Ex Parte Suciu et al

Patent Trial and Appeal Board

Jan 16, 2018

13408204 (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.
13/408,204 02/29/2012 GabrielL. Suciu 67097-1685PUSl;60675US01 4982
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 GABRIEL L. SUCIU and BRIAN D. MERRY
Appeal 2017-02268
Application 13/408,204
Technology Center 3700
Before ANNETTE R. REIMERS, THOMAS F. SMEGAL, and
ERIC C. JESCHKE, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gabriel L. Suciu and Brian D. Merry (Appellants) appeal under 35
U.S.C. § 134(a) from the Examiner’s decision to reject under 35 U.S.C.
§ 103(a): (1) claims 1—5, 7—14, and 19 as unpatentable over Merry (US
2010/0218478 Al, published Sept. 2, 2010), Schilling (US 2010/0154384
Al, published June 24, 2010), and Fabre (US 9,017,028 B2, issued Apr. 28,
2015) or, in the alternative, as unpatentable over Merry, Schilling, Fabre,
and Suciu (US 2009/0191045 Al, published July 30, 2009); (2) claim 6 as
unpatentable over Merry, Schilling, Fabre, Suciu, and Adamson (US
4,969,325, issued Nov. 13, 1990); and (3) claims 15—18 as unpatentable over
Appeal 2017-002268
Application 13/408,204
Merry, Schilling, Fabre, Suciu, and Perry (US 4,751,816, issued June 21,
1988). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to a gas turbine engine. See Spec.
12, Figs. 1, 4.
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A gas turbine engine comprising:
a fan driven by a shaft and arranged in a bypass flow path;
a core flow path downstream from the fan;
a compressor section driven by the shaft and arranged
within the core flow path;
wherein the compressor section includes a counter rotating
low pressure compressor comprising
outer and inner compressor stages interspersed with
one another and configured to rotate in an opposite
direction than one another about an axis of rotation, and
a transmission coupling at least one of the outer and
inner compressor stages to the shaft;
a turbine section driving the shaft and arranged within the
core flow path; and
wherein the turbine section includes a counter rotating low
pressure turbine comprising
an outer rotor including an outer set of turbine
blades,
an inner rotor having an inner set of turbine blades
interspersed with the outer set of turbine blades, the outer
rotor configured to rotate in an opposite direction about
the axis of rotation from the inner rotor, and
a gear system coupling at least one of the outer and
inner rotors to the shaft, the gear system being disposed
upstream from the inner rotor and the outer rotor and being
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Application 13/408,204
at least partly surrounded by an outer case portion of the
counter rotating low pressure turbine.
ANALYSIS
Obviousness over Merry, Schilling, and Fabre or
Merry, Schilling, Fabre, and Suciu
Claims 1—5 and 7—14
Appellants do not offer arguments in favor of dependent claims 2—5
and 7—14 separate from those presented for independent claim 1. See
Appeal Br. 3—6.1 We select claim 1 as the representative claim, and claims
2—5 and 7—14 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). We
address claim 19 separately below.
Claim 1 is directed to a gas turbine engine including “a gear system
coupling at least one of the outer and inner rotors to the shaft, the gear
system being disposed upstream from the inner rotor and the outer rotor and
being at least partly surrounded by an outer case portion of the counter
rotating low pressure turbine.” Appeal Br. 7, Claims App. Appellants
contend that
[t]he Examiner relies upon Fabre ... to argue that a skilled
worker would modify Merry/Schilling to provide the claimed
“gear system . . . disposed upstream from the inner rotor and the
outer rotor and ... at least partly surrounded by an outer case
portion of the counter rotating low pressure turbine.” There is
no reason to provide such a claimed feature as doing so would
significantly alter the design in at least Schilling.
Id. at 3; see also Reply Br. 2—32.
1 Appeal Brief, filed June 16, 2016, (“Appeal Br.”).
2 Reply Brief, filed Nov. 29, 2016 (“Reply Br.”).
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Application 13/408,204
Appellants’ argument is not persuasive because it does not address the
Examiner’s proposed rejection. The Examiner is not proposing to “modify
Merry or Schilling to include Fabre’s upstream located gearbox,” as asserted
by Appellants. See Appeal Br. 3 (emphasis added); see also id. at 5 (“[T]he
Examiner must consider the effects of the proposed modification to Schilling
using Fabre .... [A] skilled worker would not modify either Merry or
Schilling with Fabre.”) (emphasis added). Rather, the Examiner is
proposing to further modify Merry (as modified by Schilling) to include
Fabre’s upstream gearbox. See Final Act. 43 (“Merry [in view of] Schilling
fails to teach that the gear system is disposed upstream from the inner rotor
and the outer rotor and partly surrounded by an outer case portion of the
counter rotating low pressure turbine.”); id. (ft would have been obvious “to
[further] modify Merry’s system [as modified by] Schilling in view of
Fabre’s teaching to locate the gear system as claimed in order to limit the
axial size of the turbine engine . . . , which reduces engine weight.”) (citing
Fabre 4:18—22) (emphasis added). The Examiner’s findings are sound and
supported by a preponderance of the evidence, and the Examiner’s
conclusions therefrom are based on rational underpinnings. Appellants do
not apprise us of Examiner error.
Moreover, to the extent Appellants are arguing the references must be
capable of bodily incorporation in order to combine their teachings, the test
for obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of a primary reference. In re Keller,
642 F.2d 413, 425 (CCPA 1981). “Rather, the test is what the combined
3 Final Rejection, dated Feb. 1, 2016 (“Final Act.”).
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Application 13/408,204
teachings of the references would have suggested to those of ordinary skill
in the art.” Id. (citations omitted). The Examiner relies on the combined
teachings of Merry, Schilling, and Fabre. The Examiner cites Schilling
merely for its teaching of a turbine section and a gear system coupling an
outer and an inner rotor to a shaft. Final Act. 3^4. The Examiner cites
Fabre merely for its teaching of a gear system disposed upstream from an
inner and an outer rotor and at least partly surrounded by an outer case
portion of a turbine. Id. at 4. Appellants do not explain why the Examiner’s
reliance on these teachings somehow requires the Examiner to incorporate
into Merry the additional structure that Appellants identify. That Schilling
and Fabre may teach additional structure does not prevent the Examiner
from relying on each reference for limited purposes. Appellants do not
provide persuasive evidence or argument apprising us of error in the
Examiner’s proposed reasoning for the combined teachings of Merry,
Schilling, and Fabre.
Appellants present a similar contention in response to the Examiner’s
alternative rejection in view of Merry, Schilling, Fabre, and Suciu. See
Appeal Br. 3, 5. Similar to that discussed above, the Examiner is not
proposing to “modify Merry or Schilling with Suciu.” See id. at 5 (emphasis
added). Rather, the Examiner is proposing
to [further] modify Merry’s system [in view of] Schilling and
Fabre in view of Suciu’s teaching to locate the gear system as
claimed [i.e., to locate the gear system of the modified system of
Merry upstream from the inner and outer rotor and for the gear
system to be at least partly surrounded by an outer case portion
of the counter rotating low pressure turbine.].
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Application 13/408,204
Final Act. 5 (emphasis added). The Examiner reasons that “placing
Schilling’s gear system in Merry’s engine at the location according to Suciu
would at least partly have the gear system encased in Merry’s low pressure
turbine outer case.'1'’ Id. (emphasis added). Appellants do not apprise us of
Examiner error.
In the Reply Brief, Appellants contend that “[t]he Examiner also uses
Suciu to argue that a gear box located at the mid-turbine frame reduces the
axial length.” Reply Br. 3. As an initial matter, we note that claim 1 fails to
recite “a mid-turbine frame.” See Appeal Br. 7, Claims App.4; In re Self,
671 F.2d 1344, 1348 (CCPA 1982) (Limitations not appearing in the claims
cannot be relied upon for patentability.). Further, Appellants do not direct us
to any discussion by the Examiner where the Examiner’s proposed
modification of Merry in view of Suciu is such that “a gear box located at
the mid-turbine frame reduces the axial length.” See Reply Br. 3; see also
Final Act. 5. In this case, the Examiner proposes further modifying Merry’s
system, as modified by Schilling and Fabre, “in view of Suciu’s teaching to
locate the gear system as claimed in order to limit the axial size of the
turbine engine . . . , which reduces engine weight.” Final Act. 5 (citing
Fabre 4:18—22) (emphasis added). The Examiner reasons that further
modifying Merry’s engine, as modified by the gear system of Schilling, by
4 We note that claim 16 recites “a mid-turbine frame.” See Appeal Br. 9,
Claims App. Appellants do not present separate arguments for claim 16. See
id. at 6 (Claim 16 “[is] allowable for at least the reasons set forth with respect
to claim 1 due to [its] dependency therefrom and without regard to the further
patentable limitations recited therein.”). Moreover, the Examiner relies on
Schilling, not Suciu, for the limitations recited in claim 16. See Final Act. 11—
12.
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Application 13/408,204
locating the gear system “at the location according to Suciu would at least
partly have the gear system encased in Merry’s low pressure turbine outer
case.'1'’ Final Act. 5 (emphasis added). Appellants do not provide persuasive
evidence or argument apprising us of Examiner error.
Lastly, in response to the Examiner’s citation of “In re Japikse for
support,” Appellants contend that “the Examiner cannot simply allege a
skilled worker would rearrange the parts. The Examiner must provide a
reason as to why a skilled worker would do so.” See Appeal Br. 5—6.
In this case, the Examiner finds that “shifting the position of the gear
system (i.e., upstream of the inner and outer LPT rotors), as taught by Fabre
or Suciu, would not be patentable because it does not modify the operation
of the device” and that “the motivation for the claimed gear system location
is to limit the axial size of the turbine engine, as taught by Fabre . . . , which
reduces engine weight.” Final Act. 6 (citing Fabre 4:18—22) (emphasis
added). The Examiner’s findings are sound, and the Examiner’s conclusions
therefrom are based on rational underpinnings. Appellants do not provide
persuasive evidence or argument apprising us of Examiner error.
Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as obvious over Merry,
Schilling, and Fabre or, in the alternative, as obvious over Merry, Schilling,
Fabre, and Suciu. We sustain the Examiner’s rejection of claim 1 as
unpatentable over Merry, Schilling, and Fabre or, in the alternative, as
unpatentable over Merry, Schilling, Fabre, and Suciu. We further sustain the
Examiner’s rejection of claims 2—5 and 7—14, which fall with claim 1.
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Appeal 2017-002268
Application 13/408,204
Claim 19
Appellants recite the language of claim 19 and contend that “[t]here is
no reason for a skilled worker to make the modification of supporting the
gear system by the mid-turbine frame rather than the turbine exhaust case,
for at least the reasons discussed ... in relation to Fabre.” Appeal Br. 6.
Claim 19 depends indirectly from claim 1. See Appeal Br. 7—9,
Claims App. As discussed above in relation to claim 1, the Examiner is
proposing to modify Merry’s system. See Final Act. 3^4. Further, the
Examiner relies on Schilling, not Fabre, for the limitations recited in claim
19 and claim 14, from which claim 19 directly depends. See id. at 7—9.
Appellants do not apprise us of Examiner error.
Accordingly, we sustain the Examiner’s rejection of claim 19 as
unpatentable over Merry, Schilling, and Fabre or, in the alternative, as
unpatentable over Merry, Schilling, Fabre, and Suciu.
Obviousness over Merry, Schilling, Fabre, Suciu, and Adamson
Claim 6
Appellants do not offer arguments in favor of dependent claim 6
separate from those presented for independent claim 1. See Appeal Br. 6
(Claim 6 “[is] allowable for at least the reasons set forth with respect to
claim 1 due to [its] dependency therefrom and without regard to the further
patentable limitations recited therein.”). As discussed above, Appellants’
arguments regarding claim 1 are not persuasive.
Accordingly, for the same reasons discussed above for claim 1, we
likewise sustain the Examiner’s rejection of claim 6 as unpatentable over
Merry, Schilling, Fabre, Suciu, and Adamson.
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Appeal 2017-002268
Application 13/408,204
Obviousness over Merry, Schilling, Fabre, Suciu, and Perry
Claims 15—18
Appellants do not offer arguments in favor of dependent claims 15—18
separate from those presented for independent claim 1. See Appeal Br. 6
(Claims 15—18 “are allowable for at least the reasons set forth with respect
to claim 1 due to their dependency therefrom and without regard to the
further patentable limitations recited therein.”). As discussed above,
Appellants’ arguments regarding claim 1 are not persuasive.
Accordingly, for the same reasons discussed above for claim 1, we
likewise sustain the Examiner’s rejection of claims 15—18 as unpatentable
over Merry, Schilling, Fabre, Suciu, and Perry.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1—5, 7—14,
and 19 as unpatentable over Merry, Schilling, and Fabre or, in the
alternative, as unpatentable over Merry, Schilling, Fabre, and Suciu.
We AFFIRM the decision of the Examiner to reject claim 6 as
unpatentable over Merry, Schilling, Fabre, Suciu, and Adamson.
We AFFIRM the decision of the Examiner to reject claims 15—18 as
unpatentable over Merry, Schilling, Fabre, Suciu, and Perry.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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