Ex Parte Suciu et al

Patent Trials and Appeals Board

Jan 31, 2019

14740312 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/740,312 06/16/2015 Gabriel L. Suciu
54549 7590 02/04/2019
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. CONFIRMATION NO.
75649US2;
67097-2961PUS1
8035
EXAMINER
FORD,RENED
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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 GABRIELL. SUCIU, BRIAND. MERRY, and
JAMES D. HILL 1
Appeal 2018-005731
Application 14/740,312
Technology Center 3700
Before EDWARD A. BROWN, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-3, 6-11, 17, 18, and 20-25. Claims 4, 5, 12-16,
and 19 have been canceled. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 United Technologies Corporation ("Appellant"), is the applicant as provided
under 3 7 C.F .R. § 1.46 and is identified as the real party in interest. Appeal
Brief 1 ("Appeal Br."), filed Jan. 3, 2018.
2 We note that claim 2 0 improperly depends from canceled claim 19. See
Appeal Br. 11, Claims App.
Appeal 2018-005731
Application 14/740,312
CLAIMED SUBJECT MATTER
The claimed subject matter "relates generally to a cooling system for
cooling turbine stages in a gas turbine engine, and more specifically to a
system for utilizing compressor bleed air to cool at least one turbine stage."
Spec. ,r 1, Figs. 1-3. Claims 1, 6, and 17 are independent.
Claims 1 and 6 are illustrative of the claimed subject matter and
recite:
1. A gas turbine engine comprising:
a compressor section having a plurality of compressor
stages;
a combustor fluidly connected to said compressor section;
a turbine section fluidly connected to said combustor
section, the turbine section having at least one stage;
a compressor bleed structure disposed in one of said
plurality of compressor stages and operable to remove air from
said compressor stage;
a heat exchanger having an input connected to said
compressor bleed, and an output connected to an active cooling
system of at least one turbine stage;
wherein said compressor stage in which the compressor
bleed structure is disposed includes airflow at a pressure above a
minimum pressure threshold, and wherein said airflow has a
temperature above a maximum temperature threshold; and
wherein the turbine section includes at least a second
stage, and wherein the output of the heat exchanger is connected
to an interior passageway of a turbine stator.
2
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6. A gas turbine engine comprising:
a compressor section having a plurality of compressor
stages;
a combustor fluidly connected to said compressor section;
a turbine section fluidly connected to said combustor
section, the turbine section having at least one stage;
a compressor bleed structure disposed in one of said
plurality of compressor stages and operable to remove air from
said compressor stage;
a heat exchanger having an input connected to said
compressor bleed, and an output connected to an active cooling
system of the at least one turbine stage; and
wherein said compressor stage in which the compressor
bleed structure is disposed includes airflow at a pressure above a
minimum pressure threshold, wherein said minimum pressure
threshold is defined as a magnitude of pressure required to
prevent backflow of a cooling fluid entering said active cooling
system of said at least one turbine stage and wherein said airflow
has a temperature above a maximum temperature threshold,
wherein the maximum temperature threshold is an upper bound
of an optimum cooling temperature range.
THE REJECTIONS 3
I. Claims 24 and 25 stand rejected under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement.
II. Claims 1-3, 7-11, and 22-25 stand rejected under 35 U.S.C. § 112(b)
as being indefinite.
3 In the Final Office Action, the drawings are objected to under 37 C.F.R.
§ 1.83(a). See Final Office Action 3--4 ("Final Act."), dated Sept. 22, 2017.
However, the objection is not within the jurisdiction of the Board. See
37 C.F.R. § 1.181.
3
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Application 14/740,312
III. Claim 6 stands rejected on the ground of non-statutory obviousness-
type double patenting as unpatentable over the claims of Suciu (US
Application No. 14/729,002, filed June 2, 2015).
IV. Claim 6 stands rejected under 35 U.S.C. § 102(a)(2) as anticipated by
Bourassa (US 9,512,780 B2, issued Dec. 6, 2016).
V. Claims 1-3, 7-11, 17, 18, and 20-25 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Bourassa and Foust (US 8,495,883 B2, issued
July 30, 2013).
ANALYSIS
Rejection I- Written Description
The Examiner finds that the Specification fails to disclose the subject
matter of claims 24 and 25. Final Act. 4--5. Appellant does not present
arguments directed to the rejection, and thus, has waived any such
arguments. See Appeal Br. 5-7; Reply Br. 1-2. 4 Accordingly, the rejection
is summarily affirmed.
Rejection II-Indefiniteness
Claims 1-3 and 9-11
The Examiner determines that"[ c ]laim 1 recites, at line 9, 'at least
one turbine stage' where it is unclear if the at least one turbine stage is
equivalent to the at least one stage of the turbine section of lines 4--5." Final
Act. 5.
Appellant contends that "[ t ]he claim clearly defines a structure of a
turbine having at least one stage, and then refers to connecting to an active
4 Reply Brief ("Reply Br."), filed May 14, 2018.
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Application 14/740,312
cooling system of at least one turbine stage." Appeal Br. 5. As such,
Appellant argues that "[t]here is no lack of clarity as to what structure is
being defined in the claim." Id.
The Examiner responds that
the limitation "at least one stage" of line 5 may correspond to
Stages 1 and 2 and the limitation "at least one turbine stage" of
line 9 may correspond to Stage 2, for example, or may
correspond to Stage 3. Similarly, the at least one turbine stage
of line 9 may also correspond to a turbine stage of another gas
turbine engine's turbine stage. It thus remains unclear whether
the "at least one stage" of line 5 and the "at least one turbine
stage" of line 9 correspond to the same stage(s) or distinct and
different stages.
Ans. 3. 5' 6
A claim is properly rejected as being indefinite under 35 U.S.C. § 112
second paragraph if, after applying the broadest reasonable interpretation in
light of the specification, the metes and bounds of a claim are not clear
because the claim "contains words or phrases whose meaning is unclear." In
re Packard, 751 F.3d 1307, 1310 (Fed Cir. 2014). Here, we agree with
Appellant that the phrase "at least one turbine stage" would have been
understood to refer to the at least one stage of the turbine section that is
recited at line 4 of the claim.
Accordingly, the Examiner's rejection of claim 1, and claims 2, 3, and
9--11 depending therefrom, as being indefinite is not sustained.
5 Examiner's Answer ("Ans."), dated Apr. 19, 2018.
6 We note that there is no page 2 in the Examiner's Answer.
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Application 14/740,312
Claims 7 and 8
The Examiner determines that"[ c ]laims 7 and 8 recite 'approximately
100%' wherein it is unclear what constitutes approximately 100%. It could
be 50% or greater, 60% or greater, etc." Final Act. 5; see also Ans. 4--5.
Appellant contends that "one of skill in the art would have
understood, and will understand, that the reference to approximately 100%
accounts for minor variations due to manufacturing tolerances" and that "the
mere presence of the word approximately does not render the claim
indefinite." Appeal Br. 5.
Appellant's contentions are unpersuasive. As an initial matter, we
agree that there is no per se rule that the term "approximately" renders a
claim indefinite. However, the courts have held that "[ c ]!aim language
employing terms of degree has long been found definite where it provided
enough certainty to one of skill in the art when read in the context of the
invention." Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370 (Fed.
Cir. 2014). As the term "approximately" is similar to the term "about," we
note that the courts have held that "[t]he meaning of the word 'about' is
dependent on the facts of a case, the nature of the invention, and the
knowledge imparted by the totality of the earlier disclosure to those skilled
in the art. We are also mindful that the word 'about' may lead to
indefiniteness under§ 112, ,r 2." Eiselstein v. Frank, 52 F.3d 1035, 1040
(Fed. Cir. 1995). Here, the Specification does not define the term
"approximately." See Spec., passim. In addition, Appellant directs us to
nothing in the Specification that informs an ordinary artisan as to the scope
of the term "approximately," relative to the percentage of gas bled by the
compressor which is relevant to claims 7 and 8. As to the possibility that
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Application 14/740,312
close prior art can provide evidence as to the scope of the term
"approximately" that would be understood to an ordinary artisan, Appellant
has not cited any close prior art, which discloses "approximately" relative to
a percentage of gas bled by a compressor.
Thus, the rejection of claims 7 and 8 as being indefinite is sustained.
Claim 22
The Examiner determines that "[ c ]laim 22 recites 'the cooling flow'
without antecedent basis." Final Act. 6.
Appellant argues that "[b ]y virtue of being a cooling channel of an
active cooling system, there is necessarily a 'cooling flow' through the
interior passageway" and that "as it is a single passageway, there cannot be
multiple flows." Appeal Br. 5.
Appellant's contentions are unpersuasive. We first note that claim 22
and its parent claim 1 do not recite a "cooling channel" or require "a single
passageway." See Appeal Br. 9, 11, Claims App. Further, claim 1 recites
the transitional phrase "comprising" and, as the Examiner explains,
[i]t is unclear from the claim language if the cooling flow is
related to the airflow or output of the heat exchanger of claim 1,
i.e., if the interior passageway is required to be configured to
expel the output of the heat exchanger, or if the cooling flow is
separate from the output of the heat exchanger configured to
expel a separate cooling flow such as a cooling flow of engine
oil.
Ans. 4.
Thus, the rejection of claim 22 as being indefinite is sustained.
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Claim 24
The Examiner determines that "[ c ]laim 24 recites 'the optimum
cooling temperature range' without antecedent basis." Final Act. 6.
Appellant does not present arguments directed to this rejection, and thus, has
waived any such arguments. Accordingly, the rejection of claim 24 as being
indefinite is summarily affirmed.
Claims 23 and 25
The Examiner indicates that these claims "are rejected at least by
virtue of dependency on one of the claims discussed above." Final Act. 6.
As we find no error in the rejection of claims 22 and 24 for the reasons
discussed above, the rejection of claims 23 and 25 as being indefinite is also
sustained.
Rejection III- Obviousness-Type Double Patenting
Claim 6 is rejected on the ground of non-statutory obviousness-type
double patenting. Final Act. 7-8. Appellant states that "[s]hould the Board
find the rejections of the remaining claims improper, and should the
provisional double patenting rejection ripen, Appellant intends to cancel
claim 6." Thus, Appellant does not present arguments directed to the
rejection and has waived any such arguments. Accordingly, the rejection is
summarily affirmed.
Rejection IV -Anticipation by Bourassa
The Examiner finds that Bourassa discloses a gas turbine engine
having all the limitations of claim 6. Final Act. 9-10 ( citing Bourassa Figs.
1-3; 7:32-34; 9:30-31). In particular, the Examiner determines that the
limitation
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Application 14/740,312
said compressor stage ... includes airflow at a pressure above
a minimum pressure threshold, and wherein said airflow has a
temperature above a maximum temperature threshold; wherein
said minimum pressure threshold is defined as a magnitude of
pressure required to prevent bacliflow of a cooling fluid entering
said active cooling system of said at least one turbine stage
is a functional limitation and finds that Bourassa's gas turbine engine "is
capable of providing said function in that air must be at a pressure sufficient
to move the bleed airflow through the heat exchanger to the active cooling
system of the turbine." Final Act. 9-10 ( citing Bourassa 8: 16-26, Figs. 2-
3 ). The Examiner determines that the limitation "said airflow has a
temperature above a maximum temperature threshold, wherein the
maximum temperature threshold is an upper bound of an optimum cooling
temperature range" is also a functional limitation and that "Bourassa's gas
turbine engine is capable of supporting an airflow with a temperature greater
than an optimum cooling temperature range in that it is designed to cool the
bleed airflow at heat exchanger 162 to a lower temperature, i.e. an optimum
cooling temperature range." Id. at 10 (citing Bourassa 7:58-8:15; In re
Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997); MPEP. § 2114).
Alternatively, the Examiner finds that "[a]s Bourassa teaches substantially
identical structure as the claimed invention that is capable of providing the
claimed function(s), [c]laim 1 is rejected as anticipated." Id. (citing In re
Best, 562 F.2d 1252, 1255 (CCPA 1977); MPEP. § 2112.01).
As an initial matter, Appellant contends that "[t]he rejection is
incorrect as the [E]xaminer has improperly relied on inherency of a feature
that is not inherent in the structure of Bourassa." Appeal Br. 6. We agree
with Appellant that "the test for inherency is not whether a structure 'is
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Application 14/740,312
capable of' anticipating the claims, but whether the described structure
necessarily includes the claimed feature." Id. However, the Examiner also
determines that the limitations at issue are functional limitations and finds
that Bourassa's gas turbine engine is capable of performing the claimed
functions. See Final Act. 9--10.
Appellant argues that: ( 1) "[ t ]he claim includes explicit definitions of
the minimum pressure threshold and the maximum temperature threshold";
(2) "[i]n light of the explicitly described thresholds, the maximum
temperature threshold and the minimum pressure threshold must both be
exceeded by the fluid in the compressor at the bleed stage, and an 'arbitrary
threshold' of 1 atm is not sufficient to establish anticipation"; (3) "[t]he
claim further explicitly defines that the temperature of the compressor stage
is above an upper bound of an optimum cooling temperature range"; and
( 4) [ w ]ith regards to the specific structure of Bourassa, the mere
fact that Bourassa includes a heat exchanger for cooling the bleed
gas does not establish that the bled gas is above a minimum
temperature threshold. Indeed, if gas is bled at or near an upper
bound of a temperature threshold it may still be beneficial to cool
the gas to a lower temperature within the optimum cooling range.
In such a case, a heat exchanger would still be present but the
claimed feature would not have been met.
Appeal Br. 6.
To the extent that Appellant is arguing Bourassa's gas turbine engine
is not capable of performing the recited function, that argument is
unpersuasive. The Examiner correctly points out: (1) "the claims[] and the
Specification do[] not set forth what a 'minimum pressure threshold' and a
'maximum temperature threshold' [are] to mean, comprise, or represent"; (2)
"Appellant fails to describe what the claimed 'minimum pressure threshold'
or the claimed 'maximum temperature threshold' is in reference to"; (3)
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" [the] air entering the compressor of a gas turbine engine such as Bourassa' s
is at ambient conditions," "[t]he air that enters the compressor is thereafter
compressed, necessarily increasing in temperature and pressure," and "[t]he
air which is removed from the compressor and fed to the heat exchanger has
been compressed and is therefore at a temperature and pressure above that of
the ambient air (i.e., the minimum pressure threshold being the pressure of
ambient air before it is compressed)"; and
(4) [t]he airflow flowing through the [Bourassa's] system has an
inherent temperature. There is necessarily a first temperature
after the airflow is removed from the compressor stage and
before the airflow is fed through the cooling heat exchanger and
a second (lower) temperature of the airflow after cooling by the
heat exchanger upon exiting the ( cooling) heat exchanger.
Additionally, the airflow must transition from the first
temperature to the second temperature within the heat exchanger.
These temperatures are necessarily present in the working system
of Bourassa. With respect to the rejection over Bourassa, the
output of the heat exchanger, i.e. the cooled air, is defined as
being at the optimum cooling temperature range which has an
upper bound serving as the maximum temperature threshold.
The air at the compressor bleed structure is clearly at a
temperature greater than the temperature threshold since the
function of the Bourassa's heat exchanger is to cool incoming air
from the compressor bleed structure.
Ans. 5---6. Stated differently, the Examiner determines that Bourassa's gas
turbine engine is capable of operating at the claimed pressure and
temperature ranges or above or below the claimed pressure or temperature
thresholds, and Appellant does not provide evidence or persuasive argument
to show that the structure of Bourassa's gas turbine engine is not capable of
operating at those pressure and temperature ranges or above or below those
pressure or temperature thresholds.
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In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 6 as anticipated by
Bourassa. Accordingly, we sustain the Examiner's rejection of claim 6 as
anticipated by Bourassa.
Rejection V- Obviousness over Bourassa and Foust
Claims 1-3, 7-11, and 21-25
Appellant does not offer arguments in favor of dependent claims 2, 3,
7-11, and 21-25 separate from those presented for independent claim 1. See
Appeal Br. 6-7. We select claim 1 as the representative claim, and claims 2,
3, 7-11, and 21-25 stand or fall with claim 1.
The Examiner finds that Bourassa discloses a gas turbine engine
having all the limitations of claim 1 except for the limitation "wherein the
output of the heat exchanger is connected to an interior passageway of a
turbine stator." Final Act. 11-12. The Examiner finds that "Foust teaches
wherein the output 46b, 46[c], 46d of the heat exchanger 52 is connected to
an interior passageway of a turbine stator 26b, 26c, 26d." Id. at 12-13
( citing Foust Fig. 1 ). The Examiner concludes that it would have been
obvious to modify the gas turbine engine of Bourassa "with the active
cooling system and associated turbine section taught by Foust wherein the
output of the heat exchanger is connected to an interior passageway of a
turbine stator in order to provide cooling air to multiple stationary vanes and
rotating blades." Id. at 13 (citing Foust 3:53--4:37).
Appellant contends that "Bourassa provides no indication that the
turbine stages include interior passages" and that "the internal passages of
Foust are expressly designed to utilize compressor exit air." Appeal Br. 7.
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This argument is unpersuasive in that the Examiner relies on Bourassa
for disclosing "a compressor bleed structure disposed in one of said plurality
of compressor stages and operable to remove air from said compressor
stage" (Final Act. 11) and on Foust for disclosing "the output 46b, 46[ c ],
46d of the heat exchanger 52 is connected to an interior passageway of a
turbine stator 26b, 26c, 26d" (id. at 13). See In re Keller, 642 F.2d 413
(CCPA 1981); In re Merck & Co., 432 F.3d 261 (Fed. Cir. 1986); see also
Ans. 7.
Appellant argues that "[ o ]ne of skill in the art, having the benefit of
the teachings of Foust would not have found it obvious to incorporate the
interior cooling passages of Foust, which are designed to work with
compressor exit air, in the system of Bourassa which does not provide
compressor exit air." Appeal Br. 7; see also Reply Br. 1-2.
In this case, the Examiner finds that it would have been obvious to
modify the gas turbine engine of Bourassa with the teachings of Foust "to
provide cooling air to multiple stationary vanes and rotating blades." Final
Act. 13. Appellant does not provide evidence or persuasive argument as to
why Bourassa's gas turbine engine would not operate if cool air is directed
to an interior passageway of a turbine stator. See In re Geisler, 116 F .3d
1465, 1470 (Fed. Cir. 1997) ("[A]ttomey argument [is] not the kind of
factual evidence that is required to rebut a prima facie case of obviousness");
see also Ans. 7.
For these reasons, we sustain the Examiner's rejection of claim 1 as
unpatentable over Bourassa and Foust. We further sustain the rejection of
claims 2, 3, 7-11, and 21-25, which fall with claim 1.
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Claims 17, 18, and 20
Appellant states that "[ w ]ith regards to claims 17-20, the [E]xaminer
again relies on the same combination and the rejection is improper for the
same reasons." Appeal Br. 7. 7 Thus, Appellant relies on arguments
presented for claim 1. See id. at 6-7
As discussed above, we find no deficiencies in the Examiner's
rejection of independent claim 1. Accordingly, for the same reasons
discussed above for claim 1, we likewise sustain the Examiner's rejection of
claims 17, 18, and 20 as unpatentable over Bourassa and Foust.
DECISION
We AFFIRM the decision of the Examiner to reject claims 24 and 25
under 35 U.S.C. § 112(a) as failing to comply with the written description
requirement.
We REVERSE the decision of the Examiner to reject claims 1-3 and
9-11 under 35 U.S.C. § 112(b) as being indefinite.
We AFFIRM the decision of the Examiner to reject claims 7, 8, and
22-25 under 35 U.S.C. § 112(b) as being indefinite.
We AFFIRM the decision of the Examiner to reject claim 6 on the
ground of non-statutory obviousness-type double patenting.
We AFFIRM the decision of the Examiner to reject claim 6 as
anticipated by Bourassa.
7 We consider the inclusion of canceled claim 19 to be an inadvertent
typographical error.
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We AFFIRM the decision of the Examiner to reject claims 1-3, 7-11,
17, 18, and 20-25 as unpatentable over Bourassa and Foust.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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