Ex Parte McCune et al

Patent Trial and Appeal Board

Jan 16, 2018

13440085 (P.T.A.B. Jan. 16, 2018)

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.
13/440,085 04/05/2012 Michael E. McCune 59256US02; 4573
67097-1755PUS2
54549 7590 01/18/2018
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
GOYAL, ARUN
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
01/18/2018 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):
ptodocket @ cgolaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL E. MCCUNE and
FREDERICK M. SCHWARZ
Appeal 2017-000006
Application 13/440,085
Technology Center 3700
Before MICHAEL L. HOELTER, LISA M. GUIJT, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 4—9, 13, and 16—21.1 Advisory Action dated December 9, 2015.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM
1 Appellants submitted an Amendment after Final dated November 16, 2015
indicating that claims 2 and 14 are canceled (after having been added to
claims 1 and 13 respectively), while claims 3, 10-12, and 15 are withdrawn.
The Advisory Action of December 9, 2015 entered these amendments.
However, the claims attached to Appellants’ Appeal Brief filed January 26,
2016 do not reflect the claim changes made in this Amendment after Final.
Appeal 2017-000006
Application 13/440,085
THE CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to a gas turbine engine wherein a
fan rotor is driven through a geared connection, and wherein safety
monitoring is performed to ensure that the geared connection has not failed.”
Spec. 12. Apparatus claims 1 and 21, and method claim 13, are
independent. Claim 1 is illustrative of the claimed subject matter and is
reproduced below2:
1. A gas turbine engine comprising:
a fan;
a compressor;
a combustor;
a turbine system, including a first turbine including a
shaft to drive said compressor, and at least a fan drive turbine,
said fan drive turbine being operable to drive said fan through a
speed reduction;
a sensor to sense a speed of rotation of said fan and
communicate said sensed speed to a control, said control being
operable to develop an expected speed for said fan and identity
a problem should said sensed speed be less than the expected
speed by more than a predetermined amount;
said predetermined amount being intended to identify a
failure in at least one of gears, a connection and a shaft in said
speed reduction, or a shaft driven by said gears and in turn
driving said fan; and
said sensor dynamically determining an angular position
of a feature rotating with the fan by measuring the time of
arrival of the feature, and this dynamically determined angular
position being utilized as the sensed speed, and compared to an
expected angular position of the fan feature, said expected
angular position being said expected speed.
2 We rely on Appellants’ Amendment after Final dated November 16, 2015
for the claim language used in this Decision.
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Application 13/440,085
REFERENCES RELIED ON BY THE EXAMINER
Howell, IV US 4,954,974 Sept. 4, 1990
Weimer US 5,622,045 Apr. 22, 1997
Lenhart US 6,019,313 Feb. 1,2000
Andrew US 6,226,974 B1 May 8, 2001
Adibhatla US 6,466,858 B1 Oct. 15,2002
Loisy US 7,363,757 B2 Apr. 29, 2008
Hurwitz US 2010/0058735 A1 Mar. 11,2010
Galivel US 2011/0109305 A1 May 12,2011
THE REJECTIONS ON APPEAL3
Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Hurwitz, Adibhatla, and Weimer.
Claims 1, 6, 13, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hurwitz, Adibhatla, Weimer, and Galivel.
Claims 4 and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Hurwitz, Adibhatla, Weimer, Howell, IV, and Galivel.
Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Hurwitz, Adibhatla, Weimer, Andrew, and Galivel.
Claims 7 and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Hurwitz, Adibhatla, Weimer, Loisy, and Galivel.
Claims 8, 9, 19, and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hurwitz, Adibhatla, Weimer, Lenhart, and Galivel.
3 The stated rejections are those expressed in the Final Office Action dated
September 16, 2015, except, as indicated supra, “[cjlaim 2 has been added
to claim 1, and claim 14 has been added to claim 13,” and claims 2 and 14
are now canceled. See Amendment after Final dated November 16, 2015.
Accordingly, Appellants understand that with respect to newly-amended
independent claims 1 and 13, “the Examiner also must point to the Galivel
reference.” App. Br. 4. For consistency, we have included Galivel in the
rejections of dependent claims as well.
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Application 13/440,085
ANALYSIS
Appellants initially address “all claims'1'’ and thereafter discuss some
of the references cited (i.e., Hurwitz, Adibhatla, Weimer, and Galivel). App.
Br. 3^4. Appellants also separately address claims 6 and 17 together (App.
Br. 4—5), claim 5 separately (App. Br. 5), and claims 8, 9, 19, and 20
together (App. Br. 5). We address Appellants’ contentions regarding each of
the identified references as well as the separately argued claims.
Hurwitz
The Examiner relies on Hurwitz for teaching “a fan (20)” “and a
sensor (56) to sense a speed of rotation of said fan.” Final Act. 3. Hurwitz
states, “low spool 14 drives a turbofan 20” and “speed sensor 56
communicates with the controller 50 to provide the low spool speed.”
Hurwitz || 10, 18, see also Hurwitz Fig. 1. The Examiner reasons that
“[measuring the spool rotation speed is the same as measuring the fan
speed, because the spool rotates the fan, and is part thereof.” Final Act. 3;
Ans. 2.
Appellants acknowledge that in Hurwitz, “speed is sensed” but that “it
is not the speed of the fan rotor.” App. Br. 3. Appellants contend, “the
Examiner makes the confused response that ‘measuring the spool rotation
speed is the same as measuring the fan speed, because the spool rotates the
fan, and is part thereof. Reply Br. 1. In explaining how the Examiner is
“confused,” Appellants address the hypothetical that “if something between
the turbine [14] driving the fan [20] breaks, the fan speed is not ‘the same
as’ the spool speed.” Reply Br. 1. Hence, because breakage between items
14 and 20 might occur resulting in “the fan speed [not being] ‘the same as’
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Application 13/440,085
the spool speed,” Appellants contend that the Examiner’s “rejection is
flawed.” Reply Br. 1.
Appellants’ premise relies on unintended and/or unexpected breakage
occurring in Hurwitz’s device, and does not address Hurwitz’s normal
operating conditions wherein low spool 14 drives fan 20, and speed sensor
56 communicates that low spool speed to a controller. See supra.
Appellants’ reliance on a hypothetical is not persuasive of Examiner error.4
The Examiner further notes that the “limitation ‘said predetermined amount
being intended to identify [] a failure’” is “intended use” and that “claims
directed to an apparatus must be distinguished from the prior art in terms of
structure rather than function.” Ans. 2, 3 (referencing In re Schreiber, 128
F.3d 1473, 1477—78 (Fed. Cir. 1997)). The Examiner further references
Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469 (Fed.
Cir. 1990), which provides guidance that “apparatus claims cover what a
device is, not what a device does.'”
In view of the record presented, we are not persuaded by Appellants’
argument, which is based on a possibility and not on any express teaching,
that the Examiner’s reliance on Hurwitz improper. In other words, we are
not persuaded the Examiner erred in relying on Hurwitz for disclosing a
sensor used “to sense a speed of rotation of said fan,” and to communicate
the same to a controller, as recited.
4 “[Attorney argument [is] not the kind of factual evidence that is required
to rebut a prima facie case of obviousness.” In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997) (citation omitted).
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Adibhatla
The Examiner relies on Adibhatla for disclosing “engine health
estimates” using, among other parameters, “rotor speeds.” Final Act. 4
(referencing Adibhatla 1:63—65; 2:2—6); see also Adibhatla 1:25—33.
Appellants fault the Examiner’s usage of Adibhatla because, although
“Adibhatla et al. disclosed generic sensing systems,” Adibhatla fails to
disclose the specific “step of looking for shaft breakage.” App. Br. 4.
Appellants are arguing the art individually because Adibhatla (and its
combination with Hurwitz) was not relied on for teaching a controller
“which identifies [a] problem with the fan.” Final Act. 4. The Examiner,
instead, relied on Weimer “to detect fan damage.” Final Act. 4.
Accordingly, Appellants’ contention that the Examiner erred in relying on
Adibhatla is misplaced and not persuasive of error.
Weimer
Appellants contend, “Weimer et al. looks for a damaged fan blade
rather than a broken drive connection.” App. Br. 4. However, claim 1 is not
limited solely to broken drive connections but is also directed to other
failures such as “a failure in at least one of gears” “or a shaft.” Weimer
discloses that an engine’s “fan is susceptible to damage when birds, ice, or
other foreign objects are ingested into it” and “[cjonsequently, what is
needed is a way to detect fan damage based on relative speed.” Weimer
1:45—46; 2:4—5. For example, Weimer states, “it is one object of the present
invention to detect damage from foreign object ingestion to a gas turbine
engine having multiple rotating members” which would include fans, blades,
shafts, connections, and gears. Weimer 4:34—36; see also id at 2:48—50.
Weimer does mention damage to individual fan blades (see Weimer 1:66—
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Application 13/440,085
67), but Appellants are not persuasive that Weimer is limited solely to fan
blade damage and that Weimer is not also directed to the detection of other
fan failures such as that occurring to gearing, shafts, and/or their
connections. See, e.g., Weimer 1:45—50 (stating, “the fan is susceptible to
damage” when “foreign objects are ingested into it” resulting in “serious
structural faults in engines”). Accordingly, Appellants attempt to read
Weimer as only pertaining to fan blade damage is not a reasonable reading
thereof and, therefore, is not persuasive that the Examiner erred in relying on
Weimer.
Galivel
Appellants contend that “Galivel does not overcome the deficiencies
mentioned above.” App. Br. 4. Because we are not persuaded of any
deficiencies with respect to Hurwitz, Adibhatla, and Weimer as discussed
supra, we are not persuaded by Appellants’ contention regarding Galivel.
Consequently, and based on the record presented, we sustain the
Examiner’s reliance on these references in the rejection of “all claims''1
(App. Br. 3), including those claims not separately argued (i.e., claims 1, 4,
7, 13, 16, 18, and 21).
Claims 6 and 17
Appellants argue claims 6 and 17 together. App. Br. 4—5. We select
claim 6 for review with claim 17 standing or falling therewith. See
37 C.F.R. § 41.37(c)(l)(iv). Claim 6 depends from claim 1 and additionally
recites, “wherein said control looks for progressive increase in the difference
between the sensed speed and the expected speed.” See also App. Br. 4.
Appellants address Hurwitz stating that nowhere “is the progressive increase
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Application 13/440,085
equated to a damage indication in and of itself.” App. Br. 5. Accordingly,
as per Appellants, “[rjeversal is in order.” App. Br. 5.
The Examiner relies on Adibhatla, not Hurwitz, for teaching this
limitation. Ans. 4. The Examiner identifies where Adibhatla teaches both
“monitoring the fan speed continuously to detect wear (col. 1 11. 14—15) and
trending system operation (col. 1 11. 11—12) or step changes (col. 1 11. 34—34)
[sic].” Ans. 4. Adibhatla specifically teaches where rotor speeds “are
corrected or normalized for variations in operating conditions” and that
“these normalized parameters are trended, i.e., their changes over short and
long periods of time are plotted.” Adibhatla 1:26—32; see also id. at 1:10—12
(the invention pertains “to methods and apparatus for trending gas turbine
engine operation”).
In view of Adibhatla’s express teachings, and especially that of
monitoring changes or trends in rotor speeds, we are not persuaded by
Appellants of Examiner error. We sustain the Examiner’s rejection of
claims 6 and 17.
Claim 5
Claim 5 depends directly from claim 1, and Appellants understand
that claim 5 was “rejected with the addition of the reference to Andrew et
al.” App. Br. 5. Claim 5 includes the additional limitation “wherein said
engine is shut down” if the sensed fan speed differs from an expected fan
speed by a certain amount. Appellants initially address Weimer on this
point, but the Examiner relied on Andrew, not Weimer, for teaching shutting
down an engine “should said sensed speed of said fan differ from said
expected speed by more than a predetermined amount.” Final Act. 5—6
(referencing Andrew 4:5—14). When addressing the inclusion of Andrew,
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Application 13/440,085
Appellants contend that Hurwitz “is for use on an aircraft” whereas Andrew
pertains to “a land-based system.” App. Br. 5; see also Reply Br. 1—2. The
Examiner states, however, that a “[cjontrol system to shut down the engine
is not exclusive to one type of engine or the other.” Ans. 4. As support that
a control system can be implemented in different engines intended for
different purposes, the Examiner references Adibhatla for teaching an engine
control system suitable “for flight applications as well as for power
(electricity) production.” Ans. 4 (referencing Adibhatla 2:31, 33, 36 and
noting “that CFM56, CF6 and GE90 are turbofans for airline use, FI 10 and
F414 are jet engine used on fighter airplanes, and FM6000 is a land-based
power producing engine”). Appellants do not dispute Adibhatla’s disclosure
pertaining to different types of engines (or the different usages to which they
are put), instead, Appellants reply that “a decision to shut down a ground-
based engine involves different factors than a decision to shut down an
airplane engine in the air.” Reply Br. 2. Although this might be the case,
Appellants do not identify where such factors distinguishing between the
two are claimed. In fact, Appellants acknowledge that “the claims do not
require specifically an airplane-based gas turbine engine.” App. Br. 5.
Accordingly, and based on the record presented, we are not persuaded
of Examiner error. We sustain the Examiner’s rejection of claim 5.
Claims 8, 9, 19, and 20
The Examiner additionally relies on Lenhart to reject claims 8, 9, 19,
and 20. Final Act. 6. Appellants argue these claims together and do not
dispute the Examiner’s reliance on Lenhart. App. Br. 5. Instead, Appellants
contend that “claims 8, 9, 19 and 20 provide particular points of concern
with regard to breakage.” App. Br. 5. Appellants’ statement about these
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Application 13/440,085
claims being directed to “particular points of concern with regard to
breakage” is not consistent with the actual language recited by these claims.
For example, both claims 8 and 19 recite “wherein said speed reduction
includes at least one of a flexible coupling and a spline connection to drive
said fan.” This claim language is directed to a particular type of coupling
and connection, and does not express any “concern with regard to breakage”
as asserted. Likewise, claim 9 recites “wherein said speed reduction directly
drives said fan, through a fan shaft” (claim 20 recites the same language, but
does not include the comma). This claim language is directed to a manner of
driving a fan, and again does not express any “concern with regard to
breakage” as asserted.
Appellants also state, “none of the cited references look to shaft
breakage in a gas turbine engine with a gear reduction.” App. Br. 5.
However, Appellants do not explain how the references relied upon are not
concerned with breakage and/or failure in gas turbine engines or how the
references fail to disclose a gas turbine engine with a gear reduction. See,
e.g., Hurwitz 110 (“[a] geared turbofan engine 10 is shown in FIG. 1”);
Adibhatla Abstract (“[ejngine health parameters are estimated and adjusted
in a model for component diagnostics and fault detection and isolation”);
Weimer Abstract (“[tjhrust loss accommodation is triggered when damage is
detected”). Further, Appellants’ focus specifically on “shaft breakage” to
the exclusion of the other types of failures recited, is not persuasive.
Accordingly, we sustain the Examiner’s rejection of claims 8, 9, 19, and 20.
Declaration
It is also noted that Appellants submitted a “Declaration under 37
CFR §1.132” by Frederick M. Schwarz dated July 15, 2013 (“Declaration”),
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Application 13/440,085
and list same in Appellants’ Evidence Appendix. App. Br. 11. Appellants
do not reference or address this Declaration in any of their Briefs. The
Examiner states that this declaration “does not pertain to the instant
Application and therefore, is not being addressed here.” Ans. 5. Appellants
do not dispute this finding by the Examiner.
The Declaration in question pertains to a certain “ratio of a thrust”
provided by the engine. Declaration 14. Mr. Schwarz states that prior to
this invention, he has “not heard of designers of gas turbine engines focusing
on this ratio.” Declaration | 5. Because the claims on appeal are devoid of
any reference to any thrust ratio, we agree with the Examiner’s summation
that this declaration “does not pertain to the instant Application.” Ans. 5.
Accordingly, because this Declaration neither indicates, supports, nor
identifies any impropriety by the Examiner in the present matter, this
Declaration fails to address any Examiner error that might have occurred in
rejecting the above claims. In short, the statements made in this Declaration
are not persuasive of Examiner error.
Additional comments
In addition to our affirmance of the rejection of claims 16 and 18—20
above, we also note that these claims depend from claims that have either
been canceled or withdrawn.
DECISION
The Examiner’s rejections of claims 1, 4—9, 13, and 16—21 are
affirmed.
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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).
AFFIRMED
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