Ex Parte Evulet

Board of Patent Appeals and Interferences

Oct 12, 2011

11530268 (B.P.A.I. Oct. 12, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ANDREI TRISTAN EVULET
____________

Appeal 2009-014435
Application 11/530,268
Technology Center 3700
____________

Before LINDA E. HORNER, MICHAEL W. O’NEILL, and
STEFAN STAICOVICI, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Andrei Tristan Evulet (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-5 and 7-24. We have
jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM-IN-PART and enter NEW GROUNDS OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).
THE INVENTION
Appellant’s claimed invention relates to “a device for enhancing
efficiency of an energy extraction system.” Spec. 1, para. [0001]. Claims 1,
8, and 12, reproduced below, are representative of the subject matter on
appeal.
1. A device, comprising:
an inlet manifold configured to direct an exhaust gas flow
within the device;
an air inlet configured to introduce an airflow within the
device; and
at least one surface of the device having a Coanda profile
configured to entrain incoming air through the exhaust gas flow
to generate a high velocity airflow; wherein the Coanda profile
comprises a logarithmic profile.
8. A turbocharger for a vehicle, comprising:
a compressor configured to compress an intake airflow;
a turbine configured to expand exhaust gases from an
internal combustion engine for rotating a shaft; and
a device coupled to the turbine and configured to entrain
incoming air via the exhaust gases to generate mechanical work
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through a high velocity airflow, wherein the device comprises:
at least one surface having a Coanda profile
wherein the Coanda profile is configured to facilitate
attachment of the exhaust gases to the profile to form a
boundary layer and to entrain the incoming ambient air to
generate the high velocity airflow.
12. A hybrid vehicle, comprising:
an internal combustion engine;
a turbocharger coupled to the internal combustion engine,
wherein the turbocharger comprises:
a turbine configured to expand exhaust gases from the
internal combustion engine for generating mechanical work;
a device coupled to the turbine and configured to
introduce exhaust gases along a Coanda profile to entrain
incoming air for generating mechanical work through a high
velocity airflow; and
an electrical generator configured to generate electrical
power from the mechanical work; and
a rechargeable energy storage system for storing the
electrical power.
THE EVIDENCE
The Examiner relies upon the following evidence:
Cailey US 5,533,487 Jul. 9, 1996
Blake US 5,974,802 Nov. 2, 1999
Geisse US 6,659,212 B2 Dec. 9, 2003
Frank US 6,931,850 B2 Aug. 23, 2005
Suppes US 2005/0008904 A1 Jan. 13, 2005
Coleman GB 2 233 037 A Jan. 2, 1991
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THE REJECTIONS
Appellant seeks review of the following rejections:
1. The Examiner’s rejection of claims 8-11, 23, and 24 under 35 U.S.C.
§ 112, second paragraph as being indefinite.
2. The Examiner’s rejection of claims 1-4 under 35 U.S.C. § 102(b) as
being anticipated by Coleman or Blake or Cailey.
3. The Examiner’s rejection of claims 5 and 7 under 35 U.S.C. § 103(a)
as being unpatentable over Coleman or Blake or Cailey.
4. The Examiner’s rejection of claims 8-11, 23, and 24 under 35 U.S.C.
§ 103(a) as being unpatentable over Coleman.
5. The Examiner’s rejection of claims 12-14 and 16-22 under 35 U.S.C.
§ 103(a) as being unpatentable over Coleman in view of either Frank
or Geisse.
6. The Examiner’s rejection of claim 15 under 35 U.S.C. § 103(a) as
being unpatentable over Coleman in view of either Frank or Geisse
and further in view of Suppes.
ISSUES
The issues presented by this appeal are:
Is the claim language used in each of claims 8, 23, and 24 sufficiently
definite to enable one skilled in the art to understand what is claimed when
the claim is read in light of the specification?
Does Coleman or Blake or Cailey disclose a Coanda profile
comprising a logarithmic profile, as called for in claim 1?
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Has the Examiner articulated adequate reasoning based on rational
underpinnings to explain why the range of ratios called for in claim 5 would
have been a matter of routine skill for one of ordinary skill in the art?
Would the reduction in scale of the prior art devices for use in a
microturbine, as called for in claim 7, have been a matter of routine skill for
one of ordinary skill in the art?
Does claim 8 call for the device to entrain the same air that is
compressed by the compressor of the turbocharger?
Does claim 12 call for the device to be disposed downstream of the
turbine of the turbocharger?
Has the Examiner articulated adequate reasoning based on rational
underpinnings to explain why one of ordinary skill in the art would have
been led to combine the teachings of Coleman and either Frank or Geisse in
the manner called for in claim 12?
ANALYSIS
Rejection under 35 U.S.C. § 112, second paragraph
Claims 8-11
The Examiner rejected claims 8-11 because the limitation “the
incoming ambient air” in claim 8 lacks antecedent basis. Ans. 3. Appellant
argues that the antecedent basis for this limitation is found in line 5 of the
claim, which recites “incoming air.” App. Br. 13. Appellant argues that
“one skilled in the art would understand that ‘incoming air’ should be
‘incoming ambient air. . . .’” Id. We agree with the Examiner that
“‘[i]ncoming air’ to the turbine can enter the turbine from a variety of
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different locations, for example, the intake manifold of the vehicle, after the
air filter of the vehicle, after the compressor of the turbocharger, or from the
environment.” Ans. 19. As such, the claimed “incoming air” is not
necessarily ambient air, and thus we find no antecedent basis for the
limitation “the incoming ambient air” in claim 8.
Claim 23
The Examiner rejected claim 23 because the limitation “wherein
energy produced by the exhaust gas flow is transferred to the ambient air” is
unclear because the exhaust gas flow does not produce energy. Ans. 4. We
agree. As Appellant explains in the Appeal Brief, the device generates high
velocity airflow “by transferring the momentum from the pressurized
exhaust gas to the airflow.” App. Br. 13 (citing Spec., para. [0023]). Thus,
energy (i.e., momentum) resident within the exhaust gas flow is transferred
to the ambient air. This momentum, however, is not “produced by” the
exhaust gas flow, as claimed. Rather, as we understand it, the momentum in
the exhaust gas flow is “produced by” the source of the exhaust gas (e.g., the
internal combustion engine) and the Coanda profile of the device. As such,
the limitation calling for energy “produced by the exhaust gas flow” renders
claim 23 indefinite.
Claim 24
The Examiner rejected claim 24 because the limitation “the exhaust
gas flow is transferred to the ambient air” is unclear because it is the energy
in the exhaust gas flow, and not the exhaust gas flow itself, that is
transferred to the ambient air. Ans. 4. Appellant argues that the Coanda
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profile transfers momentum from the pressurized exhaust gas to the airflow.
App. Br. 14. While Appellant may be correct that momentum from the
exhaust gas flow is transferred to the ambient air, that is not what is claimed.
Claim 24 calls for “the exhaust gas flow” to be transferred to the ambient air,
not the momentum in the exhaust gas flow. As such, the claim limitation
reciting “the exhaust gas flow is transferred to the ambient air” renders claim
24 indefinite.
Accordingly, we sustain the Examiner’s rejection of claims 8-11, 23,
and 24 under 35 U.S.C. § 112, second paragraph as being indefinite.

Rejections of claims 1-4 under 35 U.S.C. § 102(b) as anticipated by
Coleman or Blake or Cailey
Appellant’s argument in each of the anticipation rejections turns on
whether the prior art discloses a logarithmic Coanda profile. The Examiner
found that each prior art reference explicitly discloses a Coanda profile
(Ans. 4, 7, 9), and that the figures in each of the cited prior art references
appear to show a logarithmic Coanda profile (Ans. 5, 7, 9). Appellant
argues that a logarithmic Coanda profile must meet a specific equation, and
that the profiles of Blake, Cailey, and Coleman do not satisfy this equation.
App. Br. 15; Reply Br. 6.
We agree with the Examiner that each of references explicitly
discloses a Coanda profile. Coleman 5 (Figure 1 shows “an axisymmetric
version of an exhaust powered Coanda effect nozzle”) and Coleman 6 (“The
primary flow of exhaust gases forms a peripheral annular jet which attaches
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to the Coanda surface 6.”); Cailey, col. 1, ll. 51-54 (an object of the
invention is “to increase the intake air flow from the turbocharger
compressor in the intake tract by utilizing a Coanda effect created by the
exhaust gas flow to induce a lower pressure in the intake flow”) and Cailey,
col. 3, ll. 18-23 (describing use of an arcuately diverging section which
applies the Coanda principle); and Blake, col. 3, ll. 17-27 (describing a
fluidic pump which employs the Coanda effect using either a segmented or
smooth machined transition). We fail to find, however, adequate disclosure
in the figures of each of these references to support the Examiner’s finding
that each reference shows a logarithmic profile. We find no explicit
disclosure of a logarithmic profile, and we cannot discern from the
references whether the profiles shown and described are logarithmic in
nature or satisfy any particular logarithmic equation. As such, we cannot
sustain the Examiner’s rejections of claims 1-4 as being anticipated by
Coleman, Blake, or Cailey.
NEW GROUND OF REJECTION
While the Examiner has not presented a rejection of claims 1-4 under
35 U.S.C. § 103(a) based on any of these references for our review, the
Examiner alluded to such a rejection in the Answer, stating that use of the
specific well known logarithmic Coanda profile1 in Blake would have been
obvious to one of ordinary skill in fluid dynamics “in order to produce the

1 It appears to be undisputed that a Coanda profile comprising a logarithmic
profile was well known to one of ordinary skill in the art at the time of
Appellant’s invention. App. Br. 15; Reply Br. 6; Ans. 20-21.
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‘flow performance requirements of the pump.’” Ans. 21 (citing Blake,
col. 3, ll. 26-27). The Examiner similarly stated that use of the specific well
known logarithmic Coanda profile in Coleman would have been obvious to
one of ordinary skill in fluid dynamics “to produce the desired flow and
entrainment of air.” Ans. 21-22.
Appellant’s Specification provides no explanation of any advantages
to using a logarithmic Coanda profile, stating only that “[i]n one exemplary
embodiment, the Coanda profile 54 includes a logarithmic profile.” Spec. 5,
para. [0022]; see also Spec. 9, para. [0031] (“In this exemplary embodiment,
the Coanda profile 150 includes a logarithmic profile.”). Appellant’s
Specification further states that “the geometry and the dimensions of the
[Coanda] profile . . . are optimized to achieve a desired efficiency.” Spec. 9,
para. [0032].
We agree with the Examiner that use of such a well-known
logarithmic Coanda profile in the devices of Blake and Coleman would have
been obvious to one of ordinary skill in the art to produce the desired flow
characteristics and entrainment of air. The Supreme Court approved of the
principle set forth in Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976)
stating that “when a patent ‘simply arranges old elements with each
performing the same function it had been known to perform’ and yields no
more than one would expect from such an arrangement, the combination is
obvious.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). This
principle applies when the old elements in the prior art perform the same
function as the now claimed structures. See In re Kuhle, 526 F.2d 553, 555
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(CCPA 1975) (use of claimed feature solves no stated problem and presents
no unexpected result and “would be an obvious matter of design choice
within the skill of the art” (citations omitted)). We therefore enter a new
ground of rejection of claims 1-4 under 35 U.S.C. § 103(a) as being
unpatentable over either Blake or Coleman for the reasons set forth by the
Examiner. See Ans. 21-22. The Examiner did not make a similar alternate
obviousness determination based on Cailey. Since we are entering two new
grounds of rejection of claims 1-4, we see no need to enter a third new
ground of rejection of these same claims based on Cailey.

Rejection of claims 5 and 7 under 35 U.S.C. § 103(a) as unpatentable over
Coleman or Blake or Cailey
Claim 5
Claim 5 depends from claim 1 and recites “wherein a ratio of the mass
of air entrained by the device and mass of the exhaust gas flow is between
about 5 to about 22.” We reverse this rejection of claim 5 because it is based
on the underlying erroneous finding that Coleman, Blake, and Cailey
disclose a logarithmic Coanda profile. Further, we decline to set forth a new
ground of rejection of claim 5 based on the reasons provided supra in our
new ground of rejection of claim 1 and further based on the reasoning
provided by the Examiner in the Answer. Ans. 11 (“discovering the
optimum or workable ranges involves only routine skill in the art.”).
Appellant argues that the Examiner’s reasoning is flawed because “the prior
art does not disclose or suggest any ranges for the ratio between the mass of
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air entrained by the device and the mass of the exhaust gas flow.” App.
Br. 21. We agree that the prior art does not recognize that the ratio between
the mass of air entrained by the device and the mass of the exhaust gas flow
is a variable suitable for optimization. As such, the Examiner has failed to
set forth a prima facie case of obviousness as to claim 5.
Claim 7
Claim 7 depends from claim 1 and recites “wherein the device is
configured for use in a microturbine.” We reverse this rejection of claim 7
because it is based on the underlying erroneous finding that Coleman, Blake,
and Cailey disclose a logarithmic Coanda profile.
NEW GROUND OF REJECTION
We enter a new ground of rejection of claim 7 under 35 U.S.C.
§ 103(a) as being unpatentable over either Coleman or Blake for the same
reasons provided supra in our new ground of rejection of claim 1, and
further based on the reasoning provided by the Examiner in the Answer.
Ans. 12 (“[t]he device is capable of being used with a turbocharger turbine,
so it is obvious that it would be capable of being used in a microturbine” and
“it requires only routine skill in the art to add and scale a device used for a
turbine to be used in a microturbine.”). Appellant argues that the
Examiner’s reasoning is flawed because “the prior art does not disclose or
suggest that the prior art devices would not perform differently in a
microturbine.” App. Br. 22. The Examiner acknowledges that the prior art
does not disclose using the devices of Coleman and Blake in a microturbine.
The Examiner takes the reasonable position that the devices are capable of
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being scaled down for use in a microturbine and that in such environment
the devices would perform as disclosed in Coleman and Blake. Appellant
has not disputed these positions taken by the Examiner. In particular,
Appellant has not shown that scaling the devices of Coleman and Blake
down to a size capable of use in a microturbine would have been beyond the
level of skill of one of ordinary skill in the art, or that such scaled-down
devices would perform differently than the devices of Coleman and Blake.
As such, Appellant’s arguments have not persuaded us of error in the
Examiner’s reasoning.

Rejection of claims 8-11, 23, and 24 under 35 U.S.C. § 103(a) as
unpatentable over Coleman
Claims 8, 9, 11, 23, and 24
Appellant argues claims 8, 9, 11, 23, and 24 as a group. App. Br. 22-
25. We select claim 8 as representative, and claims 9, 11, 23, and 24 stand
or fall with claim 8. Appellant presents separate arguments for claim 10,
which we will address separately infra.
Appellant argues that “Coleman does not teach or suggest a
turbocharger including a compressor configured to compress an intake
airflow that is entrained using the exhaust gases,” as recited in claim 8. App.
Br. 24. The Examiner concluded that independent claim 8 does not require
that the intake airflow compressed by the compressor is the same air flow
entrained by the device. Ans. 23-24. We find the Examiner’s interpretation
of claim 8 to be reasonable based upon the language of the claim itself.
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Further, we find the Examiner’s interpretation of claim 8 to be consistent
with the disclosure provided in Appellant’s Specification.
As noted by the Examiner (Ans. 24), claim 8 recites that the
compressor is “configured to compress an intake airflow” and that the
device is “coupled to the turbine and configured to entrain incoming air.”
Claim 8 is written broadly so that the “incoming air” entrained by the device
can come from anywhere and is not required to be the “intake airflow”
compressed by the compressor. Further, Appellant’s Specification provides
an example of a hybrid vehicle 190 that includes a device 192 and a
turbocharger 196. Spec., fig. 9. Appellant’s Specification describes that
device 192 is coupled to a turbine 198 of turbocharger 196 and includes an
inlet manifold 200 configured to direct an exhaust gas flow 202 from the
internal combustion engine 194 within device 192 and an air inlet 204
configured to introduce an airflow 206 within the device. Spec. 11, para.
[0034]. Appellant’s Specification does not describe that airflow 206 is an
intake airflow that is compressed by the compressor of turbocharger 196.
Accordingly, we sustain the rejection of claims 8, 9, 11, 23, and 24
under 35 U.S.C. § 103(a) as unpatentable over Coleman.
Claim 10
Appellant argues that claim 10, which depends from claim 8 and
further provides that the Coanda profile comprises a logarithmic profile, is
separately patentable because Coleman does not teach or suggest this
feature. App. Br. 25. We reverse the rejection of claim 10 because the
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Examiner’s rejection is based on an erroneous finding that Coleman
discloses a logarithmic Coanda profile.
NEW GROUND OF REJECTION
We enter a new ground of rejection of claim 10 under 35 U.S.C.
§ 103(a) as being unpatentable over Coleman for the same reasons provided
supra in our analysis of claim 1. In particular, it would have been obvious to
one of ordinary skill in the art as a matter of routine skill to use a logarithmic
Coanda profile for the Coanda profile disclosed in Coleman to produce the
desired flow characteristics and entrainment of air.

Rejection of claims 12-14 and 16-22 under 35 U.S.C. § 103(a) as
unpatentable over Coleman in view of Frank or Geisse
Appellant argues claims 12-14 and 16-22 as a group. App. Br. 25-27.
We select claim 12 as representative, and the remaining claims stand or fall
with claim 12.
We agree with the Examiner’s interpretation (Ans. 24-25) that claim
12 does not call for a specific placement of the device either upstream or
downstream of the turbine of the turbocharger. Claim 12 recites that the
device is “coupled to the turbine and configured to introduce exhaust gases
along a Coanda profile to entrain incoming air for generating mechanical
work through a high velocity airflow.” According to the claim language,
claim 12 is broad enough to encompass a device that is placed upstream of
the turbine to provide a high velocity airflow to turn the turbine of the
turbocharger.
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Appellant argues:
there is no rationale provided in any of the applied art or
asserted by the Examiner of a feature of a turbocharger that
includes a Coanda device that generates high velocity airflow
from exhaust gases and entrained incoming air to generate
mechanical work, generates electrical power from the
mechanical work, and then stores the electrical power in a
rechargeable energy storage system.
App. Br. 27.
We find the Examiner has articulated adequate reasoning based on
rational underpinnings to explain why one of ordinary skill in the art would
have been led to employ the Coanda device of Coleman in the vehicles of
Frank or Geisse as called for in claim 12. In particular, we adopt as our own
the Examiner’s findings that Frank and Geisse disclose generators (34 and
32, respectively) coupled to the turbine (30 and 18, respectively) of a
turbocharger (28 and 16, respectively) that take the mechanical work from
the turbine to generate electrical power, and store the power in a
rechargeable energy storage system (24 and 14, respectively). Ans. 25. The
Examiner concluded, and we agree, that one of ordinary skill would have
been led to add the Coanda device of Coleman upstream of the turbine of the
turbocharger in the vehicle of either Frank or Geisse to increase the velocity
of the airflow used to turn the turbine of the turbocharger and thus to achieve
increased power output from the generator. Ans. 18, 25. Appellant has not
persuaded us that this reasoning, which is based on the teachings in Coleman
of the applicability and effect of Coanda devices, is in error. As such, we
sustain the rejection of claim 12 under 35 U.S.C. § 103(a) as being
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unpatentable over Coleman in view of Frank or Geisse. Claims 13, 14, and
16-22 fall with claim 12.

Rejection of claim 15 under 35 U.S.C. § 103(a) as unpatentable over
Coleman in view of Frank or Geisse and further in view of Suppes
Appellant relies on the arguments made for the patentability of claim
12, from which claim 15 depends, to argue for the patentability of claim 15
over Coleman in view of either Frank or Geisse and further in view of
Suppes. App. Br. 28. We find these arguments are not persuasive of error
for the same reasons provided supra in our analysis of claim 12.
Accordingly, we sustain the rejection of claim 15 under 35 U.S.C. § 103(a).
CONCLUSIONS
The claim language used in each of claims 8, 23, and 24 is not
sufficiently definite to enable one skilled in the art to understand what is
claimed when the claim is read in light of the specification.
None of Coleman, Blake, or Cailey discloses a Coanda profile
comprising a logarithmic profile, as called for in claim 1.
The Examiner failed to set forth a prima facie case of obviousness of
claim 5.
The reduction in scale of the prior art devices for use in a
microturbine, as called for in claim 7, would have been a matter of routine
skill for one of ordinary skill in the art.
Claim 8 does not call for the device to entrain the same air that is
compressed by the compressor of the turbocharger.
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Claim 12 does not call for the device to be disposed downstream of
the turbine of the turbocharger.
The Examiner articulated adequate reasoning based on rational
underpinnings to explain why one of ordinary skill in the art would have
been led to combine the teachings of Coleman and either Frank or Geisse in
the manner called for in claim 12.
DECISION
The decision of the Examiner to reject claims 8-11, 23, and 24 under
35 U.S.C. § 112, second paragraph is AFFIRMED.
The decision of the Examiner to reject claims 1-4 under 35 U.S.C.
§ 102(b) as anticipated by Coleman or Blake or Cailey is REVERSED.
The decision of the Examiner to reject claims 5 and 7 under 35 U.S.C.
§ 103(a) as unpatentable over Coleman, or Blake, or Cailey is REVERSED.
The decision of the Examiner to reject claims 8, 9, 11, 23, and 24
under 35 U.S.C. § 103(a) as unpatentable over Coleman is AFFIRMED.
The decision of the Examiner to rejection claim 10 under 35 U.S.C.
§ 103(a) as unpatentable over Coleman is REVERSED.
The decision of the Examiner to reject claims 12-14 and 16-22 under
35 U.S.C. § 103(a) as unpatentable over Coleman in view of Frank or Geisse
is AFFIRMED.
The decision of the Examiner to reject claim 15 under 35 U.S.C.
§ 103(a) as unpatentable over Coleman in view of Frank or Geisse and
further in view of Suppes is AFFIRMED.
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For the reasons provided supra, we enter NEW GROUNDS OF
REJECTION of:
Claims 1-4 under 35 U.S.C. § 103(a) as being unpatentable over
Coleman or Blake;
Claim 7 under 35 U.S.C. § 103(a) as being unpatentable over
Coleman or Blake; and
Claim 10 under 35 U.S.C. § 103(a) as being unpatentable over
Coleman.
Regarding the affirmed rejection(s), 37 C.F.R. § 41.52(a)(1) provides
“Appellant may file a single request for rehearing within two months from
the date of the original decision of the Board.”
In addition to affirming the Examiner’s rejections of one or more
claims, this decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds 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 proceeding
will be remanded to the Examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .
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Should Appellant elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Board of Patent Appeals and Interferences for
final action on the affirmed rejection, including any timely request for
rehearing thereof.

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)(1)(iv).

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)

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