Ex Parte Ali

Patent Trial and Appeal Board

Jul 11, 2016

13593814 (P.T.A.B. Jul. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/593,814 08/24/2012
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.
P A21060;67097-1769PUS2 9484
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
Appeal2014-007768
Application 13/593,814
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, 3, 4, 6, 7, 9-16, and 18-26. 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.
Appeal2014-007768
Application 13/593,814
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A geared turbomachine assembly, comprising:
an acoustic treatment establishing a portion of a core cowl aft a
fan cowl, the acoustic treatment including a perforated face sheet, a
backing sheet, and a cellular structure extending therebetween, the
perforated face sheet having an open area density that is from 4
percent to 30 percent.
REJECTIONS2'3
1) Claims 1, 6, 7, and 9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gantie (US 2010/0038476 Al, pub. Feb. 18,
2010) and Morin (US 7,540,354 B2, iss. June 2, 2009).
2) Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gantie, Morin, and Hurwitz (US 2009/0060704
Al, pub. Mar. 5, 2009).
3) Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Gantie, Morin, and Seda (US 6,619,030 Bl, iss. Sept. 16, 2003).
4) Claims 11-16, 19-22, 25, and 26 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Gantie, Hurwitz, and Morin.
5) Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Gantie, Hurwitz, Morin, and Seda.
2 The Examiner withdrew a rejection of claims 7, 23, and 24 under 35
U.S.C. § 112 second paragraph, as being indefinite. Ans. 2-3.
3 The Examiner withdrew a rejection of claims 23 and 24 under 35 U.S.C. §
112 first paragraph, as failing to comply with the written description
requirement. Id. at 2.
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Application 13/593,814
6) Claims 1and9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tester (US 2007/0251212 Al, pub. Nov. 1,
2007) and Morin.4
7) Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tester, Morin, and Hurwitz.
8) Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tester, Morin, and Vauchel (US 2010/0024435
Al, pub. Feb. 4, 2010) or Gantie.
9) Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Tester, Morin, and Seda.
10) Claims 11-14, 16, 19-22, 25, and 26 are rejected under 35
U.S.C. § 103(a) as unpatentable over Tester, Hurwitz, and Morin.
11) Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Tester, Hurwitz, Morin, and Vauchel or Gantie.
12) Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Tester, Hurwitz, Morin, and Seda.
13) Claims 1, 3, 4, 6, and 9 are provisionally rejected on the ground
of nonstatutory double patenting over claims 5 and 6 of co-pending
U.S. Application No. 13/406,712, Tester, and Morin.5
14) Claim 7 is provisionally rejected on the ground of nonstatutory
double patenting over claim 6 of co-pending U.S. Application No.
13/406,712, Tester, Morin, and Vauchel or Gantie.
4 The Examiner withdrew the rejection of claims 23 and 24 under 35 U.S.C.
§ 103(a) as being unpatentable over Tester and Morin. Ans. 3.
5 U.S. Application No. 13/406,712 is also on appeal. See Appeal No. 2014-
007522.
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Application 13/593,814
15) Claim 10 is provisionally rejected on the ground of nonstatutory
double patenting over claim 5 of co-pending U.S. Application No.
13/406,712, Tester, Morin, and Seda.
16) Claims 11-16, 18-22, and 26 are provisionally rejected on the
ground of nonstatutory double patenting over claims 11-16 and
18-22 of co-pending U.S. Application No. 13/406,712 and Morin.
17) Claim 25 is provisionally rejected on the ground of nonstatutory
double patenting over claim 11 of co-pending U.S. Application No.
13/406,712, Morin, and Tester.
18) Claims 1, 6, 9, and 24 are provisionally rejected on the ground
of nonstatutory double patenting over claims 5 and 6 of co-pending
U.S. Application No. 13/739,493 and Morin. 6
19) Claims 3, 4, and 23 are provisionally rejected on the ground of
nonstatutory double patenting over claim 5 of co-pending U.S.
Application No. 13/739,493, Morin, and Tester.
20) Claim 7 is provisionally rejected on the ground of nonstatutory
double patenting over claim 6 of co-pending U.S. Application No.
13/739,493, Morin, and Vauchel or Gantie.
21) Claim 10 is provisionally rejected on the ground of nonstatutory
double patenting over claim 5 of co-pending U.S. Application No.
13/739,493, Morin, and Seda.
22) Claims 11, 14--16, 18-22, and 26 are provisionally rejected on
the ground of nonstatutory double patenting over claims 11, 14--16,
6 U.S. Application No. 13/739,493 is also on appeal. See Appeal No. 2014-
007508.
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Application 13/593,814
and 18-22 of co-pending U.S. Application No. 13/739,493 and
Morin.
23) Claims 12, 13, and 25 are provisionally rejected on the ground
of nonstatutory double patenting over claim 11 of co-pending U.S.
Application No. 13/739,493, Morin, and Tester.
DISCUSSION
Claims 1, 9, and 10
Appellant does not contend that the rejection of claims 1, 9, and 10 is
erroneous. Appeal Br. 2. The Board's rules provide that "[a]n appeal, when
taken, is presumed to be taken from the rejection of all claims under
rejection unless cancelled by an amendment filed by the applicant and
entered by the Office." 37 C.F.R. § 41.3 l(c) (2015). By these rules, this
appeal includes an appeal of the rejections of claims 1, 9, and 10. Presented
with no arguments by Appellant contesting this rejection, we summarily
sustain the rejection of claims 1, 9, and 10. See Hyatt v. Dudas, 551 F.3d
1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance without
consideration of the substantive merits is appropriate where an appellant
fails to contest a ground of rejection).
Rejection 7- Claims 3 and 47
The Examiner rejected dependent claims 3 and 4 as unpatentable over
Tester and Morin as applied to independent claim 1 and further in view of
Hurwitz. Final Act. 18. The Examiner finds that Tester discloses the
limitations of claim 1, but does not disclose acoustic treatment "including a
perforated face sheet, a backing sheet, and a cellular structure extending
7 For the disposition of rejections 1---6, see infra.
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Application 13/593,814
therebetween, the perforated face sheet having an open area density that is
from 4% to 30%." Id. at 17. The Examiner finds that Morin discloses this
limitation of claim 1. Id. The Examiner further finds that Tester, as
modified by Morin, discloses the limitations of claims 3 and 4 other than
"that the turbomachine is geared." Id. at 18, 19. The Examiner finds that
Hurwitz discloses a turbomachine "driven by a geared architecture." Id. at
19. The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art "to form the turbomachine of Tester [as modified by
Morin] 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 contends "it would not have been obvious to modify Tester
such that the turbomachine is geared as the Examiner asserts" because doing
so would be "unnecessary in view of Tester's existing disclosure." Appeal
Br. 9-10. The Examiner responds that geared turbomachines "are well-
known in the art" and the combination of Tester and Hurwitz "is []simple
substitution of one known drive arrangement for another drive
arrangement." Ans. 15-16. For the following reasons, we determine
Appellant's contention to be unpersuasive.
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
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Application 13/593,814
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 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. ("[t]he
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 3 and 4 under 35 U.S.C. § 103(a).
Rejection 8 - Claims 6 and 7
The Examiner rejected claims 6 and 7 as unpatentable over Tester,
Morin, and Vauchel or Gantie. Final Act. 19. Appellant submits "[a]s
explained above in response to the rejection of claims 3 and 4, modifying
Tester with Morin is improper" and neither Vauchel nor Gantie "cure the
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Application 13/593,814
deficiencies in the combination of Tester and Morin." Appeal Br. 10.
Appellant did not argue that the combination of Tester and Morin is
improper in connection with claims 3 and 4 but argued that the combination
of Tester and Hurwitz is improper. Id. at 9-10. If Appellant intended to
repeat the argument from claims 3 and 4 concerning the combination of
Tester and Hurwitz, we are not persuaded for the same reasons stated above
for claims 3 and 4. If Appellant did not intend to repeat the argument from
claims 3 and 4, but rather argue that the Examiner's combination of Tester
and Morin is deficient, we are not persuaded as Appellant merely presents a
conclusory argument and thus fails to point out any error in the Examiner's
factual findings or reasoning. We thus sustain the rejection of claims 6 and
7.
Rejection 10- Claims 11-14, 16, 19-22, and 25-26
The Examiner finds that Tester and Morin disclose most of the
limitations of claims 11-14, 16, 19-22, and 25-26 other than "the fan is
driven by a geared architecture." Final Act. 21, 22. The Examiner finds that
Hurwitz discloses a turbomachine "driven by a geared architecture." Id. at
22. Appellant argues that these claims are patentable for the same reason as
claims 3 and 4, i.e., modifying Tester to include the geared architecture of
Hurwitz is improper. Appeal Br. 10-11. For the reasons stated above in
connection with claims 3--4, we also sustain the rejection of claims 11-14,
16, 19-22, 25, and 26.
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Rejection 11 - Claim 15
Appellant argues claim 15 is patentable for the same reason as claim
14 which is in tum dependent on claim 11 and the additional references cited
by the Examiner in this rejection, Vauchel and Gantie, fail to cure the
alleged deficiencies in the combination of Tester, Morin, and Hurwitz.
Appeal Br. 11. For the reasons stated above in connection with claim 11, we
sustain the rejection of claim 15.
Rejection 12 - Claim 18
Appellant argues claim 18 is patentable for the same reason as claim
14 which is in tum dependent on claim 11 and the additional reference cited
by the Examiner, Seda, fails to cure the alleged deficiencies in the
combination of Tester, Morin, and Hurwitz. Appeal Br. 11-12. For the
reasons stated above in connection with claim 11, we sustain the rejection of
claim 18.
Rejections 1-6- Claims 1, 3, 4, 6, 7, 9-16, 18, and 23-24
The rejections of the claims subject to rejections 1-5, with the
exception of claims 1, 9, 10, 23, and 24 have been affirmed based on
rejections 7, 8, and 10-12. Therefore, we do not reach the propriety of
rejections 1-5. See 37 C.F.R. § 41.50(a)(l) ("The affirmance of the
rejection of a claim on any of the grounds specified constitutes a general
affirmance of the decision of the examiner on that claim .... ").
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Rejections 13-23 - Provisional Double Patenting
Appellant does not contend that the provisional double patenting
rejections are erroneous. See Appeal Br. 13. Appellant, thus waived any
argument of error, and we summarily sustain rejections 13-23. See 37
C.F.R. § 41.37(c)(l)(iv).
DECISION
The Examiner's decision rejecting claims 1, 3, 4, 6, 7, 9-16, 18-22,
25, and 26 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
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