2020000654 (P.T.A.B. Jul. 15, 2020)

UNITED TECHNOLOGIES CORPORATION

Patent Trials and Appeals BoardJul 15, 2020

2020000654 (P.T.A.B. Jul. 15, 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. 15/030,128 04/18/2016 Tuan David Vo 73322US02; 67097-2691PUS1 7184 54549 7590 07/15/2020 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 EXAMINER HTAY, AYE SU MON ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 07/15/2020 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): ptodocket@cgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TUAN DAVID VO and GEORGE E. ALLEN ____________ Appeal 2020-000654 Application 15/030,128 Technology Center 3700 ____________ Before STEFAN STAICOVICI, EDWARD A. BROWN, and MICHAEL L. HOELTER, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE. Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision in the Final Office Action (dated Dec. 31, 2018, hereinafter “Final Act.”) rejecting claims 1–21.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. United Technologies Corporation is identified as the real party in interest in Appellant’s Appeal Brief (filed July 22, 2019, hereinafter “Appeal Br.”). Appeal Br. 1. 2 The Examiner has withdrawn the rejection under 35 U.S.C. § 103 of claims 22 and 23 as unpatentable over Howard and Durocher (US 2013/0078080 A1, published Mar. 28, 2013). Examiner’s Answer (dated Oct. 4, 2019, hereinafter “Ans.”) 3. Appeal 2020-000654 Application 15/030,128 2 SUMMARY OF DECISION We REVERSE and enter a NEW GROUND of REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b). INVENTION Appellant’s invention relates to a structure and method for supporting sensors in a gas turbine engine. Spec. para. 2. Claims 1, 13, and 19 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. An integrated support and sensor assembly, comprising: a longitudinal member to support an inner duct relative to an outer duct, wherein a radially outer end of the longitudinal member is fixedly attached to the outer duct; and a sensor received within a bore of the longitudinal member and configured to collect a measurement from a flow path bounded by the inner duct. REJECTIONS I. The Examiner rejects claims 1–14 and 18–21 under 35 U.S.C. § 102(a)(1) as anticipated by Howard.3 II. The Examiner rejects claim 15 under 35 U.S.C. § 103 as being unpatentable over Howard and Juh.4 III. The Examiner rejects claim 16 under 35 U.S.C. § 103 as being unpatentable over Howard and Adamson.5 3 Howard et al., US 2005/0152433 A1, published July 14, 2005. 4 Juh, US 2012/0107095 A1, published May 3, 2012. 5 Adamson et al., US 4,936,748, issued June 26, 1990. Appeal 2020-000654 Application 15/030,128 3 IV. The Examiner rejects claim 17 under 35 U.S.C. § 103 as being unpatentable over Howard and Smith.6 ANALYSIS Rejection I Each of independent claims 1 and 19 requires, inter alia, “a radially outer end of the longitudinal member is fixedly attached to the outer duct.” Appeal Br. 9, 11 (Claims App.). Similarly, independent claim 13 recites, “a radially outer end of the longitudinal member is fixedly attached to the engine case.” Id. at 10. The Examiner finds that Howard discloses that “(radially outer portion of the mounting probe assembly 80; 306, 330, 318) of the longitudinal member (80, 130 adapter post, 300, 318, 330) is fixedly attached to the outer duct [122].” Final Act. 3–4 (citing Howard, para. 18, Fig. 3) (emphasis added). According to the Examiner, Howard’s radially outer end of the instrument probe mounting assembly 80 (i.e. longitudinal member) is fixedly attached to the outer duct [122 because] . . . it can be clearly seen in Figure 3 that part 318 of the assembly is fixedly attached to the outer duct (122, 126) via fasteners 336 and 358. Advisory Action (dated Apr. 4, 2019, hereinafter “Adv. Act.”) 2. Appellant argues that Howard fails to disclose the disputed limitations noted above because Howard discloses “differential movement” between adapter post 130 and seal-ring adapter plate 300 via surface 332 and seal 312, which maintain an “axially” and a “radially slidable” pressure seal between fan duct 124 and probe head interior 334. See Appeal Br. 3–4 (citing Howard, paras, 18, 20, 21). 6 Smith et al., US 5,185,996, issued Feb. 16, 1993. Appeal 2020-000654 Application 15/030,128 4 In response, the Examiner takes the position that because “part 318 of the assembly is fixedly attached to the outer duct (122, 126) via fasteners 336 and 358,” Howard discloses that “the radially outer end of the instrument probe mounting assembly 80 (i.e. longitudinal member) is fixedly attached to the outer duct (126, 122) . . . .” Ans. 5. The Examiner explains that “the assembly as a whole is constrained or fixedly attached to the outer duct [122] even if the internal portions such as 312 and 306 may be capable of translating along the longitudinal axis 320.” Adv. Act. 2. During examination, “claims . . . are to be given their broadest reasonable interpretation consistent with the specification, [ ] and . . . claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990) (alteration in original) (citing In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). This means that the words of the claim must be given their plain meaning unless the plain meaning is inconsistent with the specification. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). An appropriate definition of “fixed,” in the context of the claim language “fixedly attached,” is “securely placed or fastened : STATIONARY.”7 This definition is consistent with Appellant’s Specification, which describes “[a] radially outer end 126 of the longitudinal member 114 . . . secured to a boss 130 of the engine case 100” via “threaded area 134.” Spec. para. 52. As such, in light of Appellant’s Specification and the customary and ordinary meaning of the term “fixed,” we construe the phrase “fixedly attached” to 7 See https://www.merriam-webster.com/dictionary/fixed (last visited July 2, 2020). Appeal 2020-000654 Application 15/030,128 5 mean a securely fastened attachment, that is, a stationary (non-movable) attachment. We appreciate that Howard’s body 318 of seal-ring adapter plate 300 is “fixedly attached” to boss 126 of outer duct 122 via fasteners 336. See Howard, para. 18, 20, Fig. 3. However, the Examiner does not rely only on body 318 of seal-ring adapter plate 300 as the claimed “radially outer end of the longitudinal member,” but rather relies on the combination of body 318 with extending cylindrical wall 330 of seal-ring adapter plate 300 and wrench-flat portion 306. See Final Act. 3–4. “[T]here is no anticipation ‘unless all of the same elements are found in exactly the same situation and united in the same way ... in a single prior art reference’.” Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894 (Fed. Cir. 1984). In this case, Howard discloses that inner duct 92 (outer casing) and outer duct 122 (fan casing) “move relative to each other,” wherein “such relative motion may be absorbed by surface 332 and seal 312” that form an “axially slidable” and a “radially slidable” pressure barrier (seal) between fan duct 124 and interior 334 of probe head 134. Howard, paras. 18, 20, 21, Fig. 3. As such, a person of ordinary skill in the art would readily acknowledge that because seal 312 is installed within groove 310 of adapter post 130, when seal 312 slides along surface 322, as discussed supra, wrench-flat portion 306 of adapter 130 slides along surface 322 as well. See Howard, Fig. 3; see also In re Jacoby, 309 F.2d 513, 516 (CCPA 1962) (An artisan must be presumed to know something about the art apart from what the references disclose.). Hence, although body 318 with extending cylindrical wall 330 of seal-ring adapter plate 300 is “fixedly attached” to boss 126 of outer duct 122 via fasteners 336, wrench-flat Appeal 2020-000654 Application 15/030,128 6 portion 306 is not “fixedly attached” to outer duct 122, but is rather axially slidable with respect thereto. Accordingly, even though one element of Howard’s “radially outer end of the longitudinal member [80],” i.e., body 318 with extending cylindrical wall 330 of seal-ring adapter plate 300, is “fixedly attached” to outer duct 122, another element, i.e., wrench-flat portion 306, is not. Hence, not all elements which the Examiner finds constitute Howard’s “radially outer end of the longitudinal member [80],” i.e., body 318 with extending cylindrical wall 330 of seal-ring adapter plate 300 and wrench-flat portion 306, are arranged in the same way, i.e., “fixedly attached,” to an outer duct (engine case), as required by independent claims 1, 13, and 19. Therefore, we do not sustain the rejection under 35 U.S.C. § 102(a)(1) of independent claims 1, 13, and 19, and their respective dependent claims 2–12, 14, 18, 20, and 21, as anticipated by Howard. Rejections II–IV The Examiner’s use of the disclosures of Juh, Adamson, and Smith does not remedy the deficiency of Howard discussed supra. See Final Act. 9–14. Therefore, for the same reasons discussed above we also do not sustain Rejections II–IV. NEW GROUND OF REJECTION Claims 1, 13, and 19 are rejected under 35 U.S.C. § 102(a)(1) as anticipated by Howard. Appeal 2020-000654 Application 15/030,128 7 Howard discloses a gas turbine engine assembly including an outer duct 122 (fan casing),8 i.e., engine case, an inner duct 92 (outer casing), i.e., intra-turbine duct, received within inner duct 92, a longitudinal member 80 (instrument probe mounting assembly) supporting inner duct 92 relative to outer duct 122, and a sensor 136 inserted within bore 309 of longitudinal member 80. Howard, paras. 12, 15, 16, 18, 19, Figs. 2, 3. Howard further discloses that longitudinal member 80 has “a radially outer end” (adapter plate 300) that is “fixedly attached” to boss 126 of outer duct 122 via fasteners 336. See id., paras. 18, 19, 20, Fig. 3. Furthermore, Howard discloses that sensor 136 measures a flow path bound by or radially inside inner duct 92 (within outer flow channel 94), i.e., intra-turbine duct. See id., Fig. 2. Accordingly, we determine that Howard discloses all the limitations of claims 1, 13, and 19, and thus, anticipates these claims. Although we decline to reject every claim under our discretionary authority under 37 C.F.R. § 41.50(b), we emphasize that our decision does not mean the remaining claims are patentable. Rather, we merely leave the patentability determination of these claims to the Examiner. See MPEP § 1213.02. 8 Parenthetical nomenclature refers to Howard. Appeal 2020-000654 Application 15/030,128 8 CONCLUSION Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed New Ground 1–14, 18–21 102(a)(1) Howard 1–14, 18–21 15 103 Howard, Juh 15 16 103 Howard, Adamson 16 17 103 Howard, Smith 17 1, 13, 19 102(a)(1) Howard 1, 13, 19 Overall Outcome 1–21 1, 13, 19 This Decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides (emphasis added): When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the [E]xaminer, in which event the prosecution will be remanded to the [E]xaminer. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the Appeal 2020-000654 Application 15/030,128 9 [E]xaminer, overcomes the new ground of rejection designated in the decision. Should the [E]xaminer reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01 (9th ed. 2018). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). REVERSED 37 C.F.R. § 41.50(b)