United Technologies Corporation

Patent Trials and Appeals Board

Apr 14, 2020

14740368 - (D) (P.T.A.B. Apr. 14, 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.
14/740,368 06/16/2015 Frederick M. Schwarz 81941US1;
67097-3241PUS1
3437
54549 7590 04/14/2020
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
BREAZEAL, WILLIAM LEE
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
04/14/2020 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 and PAUL W. DUESLER
____________

Appeal 2019-005395
Application 14/740,368
Technology Center 3700
____________

Before WILLIAM A. CAPP, LEE L. STEPINA, and JILL D. HILL,
Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1–13 and 20–24. 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(a). Appellant identifies United Technologies Corp. as the
applicant and real party in interest. Appeal Br. 1.
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Application 14/740,368
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THE INVENTION
Appellant’s invention is a cooling air system for use within a turbofan
engine. Spec. ¶ 1. Claim 1, reproduced below, is illustrative of the subject
matter on appeal.
1. A gas turbine engine comprising:
an engine core defining a primary flowpath;
a nacelle radially surrounding the engine core;
the nacelle including at least one bifurcation; and
a cooled cooling air system including an air-air heat
exchanger, the air-air heat exchanger being disposed at least
partially in the at least one bifurcation; and
the cooled cooling air system further including at least
one cooling air inlet door configured to control and restrict air
into the air-air heat exchanger.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Coplin US 4,827,712 May 9, 1989
Stretton US 2007/0245738 A1 Oct. 25, 2007
Suciu US 2009/0188234 A1 July 30, 2009
Baltas US 2012/0102915 A1 May 3, 2012
Murphy US 2012/0272658 Al Nov. 1, 2012
Caretto Non-Patent Literature Apr. 18, 2007
The following rejections are before us for review:2
1. Claims 1, 3–6, 11–13, 20, and 21 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Stretton and Baltas.

2 Claim 10 has been cancelled. Appeal Br., Claims App.
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2. Claims 2 and 22–24 are rejected under 35 U.S.C. § 103 as being
unpatentable over Stretton, Baltas, and Suciu.
3. Claim 7 is rejected under 35 U.S.C. § 103 as being unpatentable
over Stretton, Baltas, and Caretto.
4. Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable
over Stretton, Baltas, and Coplin.
3. Claim 9 is rejected under 35 U.S.C. § 103 as being unpatentable
over Stretton, Baltas, and Murphy.
OPINION
Unpatentability of Claims 1, 3–6, 11–13, 20, and 21
over Stretton and Baltas
Appellant argues claims 1, 3–6, 11–13, 20, and 21 as a group. Appeal
Br. 4–5. We select claim 1 as representative. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Stretton discloses the invention substantially
as claimed except for the air inlet regulator being a “door,” for which the
Examiner relies on Baltas. Final Act. 3. The Examiner concludes that it
would have been obvious to a person of ordinary skill in the art at the time
of the invention to replace valve 55 of Stretton with door (louver) 60 of
Baltas. Id. at 3–4. According to the Examiner, a person of ordinary skill in
the art would have done this to regulate airflow. Id. at 4. The Examiner
further considers that such entails a simple substitution of one known
element for another to obtain a predictable result. Id.
Appellant argues that the Examiner’s findings fail to establish that a
person of ordinary skill in the art would have made the proposed
substitution. Appeal Br. 5. Appellant further argues that such substitution
would not have yielded predictable results. Id. According to Appellant:
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The air valve 55 of Stretton is positioned in line with a
leading edge opening that receives the air, which is then passed
through the unspecified valve 55 into the heat exchanger. The
louvers of Baltas, however, regulate air by extending into the
flowpath and effectively creating a “scoop” that redirects air
into the system. The louvers rely on the air traveling parallel to,
or at least partially parallel to, the entrance for effective
regulation of the intake.
As the air contacting the unspecified valve 55 is traveling
directly at the valve 55 (see Figure 7 of Stretton), one of skill in
the art would not have had a reasonable expectation that simply
substituting the louvers of Baltas in place of the valve 55 would
achieve the same results. As such, the proposed "simple
substitution" rationale is incorrect and the rejection should be
overturned.
Id. at 5; see also Reply Br. 2 (regarding the “scooping feature”).
In response, the Examiner makes the following observations
concerning the valve of Stretton and the louver of Baltas:
As shown in Baltas, the louver at most only relies on the air
traveling parallel to or at least partially parallel to the direction
of air travel through the louver in its open position. Applied
within the structure of Stretton, the louver would be parallel to
or at least partially parallel to the direction of air travel through
the louver in its open position. Further, applied within the
structure of Stretton, the louver of Baltas would be even less
dependent on such an alignment since the wall structure (15) of
the bifucation/splitter housing (14) would act to guide the
airflow through the inlet (even with an imperfectly aligned
louver).
Ans. 3.
Stretton is directed to a heat exchanger arrangement for a gas turbine
engine. Stretton, Abstract. Stretton teaches that valves placed upstream of
heat exchangers may be “switchable” to control the flow of air to the heat
exchangers. Id. ¶¶ 3–4. In the Figure 8 embodiment of Stretton, fluid
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flow 52 acts as a coolant for heat exchanger 56. Id. ¶ 44, Fig. 8. Such flow
is regulated by fan air valve 55. Id. Exhaust fluid flow 52a is drawn by a
pressure differential created by displacement of flap 70 about hinge 71. Id.
Baltas is directed to a variable area flow system for the fan nozzle of a
turbofan engine. Baltas, ¶¶ 2, 4–7, 37–39. Pylon intake 52 includes an
adjustable intake louver system 60. Id. ¶ 41, Fig 2. The louver system
features vanes that minimize the shadowing effect created by each upstream
louver relative the next downstream louver. Id.
We agree with the Examiner that modifying Stretton’s valve 55 so
that it uses a door or louver(s) entails no more than a simple substitution of
one known element for another to achieve a predictable result. See KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (explaining that 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). Stretton discloses the use of a
“valve.” Stretton ¶ 44. It does not specify any particular type of valve. The
conclusion to be drawn from Stretton’s disclosure is that selection of a
particular type of valve is a matter that falls within the ambit of ordinary
skill. See Streck, Inc. v. Research & Diagnostic Sys., Inc., 665 F.3d 1269,
1288 (Fed. Cir. 2012) (explaining that a patent need not teach, and
preferably omits, what is well known in the art). Stretton teaches the use of
a hinged door configuration for the exhaust fluid flow from the heat
exchanger. Stretton ¶¶ 44, 45; Figs. 8, 9. Indeed, Stretton teaches
embodiments where fan air valve 55 is not necessary because fluid flow is
controlled by hinged door 70 at the exhaust end. Id. ¶ 45, Fig. 9. Thus, even
without incorporating the teachings of Baltas, Stretton suggests that air flow
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through a heat exchanger can be controlled by a hinged door arrangement.
Thus, Baltas is merely relied on to place the door at the inlet instead of the
outlet.
Appellant’s “scoop” theory is unpersuasive as it amounts to no more
than unsubstantiated attorney argument. See In re Cole, 326 F.2d 769, 773
(CCPA 1964) (explaining that statements by counsel in the brief cannot take
the place of evidence); see also Invitrogen Corp. v. Clontech Labs, Inc., 429
F.3d 1052, 1068 (Fed. Cir. 2005) (unsubstantiated attorney argument is no
substitute for competent evidence). Furthermore, the Examiner’s rejection
merely combines the teachings of Stretton and Baltas, but does not require
bodily incorporation of particular structures. It is well settled that
obviousness inquiry does not ask “whether the references could be
physically combined but whether the claimed inventions are rendered
obvious by the teachings of the prior art as a whole.” In re Etter, 756 F.2d
852, 859 (Fed. Cir. 1985) (en banc). Here, it is sufficient that Baltas teaches
controlling air flow at the inlet through a door arrangement. Appellant
presents no evidence that adapting the configuration of a door or louver type
valve structure to the fluid flow intake of Stretton’s heat exchanger
arrangement would have required more than ordinary skill.
In view of the foregoing discussion, we determine the Examiner’s
findings of fact are supported by a preponderance of the evidence and that
the Examiner’s legal conclusion of unpatentability is well-founded. We
sustain the Examiner’s unpatentability rejection of claims 1, 3–6, 11–13, 20,
and 21 over Stretton and Baltas.
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Unpatentability of Claims 2 and 22–24
over Stretton, Baltas, and Suciu
Claims 2, 22, and 23 depend from claim 1. Claims App. Claim 24
depends, in turn, from claim 23. Id.
Appellant fails to argue any of these claims under a separate heading
or sub-heading. 37 C.F.R. § 41.37(c)(1)(iv) (“any claims(s) argued
separately or as a subgroup shall be argued under a separate subheading that
identifies the claim(s) by number”). Appellant provides no explanation or
excuse for failing to comply with our rules. Id. In the absence of
appropriate headings in the Appeal Brief, we will endeavor to consider
Appellant’s arguments that are apparently directed to these claims as best
understood.
Claim 2
Claim 2 is not argued separately. See generally, Appeal Br. We
sustain the Examiner’s rejection of claim 2. See 37 C.F.R. § 41.37(c)(1)(iv)
(failure to separately argue claims constitutes a waiver of arguments for
separate patentability).
Claim 22
Claim 22 adds the limitation:
wherein the at least one air-air heat exchanger includes a
plurality of air-air heat exchangers and each air-air heat
exchanger in the plurality of air-air heat exchangers includes a
corresponding inlet configured to extend radially inward into a
bypass flowpath.
Claims App. Appellant argues that there is no reason to expect that the
Examiner’s proposed combination would be functional. Appeal Br. 5.
In response, the Examiner explains that, taking into account the
relative size of Stretton’s heat exchangers compared to available space, there
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is no indication that a modification of Stretton by the teachings of Suciu
would compromise Stretton’s functionality or require a reduction in size of
the heat exchanger. Ans. 3–4.
Suciu is directed to a thermal management system that includes at
least two heat exchangers arranged in series. Suciu, Abstract; Fig. 2A. Fan
air 45 enters inlet 94 and into a plurality of heat exchangers that are located
in a common area. Id. ¶ 28, Fig. 2A (elements HX1-HX4).
Suciu demonstrates that it was known to use multiple heat exchangers
and to fit such heat exchangers into a defined space. Appellant presents
neither evidence nor persuasive technical reasoning that adapting the sizing
and space allocation teaching of Suciu to Stretton exceeds the capability of
the person of ordinary skill.
Appellant’s arguments fail to apprise us of Examiner error. We
sustain the Examiner’s unpatentability rejection of claim 22.
Claim 23
Appellant argues claims 23 and 24 together. Appeal Br. 6–7. We
select claim 23 as representative, said claim adding the limitation:
wherein the at least one air-air heat exchanger includes a
plurality of air-air heat exchangers and each air-air heat
exchanger in the plurality of air-air heat exchangers includes a
spent air outlet at a mixing plenum.
Claims App. Appellant argues that Suciu lacks a “mixing plenum” as
claimed. Appeal Br. 6. Appellant argues that “mixing plenum” should be
construed narrowly so that airstreams emerging from heat exchangers are
merged into a single airstream. Id. at 6–7; Reply Br. 2–3. Appellant directs
our attention to Figure 4 of the drawings as graphically illustrating such
construction. Id. at 7, Fig. 4.
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In response, the Examiner notes that there is no recitation of “mixing”
or “plenum” in Appellant’s Specification. Ans. 4.
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under
the broadest reasonable interpretation standard, claim terms are given their
ordinary and customary meaning as would be understood by one of ordinary
skill in the art in the context of the entire disclosure. In re Translogic Tech.,
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
Suciu discloses an embodiment whether fan air 45 transits heat
exchangers HX1 and HX2 and then enters a common space labeled as
“HX 1+2 Exit Area (modulated)” before being exhausted through exit 96.
Suciu, ¶¶ 26–30, Fig. 2A. A person of ordinary skill in the art would
understand from reviewing Figure 2A that air exhausted from HX1 and HX2
mixes in this common space. Id.
We have reviewed Appellant’s Specification and Drawings and are
not persuaded that “mixing plenum” should be narrowly construed as
proposed by Appellant. The Examiner’s determination that the area in Suciu
that is downstream of heat exchangers HX1 and HX2 constitutes a “mixing
plenum” comports with ordinary and customary meaning of the term as it
would be understood by one of ordinary skill in the context of the entire
disclosure. Translogic Tech., 504 F.3d at 1257. Accordingly, we sustain the
rejection of claims 23 and 24 as unpatentable over Stretton, Baltas, and
Suciu.
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CONCLUSION
In summary:
Claims
Rejected
§ Reference(s)/Bases Aff’d Rev’d
1, 3-6, 11-13,
20, 21
103 Stretton, Baltas 1, 3-6, 11-13,
20, 21

2, 22-24 103 Stretton, Baltas, Suciu 2, 22-24
7 103 Stretton, Baltas, Caretto 7
8 103 Stretton, Baltas, Coplin 8
9 103 Stretton, Baltas, Murphy 9
Overall
Outcome
1-9, 11-13,
20-24

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED