Ex Parte Tillery et al

Patent Trial and Appeal Board

Mar 28, 2017

13719714 (P.T.A.B. Mar. 28, 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.
13/719,714 12/19/2012 Steven William TILLERY KDW-839-2401 1718
30024 7590 03/30/2017
NIXON & VANDERHYE, P.C.
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
BAHTA, KIDEST
ART UNIT PAPER NUMBER
2127
NOTIFICATION DATE DELIVERY MODE
03/30/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN WILLIAM TILLERY and
JASON NATHANIEL COOK
Appeal 2016-005658
Application 13/719,7141
Technology Center 2100
Before BRADLEY W. BAUMEISTER, JON M. JURGOVAN, and
JOHN R. KENNY, Administrative Patent Judges.
JURGOVAN, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify General Electric Company as the real party in interest.
(App. Br. 3.)
Appeal 2016-005658
Application 13/719,714
STATEMENT OF THE CASE
Appellants seek review under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1—19. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.2
CLAIMED INVENTION
The claims are directed to gas turbine fuel flow measurement using
inert gas. (Spec. Title and Abstract.) Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A system, comprising:
a transport medium to convey a fuel flow;
an injection device to inject an inert gas into the fuel flow to
form a gas mixture; and
a gas composition measuring device downstream of the
injection device to measure a concentration of the inert gas in the
gas mixture,
wherein a flow rate of the fuel flow is calculated based on the
measured concentration of the inert gas in the gas mixture.
(App. Br. 13 — Claims App’x.)
REJECTIONS
Claims 1—19 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Haslett (US 4,121,455, Oct. 24, 1978). (Final Act. 4—6.)
Claims 1—19 stand provisionally rejected on the ground of non-
statutory obviousness-type double patenting as being unpatentable over
2 Our Decision refers to the Specification (“Spec.”) filed December 19,
2012, the Final Office Action (“Final Act.”) mailed June 24, 2015, the
Appeal Brief (“App. Br.”) filed November 5, 2015, the Examiner’s Answer
(“Ans.”) mailed March 29, 2016, and the Reply Brief (“Reply Br.”) filed
May 3, 2016.
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Appeal 2016-005658
Application 13/719,714
claims 1, 2, 4—10, 12—14 and 17 of co-pending US Application No.
13/415,382 filed Mar. 8, 2012. (Final Act. 7-8.)
THE ANTICIPATION REJECTION
Contentions
Appellants argue “Haslett discloses a system for injecting a tracer gas
into an engine air intake system and subsequently measuring a volumetric
proportion of the tracer gas in the engine exhaust gases.” (App. Br. 8 (citing
Haslett 1:48—62 and 2:62—67).) Therefore, Appellants contend, “Haslett
does not disclose a system including an injection device to inject an inert gas
into a fuel flow to form a gas mixture and a gas composition measuring
device downstream of the injection device to measure a concentration of the
inert gas in the gas mixture, as recited in pending claim 1.” (App. Br. 9.)
Appellants also argue Haslett does not disclose similar limitations recited in
claims 9 and 15. (App. Br. 10.)
Analysis
We agree with Appellants’ arguments. “A rejection for anticipation
under section 102 requires that each and every limitation of the claimed
invention be disclosed in a single prior art reference.” See In re Buszard, 504
F.3d 1364, 1366 (Fed. Cir. 2007) (quoting In re Paulsen, 30 F.3d 1475,
1478-79 (Fed. Cir. 1994).) Several of the Haslett cites relied upon by the
Examiner explicitly mention injection of inert gas into the air intake or inlet
gas of an engine. (Final Act. 2—4, Ans. 8—9, App. Br. 8—10 (citing Abstract,
1:48-62, 2:13-15, 2:33^17, 2:62-67, 3:36-A9, 5:9-11, 9:3-16, 6:66-7:17).)
However, as Appellants contend, we find no mention in any of these Haslett
cites of injecting inert gas into a fuel flow, as claimed.
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Appeal 2016-005658
Application 13/719,714
Haslett measures fuel flow by sensing inert gas in the exhaust flow
(6:8—19). Haslett’s microprocessor 50 also is programmed with
mathematical formulae to calculate fuel flow from inputs indicating (a) the
hydrogen/carbon ratio of the fuel used; (b) the concentration of helium in
ambient air; and (c) the helium flow rate into the engine [air] intake 12.
(Haslett 6:45—53). Because exhaust flow is proportional to the sum of air
flow and fuel flow, measuring the exhaust flow and air flow can be used to
determine fuel flow.
However, Haslett does not measure the concentration of the inert gas
in the same gas mixture into which the inert gas is injected, as required by
claim 1. Accordingly, because a section 102 rejection requires the claimed
feature be disclosed in the reference, we do not sustain the rejection of
claims 1 or of independent claims 9, and 15, which recite commensurate
limitations.
Claims 2—8, 10-14, and 16—19 depend from claims 1, 9 or 15 and
incorporate their limitations by dependency. Thus, for the stated reasons, we
likewise do not sustain the rejection of the dependent claims.
THE PROVISIONAL NON-STATUTORY OBVIOUSNESS-TYPE
DOUBLE-PATENTING REJECTION
The rejection of claims 1—19 on the ground of non-statutory
obviousness-type double patenting rejection is provisional because the co­
pending patent application on which it is based, namely, US Application
No. 13/415,382 filed Mar. 8, 2012, has not issued as a patent.
Because this rejection is provisional, we exercise our discretion and
do not reach this rejection in rendering our Decision. In re Moncla, Appeal
No. 2009-006448 (PTAB 2010) (precedential).
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Appeal 2016-005658
Application 13/719,714
DECISION
We reverse the rejection of claims 1—19 under 35 U.S.C. § 102(b).
REVERSED
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