Ex Parte Scipio et al

Patent Trial and Appeal Board

Jun 26, 2018

13645536 (P.T.A.B. Jun. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/645,536 10/05/2012
13077 7590 06/28/2018
Eversheds Sutherland GE
Suite 2300
999 Peachtree Street
Atlanta, GA 30309
FIRST NAMED INVENTOR
Alston Ilford Scipio
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.
19441-0827 (261677) 4653
EXAMINER
GOYAL,ARUN
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
06/28/2018 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):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALSTON ILFORD SCIPIO, PAUL ROBERT FERNANDEZ,
THOMAS JOHN FREEMAN, and SANJI EKANA YAKE
Appeal2017-004504
Application 13/645,536 1
Technology Center 3700
Before LINDA E. HORNER, LISA M. GUIJT, and ERIC C. JESCHKE,
Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks review under 35 U.S.C. § 134(a) of the Examiner's
decision, as set forth in the Final Office Action dated April 27, 2016 ("Final
Act."), and as further explained in the Advisory Action dated June 13, 2016
("Adv. Act."), rejecting claims 1--4, 12-17, 19, and 20. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm in part.
1 General Electric Company ("Appellant") is the applicant as provided
in 37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Br.
2.
Appeal2017-004504
Application 13/645,536
BACKGROUND
The disclosed subject matter "relate[ s] to a gas turbine engine with a
multiple fuel delivery system such that the gas turbine engine may operate
on multiple fuels and blends thereof." Spec. i-f 101. Claims 1, 15, and 16 are
independent. Claim 1 is reproduced below, with bracketed letters and
numbers added to identify each clause:
1. A multiple fuel delivery system for use with
a gas turbine engine, comprising:
[a] a first fuel tank with a first fuel therein;
[ b] a first plurality of fuel lines with fuel
pumps in communication with the first fuel tank;
[ c] a second fuel tank with a second fuel
therein;
[ d] a second plurality of fuel lines with fuel
pumps in communication with the second fuel
tank, wherein the first plurality of fuel lines and
the second plurality of fuel lines merge into a
common fuel line;
[ e] a mixing chamber;
[f] the first fuel tank in communication with
the mixing chamber via the first plurality of fuel
lines;
[g] the second fuel tank in communication
with the mixing chamber via the second plurality
of fuel lines;
[ h] a flow divider downstream of the mixing
chamber; and
[i] a bypass line positioned about the mixing
chamber, wherein the bypass line is configured to
redirect the first fuel about the mixing chamber to
the flow divider;
UJ wherein the mixing chamber comprises:
2
Appeal2017-004504
Application 13/645,536
U. l] a first outer wall, a second outer
wall transverse to the first outer wall, and a
third outer wall parallel to the first outer
wall;
U. 2] a first inlet for the first fuel
configured to inject the first fuel through the
first outer wall in a flow direction;
U.3] a second inlet for the second fuel,
the second inlet angled with respect to the
first inlet and configured to inject the second
fuel through the second outer wall against
the flow direction; and
U.4] an outlet at the third outer wall
for a mixture of the first fuel and the second
fuel that is aligned with the flow direction.
REJECTIONS
1. Claims 1--4, 12-14, 16, 17, 19, and 20 stand rejected under
35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement.
2. Claims 1--4, 12-14, 16, 17, 19, and 20 stand rejected under
35 U.S.C. § 112, second paragraph, as failing to particularly point out and
distinctly claim the subject matter regarded as the invention.
3. Claims 1--4 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Lund (US 7,861,696 B2, issued Jan. 4, 2011), Klocke (US
5,560,710, issued Oct. 1, 1996), and Ouellet (US 8,650,851 B2, issued Feb.
18, 2014).
4. Claims 1, 3, 4, 12, 15, 16, and 19 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Schwarze (US 8,430,360 B2, issued
Apr. 30, 2013), Klocke, and Ouellet.
3
Appeal2017-004504
Application 13/645,536
5. Claims 2, 13, 14, 17, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Schwarze, Klocke, Ouellet, and Dumenil (US
2011/0126448 Al, published June 2, 2011).
DISCUSSION
Rejection 1
The Examiner rejected claims 1--4, 12-14, 16, 1 7, 19, and 2 0 under
35 U.S.C. § 112, first paragraph, stating that "Applicant failed to disclose a
limitation 'the first plurality of fuel lines and the second plurality of fuel
lines merge into a common fuel line"' as recited in clause d of claim 1 (as
designated above) and in claim 16. Final Act. 2. According to the
Examiner, "[ e Jach plurality of fuel lines merge into separate lines as shown
in Fig.3, lines 150 and 200." Id.
Appellant contends that "the Examiner has read his own limitations
into the claims" and that "[ t ]here is no limitation, in the claims or in the
specification, requiring that the first fuel lines and the second fuel lines
merge into a common fuel line before the mixing chamber, or at any other
specific location." Appeal Br. 6. According to Appellant, "[a]s clearly
shown in originally filed FIG. 3 ... , the first fuel lines 150/160 and the
second fuel lines 200/210 merge into a common fuel line 230, thereby
providing support for the claim element under 35 U.S.C. § 112." Id.
The Examiner responds that "the first plurality of fuel lines and the
second plurality of fuel lines are in fluid communication with a common
fuel line but they never merge as shown in Fig. 3." Ans. 2. The Examiner
provides the annotated version of Figure 3 shown below:
4
Appeal2017-004504
Application 13/645,536
Ans. 2. The Specification describes Figure 3 (without the Examiner's
annotations) as "a schematic view of a multiple fuel delivery system." Spec.
i-f 111. The Examiner added annotations identifying a "first plurality of fuel
lines," a "second plurality of fuel lines," and a "common line." Ans. 2.
The test for compliance with the written description requirement is
"whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date." Ariad Pharm., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane). For the reasons below, we
agree with Appellant that Figure 3 provides adequate written description
support for the limitations at issue.
We first address the meaning of "plurality" in the limitation at issue.
The term "plurality" is used just once in the Specification, in original claim
16, which recited a "plurality of combustion cans of the gas turbine engine."
See Spec. 18. The usage of that term is consistent with the common
meaning of "plurality" as "two or more." See Spec. i-f 114 ("Although only a
5
Appeal2017-004504
Application 13/645,536
single combustor can 25 is shown [in Figure 1 ], the gas turbine engine 10
may include any number of combustor cans 25."); see, e.g., Dayco Prods.,
Inc. v. Total Containment, Inc., 258 F.3d 1317, 1327-28 (Fed. Cir. 2001)
(stating that "we have held that 'plurality,' when used in a claim, refers to
two or more items, absent some indication to the contrary").
Based on the annotated Figure above, we understand the Examiner to
identify ( 1) the two lower lines coming directly from first fuel tank 110 as
the "first plurality of fuel lines" and (2) the two lower lines coming directly
from second fuel tank 170 as the "second plurality of fuel lines." See Final
Act. 2 ("Each plurality of fuel lines merge into separate lines as shown in
Fig.3, lines 150 and 200."). Appellant does not disagree, discussing (in the
Reply Brief) "the first plurality of fuel lines 160 and the second plurality of
fuel lines 210" as well as "fuel lines 160, 210." Reply Br. 3. 2
We tum now to the meaning of "merge" in the context of the
limitation at issue. We adopt Appellant's view that "merge" means "to
become combined into one." Reply Br. 3. The Examiner takes the position
that the identified "first plurality of fuel lines" and the identified "second
plurality of fuel lines" do not "merge" into the identified "common fuel line"
because the process of combining the "first" and "second plurality of fuel
lines" into one "common fuel line" takes place in two stages-i.e.,first, the
"first plurality of fuel lines" merge into line 150 and the "second plurality of
2 Elements 160 and 210 actually refer to the "first fuel line isolation
valves" and "second fuel line isolation valves" respectively. Spec. i-fi-f 117,
118. Based on the location of those valves in Figure 3 as well as Appellant's
statements (Reply Br. 3), we understand Appellant to use elements 160 and
210 to refer to the same pairs of lower fuel lines identified by the Examiner.
6
Appeal2017-004504
Application 13/645,536
fuel lines" merge into line 200, and second, lines 150 and 200 merge (via
mixing chamber 130) into the "common fuel line." See Spec. Fig. 3. Here,
we agree with Appellant that the Examiner's position improperly narrows
the term "merge" to require the combination to take place in a single stage-
e.g., two pairs of fuel lines combining directly into a single fuel line. See
Appeal Br. 6 ("There is no limitation, in the claims or in the specification,
requiring that the first fuel lines and the second fuel lines merge into a
common fuel line ... at any ... specific location.").
For these reasons, we do not sustain the rejection of claims 1--4, 12-
14, 16, 17, 19, and 20 under 35 U.S.C. § 112, first paragraph.
Rejection 2
The Examiner rejected claims 1--4, 12-14, 16, 1 7, 19, and 2 0 under
35 U.S.C. § 112, second paragraph, stating:
Claims 1 and 16 are rendered vague and indefinite for the
recitation of a limitation "a second plurality of fuel lines with
fuel pumps in communication with the second fuel tank,
wherein the first plurality of fuel lines and the second plurality
of fuel lines merge into a common fuel line."
Final Act. 3. The Examiner stated:
Id.
First, it is not clear if Applicant is claim[ing] the same fuel
pumps as the one [ s] connected to the first plurality of fuel lines.
Second, "the first plurality of fuel lines and the second plurality
of fuel lines" do not merge into "a common fuel line" as
claimed. Each plurality of fuel lines merge into separate lines
as shown in Fig.3, lines 150 and 200.
Appellant does not list this Rejection in the "Grounds of Rejection to
be Reviewed on Appeal." See Appeal Br. 5---6. We first address the
"Second" basis identified by the Examiner for this Rejection. We
7
Appeal2017-004504
Application 13/645,536
considered Appellant's arguments as to the written description support for
(and thus the interpretation of) the limitation "the first plurality of fuel lines
and the second plurality of fuel lines merge into a common fuel line" as
recited in clause d of claim 1 and in claim 16. We interpreted that limitation
in the context of the analysis for Rejection 1, and did not find the language
unclear.
Nonetheless, Appellant does not present arguments regarding the
"First" basis identified by the Examiner for this Rejection, relating to the
phrase "fuel pumps" in clauses b and d of claim 1 and in claim 16.
Accordingly, we summarily affirm this Rejection. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2016) ("The arguments shall explain why the examiner
erred as to each ground of rejection contested by appellant. Except as
provided for in§§ 41.41, 41.47 and 41.52, any arguments or authorities not
included in the appeal brief will be refused consideration by the Board for
purposes of the present appeal."); see also Adv. Act. 2 (stating that "the
rejection under 35 USC[§] 112(a,b) is maintained").
Rejections 3 and 4
Clause j. l of independent claim 1 recites (among other requirements)
that the "mixing chamber" comprises: "a first outer wall," "a second outer
wall," and a "third outer wall." Appeal Br. 11 (Claims App.). Independent
claims 15 and 16 recite similar requirements. See id. at 13-14. To address
these requirements in Rejections 3 and 4, the Examiner relied on Figure 3 of
Klocke. See Final Act. 4--5 (claim 1 for Rejection 3), 7 (claim 15 for
Rejection 3), 9 (claim 1 for Rejection 4), 11 (claim 15 for Rejection 4), 12-
13 (claim 16 for Rejection 4). In these discussions, the Examiner referenced
an annotated version of Figure 3 of Klocke, reproduced below:
8
Appeal2017-004504
Application 13/645,536
Final Act. 5. Klocke describes Figure 3 (without the Examiner's
annotations) as a "diagrammatic structure of an angular momentum nozzle."
Klocke, col. 3, 11. 41--42. The Examiner provided annotations identifying
certain features, including an alleged "mixing chamber" and an alleged
"s[e]cond outer wall." Final Act. 5.
Appellant argues that the "claimed 'outer walls' must in fact, be outer
walls of a chamber." Appeal Br. 9 (emphasis omitted). The Examiner states
that the identified "mixing chamber is an annular chamber with a second gas
inlet in the center (pipe 11 )" and that because the identified "mixing
chamber is enclosed by the pipe in the center[,] it reads on the claim
limitation 'second wall."' Ans. 4. Appellant responds that "a mixing
chamber cannot be 'enclosed' by a pipe that is positioned within the alleged
mixing chamber." Reply Br. 6.
We agree with Appellant that the record here does not support the
Examiner's finding that the identified structure in Figure 3 of Klocke
satisfies the requirement for a "second outer wall." See Reply Br. 6 (arguing
that "the alleged second outer wall identified by the Examiner is not, in any
sense of the term, the claimed outer wall"). The term "outer" in the
9
Appeal2017-004504
Application 13/645,536
limitation at issue indicates that the "second outer wall" forms at least a
portion of a structure enclosing-rather than within-the "mixing chamber."
Contrary to the Examiner's position (Ans. 4), the identified "second outer
wall" is within the identified "mixing chamber." See Final Act. 5.
We tum now to a potential alternative basis for these Rejections
provided by the Examiner for the first time in the Answer:
Klocke teaches a mixing chamber where one gas (hydrocarbon
fuel from second inlet via 11) is injected at an angle in a cross
flow of a second gas (flue gas from first inlet via 9). Therefore,
it is noted that mere rearrangement of parts, in this case moving
the second gas inlet from the center pipe to wall 12, was an
obvious extension of prior art teachings, In re Kuhle, 526 F .2d
553, 188 USPQ 7 (CCPA 1975) MPEP 2144.04 (VI)(C).
Ans. 4.
Even assuming this alternative basis was timely presented, we
determine that the Examiner has not set forth sufficient discussion to
demonstrate that the proposed modification is a mere rearrangement of parts.
See, e.g., In re Japikse, 181F.2d1019 (CCPA 1950) (holding as
unpatentable claims to a hydraulic power press, which read on the prior art
except for the position of the starting switch, because shifting the position of
the starting switch would not have modified the operation of the device).
For these reasons, we do not sustain the rejection of independent
claims 1, 15, and 16 under 35 U.S.C. § 103(a) as unpatentable over the
relied-upon prior art. We also do not sustain the rejections of claims 2--4
and 12 (which depend from claim 1) and claim 19 (which depends from
claim 16) under 35 U.S.C. § 103(a).
10
Appeal2017-004504
Application 13/645,536
Rejection 5
Claims 2, 13, and 14 depend from claim 1, and claims 17 and 20
depend from claim 16. Appeal Br. 12-13, 15 (Claims App.). The
Examiner's added reliance on Dumenil does not remedy the deficiencies in
rejection based on Schwarze, Klocke, and Ouellet discussed above (see
supra Rejection 4). Thus, for the same reasons discussed above, we do not
sustain this rejection of claims 2, 13, 14, 17, and 20.
DECISION
We reverse the decision to reject claims 1--4, 12-14, 16, 17, 19, and
20 under 35 U.S.C. § 112, first paragraph, we affirm the decision to reject
claims 1--4, 12-14, 16, 17, 19, and 20 under 35 U.S.C. § 112, second
paragraph, and we reverse the decision to reject claims 1--4, 12-17, 19, and
20 under 35 U.S.C. § 103(a).
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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
11