Ex Parte Schwarz et al

Patent Trial and Appeal Board

Mar 28, 2018

13408109 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/408,109 02/29/2012 Frederick M. Schwarz
54549 7590 03/30/2018
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
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.
61317US01;67097-1734PUS1 8541
EXAMINER
GOYAL,ARUN
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDERICK M. SCHWARZ,
DANIEL BERNARD KUPRATIS,
and GABRIEL L. SUCIU
Appeal2017-004238
Application 13/408, 109
Technology Center 3700
Before: MICHAEL L. HOELTER, LISA M. GUIJT, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
1 Appellants identify the following cases as being related: (i) Application
Serial No. 13/483,406, filed May 30, 2012, Geared Turbofan Architecture
for Improved Thrust Density (present status: abandoned); (ii) Application
Serial No. 13/365,288, filed February 3, 2012, Geared Turbofan Engine with
Counter-Rotating Shafts (present status: abandoned); (iii) Application Serial
No. 13/407,795, filed February 29, 2012, Geared Turbofan Engine with
Counter-Rotating Shafts, (present status: Examiner's Answer mailed
November 2, 2017, no Appeal No. assigned); (iv) Application Serial No.
13/437,270, filed April 2, 2012, Geared Turbofan with Three Turbines with
First Two Counter-Rotating, and Third Co-Rotating with the Second
Turbine (present status: abandoned); (v)Application Serial No. 13/437,290,
Filed April 2, 2012, Geared Turbofan with Three Turbines with First Two
co-Rotating and Third Rotating in an Opposed Direction (present status:
abandoned); (vi) Application Serial No. 13/437,304, filed April 2, 2012,
Appeal2017-004238
Application 13/408,109
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 8-10, 12-17, 19, and 21-23. App. Br. 2. Claims 2-7, 11, 18, and
20 have been canceled. See Amendment, filed January 21, 2015. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter relates to a gas turbine engine that
"typically includes a fan section, a compressor section, a combustor section
and a turbine section." Spec. i-f 1. Apparatus claims 1 and 17 are
independent. Claim 1 is illustrative of the claimed subject matter and is
reproduced below:
1. A gas turbine engine comprising:
a single fan rotatable about an axis;
a compressor section having a low pressure compressor section
and a high pressure compressor section;
a combustor in fluid communication with the compressor
section;
a turbine section in fluid communication with the combustor,
said turbine section having a low pressure turbine section and a high
pressure turbine section;
a mid-turbine frame between said low pressure turbine section
and said high pressure turbine section, wherein said mid-turbine frame
comprises a fixed vane; and
Geared Turbofan with Three Co-Rotating Turbines, (present status: assigned
Appeal No. 2017-002377, Decision rendered February 21, 2018); and (vii)
Application Serial No. 13/459,498, filed April 30, 2012, Geared Turbofan
with Three Turbines All Co-Rotating (present status: assigned Appeal No.
2017-002075, Decision rendered January 31, 2018). App. Br. 1-2. Also,
the Real Party in Interest, as identified by Appellants, is United
Technologies Corporation. App. Br. 1.
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Application 13/408,109
a speed change system driven by the turbine section through a
shaft rotatable about the axis, wherein said speed change system
comprises a sun gear driven by the turbine section, a plurality of
planet gears driven by the sun gear and supported within a carrier and
a ring gear circumscribing the plurality of planet gears, wherein the
ring gear is fixed to a static structure and the carrier is rotatable about
the axis for driving rotation of the fan,
wherein said fan is driven in a first direction by the turbine
section through the speed change system at a speed different than the
low pressure compressor section,
wherein said low pressure compressor section is coupled to said
low pressure turbine section by the shaft such that both the low
pressure compressor section and the low pressure turbine section
rotate about said axis in the first direction, the low pressure
compressor including rotatable stages that extend radially outward
relative to the axis, and
wherein said high pressure compressor section and said high
pressure turbine section rotate about said axis in a second direction
opposite said first direction.
REFERENCES RELIED ON BY THE EXAMINER
Sheridan us 5,433,674 July 18, 1995
Fujiwara us 5,740,668 April21, 1998
Seda US 6, 732,502 B2 May 11, 2004
Valentian US 7 ,406,830 B2 Aug. 5, 2008
Marshall US 2008/0304974 Al Dec. 11, 2008
Somanath US 7,632,064 B2 Dec. 15, 2009
THE REJECTIONS ON APPEAL
Claims 1, 8-10, 12-17, 19, and 21-23 are rejected under 35 U.S.C.
§ 112, second paragraph, as being indefinite for failing to particularly point
out and distinctly claim the subject matter which applicant regards as the
invention.
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Application 13/408,109
Claims 1, 8-10, 12, 17, 19, and 21-23 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Sheridan, Seda, and Somanath.
Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Sheridan, Seda, Somanath, and Marshall.
Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Sheridan, Seda, Somanath, and Fujiwara.
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Sheridan, Seda, Somanath, and V alentian.
ANALYSIS
The rejection of claims 1, 8-10, 12-17, 19, and 21-23
under 35 US.C. § 112, second paragraph, as being indefinite
The Examiner stated, "[ e ]very ground of rejection set forth in the
Office action dated 02/24/2016 from which the appeal is taken is being
maintained by the examiner." Ans. 2. One of the grounds of rejection is the
rejection of all the claims as being indefinite. Final Act. 2. On this point,
the Examiner stated that the limitation "the planet gears" is in error and that
Appellants apparently intended instead, "the plurality of planet gears." Final
Act. 2. The Examiner thereafter stated that this new language "will be
applied with this correction in mind." Final Act. 2. Afterwards, Appellants
made the appropriate amendment to independent claims 1 and 17 (see
Amendment after Final dated April 14, 2016) and the Examiner entered this
amendment (see Advisory Action dated May 10, 2016).
In view of the above actions by the Examiner and Appellants, we
consider the Examiner's indefinite rejection of claims 1, 8-10, 12-17, 19,
and 21-23 to be moot.
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Application 13/408,109
The rejection of claims 1, 8-10, 12, 17, 19, and 21-23
as unpatentable over Sheridan, Seda, and Somanath
Appellants argue claims 1, 8-10, 12, 17, 19, and 21-23 together.
App. Br. 5-8. We select claim 1 for review with the remaining claims
standing or falling therewith. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner primarily relies on the teachings of Sheridan for
disclosing the limitations of claim 1, but acknowledges that Sheridan "does
not specifically teach" (a) high pressure turbine and compressor rotating in a
direction opposite that of low pressure turbine and compressor; and, (b) a
mid-turbine frame section. Final Act. 2--4. The Examiner relies on Seda for
the former stating that it would have been obvious "to modify Sheridan's
engine such that the high pressure compressor and the high pressure turbine
rotate in a second direction opposite said first direction" of Sheridan's low
pressure turbine and compressor. Final Act. 4. The Examiner explains that
the modification would be "to reduce sensitivity to airflow inlet distortion of
the fan section as taught by Seda, col. 3 11. 52-53." Final Act. 4; see also
Ans. 2. Regarding the latter feature that Sheridan "does not specifically
teach" (i.e., a mid-turbine frame section), the Examiner states, "Somanath
teaches [a] mid-turbine frame" as recited. Final Act. 4. Appellants do not
dispute the teachings of Somanath.
Appellants initially reference KSR2 stating, "there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." App. Br. 5 (quoting KSR, 550 U.S. at 418); see
also Reply Br. 2, 3. Further stressing this point, Appellants contend that the
Examiner's rejection "is only possible with Applicant's disclosure at hand."
2 KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398 (U.S. 2007).
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Application 13/408,109
App. Br. 6; see also Reply Br. 4 (the Examiner "us[ed] Applicant's
disclosure as a guide"). However, Appellants do not address the following
teaching in Seda (referenced by the Examiner (see Ans. 2; see also Final
Act. 4)):
The engine 10 is designed such that the last stage of the second
booster 17 [(i.e., what the Examiner correlates to the recited
low pressure compressor, Ans. 2)] and, in the exemplary
embodiment, the second fan blade row 15 are counter rotatable
with respect to the high pressure compressor 18. This reduces
the sensitivity of the engine 10 to airflow inlet distortion of the
fan section 12. It also reduces mutual sensitivity to rotating
stall cells in the other rotors.
Seda 3:48-53. In other words, Appellants do not explain how the Examiner
erred in relying on the above passage in Seda for teaching a desire for the
high and low compressor sections to rotate in opposite directions (i.e., "are
counter rotatable"). 3 Appellants' contentions regarding a lack of a reason to
combine Sheridan and Seda, and that such combination was a matter of
hindsight, do not take into account the above teachings of Seda.
Consequently, we are not persuaded of Examiner error.
Appellants further contend that because Seda's system "does not
include a gear" and "operates in a much different way when compared to the
disclosed Sheridan engine," that "one skilled in the art would not look to the
Seda engine to modify operation of the Sheridan engine." App. Br. 6; see
also Reply Br. 2. We understand Appellants' argument to be that Sheridan
and Seda pertain to non-analogous art such that a skilled person would not
3 "The Examiner notes that Sheridan does not constrain [] the rotating
direction of the high pressure compressor with respect to the rotating
direction of the low pressure compressor and as such they could still be
rotating in opposite directions." Ans. 2.
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Application 13/408,109
look to the one to modify the other. "To qualify as prior art for an
obviousness analysis, a reference must qualify as 'analogous art,' i.e., it
must satisfy one of the following conditions: ( 1) the reference must be from
the same field of endeavor; or (2) the reference must be reasonably pertinent
to the particular problem with which the inventor is involved." K-TEC, Inc.
v. Vita-Mix Corp., 696 F.3d 1364, 1375 (Fed. Cir. 2012). In the present
situation, there is no dispute that both Sheridan and Seda pertain to turbine
engines (see Sheridan 2:62---64; Seda Title), nor is there any dispute that they
both, respectively, disclose fan, compressor, combustor, and turbine
sections, with perhaps one exception being Seda's explicit disclosure of
counter-rotating rotors that interconnect the turbine and compressor sections.
See Seda 1 :66 to 2:29. Appellants' disclosed subject matter is also in the
field of turbine engines. See, e.g., Spec. i-f 1. Without addressing the
problem(s) addressed by the inventor (i.e., the second prong of the
analogous art test), it is reasonable to conclude that Sheridan and Seda are
both "from the same field of endeavor" as the claimed invention, and, hence,
are analogous art and therefore suitable for combination here. Furthermore,
regarding Seda's lack of a gear, the Examiner does not rely on Seda for
disclosing a geared system; instead, the Examiner relies on Sheridan for
such teaching. See Final Act. 3.
Appellants also contend that combining Sheridan and Seda would
"increase[] the overall complexity of the engine as well as weight." App.
Br. 6; see also Reply Br. 2-3. However, Seda clearly teaches counter-
rotating rotors (see supra), despite Appellants' presumption that this results
in greater engine complexity/weight. In view of Seda's existing counter-
rotating engine, Appellants do not explain why the perceived shortcomings
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Application 13/408,109
preclude the suggestion of such a feature being combined with Sheridan's
engine. Further, we are instructed, "[t]he fact that the motivating benefit
comes at the expense of another benefit, however, should not nullify its use
as a basis to modify the disclosure of one reference with the teachings of
another. Instead, the benefits, both lost and gained, should be weighed
against one another." Winner Int'! Royalty Corp. v. Wang, 202 F.3d 1340,
1349 n. 8 (Fed. Cir. 2000). In the present situation, Appellants do not
explain how the Examiner erred in weighing Seda's desire for reduced
"sensitivity of the engine 10 to airflow inlet distortion of the fan section 12"
(see supra) with whatever additional complexity/weight such desire might
mcur.
Appellants also contend, "the Seda engine is a unique engine" App.
Br. 6), but Appellants do not explain how being unique would preclude
combining any teaching that Seda might provide with another reference
(e.g., Sheridan). Appellants further contend, "[t]he Examiner looks only to
the second booster 17 for no other reason than it provides the missing feature
based on Applicant's disclosure" (App. Br. 6; Reply Br. 3) and that the
Examiner "pick[ ed] and chose certain portions for no other reason than to
provide the features missing from the base reference" (App. Br. 7; Reply Br.
4). Again, as above, the missing explicit feature of counter-rotation was
selected for reasons other than it being disclosed by Appellants (i.e., "in
order to reduce sensitivity to airflow inlet distortion of the fan section as
taught by Seda"). Final Act. 4; see also Ans. 2. Appellants additionally
state, "Seda does not represent a general understanding in the art" (App. Br.
7; see also Reply Br. 3), but Appellants do not dispute that whether Seda
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Application 13/408,109
represents a general understanding or not, Seda discloses the feature relied
on by the Examiner.
Appellants also contend, "the Examiner's modification only uses part
of the features that are intended to operate altogether as is disclosed in
Seda."4 App. Br. 7; see also Reply Br. 4. However, it is well settled that
obviousness does not require that all of the features of the secondary
reference be bodily incorporated into the primary reference. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
In the Examiner's Answer, the Examiner addresses Seda's counter-
rotating arrangement between upstream low pressure compressor 1 7 and
downstream high pressure compressor 18. Ans. 2. The Examiner correlates
their counter-rotating locations to Sheridan stating, "Sheridan's high
pressure compressor 13, being immediately downstream of the low pressure
compressor 12, must be counter-rotating with respect to low pressure
compressor 12." Ans. 2. Appellants explain that in Seda, "it is the second
fan stage 15 ... that is immediately before the high pressure compressor
18." Reply Br. 2. Appellants do not identify where claim 1 recites this
"immediately before" limitation such that claim 1 precludes any structure
from being between the two counter-rotating compressor sections.
Additionally, Appellants do not explain how the Examiner's correlation
between Seda's engine and Sheridan's engine is in error. In short,
4 Here, Appellants contend that the Examiner did not consider Seda "in its
entirety" because the Examiner ignored Seda's "rotation of the first booster
16" which "teaches away from the recited features." App. Br. 6-7; see also
Reply Br. 3.
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Application 13/408,109
Appellants are arguing a feature not recited and, as such, are not persuasive
the Examiner's analogy is in error.
In view of the above, and based on the record presented, Appellants
fail to identify error by the Examiner in combining Seda's teaching of
counter-rotation with Sheridan's turbine engine. We sustain the Examiner's
rejection of claims 1, 8-10, 12, 17, 19, and 21-23 as being unpatentable over
Sheridan, Seda, and Somanath.
The rejection of claim 13
as unpatentable over Sheridan, Seda, Somanath, and Marshall
Claim 13 depends from claim 1 and includes the additional limitation,
"wherein said low pressure turbine section includes at least one powdered
metal disc." The Examiner relies on the teachings of Marshall for disclosing
this additional limitation. Final Act. 5. Appellants contend, "Marshall
teaches away from the proposed combination" because the disc in Marshall
to which the powdered metal is applied "is not a low pressure turbine by any
fair reading." App. Br. 8; Reply Br. 5. The Examiner acknowledges that
"Marshall teaches using powdered metal disc in the hot turbine stage 20"
(i.e., high pressure turbine). Ans. 3. However, the Examiner states,
(a) "Marshall does not teach away from modifying the disc of a low pressure
turbine;" and, (b) the low pressure turbine of the combination of Sheridan
and Seda "can obviously be modified with Marshall's teachings to include a
powdered metal disc in order for the turbine to be able to [with ]stand high
temperatures." Ans. 3. Appellants respond stating that the Examiner's
argument effectively "reads limitations out of the claims" because "[ t ]he
claim clearly recites that the 'low pressure turbine includes at least one
powdered metal disc."' Reply Br. 5.
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Application 13/408,109
We are not of the impression that the Examiner is reading the
limitation of the low pressure turbine having at least one powdered metal
disc out of claim 13. Instead, we determine the Examiner is reasoning that if
Marshall's first stage (high pressure) turbine 20 (receiving hot air from
combustor 16) can benefit from being powder metal coated, then Marshall's
downstream second stage (low pressure) turbine 22 can equally benefit so as
"to [with ]stand high temperatures." We understand the Examiner is simply
applying Marshall's teachings to the combination of Sheridan, Seda, and
Somanath. Appellants are not persuasive of Examiner error in such
application or for the reasons stated. We sustain the Examiner's rejection of
claim 13 as being obvious over Sheridan, Seda, Somanath, and Marshall.
The rejections of (a) claims] 4 and 15 as unpatentable over Sheridan, Seda,
Somanath, and Fujiwara; and, (b) claim 16 as unpatentable over Sheridan,
Seda, Somanath, and Valentian
Appellants do not present arguments for claims 14--16 other than to
state that the additionally cited reference (i.e., Fujiwara, Valentian) "does
not correct the deficiencies in the base combination." App. Br. 8, 9; Reply
Br. 5. Appellants' contentions are not persuasive of Examiner error. We
sustain the Examiner's rejection of claims 14--16.
DECISION
The Examiner's art rejections of claims 1, 8-10, 12-17, 19, and 21-23
under 35 U.S.C. § 103(a) are 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)(l )(iv).
AFFIRMED
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