15072657 - (D) (P.T.A.B. Oct. 28, 2019)

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Patent Trials and Appeals BoardOct 28, 2019

15072657 - (D) (P.T.A.B. Oct. 28, 2019)

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. 15/072,657 03/17/2016 Wesley K. Lord 92639US01; 67097-3336US1 5097 54549 7590 10/28/2019 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 EXAMINER KREINER, MICHAEL B ART UNIT PAPER NUMBER 3644 NOTIFICATION DATE DELIVERY MODE 10/28/2019 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 WESLEY K. LORD ____________________ Appeal 2019-002976 Application 15/072,6571 Technology Center 3600 ____________________ Before ANTON W. FETTING, PHILIP J. HOFFMANN, and ROBERT J. SILVERMAN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s rejection of claims 1, 3–11, and 13–20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, the real party in interest is MTU Aero Engines AG. Appeal Br. 3. Appeal 2019-002976 Application 15/072,657 2 According to Appellant, the invention “relates to a cross flow fan to reduce boundary layer air that would otherwise create drag in proposed aircraft bodies having a relatively wide fuselage.” Spec. ¶ 1. Claims 1 and 11 are the independent claims under appeal. Below, we reproduce independent claim 1 as representative of the appealed claims. 1. A cross flow fan to be incorporated into an aircraft comprising: a cross flow fan rotor to be positioned in an aircraft; a drive arrangement for said cross flow fan rotor; and a plurality of vanes positioned downstream of said cross flow fan rotor, said plurality of vanes turn air through distinct angles. REJECTIONS AND PRIOR ART2 The Examiner rejects the claims as follows: I. Claims 1, 3, 4, 11, 13, and 14 under 35 U.S.C. § 102(a)(1) as anticipated by Kolacny et al. (US 8,157,520 B2, iss. Apr. 17, 2012) (hereinafter “Kolacny”); II. Claims 5, 6, 10, 15, and 17 under 35 U.S.C. § 103 as unpatentable over Kolacny and Gossett (Gossett, Investigation of Cross Flow Fan, Master of Science in Aeronautical Engineering from the Naval Postgraduate School, pp. 1–73 (2000); 2 As the Examiner indicates in the Advisory Action mailed September 7, 2018, Appellant’s Amendment filed on July 20, 2018, overcomes the Examiner’s indefiniteness rejection as set forth in the Final Office Action mailed June 29, 2018. Appeal 2019-002976 Application 15/072,657 3 III. Claims 9 and 16 under 35 U.S.C. § 103 as unpatentable over Kolacny and Kummer et al. (US 2012/0111994 A1, pub. May 10, 2012) (hereinafter “Kummer”); and IV. Claims 1, 7, 8, 11, and 18–20 under 35 U.S.C. § 103 as unpatentable over Kummer and Kolacny. ANALYSIS Rejection I—Claims 1, 3, 4, 11, 13, and 14 as anticipated by Kolacny As set forth above, independent claim 1 recites, in relevant part, “a plurality of vanes positioned downstream of said cross flow fan rotor, said plurality of vanes turn air through distinct angles.” Appeal Br., Claims App. (emphasis added). Based on our review of the record, we determine that the Examiner does not support adequately that Kolacny discloses this claim recitation. Thus, we do not sustain the rejection. The Examiner relies on the “five crescent-shaped vanes” in Kolacny’s Figure 16 to disclose the claimed plurality of vanes. See, e.g., Answer 4. The Examiner does not rely on any portion of Kolacny’s written disclosure to support a finding that Kolacny’s vanes deflect or turn air through distinct3 angles, as claimed. Thus, we must determine whether the Examiner properly relies upon Kolacny’s Figure 16, which although not described by Kolacny as drawn to illustrate specific directions in which the vanes turn air, the Examiner finds discloses vanes turning air through distinct angles. For 3 A relevant dictionary definition of “distinct,” which sets forth an ordinary and customary meaning, is “[r]eadily distinguishable from all others.” From https://www.ahdictionary.com/word/search.html?q=distinct (last accessed Oct. 23, 2019). Appeal 2019-002976 Application 15/072,657 4 the reasons set forth below, we determine that the Examiner may not rely upon Kolacny’s Figure 16 to disclose this claim recitation. Drawings, like references in any other form, are “evaluat[ed] and appl[ied] . . . on the basis of what they reasonably disclose and suggest to one skilled in the art.” In re Aslanian, 590 F.2d 911, 914 (CCPA 1979) (quoting In re Baum, 374 F.2d 1004, 1009 (CCPA 1967)). Accordingly, “[d]escription for the purposes of anticipation can be by drawings alone as well as by words.” In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (quoting In re Bager, 47 F.2d 951, 953 (CCPA 1931)). This principle, however, is subject to the caveat that “patent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue.” Hockerson-Halberstadt, Inc. v. Avia Grp. Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000); see also Nystrom v. Trex Co., 424 F.3d 1136, 1149 (Fed. Cir. 2005); In re Wright, 569 F.2d 1124, 1127 (CCPA 1977) (“Absent any written description in the specification of quantitative values, arguments based on measurement of a drawing are of little value.”); but cf. Cummins- Allison Corp. v. SBM Co., 484 Fed. App’x 499, 507 (Fed. Cir. 2012) (nonprecedential) (“As long as a person of skill in the art could derive the claimed dimensions from the patent’s disclosure, there is no additional requirement that the specification must explicitly disclose the precise proportions or particular sizes.”). When applying these arguably diverging concepts, precedent reveals that the propriety of relying upon a particular drawing depends upon the content of the drawing and the nature of the purported disclosure at issue. Even if not drawn to scale, drawings may teach relationships between or Appeal 2019-002976 Application 15/072,657 5 among the depicted elements which do not depend upon their actual dimensions. For example, Vas-Cath Inc. v. Mahurkar and In re Heinle— both considering whether drawings could provide written-description support under 35 U.S.C. § 112, which is an issue analogous to that of determining the teachings of drawings for prior art purposes—demonstrate that drawings alone can teach ratios or relative sizes of the elements depicted. Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1566 (Fed. Cir. 1991) (concerning claims requiring “a return lumen diameter substantially less than 1.0 but substantially greater than 0.5 times the diameter of the combined lumens”); In re Heinle, 342 F.2d 1001, 1007 (CCPA 1965) (concerning a claimed “circumferential width of each of said apertures being approximately one-fourth of the circumference of said core.”). Similarly, Mraz, 455 F.2d at 1072, demonstrates that unscaled drawings may disclose relative angular features, which—like ratios of measurements or relative lengths made from drawings—are unaffected by the actual sizes of the items shown. As discussed above, the issue Appellant argues relates to whether Kolacny’s Figure 16 discloses the relative angles of the air turned by Kolacny’s vanes (i.e., whether Figure 16 discloses turning air through distinct angles)—the type of information addressed in Mraz, and, as discussed above, the type of information that is independent of the actual size or scale of drawings. Be that as it may, we determine that there is no indication that any importance was placed on the illustrated angles of the vanes, or on the illustrated angles of the air turned by the vanes, as illustrated in Kolacny’s Figure 16. The Examiner does not rely on any discussion in Kolacny of the air flow within and through Kolacny’s airfoil Appeal 2019-002976 Application 15/072,657 6 300, which is the structure in which the “five crescent-shaped vanes” are disposed. Further, it appears that there is no discussion of the number, location, or position of the vanes in Kolacny’s written disclosure. There are no reference numbers in Kolacny’s figure or Specification for the vanes or the air flow. It appears that Kolacny’s entire description of airfoil 300 encompasses at most three sentences: As may be shown, for example, in F[igure] 16, air flow into the fan creates increasing and decreasing pressure zones and even vacuum conditions such that further rotation of the fan exhausts air to the rearward airfoils 300 while forward movement and speed of the vehicle creates airflow about the forward airfoils 302. As forward speed increases, the airfoils 302 provide lift as well as high speed air through the manifold and to airfoils 300. Airfoils 300 also receive airflow and resulting lift is created. Kolacny, col. 15, ll. 45–53 (bold omitted). Thus, because Kolacny discloses virtually nothing about the structure of airfoil 300, including the structure of the vanes within the airfoil and the airflow through the airfoil, it would be improper to rely on Kolacny’s figure to disclose vanes that turn air in distinct directions, that is in directions that are individually distinct from one another, as claimed. Notwithstanding the above, the following provides a separate, independent reason for our determination that the Examiner does not support adequately that Kolacny discloses vanes turning air through distinct angles, as claimed. With reference to Kolacny’s Figure 16, it is unclear which arrows in the drawing indicate air direction prior to interaction with one of the five vanes, and which arrows indicate air direction after the vanes turn the air. See Kolacny, Fig. 16. For example, it may be that only the two leftmost arrows within airfoil 300 indicate the direction of air turned by the vanes within the airfoil. We agree with Appellant that “[t]hose arrows Appeal 2019-002976 Application 15/072,657 7 appear to be effectively identical angles”—i.e., there is no indicate that the vanes turn air in distinct angles. Thus, based on the foregoing, we do not sustain the Examiner’s anticipation rejection of independent claim 1. We also do not sustain the Examiner’s anticipation rejection of independent claim 11, which includes a similar recitation, and the Examiner rejects based on the same rationale, as claim 1. Further, we do not sustain the anticipation rejection of claims 3, 4, 13, and 14 that depend from the independent claims. Rejections II–III—Claims 5, 6, 9, 10, and 15–17 as obvious based on Kolacny and either Gossett or Kummer Claims 5, 6, 9, 10, and 15–17 depend from independent claims 1 and 11. The Examiner does not rely on either Gossett or Kummer to disclose anything that would remedy the above-discussed deficiency in the rejection of claim 1 or 11. Thus, we do not sustain the Examiner’s obviousness rejections of these dependent claims. Rejection IV—Claims 1, 7, 8, 11, and 18–20 as obvious based on Kummer and Kolacny As discussed above, the Examiner does not rely on Kummer to disclose anything that would remedy the above-discussed deficiency in the anticipation rejection of claim 1 or 11. Rather, the Examiner’s obviousness rejection of independent claims 1 and 11 expressly relies on Kolacny to disclose the claimed vanes that turn the air through distinct angles. See, e.g., Final Action 6–7. Thus, we do not sustain this obviousness rejection of the claims for the same reasons we do not sustain the anticipation rejection of claims 1 and 11, supra. Appeal 2019-002976 Application 15/072,657 8 CONCLUSION We REVERSE the Examiner’s anticipation and obviousness rejections of claims 1, 3–11, and 13–20. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 3, 4, 11, 13, 14 102(a)(1) Kolacny 1, 3, 4, 11, 13, 14 5, 6, 10, 15, 17 103 Kolacny, Gossett 5, 6, 10, 15, 17 9, 16 103 Kolacny, Kummer 9, 16 1, 7, 8, 11, 18–20 103 Kummer, Kolacny 1, 7, 8, 11, 18–20 Overall Outcome 1, 3–11, 13–20 REVERSED Notice of References Cited Application/Control No. 15/072,657 Applicant(s)/Patent Under Reexamination Examiner Art Unit Page 1 of 1 U.S. PATENT DOCUMENTS * Document Number Country Code-Number-Kind Code Date MM-YYYY Name Classification 1 A US- 1 1 B US- C US- D US- E US- F US- G US- H US- I US- J US- K US- L US- M US- FOREIGN PATENT DOCUMENTS * Document Number Country Code-Number-Kind Code Date MM-YYYY Country Name Classification N O P Q R S T NON-PATENT DOCUMENTS * Include as applicable: Author, Title Date, Publisher, Edition or Volume, Pertinent Pages) U https://www.ahdictionary.com/word/search.html?q=distinct (last accessed Oct. 23, 2019). V W X *A copy of this reference is not being furnished with this Office action. (See MPEP § 707.05(a).) Dates in MM-YYYY format are publication dates. Classifications may be US or foreign. U.S. Patent and Trademark Office PTO-892 (Rev. 01-2001) Notice of References Cited Part of Paper No. Delete Last PagelAdd A Page