United Technologies Corporation

Patent Trials and Appeals Board

Jun 19, 2020

2020000235 (P.T.A.B. Jun. 19, 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.
14/783,054 10/07/2015 Anton G. Banks 1213-25082WOUS 8951
11943 7590 06/19/2020
Getz Balich LLC
10 Waterside Drive, Suite 205
Farmington, CT 06032
EXAMINER
EASTMAN, AARON ROBERT
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
06/19/2020 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):
shenry@getzbalich.com
uspto@getzbalich.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANTON G. BANKS, ANTHONY P. CHEROLIS, and
DONALD KASTEL

Appeal 2020-000235
Application 14/783,054
Technology Center 3700
____________

Before JOHN C. KERINS, ANNETTE R. REIMERS, and
BRANDON J. WARNER, Administrative Patent Judges.

KERINS, 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 1–30. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies United Technologies Corp., as the real
party in interest. Appeal Br. 3. Appellant subsequently filed, on April 23,
2020, a “Real Party-In-Interest Notice Pursuant to 37 C.F.R. § 41.8,”
advising that United Technologies Corporation changed its name to
Raytheon Technologies Corporation on April 3, 2020.
Appeal 2020-000235
Application 14/783,054

2
THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a nozzle segment for a gas turbine
engine. Claims 1 and 16 are illustrative, and are reproduced below:
1. A nozzle segment for a gas turbine engine comprising:

an arcuate outer vane platform segment;

an arcuate inner vane platform segment spaced from said arcuate
outer vane platform segment;

a multiple of airfoils between said arcuate inner vane platform
segment and said arcuate outer vane platform segment, said
arcuate outer vane platform segment includes a scallop slot; and

a seal that seals said scallop slot.

16. A gas turbine engine comprising:

an annular nozzle with a multiple of scallop cuts, a first of the
scallop cuts comprising a semi-circular portion and a rectangular
portion adjacent the semi-circular portion, and the rectangular
portion having a lateral width that is equal to a diameter of the
semi-circular portion; and

a plurality of seals respectively sealing said multiple of scallop
cuts, a first of the seals comprising of a sheet of material that
plugs and extends laterally across the semi-circular portion and
the rectangular portion.

Appeal 2020-000235
Application 14/783,054

3
THE REJECTIONS
The Examiner rejects:
(i) claims 16–22 under 35 U.S.C. § 112(a) as failing to comply with
the written description requirement;
(ii) claims 16, 18–20, and 22 under 35 U.S.C. § 102(a)(1) as being
anticipated by Ellis (US 7,229,245 B2, issued June 12, 2007);
(iii) claims 1–9, 11, 12, 17, and 23–26 under 35 U.S.C. § 103 as being
unpatentable over Ellis;
(iv) claims 10, 27, and 28 under 35 U.S.C. § 103 as being
unpatentable over Ellis in view of Zheng (US 2013/0256990 A1, published
Oct. 3, 2013);
(v) claims 13–15, 29, and 30 under 35 U.S.C. § 103 as being
unpatentable over Ellis in view of Walunj (US 2012/0195743 A1, published
Aug. 2, 2012); and
(vi) claim 21 under 35 U.S.C. § 103 as being unpatentable over Ellis
in view of Pieussergues (US 2011/0179798 A1, published July 28, 2011).

ANALYSIS
Claims 16–22--35 U.S.C. § 112(a)--Written Description
The Examiner finds that the expression, “a first of the scallop cuts
comprising a semi-circular portion and a rectangular portion adjacent the
semi-circular portion, and the rectangular portion having a lateral width that
is equal to a diameter of the semi-circular portion,” lacks written descriptive
support in the application as filed. Final Act. 6.2 Appellant traverses the

2 A corresponding objection to the drawings under 37 C.F.R. § 1.83(a),
asserts that the drawings fail to show a scallop cut in which a rectangular
Appeal 2020-000235
Application 14/783,054

4
rejection, arguing that at least Figures 5, 6, and 8–11 as filed illustrate such a
configuration. Appeal Br. 10. Appellant presents an annotated version of
Figure 8 of the original application, and provides an explanation as to how
that drawing figure discloses the limitation at issue. Id. at 9.
The Examiner responds as follows:
While Examiner agrees that the annotated FIG. 8 provided by
Appellant appears to show that the lateral width of the semi-
rectangular portion is equal to the diameter of the semi-circular
portion, this is simply not shown in the original disclosure. There
are no measurements provided in the original Figures and they
are not drawn to scale. Additionally, it is not possible to
determine if the semi-circular portion is half of a circle or a
smaller portion of a circle and thus, it cannot be determined.
Therefore, without the annotated FIG. 8, it is not possible to
determine if Appellant, at the time the application was filed, had
possession of the claimed invention. Neither the Specification
nor the Figures disclose the rectangular portion having a lateral
width that is equal to a diameter of the semi-circular portion.
Ans. 11.
Reproduced below are Figure 8 as filed in the original application, and
Figure 8 as annotated by Appellant.

portion has a lateral width equal to a diameter of a semi-circular portion.
Final Act. 4. Consistent with our decision herein as to the written
description rejection, the drawing objection should be withdrawn once
jurisdiction over the application returns to the Examiner.
Appeal 2020-000235
Application 14/783,054

5

Depicted above, on the left, is Figure 8 of the present application as
originally filed, and, on the right, an Appellant-annotated version of that
figure, which is described as an expanded view of the nozzle segment
viewed from line 8-8 in Figure 7. Spec. ¶ 44; see Appeal Br. 8–9.
To a person of ordinary skill in the art, Appellant’s annotated Figure 8
discloses no more, and no less, than does the unannotated version filed with
the original application. Accordingly, the Examiner’s statement that the
annotated version is needed in order to establish that Appellant had
possession of the subject matter at issue misses the mark.
Embedded in the above quote, the Examiner’s bases for asserting that
Figure 8 and other drawing figures fail to evidence possession are that the
drawings do not include any measurements; that the drawings are not to
scale; and that it is not possible to determine if the curved portion of the
scallop cut circumscribes a half-circle or something less than a half-circle.
Ans. 11. This position is tantamount to requiring an in haec verba recitation
of the claim language, whereas the standard for finding adequate written
descriptive support is not so stringent. See Ariad Pharm., Inc. v. Eli Lilly &
Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010) (en banc); Fujikawa v.
Appeal 2020-000235
Application 14/783,054

6
Wattanasin, 93 F.3d 1559, 1570 (Fed. Cir. 1996) (written description
standard in § 112 does not require that every claim element find literal
support in the application).
In terms of the adequacy of Figure 8, in particular, as providing
written descriptive support for claim 16, we note that, although patent
drawings not designated as being drawn to scale are generally not to be
relied upon to define precise proportions of elements if the specification is
completely silent on the issue, Hockerson-Halberstadt v. Avia Group Int’l.,
Inc., 222 F.3d 951, 956 (Fed. Cir. 2000), that does not mean “that things
patent drawings show clearly are to be disregarded.” In re Mraz, 455 F.2d
1069, 1072 (CCPA 1972). A drawing teaches all that it reasonably discloses
and suggests to a person of ordinary skill in the art. In re Aslanian, 590 F.2d
911, 914 (CCPA 1979); In re Wright, 471 F.3d 1264 (Fed. Cir. 2006).
Here, we are persuaded that a person of ordinary skill in the art
would understand, from viewing Figure 8, as well as Figures 5, 6, and
9–11, that Appellant was in possession of a scallop cut configuration
having a semi-circular portion adjacent a rectangular portion, and that
the lateral width of the rectangular portion is of the same dimension as
is a diameter of the semi-circular portion. Accordingly, the rejection of
claim 16 and the claims depending therefrom as lacking written
descriptive support, is not sustained.

Claims 16, 18–20, and 22--35 U.S.C. § 102(a)(1)--Ellis
The Examiner finds that Ellis discloses each and every limitation
appearing in claim 16, including one (a first) of a plurality of seals sealing a
first scallop cut “comprising a sheet of material that plugs and extends
Appeal 2020-000235
Application 14/783,054

7
laterally across [a] semi-circular portion and [a] rectangular portion” of the
scallop cut. Final Act. 6. The Examiner cites to the embodiment appearing
in Figures 5 and 6 of Ellis as disclosing a scallop cut and seal meeting the
limitations in claim 16. Id. Appellant counters that the seal that mates with
the scallop cut in Figures 5 and 6 of Ellis “is U-shaped and thereby only
extends partially across the . . . semi-circular portion and only extends
partially across the . . . rectangular portion of the . . . scallop cut. The
remaining portion of the cut is filled with a portion (chunk) of the rail 23 as
shown in FIG. 5 of Ellis.” Appeal Br. 11. Appellant represents that the
portion/chunk of the rail is not “a sheet of material,” as recited, and that the
structure relied on does not disclose all elements of claim 16. Id. at 11–12.
The Examiner’s response does not adequately address Appellant’s
argument that claim 16 requires a sheet of material that extends laterally
across the semi-circular and rectangular portions of the scallop cut. Instead,
the Examiner points out that, in Figure 5 of Ellis, “the seal (31) is shown as
comprising three pieces, including the U-shaped portion,” which Ellis
collectively identifies as seal 31. Ans. 12. The Examiner takes issue with
Appellant’s characterization of the thickest of these pieces as being a “chunk
of the rail (23),” but the Examiner fails to explain how this thick piece,
which we note happens to match the thickness of rail 23, could reasonably
be construed as being “a sheet of material,” so as to meet, or contribute to
meeting, the limitation requiring the seal to comprise a sheet of material that
spans the lateral extent of the semi-circular and rectangular portions of the
scallop cut in Figure 5 of Ellis.
The rejection of claim 16, and of claims 18–20 and 22 depending
therefrom, as being anticipated by Ellis, is not sustained.
Appeal 2020-000235
Application 14/783,054

8
Claims 1–9, 11, 12, 17, and 23–26--35 U.S.C. § 103--Ellis
For independent claims 1 and 23, the Examiner finds that Ellis
discloses a scallop slot and seal, but that these are positioned on an arcuate
inner (in a radial sense) vane platform segment, and not on an arcuate outer
(in a radial sense) vane platform segment, as set forth in those claims. Final
Act. 8, 11. The Examiner notes that, notwithstanding this different
positioning of the scallop slot and seal, Ellis discloses that, although the
focus of that invention is on inner rail 23 connected to inner platform 21, and
relieving stress thereon, the teaching of providing a stress-relief opening
“could be applied to a variety of vane assemblies and is not limited to the
embodiment disclosed.” Final Act. 8; see Ellis 3:14–18. The Examiner
concludes that it would have been obvious to modify Ellis by providing
additional scallops and seals on the outer vane platform segment, “for the
purposes of reducing thermally induced stresses and improving component
durability.” Id., citing Ellis, Abstract.
Appellant principally argues that the language in Ellis that mentions
applicability to other vane assemblies is not particularly pertinent to
assessing the purportedly obvious modification to Ellis, because Ellis
contains no teaching or suggestion that the outer platform of Ellis suffers
from the same thermal fatigue as does the inner platform rail, such that there
would be any applicability of the stress relieving measures, disclosed as
applying to the inner rail, to the outer platform as well. Appeal Br. 13. In
particular, Appellant cites to disclosure in Ellis that the high, thermally-
induced stresses to which the Ellis stress-relieving slot and seal are directed,
occur because of a large operating temperature differential between, on the
one hand, the inner rail, and, on the other hand, the elevated temperature
Appeal 2020-000235
Application 14/783,054

9
environment of the inner and outer platforms 11, 13, and vanes 14 at the
location of the inner rail, where the two are adjacent one another. Id., citing
Ellis 1:54–62. Ellis explains that this operating temperature difference
results from the inner and outer platform and vanes being exposed to hot
combustion gases, whereas the inner rail to which Ellis provides stress relief
is located proximate to a cooling air plenum, such that the inner rail operates
at approximately that temperature. Ellis 1:51–60.
The Examiner attempts to bolster the position taken regarding the
obviousness of applying the Ellis teaching of providing a slot and seal to the
outer platform by pointing out that Ellis discloses, as an object of its
invention, providing a turbine blade having reduced thermal stresses in the
airfoil and platform regions. Ans. 12, citing Ellis 2:25–27. The Examiner
additionally quotes from the passage in Ellis discussed above relative to the
“vanes and platforms” operating at an elevated temperature relative to the
inner rail. Id., citing Ellis 1:55–58. According to the Examiner, “[t]hese
passages indicate that the teachings of Ellis et al. can be applied to both the
inner and outer platforms.” Id.
Appellant has the better position here. As to the particular stated
object of the Ellis invention cited by the Examiner, i.e., reduced thermal
stresses in the airfoil and platform regions, Ellis addresses this by providing
a stress relief slot on the inner rail, in a region in which the cooler operating
temperature of that inner rail is adjacent the starkly contrasting elevated
operating temperature of the platform and airfoil regions. See, e.g., Ellis
2:4–24. The emphasis attached by the Examiner to Ellis’ use of the plural
“platforms” as seemingly providing a suggestion to include a slot and seal
on the outer platform as well as the inner, does not aid the Examiner’s
Appeal 2020-000235
Application 14/783,054

10
position. As alluded to above, the “vanes and platforms” constitute one
group of components that are operating at elevated temperatures compared
to the inner rail operating at a cooler temperature. It is not the elevated
operating temperature, per se, that is producing elevated thermal stresses in
components,3 but rather, it is the temperature differential of the components
of the structure experienced in the vicinity of the inner rail that Ellis
identifies as creating potentially damaging elevated levels of thermal stress
in the overall construction or arrangement.
Accordingly, we find nothing in Ellis, as its disclosure would be
understood by persons of ordinary skill in the art, that suggests any benefit
from providing additional scallops and seals on the outer vane platform
segment thereof. As for the Examiner’s aside that “Ellis never states that the
placing of such a scallop cut would be inappropriate on the outer platform,”
we note that Ellis expresses a consideration that the openings proposed
therein must not compromise the structural integrity of the component. Ellis
2:18–20. Thus, it appears counterintuitive to consider providing scallop cuts
in areas not identified as leading to issues with excessive thermal stress.
The rejection of independent claims 1 and 23, and that of claims 2–9,
11, 12, 17, and 24–26, depending therefrom, is not sustained.

Claims 10, 27, and 28--35 U.S.C. § 103--Ellis/Zheng
The Examiner does not rely on Zheng in any manner that would
overcome the deficiency of Ellis noted in the analysis above. The rejection

3 The Examiner appears to believe that elevated operating temperature alone
gives rise to potentially damaging levels of thermal stresses. See Ans. 13
(Ellis’ disclosure that “both platforms operate at an elevated temperature.”)
Appeal 2020-000235
Application 14/783,054

11
of claims 10, 27, and 28 as being unpatentable over Ellis and Zheng is
therefore not sustained.

Claims 13–15, 29, and 30--35 U.S.C. § 103--Ellis/Walunj
The Examiner does not rely on Walunj in any manner that would
overcome the deficiency of Ellis noted in the analysis above. The rejection
of claims 13–15, 29, and 30 as being unpatentable over Ellis and Walunj is
therefore not sustained.

Claim 21--35 U.S.C. § 103--Ellis/Pieussergues
The Examiner does not rely on Pieussergues in any manner that would
overcome the deficiency of Ellis noted in the analysis above. The rejection
of claim 21 as being unpatentable over Ellis and Pieussergues is therefore
not sustained.

DECISION
The rejections of claims 1–30 are reversed.

Appeal 2020-000235
Application 14/783,054

12
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
16–22 112(a) Written Description 16–22
16, 18–
20, 22
102(a)(1) Ellis 16, 18–
20, 22
1–9, 11,
12, 17,
23–26
103 Ellis 1–9, 11,
12, 17,
23–26
10, 27, 28 103 Ellis, Zheng 10, 27, 28
13–15,
29, 30
103 Ellis, Walunj 13–15,
29, 30
21 103 Ellis, Pieussergues 21
Overall
Outcome
1–30

REVERSED