Kramer, Stephen K.

Patent Trials and Appeals Board

Feb 3, 2020

14768258 - (D) (P.T.A.B. Feb. 3, 2020)

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.
14/768,258 08/17/2015 Stephen K Kramer 71154US02(15-102) 1078
52237 7590 02/03/2020
Bachman & LaPointe, P.C.
900 Chapel St., Suite 1201
New Haven, CT 06510
EXAMINER
DUGER, JASON H
ART UNIT PAPER NUMBER
3741
MAIL DATE DELIVERY MODE
02/03/2020 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte STEPHEN K. KRAMER
__________

Appeal 2019-004448
Application 14/768,258
Technology Center 3700
__________

Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 9, 11, 16, 17, and 19–25.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as United
Technologies Corporation. Appeal Brief (“Appeal Br.”) 2, filed Oct. 18,
2018.
2 Claims 1–8, 10, 12–15, and 18 have been canceled. See Appeal Br. 4;
Advisory Action (“Adv. Act.”), dated Sept. 28, 2018.
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CLAIMED SUBJECT MATTER
The claimed subject matter “relates to a gas turbine engine and, more
particularly, to a fuel injector system therefor.” Spec. ¶ 1, Figs. 2, 4. Claims
9 and 17 are independent.
Claims 9 and 17 are illustrative of the claimed subject matter and
recite:
9. A fuel injector system for a gas turbine engine comprising:
an accumulator;
a first passage in communication with said accumulator
and a pressure source, wherein said pressure source is a diffuser
case module;
a first valve in communication with said first passage;
a second passage in communication with said
accumulator, wherein said second passage is in communication
with a fuel injector; and
a second valve in communication with said second
passage.

17. A method of self-purging a fuel injector of a gas turbine
engine comprising:
selectively charging an accumulator from a diffuser case
module; and
selectively releasing air from [] the accumulator to purge
the fuel injector.

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THE REJECTIONS
I. Claims 23 and 253 stand rejected under 35 U.S.C. § 112(a) as failing
to comply with the written description requirement.
II. Claims 19 and 21–254 stand rejected under 35 U.S.C. § 112(b) as
indefinite.
III. Claims 9, 11, 16, 17, and 195 stand rejected under 35 U.S.C. § 103 as
unpatentable over Davies (US 3,344,602, issued Oct. 3, 1967) and Juhasz
(US 3,910,035, issued Oct. 7, 1975).
IV. Claim 20 stands rejected under 35 U.S.C. § 103 as unpatentable over
Davies, Juhasz, and Taylor (US 6,244,034 B1, issued June 12, 2001).
V. Claims 21–23 stand rejected under 35 U.S.C. § 103 as unpatentable
over Davies, Juhasz, and Gameiro (US 9,022,056 B2, issued May 5, 2015).

ANALYSIS
Rejection I – Written Description
Claims 23 and 25
The Examiner finds that the Specification fails to disclose the subject
matter of claims 23 and 25, particularly the limitation of the second valve
being closed in response to a pressure in the first passage that is “equal to”
the pressure in the second passage. Final Act. 2–3. The Examiner explains

3 As claims 6–8 have been canceled, the rejection of these claims under 35
U.S.C. § 112(a) is now moot. See Final Office Action (“Final Act.”) 2–3,
dated Jan. 23, 2018; Adv. Act.
4 As claims 1 and 6–8 have been canceled, the rejection of these claims
under 35 U.S.C. § 112(b) is now moot. See Final Act. 3–4; Adv. Act.
5 As claim 1 has been canceled, the rejection of this claim under 35 U.S.C.
§ 103 is now moot. See Final Act. 6–8, 10–11; Adv. Act.
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that at paragraphs 60 and 61, the Specification discloses that when the
pressure in the first passage 100 is equal to the pressure in the second
passage 106, the second valve 108 is opened, rather than closed. Ans. 15.
Appellant contends that “since Appellant recites a pressure in a first
[passage] being less than or equal to the pressure in the second passage, the
claims are clear on their face and meet the written description requirement.”
Appeal Br. 9 (emphasis added).
Appellant’s contention is unpersuasive in that it does not address the
rejection as set forth by the Examiner. The test for sufficiency under the
written description requirement of 35 U.S.C. § 112(a), “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 Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351
(Fed. Cir. 2010) (en banc). To have “possession,” “the specification must
describe an invention understandable to that skilled artisan and show that the
inventor actually invented the invention claimed.” Id. Here, claims 23 and
25 are rejected as failing to comply with the written description requirement
rather than the indefiniteness requirement. Appellant does not explain how
the subject matter of claims 23 and 25 are described in the Specification
such that the inventor has possession of the claimed subject matter.
Accordingly, we sustain the Examiner’s rejection of claims 23 and 25
for lack of written description.

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Rejection II – Indefiniteness
Claims 19 and 21–25
The Examiner determines that the language recited in claims 19 and
21–25 renders those claims indefinite. Final Act. 3–5. More particularly,
the Examiner determines the following:
(a) for claim 19, it is unclear whether only the second passage or both
the first passage and the second passage are in communication with the
diffuser case module (id. at 4);
(b) for claims 21–23, as these claims are directed to an apparatus, it is
indefinite to recite method steps; rather, the claims should recite “configured
to” language instead. The Examiner cites In re Katz Interactive Call
Processing Patent Litigation6 for the proposition that “[a] single claim
which claims both an apparatus and the method steps of using the apparatus
is indefinite” (id. at 4–5);
(c) for claims 21 and 23, “the pressure in the second passage” lacks
antecedent support (id. at 4);
(d) for claim 22, “the relatively high pressure” lacks antecedent
support and is subjective because the Specification does not provide a
standard for comparison (id. at 4–5); and
(e) for claims 24 and 25, a second valve is recited but a first valve is
not recited, and “the first passage,” “the pressure,” and “the second passage”
lack antecedent support (id. at 5).
Appellant contends that the claim language of claims 21–25 does not
recite a method step but instead, describes mechanical relationships. Appeal

6 639 F.3d 1303 (Fed. Cir. 2011).
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Br. 9–10. Appellant argues that “the electronic system nature of the systems
referenced in Katz are simply inapplicable to a mechanical valve.” Id. at 10.
Appellant’s contentions are unpersuasive. As an initial matter, we
note that Appellant addresses only one of the several indefiniteness
rejections raised by the Examiner. See Ans. 157 (“Appellant’s arguments are
insufficient to overcome the rejections of Claims 19 and 21-25 because they
fail to address the merits of the rejections set forth in the Final Rejection.”).
Further, we do not agree with Appellant that “the electronic system nature of
the systems referenced in Katz are simply inapplicable to a mechanical
valve” (Appeal Br. 10), such that the proposition of “[a] single claim which
claims both an apparatus and the method of using the apparatus is indefinite”
is applicable for only claims directed to electronic systems rather than those
directed to mechanical systems. See M.P.E.P. § 2173.05(p), citing Ex parte
Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990) (“claim directed to an
automatic transmission workstand and the method of using it held
ambiguous and properly rejected under 35 U.S.C. 112, second paragraph”)
(emphasis added).
As the Examiner points out in the Answer, claim 21 recites the claim
language “valve is open in response to a pressure,” claim 22 recites the
claim language “the accumulator is released to purge the fuel injector,” and
claim 23 recites the claim language “the second valve is closed in response
to a pressure,” none of this claim language is “limited to mechanical features
of a valve, but encompasses actions performed by electromechanical valves
operated by controllers, and actions performed by mechanical valves.” Ans.

7 Examiner’s Answer (“Ans.”), dated Mar. 18, 2019.
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16. The Examiner takes the position that like Katz, “[c]laims 21-23 recite a
system and actions thereof in a manner that creates confusion as to when
infringement occurs.” Ans. 16. Appellant does not apprise us of Examiner
error. See Reply Br. 1–4.8
Appellant contends that claims 24 and 25 “are properly allowable
since no prior art rejections are asserted by the Examiner.” Appeal Br. 10–
11.
As the Examiner points out in the Answer, each of claims 24 and 25
recites “the first passage,” “the pressure,” and “the second passage.” Ans.
16. The Examiner further points out that “[t]hese recitations lack sufficient
antecedent basis and render the claims indefinite because no first or second
passage has been set forth,” that “it is unclear how and if they form part of,
or are in connection/communication with, the elements set forth in claim 17”
and that “it is unclear if the claims require a single valve or two valves.”
Ans. 16–17. Appellant does not apprise us of Examiner error. See Reply
Br. 1–4.
For these reasons, we sustain the Examiner’ rejection of claims 19 and
21–25 as indefinite.

8 Reply Brief (“Reply Br.”), filed May 17, 2019.
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Rejection III – Obviousness over Davies and Juhasz
Claims 9, 11, 16, 17, and 19
Appellant argues claims 9, 11, 16, 17, and 19 as a group. Appeal Br.
11–14. We select claim 9 as representative, and claims 11, 16, 17, and 19
stand or fall with claim 9. See 37 C.F.R. § 41.37(c)(1)(iv).
Under a first interpretation of Davies, the Examiner finds that Figure 1
discloses a fuel injector system comprising a fuel injector (burner 15), an
accumulator (vessel 10), a first passage (tube 11), a first valve (valve 12), a
second passage (branch 20), a second valve (valve 22), and a pressure source
(compressor) in which air can be bled downstream. Final Act. 8 (citing
Davies 1:60–2:72, Fig. 1). Alternatively, the Examiner finds that Davies’s
Figure 2 discloses a fuel injector system comprising a fuel injector (burner
116), an accumulator (vessel 110), a first passage (pipe 111 from point A to
point B in the Examiner’s annotated Figure 2 of Davies), a first valve (valve
112), a second passage (throttle unit 117 and conduit 119 to point T in
annotated Figure 2), a second valve (valve 123), and a pressure source
(compressor) in which air can be bled downstream. Id. at 10–12 (citing
Davies 2:50–59, Fig. 3).
The Examiner acknowledges that Davies “does not teach the bleed air
pressure source is a diffuser case module.” Id. at 8, 12. The Examiner,
however, finds that Juhasz “teaches a bleed pressure air source bleeding
compressed air from a gas turbine compressor downstream from the
compressor adjacent to the burners of the combustion chamber at a diffuser
case module.” Id. at 8, 12 (citing Juhasz 3:3–36). The Examiner concludes
that it would have been obvious to modify the fuel injector system of Davies
“so [that] the pressure source of compressed air selectively charging the
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accumulator is a diffuser case module,” as taught by Juhasz, “so [that] the
bleed system will additionally improve performance during certain operating
conditions.” Id. at 8–9, 12 (citing Juhasz 2:3–17, 4:4–11).
Appellant contends that “[t]here is simply no disclosure for charging
an accumulator with pressure from a diffuser case module to purge a fuel
passage as recited and claimed by Appellant.” Appeal Br. 11; see also id. at
13 (arguing that “[n]either reference alone or in combination discloses,
suggests or teaches the use of a diffuser to purge a fuel passage”); id. at 14
(arguing that the cited references “simply fail to purge a fuel passage”);
Reply Br. 2 (arguing Juhasz does not charge or store pressure). Appellant
also argues that “Juhasz does not use a diffuser case module as a pressure
source” and that “[t]he bleed air from the diffuser in Juhasz is not stored in
any way.” Reply Br. 1.
Appellant’s contentions are unpersuasive. We first note that although
independent method claim 17 recites “selectively releasing air from [] the
accumulator to purge the fuel injector,” independent apparatus claim 9 does
not require purging a fuel passage. Appeal Br. 15 (Claims App.).
Nonetheless, as the Examiner points out, Davies discloses purging fuel
because “the goal of Davies is to expel fuel upon engine shutdown.” Ans.
21 (citing Davies 2:65–72). Notably, Davies discloses “residual fuel was
expelled after engine shutdown.” Davies 2:67. Davies also discloses storing
bled air in that Davies discloses “a reservoir supplied with air under
pressure.” Id. at Abstract.
Further, “[n]on-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
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isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also
Ans. 18 (“Appellant’s arguments appear premised on the idea that a
limitation at issue must be disclosed in a single reference. However, a
determination of obviousness does not require the claimed invention to be
expressly suggested by any one or all of the references.”).
In this case, the Examiner relies on the teachings of Davies for
disclosing an accumulator for storing bled air, i.e., vessel 10 or vessel 110,
and purging fuel and relies on the teachings of Juhasz for disclosing a
diffuser case module as a bleed pressure air source. See Final Act. 8, 10–12;
see also Ans. 17–18 (“Davies was relied upon to teach charging an
accumulator with pressure from a pressure source to purge a fuel passage,
but was not relied [upon] to teach this pressure source is a diffuser case
module. Juhasz was relied upon to teach a diffuser using a diffuser case
module as a pressure source.”).
Appellant argues that “[a]lthough the Examiner seems to argue that
sources other than the compressor may be utilized, the Examiner provides no
such evidence” and that “Juhasz bleeds air from a diffuser utilizing
circumferentially spaced blade ports 34 in the diverging outer wall portion
30 of the diffuser to enable a small fraction of diffuser inner air flow to be
removed from the diffuser walls at certain operating conditions.” Appeal Br.
11–12.
These arguments are also unpersuasive. Davies discloses that
locations other than the compressor may be used as a pressure source. See
Ans. 18–19. Notably, Davies discloses that “it may be possible to dispense
with regulating valve 13” and that “[t]his case may be met in gas turbine
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engines when the air bleed from the compressor to vessel 10 is taken
downstream of the compressor.” Davies 2:54–58 (emphasis added); see also
Ans. 18. Further, even if crediting Appellant’s argument that Juhasz bleeds
air using ports 34, that does not prevent Juhasz’s diffuser from being used as
a pressure source for Davies’ accumulator.
Appellant contends that “Juhasz is not utilizing the bleed air from the
diffuser to pressurize anything” and that “[t]he goal of Juhasz is to trim the
profile 48” of the diffuser. Appeal Br. 12–13. Appellant contends that
Davies “makes no reference to a diffuser” and that the rejection is based on
impermissible hindsight reconstruction. Id. at 13; see also Reply Br. 2
(arguing that “there is no motivation to combine Davies in view of Juhasz”).
These arguments are unpersuasive in that they do not address the
rejection as set forth by the Examiner. First, even if Juhasz’s goal is to trim
profile 48 of the diffuser, that does not mean that Juhasz’s diffuser cannot be
used as a pressure source as the Examiner proposes. See In re Merck & Co.,
800 F.2d at 1097. Further, the Examiner is not relying on Juhasz for simply
bleeding air from the diffuser but instead, relies on Juhasz’s diffuser as a
pressure source. See Ans. 19–20. The Supreme Court has emphasized that
“the [obviousness] analysis need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” KSR Int’l v. Teleflex Inc., 550 U.S. 398, 418 (2007).
As noted by the Court in KSR, “[a] person of ordinary skill is also a person
of ordinary creativity, not an automaton.” Id. at 421. “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” Id. at 416. Further,
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[E]vidence of a motivation to combine need not be found in the
prior art references themselves, but rather may be found in “the
knowledge of one of ordinary skill in the art or, in some cases,
from the nature of the problem to be solved.” . . . When not from
the prior art references, the “evidence” of motive will likely
consist of an explanation of the well-known principle or
problem-solving strategy to be applied.
Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1366 (Fed. Cir. 2006) (quoting In re Dembiczak, 175 F.3d 994,
999 (Fed. Cir. 1999)).
As noted above, Davies discloses that sources or locations other than
the compressor can be used as a pressure source. Davies 2:54–58. Juhasz
discloses diffuser 16 as a pressure source in that air can be bled from the
diffuser. Juhasz 3:3–36. Notably, Juhasz discloses air from the diffuser is
mixed with fuel so that it charges pressure in the fuel line, which is what the
Examiner is relying on Juhasz for, i.e., a pressure source. See id. at 2:60–61.
As Juhasz discloses a “diffuser bleed to control the airflow distribution in a
gas turbine engine at various operating conditions” (id. at Abstract), it would
have been obvious to use a diffuser, as taught by Juhasz for the fuel injector
system of Davies, as an alternative pressure source for improving
performance of the fuel injector system. See Final Act. 8–9, 12; see also
Ans. 19–20; Juhasz 3:58–62 (disclosing that “diffuser bleed flow may be
also used to meet customer air requirements”). Appellant has not made a
showing that the Examiner’s rationales were outside of the knowledge
within the level of ordinary skill in the art at the time the claimed invention
was made or were gleaned only from Appellant’s disclosure. See Ans. 20
(“The rejections do not include knowledge gleaned only from the
Appellant’s disclosure. Rather, they take into account only knowledge
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which was within the level of ordinary skill at the time the claimed invention
was made.”). As such, the Examiner’s rejection is based on evidence and
sound technical reasoning rather than improper hindsight reconstruction.
Appellant contends that the Examiner’s proposed modification would
render the prior art invention unsatisfactory for its intended purpose. Appeal
Br. 13. In support, Appellant argues that “since Juhasz simply dumps the
bleed air into the turbine section, the teachings of Juhasz would ruin the goal
of charging a tank from a compressor.” Id.
This argument is unpersuasive in that it does not address the rejection
as set forth by the Examiner. The Examiner does not rely on Juhasz simply
for dumping the bleed air into the turbine section, and Davies’ goal is not
simply charging the tank from a compressor but instead, Davies’ goal is
expelling fuel upon engine shutdown. See Ans. 21; see also Davies 2:65–72.
Further, “attorney argument [is] not the kind of factual evidence that is
required to rebut a prima facie case of obviousness.” See In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also Ans. 21 (“Arguments of counsel
amount to mere allegations that are not factually supported in the record. It
has been held that arguments of counsel cannot take the place of factually
supported objective evidence.”).
In this case, Appellant does not provide persuasive argument or
evidence to show that: (1) dumping bleed air into Davies’ vessel 10 or 110
would prevent the vessel from being charge, or (2) dumping bleed air into
Davies’ turbine section would prevent charging vessel 10 or 110 because the
vessel could be charged first and then bleed air could be dumped later,
depending on the requirements of the operating conditions. See Appeal Br.
13–14; see also Ans. 21 (“Appellant provides no evidence in support of the
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allegation that this bleed air source would somehow ruin charging of the
tank in Davies.”).
In the Reply Brief, Appellant contends that because Davies discloses
that its “regulating valve 13 serves as an outlet from the vessel and is
adapted [to] open at pressures above the selected pressure of the air and the
vessel 10” (citing Davies 2:46–49), “[t]his alternative embodiment, again
contrary to the Examiner’s interpretation, would teach away from even
storing the pressure since following engine shut-down, the fuel pressure
from the engine driven pump and the compressor delivery pressure both
decay . . . .” Reply Br. 3 (emphasis added). Appellant further argues that
Juhasz “is [] at best a passive system.” Id. at 4.
As an initial matter, these arguments were not raised in the Appeal
Brief, and are not responsive to any argument raised in the Examiner’s
Answer. As stated in 37 C.F.R. § 41.41(b)(2):
Any argument raised in the reply brief which was not raised in
the appeal brief, or is not responsive to an argument raised in the
examiner’s answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.
(Emphasis added). Accordingly, we do not consider these arguments as
timely presented. However, we note that Appellant’s contentions are
unpersuasive, even had they been timely made, for the following reasons.
Regarding Appellant’s described operation of Davies’ regulating
valve 13, as Appellant states, that operation is an “alternative embodiment,”
i.e., it is not necessary to the operation of Davies’ fuel injector system.
Further, the sequence of delivering pressure and engine shut-down as
described by Appellant is not claimed. Moreover, even if crediting
Appellant’s contention that there is a decay in fuel pressure, that does not
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mean that Davies teaches away from storing pressure at any stage of the
operation of its fuel injector system. Davies discloses storing pressure in
that Davies discloses “a reservoir supplied with air under pressure.” (Davies
Abstract) and “valve 113 is arranged to open when the vessel 110 is charged
to its maximum pressure . . .” (id. at 3:16–18 (emphasis added)). Appellant
does not direct us to any passage in Davies that discredits, criticizes, or
disparages storing pressure. Like our appellate reviewing court, “[w]e will
not read into a reference a teaching away from a process where no such
language exists.” DyStar, 464 F.3d at 1364. Concerning Appellant’s
characterization of Juhasz as disclosing “a passive system,” we note that
claim 9 is an apparatus claim that does not preclude passive operation of
supplying pressure. Further, the Examiner relies on Davies, rather than
Juhasz, for disclosing the claimed valves, i.e., a non-passive system. See
Final Act. 8, 11. Thus, Appellant does not apprise us of Examiner error.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 9 as obvious over Davies
and Juhasz. Accordingly, we sustain the Examiner’s rejection of claims 9,
11, 16, 17, and 19 as unpatentable over Davies and Juhasz.

Rejection IV and V – Obviousness over Davies, Juhasz, and Taylor or
Davies, Juhasz, and Gameiro
Claims 20–23
Appellant does not provide any substantive arguments for these
rejections and appears to rely on arguments for parent claims 9 and 17, from
which claims 20–23 depend, respectively. Appeal Br. 11–14. As we find no
deficiencies in the Examiner’s rejection of independent claims 9 and 17 as
unpatentable over Davies and Juhasz for the reasons discussed above, we
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likewise sustain the Examiner’s rejection of claims 20–23 as unpatentable
over the various combinations of cited prior art.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
23, 25 112(a) Written
Description
23, 25
19, 21–25 112(b) Indefiniteness 19, 21–25
9, 11, 16, 17,
19
103 Davies and Juhasz 9, 11, 16,
17, 19

20 103 Davies, Juhasz,
and Taylor
20
21–23 103 Davies, Juhasz,
and Gameiro
21–23
Overall
Outcome
9, 11, 16,
17, 19–25

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)(1)(iv).

AFFIRMED