Ex Parte Wahdan

Patent Trial and Appeal Board

Feb 17, 2017

13083528 (P.T.A.B. Feb. 17, 2017)

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.
13/083,528 04/08/2011 Karim Wahdan Wahdan03 8345
91892 7590 02/22/2017
Incorporating Innovation LLC dba Incorporating
Innovation With Charlena Thorpe, Patent Attorney
6340 Sugarloaf Parkway
Suite 200
Duluth, GA 30097
EXAMINER
NGUYEN, NGOC T
ART UNIT PAPER NUMBER
3748
NOTIFICATION DATE DELIVERY MODE
02/22/2017 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):
Charlena@incorporatinginnovation.com
charlena. thorpe @ charlenathorpe. com
wayne @ charlenathorpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KARIM WAHDAN
Appeal 2015-004028
Application 13/083,528
Technology Center 3700
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Karim Wahdan (Appellant) appeals under 35U.S.C. § 134 from the
Examiner’s decision rejecting claims 1, 2, and 6—18. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-004028
Application 13/083,528
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A turbo charger comprising:
a steam turbine;
an exhaust gas turbine;
a compressor turbine;
a shaft connected [to] the steam turbine, the exhaust gas
turbine, and the compressor turbine; and
a controller;
wherein the exhaust gas turbine is configured to use
exhaust flow from an engine exhaust manifold to rotate the shaft;
wherein the steam turbine is configured to use superheated
steam to rotate the shaft; and
wherein the controller is configured to control the steam
turbine and the exhaust gas turbine such that the shaft is
substantially controlled by the steam turbine for speeds lower
than a first speed and substantially controlled by the exhaust gas
turbine for speeds greater than the a second speed.
2
Appeal 2015-004028
Application 13/083,528
REJECTIONS1
I. Claims 1, 2, 6—8, and 12—14 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Steiger (DE 2614956 Bl, pub. Oct.
6, 1977).2
II. Claims 9 and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Steiger and O’Bireck (US 2010/0043730 Al,
pub. Feb. 25, 2010).
III. Claims 10 and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Steiger and Kawamura (US 6,089,020, iss.
July 18, 2000).
IV. Claims 11, 17, and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Steiger and Allen (US 6,705,084 B2, iss.
Mar. 16, 2004).
1 Appellant presents arguments contesting the Examiner’s objections to the
Specification and drawings. See Br. 4—9. However, the propriety of these
objections is reviewable by petition, and is not appealable. Thus, the relief
sought by Appellant should have been presented by a petition under 37
C.F.R § 1.181 instead of by appeal to this Board. Ex Parte Frye, 94
USPQ2d 1072, 1077-78 (BPA! 2010) (precedential); see MPEP § 1201 (9th
ed,. Rev. Nov. 2015) (the Board will not ordinarily hear a question that is
reviewable by petition); In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002)
(citing In re Hengehold, 440 F.2d 1395, 1403 (CCPA 1971) (stating that
there are many kinds of decisions made by examiners that are not appealable
to the Board when they are not directly connected with the merits of issues
involving rejections of claims)). The bases of the Examiner’s objections do
not relate to matters involved in the rejections under 35 U.S.C. §§ 102 and
103 before us in this appeal. Accordingly, we do not review the Examiner’s
objections.
2 All references herein to Steiger are to the English language translation
provided by the Examiner and entered into the record on March 19, 2013.
3
Appeal 2015-004028
Application 13/083,528
DISCUSSION
Claims 1, 2, and 6—8
In contesting the first ground of rejection, Appellant relies on the
arguments presented for the patentability of independent claim 1 in support
of the patentability of independent claim 6. Br. 9—15. Appellant does not
assert any separate arguments for claims 2, 7, and 8 subject to the first
ground of rejection, apart from their dependence, directly or indirectly, from
one of claims 1 and 6. Id. at 15. We select claim 1 to decide the appeal of
the first ground of rejection, with claims 2 and 6—8 standing or falling with
claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Steiger discloses a turbocharger satisfying all
of the limitations of claim 1, including, in relevant part, “a controller . . .
configured to control the steam turbine/first component and the exhaust gas
turbine such that the shaft is substantially controlled by the steam
turbine/first component for speeds lower than a first speed and substantially
controlled by the exhaust gas turbine for speeds greater than a second
speed.” Final Act. 5 (citing Steiger 4,11. 12—14, 22—24). The Examiner
explains that “Steiger discloses the controller (33) controlling the steam
turbine (15) and the exhaust gas turbine (10) for different speed conditions.”
Ans. 6. In particular:
[F]or engine start at zero boost or zero/low engine speeds (i.e. at
a first speed), the turbocharger (2) and thus the shaft (11) is
powered only by the steam turbine while at higher boost
pressures (i.e. at a second speed higher than the first speed), the
turbocharger (2) is powered by energy from the exhaust gas,
which powers the exhaust gas turbine (10).
Id. at 6—7 (emphasis omitted).
4
Appeal 2015-004028
Application 13/083,528
Appellant argues that Steiger “discloses controlling the speed of an
engine,” but “does not disclose ‘control[ing] the steam turbine and the
exhaust gas turbine such that the shaft is substantially controlled by the
steam turbine for speeds lower than a first speed and substantially controlled
by the exhaust gas turbine for speeds greater than ... a second speed,’” as
recited in claim 1. Br. 12 (emphasis omitted) (citing Steiger 4,11. 12—14). In
particular, Appellant asserts that “Steiger clearly teaches that the start of the
engine controls both the supercharger 3 and the turbine 10, the start of the
engine does not imply speed.” Id. at 13 (emphasis omitted). According to
Appellant, “[t]he Examiner has not provided any support for his contention
that the start of the engine implies speed and control of a steam turbine and
the exhaust gas turbine based on speed as recited in claim 1.” Id. (emphasis
omitted). Appellant also asserts that “Steiger does not concern a variable
speed engine but instead a constant speed engine.” Id. at 14 (emphasis
omitted); see also id. at 15 (Appellant asserting that “there is no dependence
on speed in Steiger” (emphasis omitted)).
Appellant’s arguments are not convincing. In responding to
Appellant’s arguments, the Examiner correctly points out that “[cjlaims 1
and 6 do not require that the shaft is controlled (whether by the steam
turbine or exhaust gas turbine) based on speed as argued by Appellant.”
Ans. 4 (underlining omitted) (citing Br. 13). Claim 1 recites that “the shaft
is substantially controlled by the steam turbine for speeds lower than a first
speed and substantially controlled by the exhaust gas turbine for speeds
greater than ... a second speed.” Br. 16 (Claims App.). However, claim 1
does not recite that the control is “based on speed,” or that the engine is
“variable speed.” See id.', see also In re Self, 671 F.2d 1344, 1348 (CCPA
5
Appeal 2015-004028
Application 13/083,528
1982) (limitations not appearing in the claims cannot be relied upon for
patentability). Appellant does not demonstrate that the Examiner’s reading
of claim 1 to require only that the controller “enacts control on the system in
such a way that the control of the turbocharger shaft by the steam and
exhaust gas turbines coincides with certain engine speeds” is unreasonably
broad. Ans. 4 (underlining omitted).
As the Examiner explains, Steiger discloses that, “when the engine is
starting, the controller (33) controls flow of fuel to the auxiliary heater (21)
to heat the evaporator (14) so that only the steam turbine (15) powers the
turbocharger (2), i.e. spins the shaft (11).” Ans. 5—6; see Steiger 4,11. 22—
24.
[A]t a certain level of boost pressure, i.e. at higher boost
pressures, the fuel supplied to the auxiliary heater (21) heating
the evaporator (14) of the steam circuit (16) powering the steam
turbine (15) is reduced [and] the auxiliary heater is gradually
switched off such that the exhaust gas turbine (10) also drives the
turbocharger (2).
Ans. 6 (citing Steiger 4,11. 25—27).
[A]fter the engine (1) has reached a certain level of boost
pressure and corresponding engine speed following engine start,
most of the thermal energy extracted from the exhaust gas is used
to power the exhaust gas turbine (10) such that the shaft (11) of
the turbocharger (2) is controlled mainly by the exhaust gas
turbine (10) since no extra heat source (i.e. auxiliary heater 21)
is provided to power the steam circuit (16), and thus the steam
turbine (15).
Id. at 7; see Steiger 4,11. 25—27. In this regard, although Steiger may
disclose using boost pressure levels in controlling the steam turbine and
exhaust gas turbine to drive shaft 11, we agree with the Examiner that one of
ordinary skill in the turbocharger art would recognize that “there is a direct
6
Appeal 2015-004028
Application 13/083,528
correlation between engine speed and intake boost pressure.” Ans. 6; see id.
(the Examiner explaining that, “as the engine speed increases, more exhaust
gas is produced, the exhaust gas turbine spins at faster speeds resulting in the
amount of boost produced by the compressor of the exhaust gas
turbocharger”). Appellant does not offer sufficient evidence or persuasive
technical reasoning to identify error in the Examiner’s finding (see Ans. 6—
7) that the boost pressure levels used by Steiger in controlling the steam and
exhaust gas turbines are directly correlated to engine speed such that, for low
boost pressure level (i.e., low engine speed), the steam turbine substantially
controls the shaft and, for a higher pressure boost level (i.e., higher engine
speed), the exhaust gas turbine substantially controls the shaft.
Moreover, to the extent that Appellant’s argument suggests that
Steiger fails to disclose the controller recited in claim 1 because Steiger’s
controller does not directly control structural elements of the steam turbine
and exhaust gas turbine, this line of argument is unavailing because such a
feature is not recited in the claim. Although the Specification describes that
“[t]he controller may open the vanes of the exhaust gas turbine 310 and shut
down the steam line 335 that supplies steam to the steam turbine 325 so that
the compressor 320 may be powered only by the exhaust gas turbine 310”
(Spec., para. 26,11. 12—15),3 the claims are not so limited. See In re Van
Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (Although the claims are
3 Notably, the control scheme described in paragraph 26 of Appellant’s
Specification, which does not specify any direct physical manipulation of
structural elements of the steam turbine, supports a construction of the claim
language “configured to control” that does not require direct physical
manipulation of structural elements of the turbines.
7
Appeal 2015-004028
Application 13/083,528
interpreted in light of the specification, limitations from the specification are
not read into the claims.).
For the above reasons, Appellant does not apprise us of error in the
Examiner’s finding that Steiger anticipates the subject matter of claim 1.
Accordingly, we sustain the rejection of claim 1, and of claims 2 and 6—8
falling therewith, under 35 U.S.C. § 102(b) as anticipated by Steiger.
Claims 9-11
Appellant presents no further arguments for patentability of these
claims, apart from their dependence, directly or indirectly, from claim 6. Br.
15. Accordingly, for the same reasons discussed above, we sustain the
rejections of claims 9-11 under 35 U.S.C. § 103(a) as unpatentable over
Steiger and one of O’Bireck, Kawamura, and Allen.
Claims 12—18
Appellant does not present any substantive arguments contesting the
Examiner’s rejections of claims 12—14 under 35 U.S.C. § 102(b) as
anticipated by Steiger, or of claims 15—18 under 35 U.S.C. § 103(a) as
unpatentable over Steiger and one of O’Bireck, Kawamura, and Allen. See
By., passim. Thus, Appellant has waived any argument of error, and we
summarily sustain these rejections. See In re Berger, 279 F.3d at 984, 985
(holding that the Board did not err in sustaining a rejection when the
applicant failed to contest the rejection on appeal).
DECISION
The Examiner’s decision rejecting claims 1, 2, and 6—18 is affirmed.
8
Appeal 2015-004028
Application 13/083,528
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)(l)(iv).
AFFIRMED
9