Ex Parte AliDownload PDFPatent Trial and Appeal BoardJul 11, 201613406712 (P.T.A.B. Jul. 11, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/406,712 02/28/2012 54549 7590 07113/2016 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 Amr Ali 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. PA21060U;67097-1769PUS1 6335 EXAMINER VERDIER, CHRISTOPHER M ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 07/13/2016 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 AMR ALI Appeal2014-007522 Application 13/406,712 Technology Center 3700 Before STEFAN STAICOVICI, ARTHUR M. PESLAK, and SEAN P. O'HANLON, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Amr Ali ("Appellant") appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-22. 1 We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellant submits the real party in interest is United Technologies Corporation. Appeal Br. 1. Appeal2014-007522 Application 13/406,712 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A geared turbomachine assembly, comprising: an acoustic treatment that is in an unducted area of a geared turbomachine. REJECTIONS2 1) Claims 1-7, 11-15, and 19-22 are rejected under 35 U.S.C. § 103(a) as unpatentable over Gantie (US 2010/0038476 Al, pub. Feb. 18, 2010) and Hurwitz (US 2009/0060704 Al, pub. Mar. 5, 2009). 2) Claims 8, 9, 16, and 17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Gantie, Hurwitz, and Morin (US 7,540,354 B2, iss. June 2, 2009). 3) Claims 10 and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over Gantie, Hurwitz, and Seda (US 6,619,030 Bl, iss. Sept. 16, 2003). 4) Claims 1-3, 5, 11-15, and 19-22 are rejected under 35 U.S.C. § 103(a) as unpatentable over Tester (US 2007/0251212 Al, pub. Nov. 1, 2007) and Hurwitz. 5) Claims 8, 9, 16, and 17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Tester, Hurwitz, and Morin. 6) Claims 10 and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over Tester, Hurwitz, and Seda. 2 The Examiner withdrew a rejection of claims 4 and 7 under 35 U.S.C. § 112, second paragraph. Ans. 2. 2 Appeal2014-007522 Application 13/406,712 7) Claims 1-3 and 5-22 are provisionally rejected on the ground of nonstatutory double patenting over Claims 1, 3, 6, 7, 9-16, and 18- 22 of co-pending U.S. Application No. 13/593,814.3 8) Claim 4 is provisionally rejected on the ground of nonstatutory double patenting over claim 4 of co-pending U.S. Application No. 13/593,814 and Gantie. 9) Claims 1-12 and 14--22 are provisionally rejected on the ground of nonstatutory double patenting claims 1, 4--11, and 14--22 of co- pending U.S. Application No. 13/739,493.4 10) Claim 13 is provisionally rejected on the ground of nonstatutory double patenting over claim 11 of co-pending U.S. Application No. 13/593,814 and Tester. DISCUSSION Rejection 4: Obviousness of Claims 1-3, 5, 11-15, and 19-22 over Tester and Hurwitz The Examiner finds that Tester discloses all the limitations of each of these claims other than "the turbomachine is geared (claim 1 ), and does not disclose that the fan is driven by a geared architecture (claims 11, 19, and 21 )." Final Act. 13. The Examiner finds that Hurwitz discloses "a gas turbine engine having a fan 20 that is driven by a geared architecture 22, for the purpose of allowing the turbine to drive the fan." Id. at 14. The Examiner concludes that it would have been obvious to a person of ordinary 3 U.S. Application No. 13/593,814 is also on appeal. See Appeal No. 2014- 007768. 4 U.S. Application No. 13/739,493 is also on appeal. See Appeal No. 2014- 007508. 3 Appeal2014-007522 Application 13/406,712 skill in the art "to form the turbomachine of Tester such that the turbomachine is geared, and such that the fan is driven by a geared architecture, as taught by Hurwitz, for the purpose of allowing the turbine to drive the fan." Id. Appellant does not dispute the Examiner's factual findings but contends that the Examiner's reason for modifying Tester, i.e., allowing the turbine to drive the fan, is not legally sufficient because "Tester already includes a turbine that drives a fan" and modifying Tester with Hurwitz's geared architecture "is unnecessary." Appeal Br. 10. Further, Appellant argues that "[t]he Examiner is simply selecting features from the prior art using the claims as a guide." Id. The Examiner responds that geared turbomachines "are well-known in the art," and the combination of Tester and Hurwitz "is a simple substitution of one known drive arrangement for another drive arrangement." Ans. 17. We determine Appellant's contentions to be unpersuasive for the following reasons. Appellant does not provide any persuasive argument or technical reasoning to support a distinction in acoustic treatment if the turbomachine is geared as opposed to one that is not geared. Regardless of whether gearing is "unnecessary" as argued by Appellant, the result of both geared and non-geared turbomachines is predictably identical, i.e., the turbine drives the fan. Furthermore, "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." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). The Examiner finds that the geared drive system of Hurwitz would have been a suitable substitute for the drive system of Tester. Appellant 4 Appeal2014-007522 Application 13/406,712 provides no persuasive reason why a person of ordinary skill in the art could not have implemented such a substitution. Neither does Appellant provide any persuasive reason why the results of the substitution would have been unpredictable. The Examiner is correct in concluding that such a substitution would have been obvious. Appellant, thus, fails to persuasively apprise us of error in the Examiner's rationale, quoted above, for the combination of Tester and Hurwitz, which we determine to be reasonable and supported by the disclosure in the cited references. See Id. ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). To the extent that Appellant argues the Examiner improperly used hindsight, the argument is of no import where the Examiner states a rationale for the modification that we determine is supported adequately by sufficient facts. See In re Cree, 818 F.3d 694, 702, n.3 (Fed. Cir. 2016). We, thus, sustain the rejection of claims 1-3, 5, 11-15, and 19-22. Rejections 5 & 6: Claims 8-10 and 16--18 Appellant argues that these claims, dependent on claim 1 or claim 11, are patentable for the same reasons Appellant argued for claims 1 and 11, and neither of the additional references cited in these rejections, Morin and Seda, cure the alleged error in the rejections of claims 1 and 11. Appeal Br. 10-11. As stated above, Appellant's arguments in connection with claim 1 (and claim 11) are not persuasive. Because Appellant does not apprise us of any other errors in connection with rejections 5 and 6, we sustain the rejections of claims 8-10 and 16-18 for the same reasons stated above for claim 1. 5 Appeal2014-007522 Application 13/406,712 Rejections 1-3: Obviousness of Claims 1-7, 11-15, and 19-22 over Gantie and Hurwtiz; of Claims 8, 9, 16, and 17 over Gantie, Hurwitz, and Morin; and of Claims 10 and 18 over Gantie, Hurwitz, and Seda The Examiner finds that Gantie discloses all the limitations of independent claims 1, 11, and 19 other than a geared turbomachine/architecture. Final Act. 10-11. In particular, the Examiner finds that Gantie discloses "an acoustic treatment 40 that is in an unducted area (near 38')" that "is axially aft of a fan cowl 32." Id. at 10. Appellant contends, inter alia, that Gantie does not disclose an "acoustic treatment that is in an unducted area of a geared turbomachine,"5 as per claim 1, an "acoustic treatment establishing a portion of the core cowl aft the fan cowl," as per claim 11, and "attenuating noise axially aft of a fan cowl," as per claim 19. Appeal Br. 3, 5, and 7. Appellant argues that Gantie's acoustic treatment is "within the pipe." Id. at 3. We understand Appellant's reference to "the pipe" as referring to Gantie's element 36 forming part of core cowl 32. Appellant submits that Gantie discloses reducing "the modes of acoustic energy propagating by rotating within the pipe." Id., (citing Gantie i-f 31 ). Based on paragraph 31 of Gantie, Appellant argues that Gantie "does not teach or suggest an acoustic treatment aft of a fan cowl." Id. The Examiner responds that Gantie discloses "an acoustic treatment 40 that is in an unducted area (to the right of 38')." Ans. 4. The Examiner 5 The Specification discloses that "[t]he unducted area represents the portions of the gas turbine engine 20 axially outside the fan cowl 66." Spec. i-f 45; see also Fig. 1. 6 Appeal2014-007522 Application 13/406,712 relies on paragraph 33 of Gantie, which states the "the inside wall 40 and/or the outside wall 42 are covered at least partially by a coating whose purpose is to absorb a portion of the sound energy." Id. (citing Gantie, i-f 33). Gantie discloses a fan cowl 32. 6 Gantie i-f 2, Fig. 1. Gantie also discloses inside wall 40 (core cowl) that surrounds engine 16. Id. i-f 3. Gantie does not disclose that the entirety of inside wall 40 is covered by the acoustic coating. Id. i-f 33. Gantie is directed to improving the effectiveness of acoustic treatment in the area between inside wall 40 and outside wall 42. Id. i-fi-113-14. As illustrated in Figure 5 of Gantie, the acoustic treatment is accomplished by multiple reflections of acoustic beam 52 between inside and outside walls 40 and 42. Id. Fig. 5, i-f 40. In the unducted area, aft the trailing end of fan cowl 32, there can be no acoustic treatment by the reflection of an acoustic beam between two walls, thus, casting doubt on whether the acoustic coating on inside wall 40 extends to the unducted area, as the Examiner proposes. While we appreciate the Examiner's reference to Paragraph 33 of Gantie, the Examiner's finding that Gantie's acoustic treatment on inside wall 40 extends to the unducted area is based on speculation and thus is not supported by a preponderance of the evidence. As the rejection is based on an erroneous factual finding, the conclusion of obviousness cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (Holding that "[t]he legal conclusion of obviousness must be supported by facts. Where the legal conclusion is not supported by facts it cannot stand."). 6 The unducted portion of Gantie is the area axially aft of the trailing end of fan cowl 32. See Gantie, Fig. 1. 7 Appeal2014-007522 Application 13/406,712 In conclusion, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 103(a) of claims 1-7, 11-15, and 19-22 as unpatentable over Gantie and Hurwitz. With respect to rejections 2 and 3, the Examiner's use of Morin and Seda does not cure the deficiency of Gantie and Hurwitz discussed supra. Accordingly, for the same reasons as discussed above, we also do not sustain the rejections under 35 U.S.C. § 103(a) of claims 8, 9, 16, and 17 as unpatentable over Gantie, Hurwitz, and Morin and of claims 10 and 18 as unpatentable over Gantie, Hurwitz, and Seda. Rejections 7-10- Provisional Double Patenting Claims 1-22 Appellant does not contend that the provisional double patenting rejections are erroneous. See Appeal Br. 12. Appellant, thus waived any argument of error, and we, thus, summarily sustain rejections 7-10 for claims 1-22. See 37 C.F.R. § 41.37(c)(l)(iv). DECISION The Examiner's decision rejecting claims 1-22 is AFFIRMED. 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)(l )(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation