10621129 (B.P.A.I. May. 9, 2011)

Ex Parte Gmirya

Board of Patent Appeals and InterferencesMay 9, 2011

10621129 (B.P.A.I. May. 9, 2011)

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. 10/621,129 07/16/2003 Yuriy Gmirya 67,008-070;S-5668 1958 74187 7590 05/09/2011 Carlson, Gaskey, & Olds, P.C./Sikorsky 400 West Maple Road, Suite 350 Birmingham, MI 48009 EXAMINER PANG, ROGER L ART UNIT PAPER NUMBER 3655 MAIL DATE DELIVERY MODE 05/09/2011 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte YURIY GMIRYA ____________________ Appeal 2011-005238 Application 10/621,129 Technology Center 3600 ____________________ Before WILLIAM F. PATE, III, JOHN C. KERINS, and FRED A. SILVERBERG, Administrative Patent Judges. SILVERBERG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005238 Application 10/621,129 2 STATEMENT OF THE CASE Yuriy Gmirya (Appellant) seeks our review under 35 U.S.C. § 134 of the final rejection of claims 1, 3-19, 21-24 and 38-45.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellant’s claimed invention is directed to a split torque gearbox for an aircraft (Spec. 1: para. [1]). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A split torque gearbox system comprising: a first spur gear mounted for rotation about a first spur gear axis of rotation; a second spur gear mounted for rotation about a second spur gear axis of rotation; and a floating pinion gear mounted to a radially unsupported pinion shaft in a cantilever manner and driven by said radially unsupported pinion shaft, said floating pinion gear mounted for rotation about a floating pinion axis of rotation which provides a resilient characteristic, said floating pinion gear meshed with said first spur gear and said second spur gear, said floating pinion gear axis of rotation displaceable to split a load between said first spur gear and said second spur gear, said floating pinion axis of rotation, said first spur gear axis of rotation, and said second spur gear axis of rotation located along a common line, said radially unsupported pinion shaft driven through a gear mesh generally transverse to the floating pinion axis of rotation such that said radially unsupported pinion shaft is 1 The present invention has been previously on Appeal to this Board (first Appeal). See Ex parte Yuriy Gmirya, 2009-002750, 2009 WL 3816884 (BPAI 2009) Appeal 2011-005238 Application 10/621,129 3 displaceable off said common line to define a displacement envelope within which said floating pinion gear axis of rotation may be displaced through flexing of said radially unsupported pinion shaft to split said load between said first spur gear and said second spur gear. THE REJECTIONS The following rejections by the Examiner are before us for review: 1. Claims 1, 3, 4, 12, 16-19, 21-24, 38 and 41-44 are rejected under 35 U.S.C. § 102(b) as being anticipated by White (US 4,489,625, issued Dec. 25, 1984). 2. Claims 5-11, 13-15, 39, 40 and 45 are rejected under 35 U.S.C. § 103(a) as being unpatentable over White in view of Kish (US 5,813,292, issued Sep. 29, 1998). ISSUE The issue before us is whether the Examiner erred in finding that White describes a floating pinion gear mounted to a radially unsupported pinion shaft, as called for in independent claims 1, 8 and 12 (Reply Br. 1: App. Br. 4, 9). ANALYSIS Rejection of claims 1, 3, 4, 12, 16-19, 21-24, 38 and 41-44 under 35 U.S.C. § 102(b) over White Independent claims 1 and 12 call for, inter alia, a floating pinion gear mounted to a radially unsupported pinion shaft. The Examiner found that White describes “[a] face gear (i.e., Fig. 7, element 115) . . . [and a] floating pinion gear (i.e., Fig. 7, element 116) driven by a radially unsupported pinion shaft mounted to the face gear” Appeal 2011-005238 Application 10/621,129 4 (Ans. 4) (emphasis bolded). In White, in support of the finding that the Figure 7 embodiment describes a floating pinion gear mounted to a radially unsupported pinion shaft, the Examiner cites to the Figure 5 embodiment and the words “fixedly secured thereto” in the description regarding the reduction gears and drive pinions for the embodiments of Figures 5 and 7 (Ans. 11-12). Appellant contends that White is silent as to whether the Figure 7 embodiment describes a floating pinion gear mounted to a radially unsupported pinion shaft (App. Br. 5). Appellant contends that in White, the Figure 3 embodiment shows a bevel gear 26A as being connected to a pinion 27A without a shaft, and the description of the Figure 3 embodiment contains the words “fixedly secured thereto” (Reply Br. 2). Appellant contends that the Examiner’s reasoning ignores the possibility that the Figure 7 embodiment could be similar to Figure 3, not Figure 5, and therefore does not describe a pinion shaft (id.). Appellant’s contentions regarding White not describing a radially unsupported pinion shaft have been amplified from the first Appeal before this Board. An examiner's burden of proving unpatentability when rejecting claims in a patent application is by a preponderance of the evidence. In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985). In order to satisfy this standard, the evidence must demonstrate that it is more likely than not that the alleged facts are actually true. See Bosies v. Benedict, 27 F.3d 539, 541- 42 (Fed. Cir. 1994) (the preponderance of the evidence standard requires the finder of fact to believe that the existence of a fact is more probable than its nonexistence). Appeal 2011-005238 Application 10/621,129 5 White describes five embodiments, wherein the five embodiments are shown in Figures 1, 3, 5, 6 and 7 (col. 3, ll. 21-52). White uses the words “fixedly secured thereto” in the description of the embodiments of Figures 1, 3, 5, 6 and 7 regarding the bevel gear 26, 26A, 53, 84, 115 having a pinion 27, 27A, 54, 83, 116 (col. 4, l. 61-65; col. 6, ll. 8-12; col. 7, ll. 40-42; col. 8, ll. 66-68; and col. 10, ll. 45-54). We find that (1) White describes and shows embodiments, Figures 1 and 3, without a pinion shaft, as well as an embodiment, Figure 5, with a pinion shaft, and (2) White is silent as to whether the Figure 7 embodiment describes a pinion shaft. We find that in White, the use of the words “fixedly secured thereto” refers to all five of the embodiments, and not only the Figure 5 and Figure 7 embodiments, as found by the Examiner. We find that White’s Figure 7 embodiment could equally be similar to the embodiments of Figures 1 and 3 and not include a pinion shaft, as well as the embodiment of Figure 5 and include a pinion shaft. Thus, we find that in White, it is not more likely than not that the Figure 7 embodiment is similar to the Figure 5 embodiment rather than the Figure 3 embodiment as found by the Examiner. We reverse the rejection of independent claims 1 and 12, and dependent claims 3, 4, 16-19, 21-24, 38 and 41-44. Rejection of claims 5-11, 13-15, 39, 40 and 45 under 35 U.S.C. § 103(a) over White and Kish Similar to independent claims 1 and 12, claim 8 calls for, inter alia, a floating pinion gear mounted to a radially unsupported pinion shaft. Appeal 2011-005238 Application 10/621,129 6 The Examiner has not relied on Kish for any teaching that would remedy the deficiency in White, as set forth supra (Ans. 7). Thus, for the same reasons set forth supra regarding independent claims 1 and 12; we reverse the rejection of claims 5-11, 13-15, 39, 40 and 45. CONCLUSION The Examiner has erred in finding that White describes a floating pinion gear mounted to a radially unsupported pinion shaft, as called for in independent claims 1, 8 and 12 DECISION The decision of the Examiner to reject claims 1, 3-19, 21-24 and 38- 45 is reversed. REVERSED mls