Ex Parte Schwarz et al

Patent Trial and Appeal Board

Sep 21, 2017

14162810 (P.T.A.B. Sep. 21, 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.
14/162,810 01/24/2014 Frederick M. SCHWARZ 67097-2767FUSl;74838US02 6267
54549 7590 09/25/2017
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
SUNG, GERALD LUTHER
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
09/25/2017 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):
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. SCHWAZ and GABRIEL L. SUCIU 1
Appeal 2016-007159
Application 14/162,810
Technology Center 3700
Before JOHN C. KERINS, DANIEL S. SONG, and
LEE L. STEPINA, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 the Examiner’s final
rejection of claims 1—16, 18—22, and 24 in the present application, claims 17,
23, 25, and 26 having been canceled.2 We have jurisdiction under 35 U.S.C.
§§ 6(b) and 134.
We AFFIRM.
1 Collectively referred to as “Appellant” herein. The applicant and real party
in interest is United Technologies Corporation (Appeal Brief (hereinafter
“App. Br.”) 1).
2 The Final Office Action references claims 23, 25, and 26, but these claims
have been canceled in the Appellant’s Amendment After Final filed
November 16, 2015, which was entered for the purposes of the appeal in
Examiner’s Advisory Action dated November 25, 2015.
Appeal 2016-007159
Application 14/162,810
The claimed invention is directed to a gas turbine engine and a
method for operating the same (Spec. 6, 23). Independent claims 1 and
18 read as follows (App. Br. 12—13, Claims App’x, emphasis added):
1. A gas turbine engine comprising:
a drive turbine configured to drive a fan section; and
a speed change mechanism connected to the drive turbine
and located aft of the drive turbine and aft of the fan, an output
of the speed change mechanism connected to the fan,
wherein the drive turbine includes a fixed stator and at
least two rotor stages, the fixed stator is located axially between
the at least two rotor stages of the drive turbine.
18. A method of operating a gas turbine engine comprising:
rotating a fan drive turbine at a first rotational speed,
wherein the fan drive turbine includes a fixed stator and at least
two rotor stages, the fixed stator is located axially between the
at least two rotor stages of the fan drive turbine;
reducing the first rotational speed to a second rotational
speed using a speed change mechanism positioned axially
downstream of the fan drive turbine; and
rotating a fan positioned upstream of the fan drive turbine
and the speed change mechanism at the second rotational speed.
The above italicized limitations of independent claims 1 and 18 were
not in the original claims as filed.
The Examiner rejects various claims as follows:
1. Claims 1—16, 18—22, and 24 under 35 U.S.C. § 112(a) or 35
U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the
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Application 14/162,810
written description requirement (Final Office Action (hereinafter
“Final Act.”) 2).
2. Claims 1—5, 7, 8, 10, 11, 18, and 19 under 35 U.S.C. § 102(a)
(1) as anticipated by Schilling (US 2010/0154384) (Final Act. 3).
3. Claims 6, 12, 20, and 21 under 35 U.S.C. § 103 as unpatentable
over Schilling in view of Adamson (US 4,251,987) (Final Act. 6).
4. Claims 9 and 24 under 35 U.S.C. § 103 as unpatentable over
Schilling in view of Adamson (US 4,916,894) (Final Act. 7).
5. Claims 13—16 and 22 under 35 U.S.C. § 103 as unpatentable
over Schilling in view of Orlando (US 2008/0098717) (Final Act. 8).
6. Claims 1—5, 7, 8, 10, 11, 18, 19, and 21 under 35 U.S.C. § 103
as unpatentable over Coplin (US 4,827,712) in view of Krebs (US
3,673,802), Taylor (US 2005/0241292), Schilling, or Norris (US
8,015,798) (Final Act. 8).
7. Claims 6, 12, 20, and 21 under 35 U.S.C. § 103 as unpatentable
over Coplin in view of (Krebs, Taylor, Schilling or Norris) and
Adamson ’987 (Final Act. 11).
8. Claims 9 and 24 under 35 U.S.C. § 103 as unpatentable over
Coplin in view of (Krebs, Taylor, Schilling or Norris) and Adamson
’894. (Final Act. 12).
9. Claims 13—16 and 22 under 35 U.S.C. § 103 as unpatentable
over Coplin in view of (Krebs, Taylor, Schilling or Norris) and
Orlando (Final Act. 13).
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Application 14/162,810
ANALYSIS
Only those arguments actually made by the Appellant have been
considered in this decision. Arguments that the Appellant could have made
but chose not to make have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(l)(iv).
Rejection 1
The Examiner rejected all of the claims on appeal as lacking written
descriptive support, finding that:
The limitation “the drive turbine includes a fixed stator and at
least two rotor stages, the fixed stator is located axially between
the at least two rotor stages of the drive turbine” found in claims
1, 18 and 26 was not present at the time of the filing of the
original disclosure. No discussion of the number of stages or the
location of the stator occurs in the original written specification
and no drawing clearly shows the claimed subject matter.
Therefore the newly amended subject matter is found to be new
matter.
(Final 2—3).
The Appellant disagrees and argues that:
Paragraphs [0034], [0041], and [0046] of the subject
application recite that the low pressure turbine is a fixed stator
turbine and drives the fan directly through the geared
architecture. One of ordinary skill in the art would recognize that
the fixed stator turbine includes “a fixed stator and at least two
rotor stages, the fixed stator located axially between the at least
two rotor stages,” as claimed.
(App. Br. 3).
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Application 14/162,810
The paragraphs of the Specification noted by the Appellant disclose
that the low pressure turbine “is a fixed stator turbine,” but neither these
paragraphs, nor the remainder of the Specification, disclose “rotor stages” or
a fixed stator turbine that is “located axially between” rotor stages as
claimed (see generally Spec, 34, 41, 46).
While the Appellant asserts that “[o]ne of ordinary skill in the art
would recognize that the fixed stator turbine includes” the recited “at least
two rotor stages,” and that the fixed stator would be located axially between
the rotor stages, as noted by the Examiner (Ans. 4), we are not provided with
any evidence to support this assertion. Indeed, in response to the
Appellant’s assertion, the Examiner notes that:
the prior art appears to contradict the Appellant's assertion. See
Chappell et al. US 4,192,137, fig. 1, having a fixed stator 11
upstream of a low pressure/power turbine 12 having a single
stage/row of blades; Brossier et al. US 5,305,600, fig. 1, element
22 is a fixed stator upstream of a multi-stage turbine. The
Examiner finds, as matter of fact, that the term “fixed stator
turbine” does not have an art attained meaning used consistently
as to clearly convey a specific configuration. At the very least,
the definition is used in varying degrees within the art in a
manner other than what the Appellant argues is the alleged
standard definition.
(Ans. 3^4).
We generally agree with the Examiner and also find the rebuttal
evidence persuasive. In response to the Examiner, the Appellant argues that
“B[r]ossier discloses a fixed stator located axially between the rotor stages,
which supports Appellant’s argument.” (Reply Br. 1—2). However, even if
we assume that the Appellant is correct with respect to the disclosure of
Brossier, the Appellant does not address the disclosure of Chappell. Indeed,
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Chappell discloses a turbine having a “fixed stator” (11), and Figure 1
thereof clearly shows that this fixed stator is upstream of a single stage rotor
12 (Chappell, Fig. 1, col. 2,11. 12—18). Thus, contrary to the Appellant’s
assertion, Chappell establishes that in the art of turbine engines, the
disclosure of a fixed stator does not necessarily mean that there are
associated rotor stages in such turbine engines (versus a single stage rotor),
or that the fixed stator is located axially between the rotor stages.
Accordingly, the Examiner’s written description rejection of all of the claims
is affirmed.
Rejection 2
Claims 1—5, 7, 8, 10, 11, 18, and 19 stand rejected as being anticipated
by Schilling, the Examiner setting forth an annotated version of Figure 1 of
Schilling in support of the rejection (Final Act. 3). The Examiner interprets
the term “drive turbine” “as the entire turbine section having a high pressure
stage and a low pressure stage . . . [that] drives the fan section.” (Final Act.
4). Specifically, the Examiner explains that “the high and low pressure
turbines together form the drive turbine which drives the load consuming
devices of the gas turbine engine, i.e. the fan and compressors of the
engine.” (Ans. 4). The Examiner finds that under this claim interpretation,
“Schilling discloses at least two rotor stages 24, 26, the fixed stator
[structure identified in the annotated Fig. 1 of Schilling] is located axially
between the turbine stages 24, 26.” (Final Act. 4).
The Appellant argues that:
This interpretation is overly broad and effectively reads the
limitation of the “drive turbine configured to drive a fan section”
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Application 14/162,810
out of the claims. MPEP §2143.03. A person of ordinary skill
in the art would not interpret “a drive turbine configured to drive
a fan section” to include the high pressure turbine 24 which
rotates independently of the low pressure turbine 26, which
drives the fan in Schilling.
(Reply Br. 2—3).
The Appellant also argues that:
One of ordinary skill in the art would not consider the high
pressure turbine 24 as part of the low pressure turbine 26,
because the high and low pressure turbines 24 and 26 are
separated from each other by a mid-turbine frame and each drive
separate and independent high and low pressure shafts,
respectively.
(App. Br. 4).
The Appellant further points out that in Schilling,
high pressure turbine 24 is not configured to drive a fan section,
but instead drives the high pressure compressor 18. Therefore,
the high pressure turbine 24 cannot be interpreted as part of the
“drive turbine configured to drive a fan section.”
(App. Br. 4).
Based thereon, the Appellant argues that the element identified by the
Examiner’s annotated Figure 1 of Schilling as corresponding to the recited
“fixed stator” is “located axially upstream of the low pressure turbine 26 and
axially downstream of the high pressure turbine 24,” but is not located
axially between at least two rotor stages as required by the claims (App. Br.
4).
The Examiner contends that “the claims do not require that the drive
turbine only drive the fan, the claims may be reasonably interpreted as
including a configuration as interpreted where the drive turbine drives all the
load consuming devices, including the fan.” (Ans. 5). Thus, the Examiner
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Application 14/162,810
contends that “drive turbine” “reasonably includes an interpretation
including both the high and low pressure turbines.” (Ans. 5).
We generally agree with the Appellant and find the Examiner’s claim
interpretation to be unreasonably broad. The claims recite that the fixed
stator be located between “at least two rotor stages of the drive turbine.”
The Examiner’s interpretation makes no distinction between the drive
turbine recited individually, and a combination of two separate and distinct
turbines of Schilling that are not only separated from each other, but also
rotate independent of each other, one of the turbines not being connected to
the speed change mechanism. The Examiner does not direct us to any
persuasive evidence that a person of ordinary skill in the art would have
viewed the Specification and its disclosure of “a drive turbine” as
encompassing such multiple turbines of a gas turbine engine. In this regard,
we observe that, in the Specification where the term “drive turbine” is used,
the term is used in association with a single turbine, not multiple turbines,
and is further used in association with the recited speed change mechanism
{see generally Spec.).
Therefore, we find the Examiner’s claim interpretation to be
unreasonably broad, and accordingly, agree with the Appellant that Schilling
does not disclose the limitation “wherein the drive turbine includes a fixed
stator and at least two rotor stages, the fixed stator is located axially between
the at least two rotor stages of the drive turbine.” Thus, we reverse this
rejection. The arguments of the Appellant with respect to claims 3, 18, and
19 (App. Br. 4—5; Reply Br. 3) are moot.
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Application 14/162,810
Rejections 3—5
These rejections based on the combination of Schilling and various
secondary references are also premised on the Examiner’s unreasonably
broad interpretation of the independent claims (Final Act. 6—8). The
Examiner does not rely on the secondary references to cure the above noted
deficiency with respect to Schilling. Thus, we also reverse these
obviousness rejections. The Appellant’s additional arguments directed to
specific claims subject to these rejections (App. Br. 6—7; Reply Br. 4) are
moot.
Rejection 6
Claims 1—5, 7, 8, 10, 11, 18, 19, and 21 stand rejected as obvious over
Coplin in view of Krebs, Taylor, Schilling, or Norris (Final Act. 8). The
Examiner finds that Coplin discloses a gas turbine engine
wherein the drive turbine includes a fixed stator 34 and at least
two rotor stages 54 (3 stages), the fixed stator is located axially
between the at least two rotor stages of the drive turbine. Coplin
does not disclose the gearbox 62 being located aft of the fan and
drive turbine.
(Final Act. 9).
The Examiner also finds that:
The Coplin contained a device which differend [sic] from the
claimed device by the substitution of the location of the gearbox.
The substituted location was known in the art as shown by Krebs,
Taylor, Schilling, and Norris. One of ordinary skill in the art at
the time of the filing of the invention could have substituted the
known locations for predictable results. This is evidence[d] by
Krebs and Norris which show multiple embodiments where the
gearbox is either located as claimed or as shown by Coplin.
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(Final Act. 9—10).
Accordingly, the Examiner concludes that “[i]t would have been
obvious to a person of ordinary skill in the art at the time of the invention to
locate the gearbox 62 of Coplin at a location aft of the drive turbine and fan
as taught by Krebs, Taylor, Schilling, or Norris, as part of an obvious
substitution of one known equivalent element for another to obtain
predictable results.” (Final Act. 9). We generally agree with the Examiner
and address the Appellant’s arguments below.
The Appellant argues that there is no prima facie case of obviousness
because installing a gear in the aft end of a gas turbine engine having a gear
adjacent the fan as disclosed in Coplin is not a simple substitution (App. Br.
7), but instead, would require a significant change (App. Br. 8). In that
regard, the Appellant argues that presence of booster rotor 94 in the turbine
engine of Coplin, which spins at a different speed than fan rotor 74, would
necessitate significant structural reconfiguration in order to locate the gear
box at the claimed location (App. Br. 8; Reply Br. 4), that the results are not
predictable, and would change the principle of operation (App. Br. 7—8).
However, we agree with the Examiner that:
aft mounted gear boxes [were] known to an ordinary skilled
worker as early as the 1970’s. The principal function of the gear
box remains the same. That is, the gear box whether mounted at
the aft or forward portion of the engine provides the same speed
reduction. Further, even [if, ]arguendo, there are structural
changes required by the engine, Norris shows that both
configurations are well known in the art to be variants of each
other within the skill of an ordinary worker to make.
(Ans. 7).
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The prior art references Krebs, Taylor, Schilling, and Norris each
show turbine engines having a speed change mechanism or gearbox located
aft of the drive turbine and the fan as recited by claim 1. As pointed out by
the Examiner, both Krebs and Norris disclose multiple embodiments, some
embodiments having a gearbox aft of the drive turbine and fan as claimed,
and other embodiments having a gearbox at other locations (compare Krebs,
Fig. 1 with Figs. 2, 3; and Norris, Figs. 1, 2 with Figs. 3, 4). Thus, the prior
art of record clearly establishes that the level of skill in the art at the time of
invention was very high with respect to positioning of a gearbox at different
locations in the turbine engine.
While changing the positioning of the gearbox of Coplin may not
have been simple, in view of the evidence of record, such alternate/substitute
positioning would have been a predictable variation within the skill of those
of ordinary skill in the art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007) (“when a patent claims a structure already known in the prior art that
is altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result”); id. at
417 (“When a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same field
or a different one. If a person of ordinary skill can implement a predictable
variation, §103 likely bars its patentability.”).
The Appellant’s specific arguments directed to Coplin’s booster rotor
are unpersuasive because the evidence of record discloses that those of
ordinary skill in the art would have had the requisite skill to address any
such issues presented by the booster rotor. In particular, both Schilling and
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Krebs disclose turbine engines with booster sections and fans wherein the
gear box is provided in the aft location recited by the claims, and Krebs
further discloses a fan driven by a different shaft than the booster section
(Schilling, Fig. 1,115; Krebs, Fig. 1, col. 2,11. 26—30, col. 3,11. 25—43).
Furthermore, while the Appellant asserts that results would not have been
predictable and that the suggested combination would have changed the
principle of operation, the Appellant does not adequately explain the bases
of these assertions. We discern no unpredictability in practicing what has
already been taught and suggested by the prior art of record, and we discern
no change in the “basic principles” under which a turbine engine operates.
In re Ratti, 270 F.2d 810, 813 (CCPA 1959).
Fundamentally, the Appellant’s arguments with respect to this
rejection appears to be based on alleged difficulty and complexity in
physically combining the turbine engine of Coplin with one of the secondary
references that disclose the recited positioning of the speed change
mechanism. However, “[cjombining the teachings of references does not
involve an ability to combine their specific structures.” In re Nievelt, 482
F.2d 965, 968 (CCPA 1973). Rather, a reference “must be considered for
everything it teaches by way of technology and is not limited to the
particular invention it is describing and attempting to protect.” EWP Corp.
v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985).
Therefore, in view of the above considerations, we affirm the
Examiner’s rejection of claims 1—5, 7, 8, 10, 11, 18, 19, and 21.
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Rejection 7
Claims 6, 12, and 20-21 stand rejected as unpatentable over Coplin in
view of (Krebs, Taylor, Schilling or Norris) and Adamson ’987 (Final Act.
11). As to claims 6, 20, and 21, the Appellant argues that Adamson ’987
does not address the deficiencies of the combination of Coplin and the
secondary references (App. Br. 9). Having found no deficiencies in the
combination of Coplin and the secondary references, we affirm the
Examiner’s rejection of claims 6, 20, and 21.
Claim 12
Claim 12 requires “a first compressor immediately aft of the fan
section and immediately upstream of the combustor section.” (App. Br. 13,
Claims App’x). This claim appears to be directed to the embodiment shown
in Figure 2 of the Specification. The Examiner finds that the combination of
Coplin and the secondary references “discloses all elements except for a
turbofan with a fan section and one compressor section” (Final Act. 11),
such configuration implicitly being required in accordance with the claim
language. The Examiner concludes that claim 12 would have been an
obvious substitution of one turbine configuration for another, further finding
that “Adamson teaches a turbofan configuration with a fan section 15, a
compressor section 16 that is immediately upstream of a combustor section
30.” (Final Act. 11-12).
The Appellant argues that the Examiner “does not explain how or in
what way the modification of Coplin would perform such a function,” and
for example, there is “no support for the conclusion that one of the
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compressor sections from Coplin could be removed.” (App. Br. 9). This
argument is unpersuasive for reasons similar to those already discussed
relative to Rejection 6 in that it does not fully account for the relevant
teachings in the prior art and the skill and creativity of those of ordinary skill
in the art, and is fundamentally based on bodily incorporation. The art
establishes that turbine engines can be designed different configurations
having different number of turbines and sections, including a configuration
wherein a first compressor is positioned immediately aft of the fan section
and immediately upstream of the combustor section as shown by Figure 1 of
Adamson ’987. Accordingly, we affirm the rejection of claim 12 as well.
Rejection 8
As to claims 9 and 24, the Appellant relies on their dependency for
patentability, and argues Adamson ’894 does not address deficiencies of the
combination of Coplin and the secondary references (App. Br. 9—10).
Accordingly, having found no deficiencies in the combination of Coplin and
the secondary references, we likewise affirm the Examiner’s rejection of
claims 9 and 24.
Rejection 9
Claims 13—16 and 22 stand rejected as unpatentable over Coplin in
view of (Krebs, Taylor, Schilling or Norris) and Orlando (Final Act. 13).
Claim 13 recites that the gas turbine engine “includes a high pressure turbine
and an intermediate turbine,” while claim 22 recites that “the gas turbine
engine is a three spool gas turbine engine,” thereby implicitly requiring an
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intermediate turbine spool (App. Br. 13—14, Claims App’x). The Examiner
finds that the combination of Coplin and the secondary references fails to
disclose turbine engine configuration having a high pressure and
intermediate turbines (Final Act. 13). However, the Examiner concludes
that such configuration would have been obvious because such
configurations were well known, further relying on Orlando for disclosing “a
gas turbine engine configuration having a high pressure turbine 22 and
intermediate pressure turbine 32, the high pressure turbine axially upstream
of the intermediate pressure turbine.” (Final Act. 13).
The Appellant argues that “the Examiner has not established
predictability because there is no support for the conclusion that additional
turbine sections could be added to Coplin or that Coplin could simply be
made into ‘a three spool gas turbine engine.’” (App. Br. 10). This argument
is unpersuasive for reasons similar to those already discussed relative to
Rejections 6 and 7 in that it does not fully account for the relevant teachings
in the prior art and the skill and creativity of those of ordinary skill in the art,
and is fundamentally based on bodily incorporation. The Appellant further
argues that Orlando does not address asserted deficiencies of the
combination of Coplin and the secondary references (App. Br. 11).
However, as discussed, we found no deficiencies in the combination of
Coplin and the secondary references. Accordingly, we affirm the
Examiner’s rejection of claims 13—16 and 22.
CONCLUSIONS
1. Rejections 1 and 6—9 are AFFIRMED.
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2. Rejections 2—5 are REVERSED.
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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