Ex Parte Collopy et al

Patent Trial and Appeal Board

May 10, 2018

13415912 (P.T.A.B. May. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/415,912 03/09/2012
135291 7590 05/14/2018
Cantor Colburn LLP - Pratt & Whitney
20 Church Street
22 Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Gary Collopy
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.
59764US01/U420495US 1040
EXAMINER
WHITE, ALEXANDER A
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
05/14/2018 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):
usptopatentmail @cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARY COLLOPY and MATTHEW R. FEULNER1
Appeal2017-003056
Application 13/415,912
Technology Center 3700
Before: WILLIAM A. CAPP, LEE L. STEPINA, and ARTHUR M.
PESLAKAdministrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and designate our affirmance as A NEW
GROUND OF REJECTION pursuant to our authority under 37 C.F.R. §
4 l.50(b ).
1 The Appeal Brief lists United Technology Corp. as the real party in
interest. Br. 2.
Appeal2017-003056
Application 13/415,912
CLAIMED SUBJECT MATTER
The claims are directed to a low pressure compressor variable vane
control for a two-spool turbofan or turboprop engine. Claim 1, reproduced
below with emphasis added, is illustrative of the claimed subject matter:
1. A system for controlling a low pressure compressor of a
gas turbine engine having at least two spools, comprising:
[i] at least one stator vane rotatably coupled to a stationary
case and directed inwardly along a radius of the stationary case;
[ii] an actuator coupled to the at least one stator vane for
imparting rotation to the at least one stator vane about said radius,
the actuator linked to a controller;
[iii] the controller including a memory stored with a
plurality of low pressure compressor corrected aiiflow values, a
plurality of low pressure compressor pressure ratio values, and a
plurality of engine operability limit values, each engine
operability limit value being associated with a combination of a
particular low pressure compressor corrected airflow value and a
particular low pressure compressor pressure ratio value, the
controller configured to:
[iv] receive data concerning a current low pressure
compressor air flow and a current low pressure compressor
pressure ratio and calculate the low pressure compressor's
current operating state;
[v] determine an optimum performance target for the low
pressure compressor;
[vi] determine whether the low pressure compressor's
current operating state is within a tolerance of the optimum
performance target and send a signal to the actuator to rotate the
at least one stator vane until the current operating state is within
the tolerance of the optimum performance target; and
[vii] determine whether the low pressure compressor's
current operating state is at or below one of the plurality of
engine operability limit values stored in memory and send a
signal to the actuator the act least one stator vane until the current
operating state is at or below the one of the plurality of engine
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Application 13/415,912
operability limit values stored in memory, while the current
operating state is within the tolerance of the optimum
performance target.
Br. 15 (Claims App.) (enumeration added).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Farrar
Suciu
Willshee
Boyer2
McKelvey
us 5,044,879
US 2009/0056306 Al
US 2004/0240989 Al
WO 2011042636 Al
US 7,143,584 B2
REJECTIONS 3
Sept. 3, 1991
Mar. 5, 2009
Dec. 2, 2004
Apr. 14, 2011
Dec. 5, 2006
(I) Claims 1, 2, 5, 6, 8, 9, 12, and 13 are rejected under 35 U.S.C. §
103(a) as unpatentable over Suciu and Farrar, as evidenced by McKelvey.
(II) Claims 3, 4, 10, and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Suciu and Farrar, as evidenced by McKelvey, and Boyer.
(III) Claims 7 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Suciu and Farrar, as evidenced by McKelvey, and
Willshee.
(IV) Claims 15-20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Suciu, Boyer, and McKelvey.
2 The Examiner refers to US 8,649,954 B2, issued February 11, 2014, as an
English translation of this reference. See Final Act. 15. Our citations to
"Boyer" are to US 8,649,954 B2.
3 A rejection of claims 1-14 under 35 U.S.C. § 112, second paragraph, as
indefinite, is withdrawn on page 2 of the Advisory Action dated October 7,
2015.
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Application 13/415,912
OPINION
Re} ection (I)
Appellants make arguments in support of the patentability of claims 1,
2, 5, 6, 8, 9, 12 and 13 as a group. See Br. 7-9. We select claim 1 as
representative, and claims 2, 5, 6, 8, 9, 12 and 13 stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(l)(iv)
The Examiner finds that Suciu discloses elements i and ii of claim 1,
but does not disclose the recited controller linked to an actuator as recited in
elements iii-vii. Final Act. 5-9. The Examiner finds that Farrar teaches
elements iii-vii, with the exception of the details relating to "a tolerance of
the optimum performance target," and the Examiner relies on McKelvey to
remedy this deficiency. Id.
Appellants argue that "[t]here is no indication in Farrar of a memory,
much less a memory that includes the parameters of Appellants' claim 1, in
particular the engine operability limits." Br. 7-8.
The Examiner replies that
in order for one to determine a desired value for airflow or
pressure ratio, one must first have determined what the
operational envelope is for the engine (i.e. the engine's
operability limits). In order to have what kind of airflow or
pressure ratio is desirable, one must have determined what kind
of airflow or pressure ratio represented an engine operability
limit. Thus in order for the controller of Farrar to work as it
does, it must have some reference for what represents the
operational limits of the engine so that it knows how best to
continue with the operation of the engine. Hence the memory
that must be present must further have the claimed values stored
within it in some form such that the controller may properly
function and thus allow the engine to function as desired.
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Application 13/415,912
Ans. 4--5 (emphases added). Thus, the Examiner finds that, in order to
operate with the desired airflow and pressure ratio, the controller in Farrar
must include a memory as recited in claim 1. In other words, the Examiner
determines that a memory with a plurality of engine operability limit values
is an inherent feature of the controller in Farrar.
We agree with the Examiner that, in light of the functionality of the
controller disclosed by Farrar, this controller includes a memory in which
certain values are stored. See Ans. 3--4; see also Farrar, 2:59---68, 4:4--28
(explaining that the Farrar's controller makes comparisons with
predetermined characteristics). However, the Examiner's finding that Farrar
stores, in a memory, a plurality of operability limit values is not supported
by a preponderance of the evidence.
The Examiner's finding that the memory in Farrar stores operability
limit values is premised on the finding that Farrar determines a desired value
of airflow or value of pressure ratio. See Ans. 4 (stating, "In order to have
what kind of airflow or pressure ratio is desirable, one must have determined
what kind of airflow or pressure ratio represented an engine operability
limit."). Thus, the Examiner's finding is based on a finding that Farrar
inherently requires the of operability limit values to determine desired
airflow and pressure ratio values. The Examiner does not direct our
attention to any evidence supporting such a conclusion, and we are not
persuaded that it is necessary to determine operating limits in order to
determine a desired value of airflow or pressure ratio inasmuch as these
values seem to address different things. Specifically, one set of values is
desired or optimal, and one set of values sets a limit. The fact that the
controller recited in claim 1 determines, in two separately recited steps, the
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Application 13/415,912
relationship of the current operating state with (a) the optimum performance
target and (b) the engine operability limit values, supports a conclusion that
a value within the tolerance of the optimum performance target is not
necessarily at or below one of the plurality of engine operability limit values.
In any event, even assuming arguendo that it is a requirement to
determine the operation envelope (engine operability limit values) in order
to determine the desired operation point, we are not persuaded that storing
limit values on a memory of the controller is also a requirement. Rather, it
appears that Farrar stores the desired values on its implicitly disclosed
memory. See Farrar 2:63---68 (stating, "The controller may compare detected
compressor parameters with predetermined characteristics of the compressor
and determines any adjustments necessary to the stages of the variable stator
vanes to more nearly match the compressor parameters with the
predetermined characteristics of the compressor."). As the "desired" values
appear to be stored in the memory of the controller in Farrar, we see no
requirement that any type of limit value, such as the operability limit values
recited in claim 1, also be stored in that location, even if such limit values
were used to obtain the desired values. To the extent that such values were
required to determine the "desired" values, this purpose may have been
served in a location other than on the controller. Therefore, as the
Examiner's conclusion of obviousness is based on an unsupported finding of
fact, we do not sustain the Examiner's rejection of claims 1, 2, 5, 6, 8, 9, 12,
and 13 as unpatentable over Suciu and Farrar, as evidenced by McKelvey.
Rejections (II) and (III)
In Rejection (II), the Examiner relies on Boyer to teach details related
to the adjustment of an angle of a stator vane of a compressor of a twin spool
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Application 13/415,912
gas turbine engine. See Final Act. 15-19. In Rejection (III), the Examiner
relies on Willshee to teach the control of a stator vane in a turboprop engine.
See id. at 19. The Examiner's use of Boyer and Willshee does not remedy
the deficiency discussed above regarding Rejection (I). Accordingly, we do
not sustain Rejections (II) and (III).
Rejection (IV)
Appellants make arguments for the patentability of claims 15-20 as a
group (Br. 9-13), and we select claim 15 as representative.
The Examiner finds that Suciu teaches many of the steps recited in
claim 15, but relies on Boyer to teach, among other things, "determining
whether the low pressure compressor's current operating state is at or below
an engine operability limit and sending a signal to the actuator and rotating
the stator vanes until the current operating state is at or below the engine
operability limit[.]" Final Act. 21-22 (citing Boyer, 3: 13-31 ). The
Examiner relies on McKelvey to teach the use of a "tolerance," specifically,
controlling engine parameters by keeping an operational state within set
limits. Id. at 23.
Appellants refer to portions of columns 1 and 8-11 and Figures 4--8 of
McKelvey, cited by the Examiner, and contend that "none of these passages
teach or suggest the element: 'determining whether the low pressure
compressor's current operating state is within a tolerance of the optimum
performance target', as required by claim 15."' Br. 9-11 (emphasis
omitted).
In response, the Examiner states, "The control of variable vanes is
already taught by Suciu and Boyer, but the principal of providing a tolerance
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Application 13/415,912
as a means of controlling the operational state of a gas turbine by way of
controlling physical engine components is taught by McKelvey." Ans. 7.
The Examiner has the better position on this point because the
Examiner relies on McKelvey only for the above-noted general teaching of
using a tolerance in controlling a gas turbine. Appellants' contention, on
pages 9-11 of the Appeal Brief, that McKelvey does not disclose the
specific details of the "determining" step related to "tolerance," amounts to
an individual attack on McKelvey, whereas the rejection of claim 15
addresses this limitation via a combination of Suciu, Boyer, and McKelvey
(see Ans. 6-7).
The Examiner finds that Boyer teaches "sending a signal to an
actuator coupled to the ring of stator vanes and rotating the stator vanes until
the current operating state is near the optimum performance target." Final
Act. 21-22 (citing Boyer, 3:13-21) (emphasis added).
Appellants argue, "Neither Suciu, nor Boyer nor McKelvey, alone or
in combination, disclose 'sending a signal to an actuator coupled to the ring
of stator vanes and rotating the stator vanes until the current operating state
is within tolerance of the optimum performance target' as required by
Appellant[s'] Independent Claim 15." Br. 9 (underlining omitted). In this
regard, Appellants argue, (i) being "near" is not the same as being within a
tolerance, and (ii) Boyer adjusts its blade to be at particular position, not
merely within a tolerance of an optimum target position. Br. 11-12.
In reply, the Examiner states, "As the current operating state is at an
optimized position it is within the tolerance of ±0 around the optimum
performance target. Thus, the examiner maintains that the combination of
Suciu, Boyer and McKelvey teaches this limitation of the claim." Ans. 8.
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We do not agree with the Examiner's statement that a range of "±0
around the optimum performance target" qualifies as a "tolerance" as recited
in claim 15. Rather, a plain and ordinary meaning of "tolerance" is an
allowable (non-zero) amount of deviation from a standard. See
WEBSTER'S TENTH NEW COLLEGIATE DICTIONARY (1998). This
meaning corresponds with how Appellants' Specification uses this term. See
Spec. i-f 22. Thus, the Examiner's finding that Boyer discloses sending a
signal to an actuator coupled to the ring of stator vanes and rotating the
stator vanes until the current operating state is within the tolerance of the
optimum performance target is based on an unreasonably broad
interpretation of the term "tolerance."
However, as the Examiner correctly finds (see Final Act. 23),
McKelvey teaches the general principle of using a tolerance in controlling a
gas turbine. Appellants do not address persuasively the Examiner's use of
McKelvey's disclosure in the rejection of claim 15 in relation to the above-
noted "sending/tolerance" limitation. We agree with the Examiner that a
person of ordinary skill in the art would have found it obvious to modify the
method taught by Suciu to incorporate a tolerance around the optimum
performance target because doing so would allow one to prevent
overshooting and allow for stable operation of the gas turbine engine. See
id. Accordingly, the Examiner has the better position regarding the above-
noted "sending/tolerance" limitation in claim 15.
Furthermore, under the broadest reasonable interpretation of claim 15,
in light of Appellants' disclosure, this step is not required. Rather, this step
is conditional. According to our precedent, as a matter of claim
construction, the broadest reasonable interpretation of claim 15 encompasses
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Application 13/415,912
a method in which the conditional steps are not performed. See Ex parte
Schulhauser, Appeal No. 2013-007847, 2016 WL 6277792, at 3-5 (PTAB
Apr. 28, 2016) (precedential). The "sending/tolerance" step will only occur
when the "determining" step, recited immediately before this step, results in
a determination that the current operating state is not within a tolerance of
the optimum performance target. In claim 15, if the current operating state
is already within the recited tolerance of the optimum performance target, no
signal is required to be sent. See Fig. 2.
Appellants next argue
Neither Suciu, nor Boyer nor McKelvey, alone or in
combination, disclose "determining whether the low pressure
compressor's current operating state is at or below an engine
operability limit and sending a signal to the actuator and rotating
the stator vanes until the current operating state is at or below the
engine operability limit, while the current operating state is
within the tolerance of the optimum performance target" as
required by Appellant[s'] independent claim 15.
Br. 12 (emphasis omitted). Appellants refer to the Examiner's reliance on
column 3, lines 13-31 of Boyer (see Final Action, 21-22) and contend that
"the cited passage fails to teach or suggest any engine operability limit, and
further fails to disclose the closed-loop control of rotating the stator vanes
while the current operating state is within a tolerance of the optimum
performance target." Br. 13.
The Examiner replies that "Boyer further teaches the process
including an inhibition means that makes it possible to prevent the iterative
angle correction process from placing the engine in a potentially harmful
state of operation (see Boyer; Translation; Cols. 2-3, lines 6-10) ... As such,
Boyer teaches the use of engine operability limits." Ans. 8-9.
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Although we agree with the Examiner's finding that Boyer uses
engine operability limits to prevent Boyer's correction process from placing
the engine in a potentially harmful state of operation, we do not agree that
this disclosure meets the requirement in claim 15 to determine whether the
low pressure compressor's current operating state is at or below an engine
operability limit. In other words, preventing a future operating state from
exceeding an engine operability limit is different from making a
determination regarding the current operating state of the engine.
Accordingly, for this reason, we agree with Appellants' assertion that the
Examiner erred in the rejection of claim 15 as unpatentable over Suciu,
Boyer, and McKelvey.
Although the Examiner's finding that Boyer teaches the step of
determining whether the engine's current operating state is at or below an
engine operability limit is not supported by a preponderance of the evidence,
in light of Boyer's disclosure, a person of ordinary skill in the art would
have found it obvious to implement this step. Boyer teaches providing a
correction to a current operating state to achieve a more desirable operating
state. See Boyer, 2 :45-59. Boyer prevents the correction from placing the
engine in a state outside the engine's operability limits. See id., 3: 6-9
(stating, "Preferably, the correction module comprises means for limiting the
value of the correcting angle, said means being arranged to limit the value of
the correcting angle in order to remain within a risk-free operating range.").
In other words, Boyer teaches adjusting a stator blade to be in a more
desirable position and that it is undesirable for the blade to be outside the
engine's operability limits. In light of these teachings in Boyer, it would
have been obvious to modify the method of operation of the turbine engine
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disclosed by Suciu to determine whether the low pressure compressor's
current operating state is at or below an engine operability limit. Doing so
would allow an adjustment from one position to a more desirable position,
namely, a position that does not exceed the engine's operability limits.
Further, it would have been obvious to perform this "determining" step
while the current operation state is within the tolerance of the optimum
performance, as required by claim 15, inasmuch as Boyer prevents its
correction from placing the engine in a state outside the engine's operability
limits in order to reduce risk. It would have been obvious to reduce risk, as
taught by Boyer, at all times, including while the current operation state is
within the tolerance of the optimum performance state.
As for the step of "sending a signal to the actuator and rotating the
stator vanes until the current operating state is at or below the engine
operability limit," this step is conditioned upon determining that the current
operating state is not at or below an engine operability limit, and, thus, need
not be performed. See Ex parte Schulhauser at 3-5.
Appellants also argue that Boyer fails to disclose the use of a
tolerance as recited in the last paragraph of claim 15. Br. 13. As we
explained above, the Examiner also relies on McKelvey for the principle of
using a tolerance to avoid overshooting and to provide stability. See Final
Act. 23. Appellants do not address the Examiner's findings or rationale
relating to this disclosure in McKelvey. See Br. 9-13. We agree with the
Examiner that, in light of the teachings of McKelvey, the use of a tolerance
as set forth in the last paragraph of claim 15 would have been obvious to a
person of ordinary skill in the art in order to prevent overshooting and to
provide more stable operation of the gas turbine.
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Accordingly, we sustain the rejection of claim 15 and claims 16-20
depending therefrom. Because our conclusion is based on findings of fact,
reasoning, and a claim construction that differ from the rejection articulated
by the Examiner, we designate our affirmance as a NEW GROUND OF
REJECTION under 37 C.F.R. § 41.50(b) to provide Appellants with a full
and fair opportunity to respond to the rejection. See In re Biedermann, 733
F.3d 329, 336-337 (Fed. Cir. 2013) (Appellants are entitled to a fair
opportunity to react to the thrust of the rejection).
DECISION
(I) We reverse the rejection of claims 1, 2, 5, 6, 8, 9, 12, and 13 as
unpatentable over Suciu and Farrar, as evidenced by McKelvey.
(II) We reverse the rejection of claims 3, 4, 10, and 11 as
unpatentable over Suciu and Farrar, as evidenced by McKelvey, and Boyer.
(III) We reverse the rejection of claims 7 and 14 as unpatentable
over Suciu and Farrar, as evidenced by McKelvey, and Willshee.
(IV) We affirm the rejection of claims 15-20 as unpatentable over
Suciu, Boyer, and McKelvey, and we designate our affirmance a new
ground of rejection.
FINALITY OF DECISION
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
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one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be found in
the Manual of Patent Examining Procedure § 1214. 01.
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-IN-PART UNDER 37 C. F. R. § 41.50(b)
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