Ex Parte Schwarz et al

Patent Trial and Appeal Board

Apr 12, 2018

14592991 (P.T.A.B. Apr. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/592,991 01109/2015 Frederick M. Schwarz
54549 7590 04/16/2018
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
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.
61399US03;
67097- l 797US2
CONFIRMATION NO.
2277
EXAMINER
SUNG, GERALD LUTHER
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
04/16/2018 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 FREDERICK M. SCHWARZ
and DANIEL BERNARD KUPRATIS
Appeal2017-005240
Application 14/592,991
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 1
1 Appellants identify the following cases as being related: (i) Application
Serial No. 13/365,288, filed February 3, 2012, Geared Turbofan Engine with
Counter-Rotating Shafts (present status: abandoned); (ii) Application Serial
No. 13/407,795, filed February 29, 2012, Geared Turbofan Engine with
Counter-Rotating Shafts, (present status: Examiner's Answer mailed
November 2, 2017, no Appeal No. assigned); (iii) Application Serial No.
13/437,270, filed April 2, 2012, Geared Turbofan with Three Turbines with
First Two Counter-Rotating, and Third Co-Rotating with the Second
Turbine (present status: abandoned); (iv) Application Serial No.
13/437,290, filed April 2, 2012, Geared Turbofan with Three Turbines with
First Two co-Rotating and Third Rotating in an Opposed Direction (present
status: abandoned); (v) Application Serial No. 13/437,304, filed April 2,
2012, Geared Turbofan with Three Co-Rotating Turbines, (present status:
assigned Appeal No. 2017-002377, Decision rendered February 21, 2018);
and, (vi) Application Serial No. 13/459,498, filed April 30, 2012, Geared
Appeal2017-005240
Application 14/592,991
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-7. Final Act. 1 (Office Action Summary). We have jurisdiction
under 35 U.S.C. § 6(b ).
We REVERSE.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to a geared turbofan gas turbine
engine, wherein the low and high pressure spools rotate in the same direction
relative to each other." Spec. i-f 2. Apparatus claim 1 is the sole independent
claim, is illustrative of the claimed subject matter, and is reproduced below:
1. A gas turbine engine turbine comprising:
a high pressure turbine configured to rotate with a high pressure
compressor as a high pressure spool in a first direction about a central
axis;
a low pressure turbine configured to rotate in said first direction
about said central axis;
a fan connected to the low pressure turbine via a gear reduction
and will rotate in said first direction,
wherein the engine is configured to have a ratio of a thrust
provided by said engine, to a volume of a turbine section including
both said high pressure turbine and said low pressure turbine that is
greater than or equal to about 1.5 and less than or equal to about 5.5
lbf/in3; and
said thrust is sea level take-off, flat-rated static thrust.
REFERENCES RELIED ON BY THE EXAMINER
Dickau US 2003/0033798 Al
Moniz et al. US 7 ,334,392 B2
Kohlenberg et al. US 2009/0053058 Al
Feb.20,2003
Feb.26,2008
Feb.26,2009
Turbofan with Three Turbines All Co-Rotating (present status: assigned
Appeal No. 2017-002075, Decision rendered January 31, 2018). App. Br.
1-2. Also, the Real Party in Interest, as identified by Appellants, is United
Technologies Corporation. App. Br. 1.
2
Appeal2017-005240
Application 14/592,991
McMahon et al. US 2012/0233858 Al
Sheridan et al. US 2013/0186058 Al
THE REJECTIONS ON APPEAL
Sept. 20, 2012
July 25, 2013
Claims 1--4 and 6 are rejected under 35 U.S.C. § 103 as unpatentable
over Moniz or Kohlenberg, in view of Dickau.
Claims 1 and 5 are rejected under 35 U.S.C. § 103 as unpatentable
over McMahon and Dickau.
Claims 1 and 7 are rejected under 35 U.S.C. § 103 as unpatentable
over Sheridan and Dickau.
ANALYSIS
Sole independent claim 1 includes a recitation to a ratio between an
engine's thrust and "a volume of a turbine section" of the engine. This ratio
is recited as being "greater than or equal to about 1.5 and less than or equal
to about 5.5 lbf/in3." The Examiner relies on Dickau for disclosing an
engine capable of generating "over 45,000 pounds of thrust" and that "at
45,000 pounds of thrust, the necessary volume of the turbines[] fall in the
claimed ratio." Final Act. 4; see also Ans. 3--4.
Appellants do not contest that engines having a thrust "of up to 45,000
lbf are known," but contend, "no volume is disclosed in Dickau." Reply Br.
1; App. Br. 3. Appellants thereafter replicate the Examiner's statement
regarding volume, i.e., "[t]he Examiner has attached the references Joshi,
figure 9 and Jane's aerospace engine, to show common dimensions of
engines."2 App. Br. 3 (emphasis omitted); Final Act. 4--5. In view of Joshi
2 An "Information Disclosure Statement by Applicant," ("IDS") dated
January 9, 2015, identifies "Joshi" (a non-patent literature document), as
"USB Flap Noise Reducation [sic] Through Nozzle Exit Velocity Profile
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Appeal2017-005240
Application 14/592,991
and Jane's (and Dickau's thrust value), the Examiner performs calculations
(see Ans. 5) and concludes;
the Examiner finds, on the preponderance of evidence, that the
relative dimensions of the turbofan engines of Moniz,
McMahon and Sheridan, as evidenced by Joshi and supported
by Jane's aerospace engine, place the apparatuses of Moniz,
McMahon and Sheridan well within the claimed thrust to
volume ratio.
Ans. 5.
Appellants disagree with the Examiner's reliance on Joshi and Jane's
stating, "the Examiner 'guestimates' a portion of the overall length of the
core engine that is the turbine section. This is completely without support."
Reply Br. 1; see also App. Br. 3. It is noted that Appellants do not contest
the calculations made in arriving at possible turbine diameters. 3 Instead,
Appellants contest an assumption expressed by the Examiner upon which
such calculations were based. Reply Br. 1. The Examiner states, "[ e ]ven if,
arguendo, the turbine engine accounts for half of the total core length," the
resultant ratio values would be within the claimed range. Ans. 5. It is this
assumption by the Examiner regarding turbine section length being one-half
the core length (with the ensuing calculations being based thereon) that
Appellants contend "is completely without support." Reply Br. 1.
Shaping; M.C. Joshi and J.C. Yu, 1979." This same IDS identifies "Jane's"
(also a non-patent literature document), as "Jane's Aero-Engines, Issue
Seven, Copyright 2000, pp. 510-512."
3 Appellants contend, "the Examiner takes a 'diameter' of the outer housing
of the engine, which has nothing to do with the ... diameter of the turbine
section." Reply Br. 2. Appellants misunderstand the Examiner's intent in
making the calculations because it is the diameter of the turbine section the
Examiner is computing.
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Appeal2017-005240
Application 14/592,991
Appellants state, "[a Jn Examiner is not allowed to create evidence, as the
Examiner is doing here." Reply Br. 1.
Indeed, the Examiner provides no basis or explanation for the
presumption that turbine section length is half total core length, even if only
made "arguendo" and followed by computations. Ans. 5. On this point, we
are instructed:
The Patent Office has the initial duty of supplying the factual
basis for its rejection. It may not, because it may doubt that the
invention is patentable, resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies
in its factual basis. To the extent the Patent Office rulings are
so supported, there is no basis for resolving doubts against their
correctness. Likewise, we may not resolve doubts in favor of
the Patent Office determination when there are deficiencies in
the record as to the necessary factual bases supporting its legal
conclusion of obviousness.
In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Consequently, because
the Examiner does not provide support, explanation, or otherwise identify
any reference indicating that one skilled in the art would have understood a
turbine section length being half the core length, we do not sustain the
Examiner's rejection of claim 1. In other words, the Examiner's analysis
lacks articulated reasoning with rational underpinning to support the legal
conclusion of obviousness. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007). Accordingly, we do not sustain independent claim 1, nor
dependent claims 2-7 which depend therefrom.
Regarding Appellants' contentions concerning "a result-effective
variable that might be optimized" (App. Br. 3--4), "the Examiner notes that
the rejection does not state that the prior art of record would have been
optimizable by an ordinary skilled worker to obtain the claimed ranges."
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Application 14/592,991
Ans. 3; see also Final Act. 3-5. Hence, Appellants' contentions on this topic
are not persuasive because they address a rejection that was not expressed by
the Examiner. Nevertheless, on this topic of optimization, Appellants
contend (relying on In re Antonie, 559 F.2d 618, 620 (CCPA 1977)), "the
Examiner must first show that the parameter to be optimized is recognized
as a result-effective variable." App. Br. 3. However, Appellants do not
explain how the recited ratio (identified as "power density" in Paragraph 32
of Appellants' Specification) is not already known as a result-effective
variable because Paragraph 39 of Appellants' Specification addresses this
ratio with respect to such prior engines as the PW4090 and the V2500. 4
Appellants, in this Paragraph 39, distinguish these prior art engines
over claim 1 because "such engines have been direct drive engines and not
associated with a gear reduction" (the claims reciting "a gear reduction"). It
is not made clear why prior engines having a direct drive were able to
achieve the disclosed ratio but such engines are unable to do so if associated
with "a gear reduction" as claimed. 5
Regardless, the record presented for review concerns only the
mathematical calculations relied on by the Examiner, which form the basis
of the Examiner's rejection. In view of our discussion above on that topic,
4 A further "non-patent literature document" in the above IDS lists a
"Diagram of prior art V2500 and PW 4090 engines" that includes a table
having a column entitled "Thrust/Turbine section volume" which provides
values for these engines within the recited range.
5 See yet another "non-patent literature document" listed in the above IDS
identified as "International Preliminary Report on Patentability for
International Application No. PCT/US2013/034313 mailed on 16 October
2014." This Preliminary Report is associated with the parent of the present
application.
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we do not sustain the Examiner's rejection of claim 1. Hence, we do not
sustain the Examiner's art rejection of claims 1-7 because none of the
references cited cure the above stated defect of an unsupported assumption
forming the basis of the calculations made. No presumption is to be made
one way or the other regarding our election to not issue a new ground of
rejection.
DECISION
The Examiner's rejections of claims 1-7 under 35 U.S.C. § 103(a) are
reversed.
REVERSED
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