Ex Parte Zhang et al

Patent Trial and Appeal Board

Mar 29, 2017

13153585 (P.T.A.B. Mar. 29, 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.
13/153,585 06/06/2011 Hua Zhang 247785/GEC-297 9363
87853 7590
Dority & Manning, PA and General Electric Company
Post Office Box 1449
Greenville, SC 29602
EXAMINER
CAHILL, JESSICA MARIE
ART UNIT PAPER NUMBER
3753
MAIL DATE DELIVERY MODE
03/30/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HUA ZHANG, DOUGLAS FRANK BEADIE,
GREGORY ALLEN BOARDMAN, GEOFFREY DAVID MYERS,
and WILLIAM THOMAS ROSS
Appeal 2014-005003
Application 13/153,585
Technology Center 3700
Before JAMES J. MAYBERRY, AMANDA F. WIEKER, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
MARSCHALL, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2014-005003
Application 13/153,585
Hua Zhang et al. (Appellants) seek our review under 35 U.S.C. § 134
of the Examiner’s final decision rejecting claims 4, 9, 15, and 16. Appeal
Br. 3.1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE CFAIMED SUBJECT MATTER
Appellants’ claimed subject matter relates to a system and method for
supplying fuel that distributes an emulsion fuel prior to combustion. Spec.
11. Claim 4 depends from claim 1, claim 9 is independent, and claims 15
and 16 depend from independent claim 13. Appeal Br. 10-11 (Claims
App.). Claim 9 is illustrative of the claimed subject matter and is
reproduced below.
9. A system for supplying fuel, comprising:
a. an emulsion fluid manifold;
b. means for dividing a flow of emulsion fuel from the
emulsion fluid manifold substantially equally; and
c. a turbulator inside the emulsion fluid manifold
upstream from the means for dividing.
Id. at 10 (Claims App.).
1 The Examiner rejected claims 1, 2, 4, 6—9, 11—17, 19, and 20, but
Appellants purport to appeal only the rejection of claims 4, 9, 15, and 16.
Appeal Br. 3. However, the appeal is presumed to be taken from all claims
under rejection unless cancelled by amendment. 37 C.F.R. §41.31 (c).
Accordingly, we treat claims 1, 2, 6—8, 11—14, 17, 19, and 20 below. Note
that although the Examiner purported to reject claim 3, Final Act. 1—2, the
Examiner did not address claim 3 in the substance of the rejection. Final
Act. 3^4. Claims 3, 6, 12, and 14 were withdrawn prior to the Final Office
Action, and we treat claim 3 as withdrawn and not under rejection for
purposes of this appeal. See Response After Final at 2—3 (filed Apr. 17,
2013); Appeal Br. 3.
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Application 13/153,585
THE EVIDENCE
The Examiner relied upon the following prior art references in
rejecting the claims on appeal:
Santos US 5,628,184 May 13, 1997
Payne US 5,670,093 Sept. 23, 1997
THE REJECTION
Appellants seek review of the Examiner’s rejection of claims 4, 9, 15,
and 16 under 35 U.S.C. § 103(a) as unpatentable over Santos and Payne.
ANALYSIS
Claims 4 and 9
Claim 4 requires a “means for dividing the emulsion fuel from the
turbulator substantially equally.” Br. 10. Claim 9 similarly requires “means
for dividing a flow of emulsion fuel from the emulsion fluid manifold
substantially equally.” Id. The Examiner found that Payne discloses the
“means for dividing” limitations of claims 4 and 9 because Payne’s structure
divides the flow substantially equally using structure that “is an equivalent to
the means-plus-fimction” limitation of claims 4 and 9. Ans. 3—5; see also
Final Act. 4—6. In the Answer, the Examiner relied on an annotated version
of Figure 1 of Payne, reproduced below. Ans. 9.
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Application 13/153,585
The annotated version of Figure 1 depicts the inlet, outlets, cavity, and
projection that the Examiner relies upon as the allegedly equivalent structure
to that in the specification. Id. Importantly, the Examiner finds that
structure equivalent to the claimed “dividing means” does not require a
“bottom surface.” Ans. 10.
Appellants argue that, when properly construed, the “dividing means”
limitations in claims 4 and 9 covers the structure described in paragraphs 24
and 25 of the specification, which includes a cavity having a bottom surface.
Appeal Br. 4—5. Appellants allege that Payne merely discloses “a hollow
body portion (32) with two branch conduits (34a and 34b) that extend from
the body portion,” and does not disclose a cavity having a bottom surface or
any other structure equivalent to the embodiments disclosed in the
specification. Id. at 5—6; see also Reply Br. 3^4. In the Examiner’s view,
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Application 13/153,585
the “specification does not state that the means-phis-fimction [limitation]
must require a bottom surface.” Ans. 10.
We agree with Appellants. The structure that corresponds to the
claimed function—dividing the fuel substantially equally—includes two
embodiments described in paragraphs 24 and 25 and shown in Figures 4 and
5, with both embodiments including a cavity having a bottom surface. See
Spec. 24, 25 (“The distributor again comprises inlet 42, outlets 44, body
48, cavity 50, and bottom surface 52.”), Fig. 4 (showing bottom surface 52
at bottom of cavity adjacent outlets), Fig. 5 (same); see also id. 123 (“Each
outlet 44 may connect to the cavity 50 at or flush with the bottom surface
52.”). The bottom surface not only defines the bottom of the cavity, but also
helps perform the claimed function to divide the flow equally because the
absence of a bottom surface would create another outlet, which could impact
the flow out of the outlets in an unpredictable and potentially unequal
manner. Accordingly, we conclude that the structure corresponding to the
“dividing means” of claims 4 and 9 includes bottom surface 52 of cavity 50.
The Examiner did not take into account the impact of the bottom
surface in the analysis, or address the potentially different way in which the
presence of the bottom surface and the resulting orientation of the outlets
perpendicular to the inlet may impact the comparison between the structure
of the specification and Payne’s structure with respect to performing the
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Application 13/153,585
claimed function. Under these circumstances, we do not sustain the
rejection of claims 4 and 9.
Claim 15
Claim 15 requires a distributor having “a body that defines a cavity
having a bottom surface, and the plurality of outlets connect to the cavity at
the bottom surface.” Appeal Br. 11 (Claims App.). The Examiner found
that Payne discloses a distributor 30 including a body 32 that defines a
cavity having a bottom surface, and a plurality of outlets 34a/34b connected
to the cavity at the bottom surface. Final Act. 7. More specifically, the
Examiner found that the projection identified in the annotated version of
Payne’s Figure 1 “can be the bottom surface.” Ans. 10. According to the
Examiner, Payne’s outlets connect to the cavity at a surface “and that surface
can be the surface of the projection, or any other surface with the cavity.”
Id.
Appellants argue that the Examiner takes an unduly broad reading of
“bottom surface” when stating that it could be “any surface” in the cavity.
Reply Br. 4. According to Appellants, “‘bottom’ is a directional term which
provides the orientation for surface 52.” Id. In Appellants’ view, Payne’s
projection does not disclose a cavity having a bottom surface. Id.
We are not persuaded that the Examiner erred in the findings related
to claim 15 or Payne’s disclosure of the claimed “bottom surface.” Even if
we agree with Appellants that “bottom” requires a directional orientation as
shown in the specification, Payne’s projection meets that requirement due to
its location at the bottom area of the cavity the Examiner identified. See
Ans. 9 (annotated Figure 1). Appellants do not challenge any other aspect of
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claim 15, or claim 13 from which it depends. Accordingly, we sustain the
rejection of claim 15. We note that the Examiner’s finding that Payne
discloses a bottom surface does not remedy the defects in claims 4 and 9, as
discussed above.
Claim 16
Claim 16 requires a distributor having “a body that defines a cavity,
and a projection extends [sic] from the body into a center portion of the
cavity.” Appeal Br. 11 (Claims App.). The Examiner found that Payne
discloses a distributor 30 including a body 32 that defines a cavity, and a
projection in the form of a “rounded tip of upwardly extending protrusion in
[the] middle of 30.” Final Act. 7; Ans. 9. According to the Examiner,
components 30, 32, 34a, and 34b of Payne disclose the claimed “body,” and
the rounded surface or projection “extends from the body” as required by the
claim because it extends up from a lower portion of the body. Ans. 10—11.
Appellants argue that Payne’s rounded tip does not “extend from a
body” as required by claim 16. Appeal Br. at 8—9. According to Appellants,
the Examiner cannot interpret this single structure of Payne as both the body
and a projection that extends from the body. Reply Br. 5. Appellants assert
that Payne’s outlets 34a and 34b are part of the body rather than a projection
extending from the body. Id. at 6.
We agree with Appellants that the Examiner has not adequately
identified a projection that extends from a body as required by claim 16. As
Appellants point out, the body and the projection are claimed as separate
elements. The specification also identifies the structures as distinct from one
another. Spec. 124 (“[Projection 54 . . . extends from the body 48 into a
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center portion of the cavity 50.”), Fig. 4. In Payne, outlets 34a and 34b form
the rounded tip, and the Examiner found that these outlets were part of the
claimed body. Ans. 10—11; Payne, Fig. 1. The Examiner’s findings do not
support the position that the structure defining the outlets discloses both the
claimed body and a projection that extends from that body. Accordingly, we
do not sustain the rejection of claim 16.
Claims 1, 2, 6—8, 11—14, 17, 19, and 20
37 C.F.R. § 41.31(c) states that an appeal is presumed to be taken
from the rejection of all claims under rejection unless claims are cancelled
by an amendment filed by Appellants and entered by the Office. Appellants
have not filed an amendment to cancel claims 1,2, 6—8, 11—14, 17, 19, and
20. Accordingly, those claims are properly before us.
Appellants do not provide separate argument directed to claims 1,2,
6—8, 11—14, 17, 19, and 20. Accordingly, we summarily affirm the
Examiner’s rejection.
DECISION
We affirm the decision of the Examiner to reject claims 1, 2, 6—8, 11—
15, 17, 19, and 20 under 35 U.S.C. § 103(a). We reverse the decision of the
Examiner to reject claims 4, 9, and 16 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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