Ex Parte Azad et al

Patent Trial and Appeal Board

Nov 16, 2017

12985571 (P.T.A.B. Nov. 16, 2017)

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.
12/985,571 01/06/2011 Gm Salam Azad 2010P19770US 4602
28524 7590 11/20/2017
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
EXAMINER
PETERS, BRIAN O
Orlando, EL 32817 ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
11/20/2017 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GM SALAM AZAD, CHING-PANG LEE, and
ZHIHONG GAO
Appeal 2015-006478
Application 12/985,571
Technology Center 3700
Before MICHAEL L. HOELTER, JILL D. HILL AND GORDON D.
KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 appeal under 35U.S.C. § 134 from a rejection of claims
1—6, 8—10, 12—18, and 21—24. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 We are informed that the real party in interest is Siemens Energy, Inc.
Appeal Br. 3 (January 30, 2015).
Appeal 2015-006478
Application 12/985,571
CLAIMED SUBJECT MATTER
The claims are directed to an inner shroud cooling arrangement in a
gas turbine engine. Claims 1, 12, and 17 are independent. Claim 1,
reproduced below, illustrates the claimed subject matter:
1. A component in a gas turbine engine, said component
comprising:
an airfoil adapted to extend radially through an annular hot
gas path extending in a generally axial direction through said
turbine engine, said airfoil including a pressure side and a suction
side, an upstream leading edge and a downstream trailing edge;
a shroud having an outer surface supporting an end of said
airfoil, said shroud defining a portion of said annular gas path
through said gas turbine engine and including an upstream edge
and a downstream edge, and opposing axial edges extending
between said upstream edge and said downstream edge;
each of said axial edges including a generally axially
extending seal slot adapted to receive a seal member extending
between said shroud and an adjacent shroud;
a cooling air channel extending generally axially
substantially parallel to at least one of said axial edges between
said upstream edge and said downstream edge;
a cooling air supply passage extending circumferentially
and radially within said shroud from a cooling air chamber
enclosed within said shroud to said cooling air channel, said
cooling air channel being spaced circumferentially and radially
from said cooling air supply passage;
at least one cooling air exit passage extending from said
cooling air channel to said one of said axial edges, said at least
one cooling air exit passage receiving cooling air from said
cooling air channel; and
said cooling air channel being located radially between
said outer surface of said shroud and said seal slot at said one of
said axial edges for effecting convective cooling of a comer
defined at an intersection of said outer surface and said one of
said axial edges;
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wherein all of the cooling air passing through said cooling
air channel exits said shroud from at least one of said
downstream edge and said one of said axial edges.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Przirembel
Magowan
Sloop
Phillips
Chan
Walz
US 4,017,213
US 5,344,283
US 5,375,973
US 6,887,033
US 7,029,228
US 2007/0253816
Apr. 12, 1977
Sep. 6, 1994
Dec. 27, 1994
May 3, 2005
Apr. 18, 2006
Nov. 1,2007
REJECTIONS
I. Claims 1, 2, and 8 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips and Chan. Final Act. 2—5
II. Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, Magowan. Final Act. 5—6.
III. Claims 3 and 17 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, and Sloop. Final Act. 6—9.
IV. Claims 4, 12, and 16 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Phillips, Chan, and Walz. Final Act. 9—19,
15-18.
V. Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, Walz, and Magowan. Final Act. 10-11.
VI. Claim 21 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, and Przirembel. Final Act. 12.
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Application 12/985,571
VII. Claim 18 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, Sloop, and Magowan. Final Act. 12—14.
VIII. Claim 23 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, Sloop, and Przirembel. Final Act. 14.
IX. Claim 24 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, Sloop, and Walz. Final Act. 15.
X. Claims 13—15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, and Magowan. Final Act. 18—20
XI. Claim 22 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Phillips, Chan, Walz, andl Przirembel. Final Act. 20.
ANALYSIS
Rejection I
Claims 1, 2, and 8 obvious in view of Phillips and Chan
Appellants argue claims 1, 2, and 8 as a group. Appeal Br. 9—15. We
select claim 1 as representative. Claims 2 and 8 stand or fall with claim 1.
37 CFR § 41.37(c)(l)(iv).
Appellants make two arguments for reversal of the rejection of
claim 1. First, Appellants argue that the modification of Phillips in view of
Chan would alter Phillips’ principle of operation. Appeal Br. 10-11.
Second, Appellants argue that the modification of Phillips proposed by the
Examiner would cause Phillips to be unsatisfactory for its intended purpose.
As a consequence Appellants argue it is not obvious to modify Phillips as
suggested by the Examiner. Appeal Br. 11—15.
The Examiner finds Phillips discloses all the limitations of claim 1
except:
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Phillips does not teach that (1) each of said axial edges includes
a generally axially extending seal slot adapted to receive a seal
member extending between said shroud and an adjacent shroud;
and (2) the cooling air channel being located radially between
said outer surface of said shroud and said seal slot at said one of
said axial edges, or that (3) all of the cooling air passing through
said cooling air channel exits said shroud from at least one of
said downstream edge and said one of said axial edges.
Final Act. 3 (numbering added).
The Examiner finds that it would be obvious to eliminate the openings
58 in Phillips in view of Chan, so meeting limitation (3) above. Final Act. 4.
Like Phillips, Chan relates to “cooling mating areas of side walls between
the seal slots and hot gas paths of turbine nozzle segments.” Chan 1:7—10.
The Examiner finds that Chan suggests to provide cooling air outlets at
various locations in a nozzle segment. Final Act. 4, citing Chan 4:27—31
(“[I]n alternate embodiments, cooling channel 80 can include any[,] only
one of, or any combination of exit ports 84, 86, and 88.”). Thus, following
Chan, the Examiner would modify Phillips by closing openings 58.
Specifically, the Examiner finds:
it would have been obvious to one of ordinary skill in the art, at
the time of invention, to modify the exit passages as taught by
Phillips, by trying one [of] the finite number of ways to configure
the exit passages, as taught by Chan, including only having
cooling air exit through the exit passage (Phillips, 52) at the axial
edge (Phillips, 42), as a person with ordinary skill has good
reason to pursue the known options within his or her technical
grasp.
Final Act. 4. Both of Appellants’ arguments are essentially arguments that
this finding is incorrect because features of Phillips preclude the proposed
combination.
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Principle of operation
First, the Appellants argue that holes 58 are essential to Phillips
because eliminating them would violate the principle of operation of
Phillips.2 Appeal Br. 9—11. Appellants argue that for this reason one of
ordinary skill in the art would not follow Chan’s suggestion of various
cooling air exit port locations. Id. at 9—10. In support, Appellants propose
that the principle of operation of Phillips is “supplying cooling fluid to
specific locations of the airfoil platform, particularly to the outer surface of
the platform near the edge through the film cooling holes 58 in order to
increase part lifespan.” Appeal Br. 10.3 Appellants argue that the holes 58
have a critical function in that they provide surface cooling air to the
recessed edge 58, and that this would be evident to a person of ordinary skill
in the art. Appeal Br. 11. Appellants make the same argument in the Reply
Brief. Reply Br. 8 ([A]ny cooling provided by the [unnumbered] holes in
communication with the central cavity of Phillips ... is not enough to
sufficiently cool the entire surface of the platform.”) Appellants offer no
evidence that one of ordinary skill in the art would view the holes 58 as
critical. It is well settled that arguments of counsel cannot take the place of
factually supported objective evidence. See, e.g., In re Huang, 100 F.3d
2 Appellants do not challenge the Examiners’ findings that Chan teaches the
features described in limitations (1) and (2), above, or that it would have
been obvious to modify Phillips to incorporate them. Appeal Br. 9—20. Any
argument relating to these two limitations has been waived. See Hyatt v.
Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008).
3 Appellants’ Reply appears to raise a new principle of operation, namely
“film cooling.” Reply 3. In view of our discussion below of the principle of
operation of Phillips, we need not address whether “film cooling” is such a
principle of operation or whether this argument improperly is being raised
for the first time in the Reply.
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135, 139-40 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir.
1984).
The Examiner answers this argument by asserting that the principle of
operation of Phillips is heat absorption by conduction and convection. Ans.
3. This principle is not changed by closing holes 58 in Phillips. Id. The
Examiner contends that the cooling holes 58 are not essential because other
holes (unnumbered but shown in Phillips’ Figures 2 and 4) provide cooling
air to the surface near where Phillips’ holes 58 are located. Ans. 3^4.
The issue, then, is what is the principle of operation of Phillips? To
find for Appellants we must first agree with Appellants’ proposed “principle
of operation” and then that it would be altered by the Examiner’s proposed
combination. The Federal Circuit has provided guidance on what constitutes
“the principle of operation” of a prior art device in the context of an
obviousness determination. Specifically, the Federal Circuit has explained
that a substitution of components, e.g., the substitution of an electrical
component for an optical component, does not destroy the principle of
operation where it “does not affect the overall principle of operation” of the
device. In reMouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012)(emphasis
added), quoted with approval in Smartdoor Holdings, Inc. v. Edmit
Industries, Inc., No. 2016—2152. Fed. Cir. (September 7, 2017) (non-
precedential).
Appellants’ suggestion that “the principle of operation of Phillips is
supplying cooling fluid to specific locations of the airfoil platform,
particularly to the outer surface of the platform near the edge through the
film cooling holes 58 to increase part lifespan” (Appeal Br. 10) does not
comport with the Federal Circuit’s instruction to look at the overall principle
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of operation; instead Appellants focus on specific areas which Phillips cools,
the particular openings through which cooling air must flow, and the hoped-
for result. If the Federal Circuit had meant that any alteration of the prior
art’s mode of operation would negate a motivation to combine it with other
prior art teachings, it would not have used the phrase “overall principle of
operation.” We are persuaded that the Appellants’ proposed principle of
operation is unduly constricted and therefore not a principle of operation of
Phillips. Appellants’ asserted principle of operation is a statement of how
Phillips cools a particular surface, and we do not agree that closing the
openings 58, as proposed by the Examiner, would alter Phillips’ principle of
operation. Although the Examiner has identified a principle of operation
(“heat absorption by convection and conduction” (Ans. 3)) that is broad, we
find that the Examiner has supported the obviousness finding with “some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness,” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)), and
Appellants have not persuaded us of examiner error by their argument based
on their posited principle of operation.
Intended purpose
Second, Appellants argue that the proposed modification of Phillips
would make Phillips unsuitable for its intended purpose. Appeal Br. 11.
This argument attacks the proposed combination on the theory that one of
skill in the art would not combine two teachings if the modification would
prevent the resulting device from achieving its purpose.
Appellants propose Phillips has three purposes and argue that the
Examiner’s modification would render Phillips unsatisfactory to accomplish
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two of them. Id. Appellants contend that the standard applied by the
Examiner, namely, that “unsatisfactory” occurs only when the proposed
combination renders the principle reference inoperable, is incorrect, citing
MPEP §2143.01.
Appellants’ reliance on the MPEP as if it were black letter law is
misplaced. The MPEP is a manual for patent examiners during examination.
See MPEP, Forward.4 “[PTO Guidelines], like the Manual of Patent
Examining Procedure (“MPEP”), are not binding on this court [i.e., the
Federal Circuit], but may be given judicial notice to the extent they do not
conflict with the statute.” Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d
956, 964 (Fed. Cir. 2002) (citing Molins PLC v. Textron, Inc., 48 F.3d 1172,
1180 n. 10, (Fed.Cir.1995)). Whatever the vitality of the sections of the
MPEP Appellants rely on, our decision must be consistent with the rules
established by our supervising courts.
Appellants contend that modifying Phillips by closing the holes 58
would render Phillips unsatisfactory for its intended purposes. Appeal Br.
4 The Foreword of the MPEP, ninth edition, November 2015 revision, states
(emphasis added):
This Manual is published to provide U.S. Patent and Trademark
Office (USPTO) patent examiners, applicants, attorneys, agents,
and representatives of applicants with a reference work on the
practices and procedures relative to the prosecution of patent
applications before the USPTO. It contains instructions to
examiners, as well as other material in the nature of information
and interpretation, and outlines the current procedures which the
examiners are required or authorized to follow in appropriate
cases in the normal examination of a patent application. The
Manual does not have the force of law or the force of the rules in
Title 37 of the Code of Federal Regulations.
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13. Appellants contend, again, that closing the holes 58 would leave a
surface of the shroud without sufficient cooling and further that the openings
which are fed by passages from the central plenum would be insufficient to
cool the turbine blade area in question. To begin this argument, Appellants
propose three purposes for the Phillips device:
1) to cool the circumferential gap between adjacent nozzle
segments;
2) to cool a platform surface with the film cooling holes 58, as
discussed above; and
3) to cool internal structure of the inner platform near the side
edge of the platform.
Appeal Br. 11, citing Phillips 5:21—33 which describes only the internal
cooling (purpose (3)). Other than a general reference to Phillips
“throughout” (Appeal Br. 11), Appellants provide no support for their first
two proposed purposes. Nevertheless, Appellants assert that modifying
Phillips by closing the holes 58 would render Phillips unsatisfactory for the
first two intended purposes identified above. Id.
The Examiner responds that Appellants’ purpose (2), above:
recites an intended purpose accomplished in a particular manner.
Appellants combined the intended purpose (to cool a platform
surface) with a manner to accomplish the purpose (with film
cooling holes) and in so doing tries to pass off the specific
manner of accomplishing the intended purpose as the intended
purpose.
Ans. 6. The Examiner then provides three restated, principal purposes for
Phillips:
a) to cool a circumferential gap between adjacent nozzle segments;
b) to cool a platform surface; and
c) to cool internal structure of the inner platform.
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Id. As for purpose (a), the Examiner answers that Phillips “never states that
cooling air exiting holes 58 migrates into recess portion 88.” Ans. 7. Citing
Phillips 6:4—7, the Examiner finds that Phillips relies on “the proximity of
the [internal] cooling channel (48 and 70) to the edges of the platform [to
provide] the cooling, not migration of cooling air.” Id. Accordingly, the
Examiner finds the purpose (a) of Phillips preserved even with holes 58
closed.
The Examiner finds purpose (b) of Phillips met even with holes 58
closed because the other, unnumbered openings in the platform provide
cooling air. Id. at 7—8. Finally the Examiner notes there is no dispute that
purpose (c) of Phillips is met even with holes 58 closed. Id. at 8.
To evaluate Appellants’ contention that the proposed modification
would render Phillips unsatisfactory for its intended purpose, we turn to
Phillips to determine what Phillips itself states as its intended purpose. It is
Phillips that determines its intended purpose, not what others may speculate
it to be. Phillips says that its invention relates particularly “to a cooling
system for cooling the adjoining edges of inner and outer platforms of the
adjacent nozzle segments arranged in an annular array about the axis of the
turbine.” Phillips 1:7—10. Phillips concludes its Background of the
Invention by stating that “it has been found desirable to provide a cooling
system which would minimize or eliminate the foregoing problems
associated with cooling edges of nozzle segments wherein the edges lie
generally parallel to the turbine axis.” Phillips 2:2—5. These statements
define Phillips’ purpose as to cool the edges of turbine nozzle segments
where the edges are parallel to the turbine axis, and make no mention of
cooling platform surfaces or of how such surfaces should be cooled. Thus
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Phillips supports the intended purpose (1) and intended purpose (a), listed
first by both Appellants and the Examiner.
Closing holes 58 in the platform surface would not affect the purpose
that Phillips states is its purpose. Appellants tried to connect the holes 58 to
edge cooling, arguing that:
one skilled in the art would readily recognize that film cooling
holes 58 also effect cooling of the recessed platform edge portion
88 and the circumferential gap between adjacent nozzle
segments, shown in Figs. 2 and 3, as the cooling fluid exiting the
holes 58 would migrate into the recessed platform edge portion
88 directly adjacent the outlets, wherein the edge portion 88 is
immediately adjacent to the circumferential gap between
adjacent nozzle segments.
Appeal Br. 11—12. This assertion is not supported by any evidence, and is
contrary to what Phillips says concerning the platform edge portion 88.
Specifically, Phillips describes the physical geometry as key to avoiding a
thermal spike at the edge:
Consequently, the trailing edge portion of the platform along the
section side will lie at an elevation equal to or below the elevation
of the edge along the pressure side of an adjacent platform,
thereby avoiding a thermal spike along the suction side edge and
any tripping of the angled flow between adjacent nozzle
segments.
Phillips 5:65—6:3. Phillips continues, “The film cooling holes 58 film cool
the platform surface along the suction side of the segment.” Id. at 6:10—12.
Because Appellants’ suggestion of what would be obvious to one of
ordinary skill in the art is unsupported by evidence, and because Phillips
teaches both that the physical geometry of the cooled surface prevents heat
spikes at the edge and that the holes 58 cool the platform surface (with no
mention of cooling the edge), we are not persuaded that closing the holes 58
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would make Phillips unsuitable to achieve its intended purpose of cooling
the platform edges. Moreover, as the Examiner points out, the holes 58 are
not the only openings in the platform surface, and so to the extent that
cooling the platform surface is part of Phillips’ intended purpose, cooling
can be achieved by the additional holes circled by the Examiner in his
composite of Figures 2 and 4 from Phillips on page 4 of the Answer.5
In view of the foregoing, and in light of all of the arguments and
evidence of record, we are not persuaded the Examiner erred by failing to
find that modifying Phillips as proposed by the Examiner would make
Phillips unsuitable for its intended purpose.
In view of the forgoing and on this record, we affirm the rejection of
claim 1, and claims 2 and 8 that fall therewith.
Rejections II XI
The Appellants rely on the same alleged deficiencies of the
combination of Phillips and Chan to support the patentability of all the
remaining claims. Appeal Br. 15—20. In as much as we find no deficiency
in the rejection of claim 1, we likewise are not persuaded of error in the
rejection of claims 3—6, 9, 10, 12—18, and 21—24.
DECISION
The Examiner’s rejection of claims 1—6, 8—10, 12—18, and 21—24 is
affirmed.
5 Because we find Phillips remains satisfactory for its intended purpose after
the Examiner’s proposed modification, we need not address whether the
Examiner used an improper standard for determining what constitutes
“unsatisfactory.” See Appeal Br. 12—14.
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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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