General Electric Company

Patent Trials and Appeals Board

Aug 25, 2020

2019005775 (P.T.A.B. Aug. 25, 2020)

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.
14/644,286 03/11/2015 Joel Meier HAYNES 263447-US-1
(551-0410US1)
1335
161134 7590 08/25/2020
The Small Patent Law Group LLC
225 S. Meramec Ave.
St. Louis, MO 63105
EXAMINER
GRIFFIN, WALTER DEAN
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
08/25/2020 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):
GRCLegal.mail@ge.com
docket@splglaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOEL MEIER HAYNES, NARENDRA DIGAMBER JOSHI,
DAVID JAMES WALKER, JUNWOO LIM,
SARAH MARIE MONAHAN, and KRISHNAKUMAR VENKATESAN
Appeal 2019-005775
Application 14/644,286
Technology Center 1700
Before JOSEPH L. DIXON, DONNA M. PRAISS, and
BRIAN D. RANGE, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6, 12, and 13. See Final Act. 1.
Claim 7–11 and 14–20 are withdrawn from consideration. See Final Act. 2.
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42 (2018). Appellant identifies the real party in interest as General
Electric Company. Appeal Br. 2.
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Application 14/644,286

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CLAIMED SUBJECT MATTER
The claims are directed to a twin radial splitter-chevron mixer with
converging throat. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A fuel nozzle for a gas turbine, comprising:

a first radial swirler and a second radial swirler that
introduce radial swirl to a flow of pressurized air:

a chevron splitter between the two swirlers that directs the
swirled flow of pressurized air to a main mixer passage to form
a fuel-air mixture with fuel injected into the fuel nozzle; and

a main mixer passage that receives the fuel-air mixture
from the chevron splitter, and includes a converging throat that
accelerates the fuel-air mixture.
REFERENCES
The prior art relied upon by the Examiner is:

Mueller US 2,511,291 June 13, 1950
Ansart et al US 5,941,075 Aug. 24, 1999
Mongia et al. US 6,367,262 B1 Apr. 9, 2002
Wirt et al. US 8,017,084 B1 Sept. 13, 2011
Elkady et al. US 8,099,960 B2 Jan. 24, 2012
Fernandes et al. US 8,215,116 B2 July 10, 2012
Deng2 CN 202082953 U Dec. 21, 2011

2 The Examiner also relied upon an English language translation of the
abstract Derwent Acc-No. 2012-A79223 (Derwent Week: 201206) (filed by
Appellant on Mar. 11, 2015).
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REJECTIONS3
Claims 1–3 and 12 stand rejected under 35 U.S.C. § 103 as obvious
over Mueller in view of Fernandes, Elkady, Mongia, Ansart, or Deng.
Claims 4–6 and 13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Mueller in view of (Fernandes, Elkady, Mongia, Ansart,
or Deng), and further in view of Wirt.

OPINION
35 U.S.C. § 103
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985–86 (Fed. Cir.
2006). We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.

3 The Examiner has withdrawn the rejection of claims 1–3 and 12 under 35
U.S.C. § 102(a)(1) as anticipated by Mueller, and the obviousness rejection
of claims 4–6 and 13 under 35 U.S.C. § 103 as being unpatentable over
Mueller in view of Wirt. Ans. 7.
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Claims 1–3 and 12
Appellant does not set forth separate arguments for patentability of
claims 1–3 and 12. (See Appeal Br. 4; Reply Br. 2.) Based on Appellant’s
arguments and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we select
independent claim 1 as the representative claim for the group and address
Appellant’s arguments thereto. See 37 C.F.R. § 41.37(c)(1)(iv). Dependent
claims 2, 3, and 12 stand or fall with representative claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv).
At the outset, we note that the background section of the present
Specification discloses:
Conventional fuel-air mixers of premixed burners incorporate
sets of inner and outer counter-rotating swirlers disposed
generally adjacent an upstream end of a mixing duct for
imparting swirl to an air stream. Different ways to inject fuel in
such devices are known, including supplying a first fuel to the
inner and/or outer annular swirlers, which may include hollow
vanes with internal cavities in fluid communication with a fuel
manifold in the shroud, and/or injecting a second fuel into the
mixing duct via cross jet flows by a plurality of orifices in a
center body wall in flow communication with a second fuel
plenum.
Spec. ¶ 3. We find that this admitted prior art is remarkably similar to the
five prior art references applied by the Examiner.
Appellant argues that “[i]t appears that a word search for the term
‘radial swirler’ was done and the first five references from the search list
were simply cited.” Appeal Br. 4. Appellant further contends that “it is hard
to conceive of a more ridiculously blatant example of hindsight.” Appeal
Br. 5. Appellant contends that if the Mueller reference “already introduce[s]
radial swirl (which they don’t for the reasons discussed), how would
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utilizing any of the radial swirlers of the secondary references ‘further
induce radial swirl in fluid introduced into’ Mueller’s mixer?” Appeal Br.
5. Appellant further argues that the proposed combinations are “patently
absurd.” Appeal Br. 5. Appellant also contends that the Examiner has not
provided a reason with a rational underpinning for the combination. Appeal
Br. 5; Reply Br. 2. Appellant contends that the Examiner merely states that
the radial swirlers are somehow “utilized,” but provides no explanation of
how or even where such radial swirlers could or would be utilized in
Mueller. Reply Br. 2.
Appellant further argues that the “Examiner’s Answer does not
explain how any of the relied upon radial swirlers would be incorporated
with such tailpieces or valves.” Reply Br. 3. Appellant argues that the
Examiner’s Answer provides no explanation for why one skilled in the art
would modify a liquid mixer for a shower to somehow arrive at a fuel nozzle
that introduces radial swirl to a flow of pressurized air.4 Id. Appellant also
argues both swirlers are used with pressurized air, and Mueller, on the other
hand, is directed to the flow of liquid instead of pressurized air. Id.
Although we agree with Appellant’s Reply Brief position that the
Examiner did not expressly address the proffered difference in the fluids, we
note that Appellant did not expressly argue this difference in the pressurized
air and pressurized water in the Appeal Brief. Consequently, we find

4 We note that Appellant did not previously argue, in the Appeal Brief, the
fact that the Mueller reference is directed to hot and cold water rather than to
fuel-air mixing.

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Appellant’s argument to be waived.5 Arguments which Appellant could
have made but did not make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(iv).
We further note both are pressurized air and pressurized water are
fluids and similar known fluid dynamics principles would control both
fluids.
Appellant argues that the Examiner’s Answer, without explanation,
merely asserts only that the radial swirlers mentioned in the five cited
references vaguely can be “utilized” and that “[s]uch a utilization would
have yielded predictable, advantageous results.” Reply Br. 3.
We find Appellant’s arguments to be general arguments for
patentability where Appellant does not specifically address the merits of any
of the specific teachings of any of the five secondary prior art references
applied in the combination with the Mueller reference. Looking at the
combination of the Mueller reference with each of the five separate

5 We note that the Reply Brief may respond to new arguments by the
Examiner, but should not “substitute” for the principal brief. In the absence
of a showing of good cause by Appellant, arguments that could have been
made in the Appeal Brief and are not responsive to any new evidence or
finding set forth by the Examiner in the Answer are deemed untimely and
are waived. 37 C.F.R. § 41.41(b)(2); see also Ex parte Nakashima, 93
USPQ2d 1834, 1837 (BPAI 2010) (informative) (explaining that arguments
and evidence not presented timely in the principal brief will not be
considered when filed in a reply brief, absent a showing of good cause
explaining why the argument could not have been presented in the principal
brief); Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative)
(“[T]he reply brief [is not] an opportunity to make arguments that could
have been made in the principal brief on appeal to rebut the Examiner’s
rejections, but were not.”).

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secondary prior art teachings, we find that the secondary references
generally teach and suggest air-fuel mixing in combustion chambers with the
use of radial swirlers for multiple air passageways (and may also teach an
additional main swirler), a centralized chevron splitter between the two
swirlers and air passageways, and a main mixer passage with converging
throat.6
We note that the claimed invention is a “fuel nozzle” having only four
structural elements (first radial swirler, second radial swirler, chevron
splitter between the two swirlers, and main mixer passage (includes a
converging throat)). With respect to Appellant’s questions regarding the
exact placement of the radial swirlers at inlets 12 and 13 of the Mueller
reference (Reply Br. 2–3), we find that the specific location of the swirlers is
not set forth in the claimed invention because the radial swirlers are the first
claimed elements and may be placed anywhere before the chevron splitter.
Appellant further contends that there is no reasoning with rational
underpinning provided by the Examiner and the reasoning provided is, in
fact, completely irrational. Appeal Br. 5. We disagree with Appellant and
find the Examiner provided a line of reasoning with a rational underpinning
to provide additional turbulence which is expressly desired in the Mueller
reference. Final Act. 8; Ans. 4–5 (“in order to further induce radial swirl in
fluid introduced into their apparatus, for the purposes of maximizing mixing
and turbulence, which is the desired endeavor of Mueller (maximizing

6 We further note that these five secondary references in the combination are
similar to the admission in the background section of the Specification.
Spec. ¶ 3.
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mixing and turbulence, column 1, line 28). Such a utilization would not
have yielded unexpected results.”).
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” and stated that “[t]he combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415–16
(2007). The Court explained:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, [section]
103 likely bars its patentability. For the same reason, if a
technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.

Id. at 417. The operative question is thus “whether the improvement is more
than the predictable use of prior art elements according to their established
functions.” Id.
Consistent with KSR, the Federal Circuit recognized that “[a]n
obviousness determination is not the result of a rigid formula disassociated
from the consideration of the facts of a case. Indeed, the common sense of
those skilled in the art demonstrates why some combinations would have
been obvious where others would not.” Leapfrog Enters., Inc. v. Fisher-
Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) (citing KSR, 550 U.S. at
416). In Leapfrog, the Federal Circuit pointed to the lack of evidence that
the proposed modification was “uniquely challenging or difficult for one of
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ordinary skill in the art” or “represented an unobvious step over the prior
art.” Id. at 1162.
Appellant has not provided persuasive argument regarding the
Examiner’s proffered rationale for the combination. Appellant’s responsive
argument merely questions “[i]f the inlet orifices 12, 13 of Mueller are
already radial swirlers, how does utilizing ‘any of the radial swirlers of
Fernandes, Elkady, Mongia, Ansart, and Deng for the inlets 12 and 13 of
Mueller’ operate to ‘further induce radial swirl’?” Appeal Br. 5.
The Examiner’s statements that Appellant questions relate to the
withdrawn anticipation rejection. Final Act. 6–7. The Examiner recognizes
that Mueller’s orifices 12 and 13 do not include radial swirlers. Ans. 7. The
Examiner’s reason for modifying Mueller by adding radial swirlers to each
orifice to add additional swirl/turbulence therefore adequately supports the
prior art combination based on the cited Appeal record. Ans. 8.
Appellant additionally argues that merely replacing the inlets of
Mueller with radial swirlers would not change that Mueller uses two
different liquids for its corresponding inlets in contrast to the presently
claimed subject matter that recites pressurized air flow passing through both
radial swirlers. Reply Br. 3. We disagree with Appellant’s argument and
find that there are not “two different liquids,” but merely one type of liquid
with different temperatures to achieve a uniform single temperature. (See
Mueller column 2, lines 39–45.)
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Consequently, Appellant’s general arguments do not show error in the
Examiner’s factual findings or conclusion of obviousness of independent
claim 1.7

Claims 4–6 and 13
Appellant argues that the Wirt reference does not remedy the
deficiencies in the base combination because the Wirt reference is not
analogous art “as it is neither from the claimed field of endeavor nor
reasonably pertinent to the claimed subject matter.” Appeal Br. 6.
Appellant also contends that the Examiner has provided no evidence in
support of the factual finding that Wirt reference is analogous, i.e. from the
claimed field of endeavor or reasonably pertinent to the problems faced by
Appellant. Appeal Br. 6. Appellant additionally contends that the
Examiner’s Answer attempts to gloss over such profound differences by
asserting that “Wirt is directed to generating turbulence to increase mixing
efficiency and reduce the mixing distance” and is directed to the purported
“particular problem” of the present application asserted as “mixing devices
having a reduced length” and to the purported problem solved by Mueller
“generating mixing and turbulence.” Reply Br. 4.

7 Alternatively, looking at the totality of the prior art teachings, the
secondary references may be viewed as the primary reference because the
secondary references clearly teach at least a single swirler, a chevron splitter
in the center of the nozzle, and a converging throat in the main mixer
passage, but include only a large swirler for which multiple swirlers may
have been obvious in the presence of multiple air inlets. We leave it to the
Examiner to further evaluate this in any further prosecution on the merits
along with to the admitted prior art in paragraph 3 of the Specification.

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The Examiner finds that it would have been obvious to one having
ordinary skill in the art at the time the invention was filed to utilize the
corrugations of Wirt’s chevron-shaped member on Mueller’s chevron
splitter (or, alternatively, Mueller in view of Fernandes, Elkady, Mongia,
Ansart, or Deng), in order to generate turbulence to increase mixing
efficiency and reduce the mixing distance, as disclosed in Wirt (column 6,
lines 62–67) because the generation of turbulence for mixing purposes is
further disclosed as a desired feature of Mueller’s chevron splitter (column
1, lines 27–28). Final Act. 9; Ans. 6.
We agree with the Examiner that the Mueller reference discloses and
suggests a desire to produce a maximum amount of mixing and turbulence
between more than one stream of fluid (Mueller column 1, line 28) and the
Wirt reference further discloses and suggests the well-known use of
corrugations for turbulence enhancement in mixing fluids/gases for even
distribution where the corrugated turbulence enhancer “dramatically
increases mixing efficiency and reduces the mixing distance” (Wirt column
6, lines 50–67). We agree with the Examiner that skilled artisans would
have been motivated to dramatically increase mixing efficiency and reduce
mixing distance in mixing apparatuses.
Appellant argues that there are “profound differences” and the
rejection lacks evidence in support of the factual finding that Wirt is
analogous prior art, i.e. from the claimed field of endeavor or reasonably
pertinent to the problems faced by Appellant. Reply Br. 4. We disagree
with Appellant and find that the Wirt reference is reasonably pertinent to the
problem of turbulent mixing of two separate fluids/gases as the Examiner
found. Ans. 8 (“Wirt is additionally pertinent to the problem solved of
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Mueller (generating mixing and turbulence, column 1, line 28).”); Final Act.
4–5, 9. Accordingly, based on this Appeal record, Wirt is reasonably
pertinent to the problems faced by Appellant.
As a result, we find Appellant’s general arguments to be unavailing
with respect to the Examiner’s factual findings or ultimate conclusion of
obviousness of dependent claim 4 and dependent claims 5, 6, and 13 not
separately argued.
CONCLUSION
The Examiner’s obviousness rejections are affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
1–3, 12 103
Mueller,
Fernandes, Elkady,
Mongia, Ansart,
and Deng
1–3, 12
4–6, 13 103
Mueller,
Fernandes, Elkady,
Mongia, Ansart,
and Deng, Wirt
4–6, 13
Overall
Outcome 1–6, 12, 13

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED