an undue
amount of experimentation.” Id. at 4.
The record before us does not support Appellants’ contentions that
structures necessary to achieve such ratios would be well-known to a person
of skill in the art. The Specification does not provide any explanation as to
how pressure ratios are modified or what structures impact the pressure
ratio. Appellants argue the structure to achieve the claimed pressure ratio is
the entire low pressure turbine. Reply Br. 2. This generalization does not,
however, provide sufficient evidentiary or analytical basis to conclude the
Specification provides sufficient teaching to arrive at a pressure ratio greater
than 5. Considering the degree of detail that would be necessary to achieve
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Application 13/340,747
a pressure ratio greater than 5, more than attorney argument and generalities
are needed. See In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988).
Because Appellants’ combined disclosure fails to teach those skilled
in the art how to make and use the full scope of the claimed invention
without undue experimentation, we sustain the Examiner’s rejection of
claims 1—20 and 22 under 35 U.S.C. § 112, first paragraph, as failing to
comply with the enablement requirement.
Rejection II Anticipation Based on Klees
Appellants contend the same limitation discussed above is missing
from the disclosure of Klees. See App. Br. 6—7; Reply Br. 3. We agree that
the Examiner has not persuasively established that Klees discloses the
requirement of “a low pressure turbine having a pressure ratio that is greater
than five” required in independent claims 1 and 9. See App. Br. 10—12.
Appellants contend that “Klees is completely silent about the pressure
ratios of the engines described therein.” App. Br. 6. The Examiner cites to
numerous figures within Klees to support the rejection and finds that these
figures “show a plurality of turbine stages wherein each stage downstream of
another is a low pressure stage relative to the one preceding it in the flow
direction.” Ans. 3. Even if the Examiner’s statement is accurate, it still does
not address the limitation as claimed, which requires a specific pressure ratio
that is greater than five. In the evidence cited by the Examiner, Klees is
silent as to pressure ratio. The Examiner does not persuasively explain how
the figures of Klees relate to the claimed pressure ratio. For the reasons set
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forth above, we do not sustain the Examiner’s rejection of claims 1, 2, 5, 6,
9, 12, 13, 16, and 18 under 35 U.S.C. § 102(b).2
Rejection III Obviousness
Claims 3,4, 10, 11, and 17 are rejected under 35 U.S.C. § 103(a) by
Klees and Law. Each of these claims depend directly or indirectly from
claims 1 and 9. Because the Examiner relies on Klees as teaching the
claimed “low pressure turbine having a pressure ratio that is greater than
five” and because the Examiner does not rely on Law as correcting the
deficiency noted above for this limitation, we likewise do not sustain the
Examiner’s rejection of claims 3, 4, 10, 11, and 17 under Section 103(a).
Rejection IV Obviousness
Claims 7, 8, 14, 15 and 20—22 are rejected under 35 U.S.C. § 103(a)
by Klees and Eveker. Claims 7, 8, 14, 15, and 20 depend directly or
indirectly from claims 1 and 9. Because the Examiner relies on Klees as
teaching the claimed “low pressure turbine having a pressure ratio that is
greater than five” and because the Examiner does not rely on Eveker as
correcting the deficiency noted above for this limitation, we likewise do not
sustain the Examiner’s rejection of claims 7, 8, 14, 15, and 20 under Section
103(a).
2 Should prosecution continue for this Application, Appellants’ statements
made in response to the Section 112 rejections should be considered to
determine whether the limitation of “a low pressure turbine having a
pressure ratio that is greater than five” is admitted prior art, or otherwise
taught in Eveker. See Eveker, Fig. 1 and accompanying text. Appellants
argued that “[pjressure ratios are a common parameter associated with gas
turbine engines and the structures necessary to achieve such ratios would be
identifiable by a person of skill in the art.” App. Br. 5; see also MPEP
§2129.
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Claim 21 is the only claim before us that does not require a pressure
ratio that is greater than five. App. Br. 12. Regarding claim 21, Appellants
further contend that “[njeither the Klees nor the Eveker arrangement moves
a flap assembly of a variable area fan nozzle in response to detecting an
airfoil flutter condition.” Id. at 7. According to Appellants, “Eveker is
relied on for the teachings of detecting a flutter condition but these teachings
are limited to a core exhaust nozzle and not a fan exhaust nozzle.” Id. (“The
core exhaust nozzle 132 of Eveker is not a variable area fan nozzle because
Eveker does not disclose a fan section.”). We disagree with Appellants’
contentions.
The Examiner first finds that Klees, and not Eveker, is relied on as
teaching the fan limitations except for fan flutter control. Ans. 11. The
Examiner finds that Eveker teaches fan flutter control {id.), citing to the
Abstract of Eveker, which states: “The invention is a method and system for
fan flutter control.” Eveker, Abstract (57).
We find the Examiner’s reasoning persuasive based on the record
before us. The variable nozzle control system of Klees lacks the claimed
sensor for detecting “an airfoil flutter condition.” See Ans. 11. Eveker is
relied on as teaching a sensor system capable of detecting airfoil flutter
conditions and then modulating a “variable exhaust nozzle” to address the
flutter condition. Eveker, Abstract. The Examiner explains how this flutter
sensor and control capability of Eveker could have been integrated into the
already existing structure (variable area fan nozzle) of Klees. Ans. 10, 11,4
(“Klees discloses the gas turbine engine assembly of claim 1, including a
variable area fan nozzle that controls a discharge airflow area of the bypass
passage (col. 13 line 64 —col. 14 line 1 of Klees).”). We agree this
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Application 13/340,747
combination would have been reasonable “for the purposes of controlling
fan flutter” as determined by the Examiner. Final Office Act. 10.
In a prior decision, we considered but rejected similar arguments
made by Appellants related to Eveker. Specifically, in Ex parte William E.
Rosenkrans, Appeal No. 2012-011973, Appln. No. 11/682,015, we
determined:
We agree with the Examiner that although one embodiment of
Eveker relates to core exhaust nozzle control, one of ordinary
skill would have known that the teaching of detecting flutter and
thereafter directing movement of a nozzle to address the flutter
could be integrated into the already existing control system and
structure of Lair for adjustment of a variable area fan nozzle.
Indeed, Appellants have not identified any persuasive evidence
that there are structural differences for detecting flutter and
thereafter directing movement of a nozzle for a core exhaust
nozzle versus a variable area fan nozzle, and even if there are,
such structural differences are not recited in the claim.
Furthermore, Eveker broadly suggests the use of its flutter sensor
in any “system for fan flutter control” and for use with a “variable
exhaust nozzle.” Eveker, Abstract; see also col. 3, 11. 28—35
(“Although this invention will be described in terms of a rotary
compressor for a gas turbine engine ... it also is equally
applicable to other rotary compressors and similar apparatus such
as axial flow compressors, industrial fans, centrifugal
compressors, centrifugal chillers, and blowers.”).
Slip op. 4—5 (addressing the combination of Eveker and Lair). Again,
Appellants have not identified any persuasive evidence that there are
structural differences for detecting flutter and thereafter directing movement
of a nozzle for a core exhaust nozzle versus a variable area fan nozzle, and
even if there are, such structural differences are not recited in the claim. We
therefore sustain the Examiner’s rejection of claim 21 under 35 U.S.C.
§ 103(a).
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Application 13/340,747
Claim 22 depends from claim 21, but it also requires the limitation “a
low pressure turbine having a pressure ratio that is greater than five.” App.
Br. 12. Although claim 22 does not appear to be argued separately,
Appellants do incorporate their arguments “stated above” as to Klees’
shortcoming. App. Br. 7. Because the Examiner does not rely on Eveker as
correcting the deficiency noted above for Klees’ failure to teach the pressure
ratio limitation, we do not sustain the Examiner’s rejection of claim 22 under
Section 103(a).
Rejection V Obviousness
Claim 19 is rejected under 35 U.S.C. § 103(a) by Klees and Lair.
Claim 19 depends indirectly from claim 1. Because the Examiner relies on
Klees as teaching the claimed “low pressure turbine having a pressure ratio
that is greater than five” and because the Examiner does not rely on Lair as
correcting the deficiency noted above for this limitation, we likewise do not
sustain the Examiner’s rejection of claim 19 under Section 103(a).
CONCLUSION
I. The rejection of claims 1—20 and 22 under 35 U.S.C. § 112,
first paragraph, as failing to comply with the enablement requirement is
affirmed.
II. The rejection of claims 1, 2, 5, 6, 9, 12, 13, 16, and 18 under 35
U.S.C. § 102(b) as being anticipated by Klees is reversed.
III. The rejection of claims 3,4, 10, 11, and 17 under 35 U.S.C.
§ 103(a) by Klees and Law is reversed.
IV. The rejection of claims 7, 8, 14, 15, 20, and 22 under 35 U.S.C.
§ 103(a) by Klees and Eveker is reversed. The rejection of claim 21 under
35 U.S.C. § 103(a) by Klees and Eveker is affirmed.
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V. The rejection of claim 19 under 35 U.S.C. § 103(a) by Klees
and Lair is reversed.
DECISION
Because at least one rejection encompassing each claim on appeal is
affirmed, the decision of the Examiner is affirmed.
We AFFIRM the Examiner’s Final Rejection of claims 1—22.
AFFIRMED
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