Ex Parte Grabowski et al

Patent Trial and Appeal Board

Dec 19, 2014

12042361 (P.T.A.B. Dec. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ZBIGNIEW M. GRABOWSKI and
ROBERT J. MORRIS
____________________

Appeal 2012-010226
Application 12/042,361
Technology Center 3700
____________________

Before: LYNNE H. BROWNE, ANNETTE R. REIMERS, and
MICHAEL L. WOODS, Administrative Patent Judges.

BROWNE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Zbigniew M. Grabowski and Robert J. Morris (Appellants) appeal
under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–15.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to a gas turbine engine, and method of
controlling the same. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
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1. A gas turbine engine comprising:
a core engine defined about an axis;
a fan driven by said core engine about said axis;
a core nacelle defined at least partially about said core
engine;
a fan nacelle defined around said fan and at least partially
around said core nacelle, and
a variable area fan nozzle (VAFN) to define a fan exit
area downstream of said fan between said fan nacelle and said
core nacelle;
a neural network; and
a controller trimmed in response to said neural network
to control a fan blade flutter characteristic through control of
said VAFN.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Johnston
Rajamani
Eveker
Bowman
Bonanni
Baran
Bonissone
US 4,132,068
US 5,857,321
US 6,582,183 B2
US 2007/0084211 A1
US 7,328,128 B2
US 7,721,549 B2
US 7,725,293 B2
Jan. 2, 1979
Jan. 12, 1999
June 24, 2003
Apr. 19, 2007
Feb. 5, 2008
May 25, 2010
May 25, 2010
Ramlaoui US 2010/0229528 A1 Sept 16, 2010

REJECTIONS1
I. Claims 1–4 and 7–10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ramlaoui, Eveker, and Rajamani.

1 Appellants elect not to appeal the rejections of claims 5, 6, and 11–13. App
Br. 3. We suggest that the Examiner cancel claims 5, 6, and 11–13 upon
return of jurisdiction of this application to the Examiner. See Ex Parte
Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008) (precedential).

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II. Claims 5 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ramlaoui, Eveker, Rajamani, and Bowman.
III. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ramlaoui, Eveker, Rajamani, Bowman, and Baran.
IV. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ramlaoui, Eveker, Rajamani, and Bonani.
V. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ramlaoui, Eveker, Rajamani, and Bonissone.
VI. Claims 14 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ramlaoui, Eveker, Rajamani, and Johnston.

OPINION
Rejection I – Claims 1–4 and 7–10
Appellants argue claims 1–4 and 7–10 together. See App. Br. 5–7.
We select independent claim 1 as the illustrative claim, and claims 2–4 and
7–10 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner finds that the combined teachings of Ramlaoui, Eveker,
and Rajamani disclose or suggest all of the limitations of independent claim
1. Ans. 5–7. In particular, the Examiner finds that although “Ramlaoui does
not explicitly disclose a neural network and that the controller is trimmed in
response to the neural network to control a fan blade flutter characteristic
through control of said VAFN,” “Ramlaoui recognizes that flutter needs to
be addressed in order to optimize the engine performance.” Id. at 5 (citing
Ramlaoui, ¶ 5). The Examiner further finds that “Eveker teaches a flutter
control circuit 124 that monitors and controls flutter to avoid flutter
instabilities so as to operate a turbine engine at an optimal operating mode.”
Id. at 6 (citing Eveker, Abstract, col. 2, ll. 25, col. 7, ll. 4–25). Based on
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these findings, the Examiner reasons that it would have been obvious “to
modify Ramlaoui to include a flutter control system as taught by Eveker in
order to address the flutter instabilities that are known to occur in the device
of Ramlaoui in order to operate the turbine engine at an optimal operating
mode.” Id.
Appellants contend that “[t]he relevant portion of the base reference
[Ramlaoui] is not available as prior art.” App. Br. 3 (emphasis omitted). In
support of this contention, Appellants note that Ramlaoui “is a continuation-
in-part of the [Patent Cooperation Treaty (“PCT”)] application [WO
2009/029401 A2 (‘WO ’401’)]” and “the system 399 is not present in the
PCT application.” App. Br. 4.
In response to this argument, the Examiner states:
the Examiner’s position is that Ramlaoui discloses two
equivalent embodiments (Fig. 19 with [Full Authority Digital
Engine Control (“FADEC”)] 399 and Fig. 23 with control
processor 540). Both of these embodiments discloses
controllers that control a [Power Drive Unit (“PDU”)] (see
PDU 310 of Fig. 19 that actuates the [VAFN as per paragraph
[0066] and PDU 410 of Fig. 23 that actuates VAFN as per
paragraph [0071]). Similarly, . . . WO ‘401 discloses a FADEC
540 that controls actuation of a VAFN (see paragraph [0071]).
Even if control processor 540 of Ramlaoui is not FADEC 540
of WO ‘401, nevertheless, each controller/FADEC disclosed by
Ramlaoui performs the same function of controlling the VAFN.
Therefore, the written description of Ramlaoui conveys with
reasonable clarity to those skilled in the art that, as of the filing
date sought, Ramlaoui was in possession of a controller
(FADEC) that controls the VAFN by actuating the fan nozzle
segments and thus, Ramlaoui is prior art and is entitled to the
date of WO ‘401.
Ans. 17–18.
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Appellants argue that this embodiment of control processor 540 of
Ramlaoui [as shown in Fig. 23] was not relied on at any point during
prosecution, and should be presented as a new ground of rejection. Reply
Br. 1–2. However, the Examiner’s failure to follow proper procedure in
presenting a new ground of rejection is a petitionable matter, which was
rendered moot by Appellants filing the instant Reply Brief. MPEP
§ 1207.03.
Appellants further argue that “the Figure 23 embodiment lacks much
of the detail associated with the embodiment previously relied upon by the
Examiner.” Reply Br. 2. However, the only element shown in Ramlaoui’s
Figure 19 which was relied upon to reject the claims at issue is FADEC 399.
Ramlaoui’s Figure 23 shows control processor 540 in as much detail as
Figure 19 illustrates FADEC 399. Accordingly, Appellants’ argument is not
persuasive.
Appellants do not explain why the PCT application would not have
conveyed to one of ordinary skill in the art that Ramlaoui had possession of
a controller at the time of the invention. Thus, Appellants do not apprise us
of error.
Turning to the art rejection, Appellants argue that “[t]here is no reason
to combine Ramlaoui and Eveker.” App. Br. 5; see also Reply Br. 2. In
support of this argument, Appellants argue that “[w]hereas Ramlaoui
controls its nozzle 50 to allow for bleeding, Eveker only contemplates
bleeding in the context of it valves 128a, 128b.” App. Br. 6. Based on this
distinction, Appellants conclude that “all that Eveker teaches is to replace
Ramlaoui’s bleed path 60 with its bleed valves 128a, 128b. Such a
replacement would not meet the claims.” Id.
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Appellants’ argument is not commensurate in scope with claim 1.
Claim 1 does not require control of fan blade flutter in response to bleeding.
Rather, claim 1 merely requires a controller trimmed “to control a fan blade
flutter characteristic.” App. Br. 8, Clms. App’x. Limitations not appearing
in the claims cannot be relied upon for patentability. See In re Self, 671 F.2d
1344, 1348 (CCPA 1982). Therefore, Appellants do not apprise us of error.
Appellants further argue that “there is no reason to modify Eveker’s
control circuit with a neural network because Rajamani does not teach a
neural network trimming a controller to ‘control a fan blade flutter,’ as
claimed, or to control the wall 135 or bleed valves 128a, 128b of Eveker.”
App. Br. 6–7; see also Reply Br. 2.
Appellants’ argument is not responsive to the rejection as articulated
by the Examiner. The rejection does not rely on Rajamani for a controller to
control fan blade flutter. Eveker teaches these limitations as discussed
supra. “Non-obviousness cannot be established by attacking the references
individually” when the rejection is predicated upon a combination of prior
art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
To the extent that Appellants argue that the Examiner has provided no
articulated reasoning for the proposed modification, Appellants’ argument is
not persuasive. The Examiner finds that “Rajamani . . . discloses the use of
a controller having a neural network for more complex calculations in order
to control the gas turbine over a wide range of turbine operating conditions.”
Ans. 7 (citing Rajamani, col. 1, ll. 62–67; col. 4, ll. 24–33). The Examiner
further finds that “all the claimed elements were known in the prior art and
one skilled in the art could have combined the elements as claimed by
known methods with no change in their respective functions, and the
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combination yields nothing more than predictable results.” Id. Based on
these findings, the Examiner reasons that it would have been obvious “to use
a neural network . . . to trim the controller in order to control the gas turbine
over a wide range of turbine operating conditions.” Id. Appellants do not
identify nor do we discern any error in the Examiner’s reasoning. Thus,
Appellants do not apprise us of error.
For these reasons, we sustain the Examiner’s decision rejecting
independent claim 1, and claims 2–4 and 7–10 which fall therewith.
Rejection II–V — Claims 5, 6, and 11–13
Appellants state “[c]laims 1–15 are pending, rejected and herein
appealed.” App. Br. 1. However, Appellants do not include rejections II–V
in the Grounds of Rejection to be Reviewed on Appeal. Id. at 3. Moreover,
Appellants do not contest the rejections of these claims. See id. 3–7.
Accordingly, we summarily affirm the rejections of claims 5, 6, and
11–13.
Rejection VI — Claims 14 and 15
Appellants argue claims 14 and 15 together. See App. Br. 7. We
select independent claim 14 as the representative claim, and claim 15 stands
or falls with claim 14.
Appellants argue that “one could not modify Ramlaoui such that its
nozzle pivots about a ‘fixed’ axis without rendering Ramlaoui incapable of
axially translating, and thus incapable of selectively providing the bleeding
flow path 60.” App. Br. 7; see also Reply Br. 3.
Appellants’ argument is not persuasive because it does not consider
the combined teachings of Ramlaoui and Johnston. As discussed supra,
nonobviousness cannot be established by attacking the references
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individually when the rejection is predicated upon a combination of prior art
disclosures.
For this reason, we sustain the Examiner’s decision rejecting claim 14,
and claim 15 which falls therewith.

DECISION
The Examiner’s rejection of claims 1–15 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)(1)(iv).

AFFIRMED
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