14887847 - (D) (P.T.A.B. Apr. 16, 2020)

United Technologies Corporation

Patent Trials and Appeals BoardApr 16, 2020

14887847 - (D) (P.T.A.B. Apr. 16, 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. 14/887,847 10/20/2015 Jesse M. Carr 77799US02; 67097-3056PUS1 7640 54549 7590 04/16/2020 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 EXAMINER THOMAS, KYLE ROBERT ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 04/16/2020 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 JESSE M. CARR ____________ Appeal 2019-004470 Application 14/887,847 Technology Center 3700 ____________ Before STEFAN STAICOVICI, JEREMY M. PLENZLER, and MICHAEL L. WOODS, 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 Oct. 30, 2018, hereinafter “Final Act.”) rejecting claims 1–4, 6–12, 15, 16, and 18–23.2 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 Corp. is identified as the real party in interest in Appellant’s Appeal Brief (filed Mar. 4, 2019, hereinafter “Appeal Br.”). Appeal Br. 1. 2 Claims 5, 13, 14, and 17 are canceled. See Appeal Br. 9–11. Appeal 2019-004470 Application 14/887,847 2 SUMMARY OF DECISION We AFFIRM-IN-PART. INVENTION Appellant’s invention is directed to “gas powered turbines.” Spec. para. 3. Claims 1 and 15 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A gas turbine engine comprising: a compressor; a combustor fluidly connected to the compressor via a flow path; a turbine fluidly connected to the combustor via the flow path; at least one multi-piece structure disposed within said flow path such that the multi-piece structure at least partially radially spans the flow path, and wherein the at least one multi- piece structure includes: a fore portion defining a leading edge and having a first replacement frequency; a consumable aft portion defining a trailing edge and having a second replacement frequency; a pressure surface at least partially defined by a first surface of said fore portion and a first surface of said consumable aft portion; a suction surface at least partially defined by a second surface of said fore portion and a second surface of said consumable aft portion; and wherein the second replacement frequency is more frequent than the first replacement frequency. Appeal 2019-004470 Application 14/887,847 3 REJECTIONS I. The Examiner rejects claim 23 under 35 U.S.C. § 112(b) as being indefinite. II. The Examiner rejects claims 1–4, 6, 7, 9–12, 15, 16, and 18–22 under 35 U.S.C. § 103 as being unpatentable over Vance3 and Ahmad.4 III. The Examiner rejects claims 8 and 23 under 35 U.S.C. § 103 as being unpatentable over Vance, Ahmad, and Campbell.5 ANALYSIS Rejection I The Examiner finds that the limitations “the foremost edge” and “the aftmost edge” in claim 23 lack antecedent basis. Final Act. 3. Appellant argues that “[a]s there can only be one foremost and one aftmost edge of any given component, the utilization of the definite article ‘the’ instead of the indefinite article ‘a’ or ‘an’ does not render the claim confusing nor does it render the claim indefinite.” Appeal Br. 5 (emphasis added). The Examiner responds that “it is unclear whether the aft consumable portion may have one or more foremost edges or if the fore portion has one or more aftmost edges and therefore which edges the limitations may be referring to.” Ans. 17.6 According to the Examiner, “Figure 5A, of the 3 Vance et al., US 2006/0228211 A1, published Oct. 12, 2006. 4 Ahmad et al., US 2009/0252612 A1, published Oct. 8, 2009. 5 Campbell, US 2006/0226290 A1, published Oct. 12, 2006. 6 Examiner’s Answer, dated Apr. 16, 2019. Appeal 2019-004470 Application 14/887,847 4 instant application . . . shows an aft consumable portion with two aftmost edges, 416.” Id. “Inherent components of elements recited have antecedent basis in the recitation of the components themselves.” See Bose Corp. v. JBL, Inc., 274 F.3d 1354, 1359 (Fed. Cir 2001) (“The limitation ‘the outer surface of said sphere’ would not require an antecedent recitation that the sphere has an outer surface.”). Here, we agree with Appellant that the terms “foremost” and “aftmost” do not require an antecedent recitation, because only one edge can be “foremost edge of the aft consumable portion” and only one edge can be “aftmost edge of the fore portion.” See Appeal Br. 12 (Claims App.). Moreover, we do not agree with the Examiner that in Appellant’s Figure 5A aft consumable portion 404 has two aftmost edges 416. Rather, in Figure 5A, aft consumable portion 404 includes only one aftmost edge defined by concave surface 412 and two aftmost ends 416. See Spec. para. 57. Accordingly, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 112(b) of claim 23 as being indefinite. Rejection II Claims 1–3, 6, 7, 9–12, 15, 16, and 18–21 Appellant does not present arguments for the patentability of claims 2, 3, 6, 7, 9–12, 15, 16, and 18–21 apart from claim 1. See Appeal Br. 5–6. Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(iv), we select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 2, 3, 6, 7, 9–12, 15, 16, and 18–21 standing or falling with claim 1. Appeal 2019-004470 Application 14/887,847 5 The Examiner finds that Vance discloses most of the limitations of independent claim 1 including, inter alia, vane structure 12 having a fore portion 18, 30 and a consumable aft portion 20. Final Act. 4–5 (citing Vance, paras. 1, 53, 69, Figs. 1, 4, 5). However, the Examiner finds that Vance fails to disclose “a fore po[r]tion having a first replacement frequency; a consumable aft portion having a second replacement frequency; and wherein the second replacement frequency is more frequent than the first replacement frequency.” Id. at 5. Nonetheless, the Examiner finds that Ahmad discloses a blade for a turbomachine including, inter alia, a fore portion (base body segment 3b)7 having a first replacement frequency and a consumable aft portion (edge segment 3c) having a second replacement frequency, which “is more frequent than the first replacement frequency.” Id. (citing Ahmad, paras. 2, 8, 26). Thus, the Examiner concludes that it would have been obvious to a person of ordinary skill in the art to have modified the invention of Vance by the fore po[r]tion having a first replacement frequency; the consumable aft portion having a second replacement frequency; and the second replacement frequency is more frequent than the first replacement frequency, as suggested and taught by Ahmad, in order to provide a modular blade that increases the service life of the blade thereby reducing maintenance and production costs. Id. (citing Ahmad, para. 5). Appellant argues that the Examiner has not adequately established that the body segment of Vance’s blade “is subject to less wear than the trailing edge, and thus has not established that it would have been obvious to 7 Parenthetical nomenclature refers to Ahmad. Appeal 2019-004470 Application 14/887,847 6 utilize the distinct replacement frequencies.” Appeal Br. 5. According to Appellant, even if Ahmad discloses an edge segment that is subject to more wear, “it would be improper to assume absent any evidence that Vance is subject to the same wear patterns.” Id. at 5–6. As an initial matter, we note that an Examiner’s burden of proving unpatentability when rejecting claims in a patent application is by a preponderance of the evidence. In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985). In order to satisfy this standard, the evidence must demonstrate that it is more likely than not that the alleged facts are actually true. See Bosies v. Benedict, 27 F.3d 539, 542 (Fed. Cir. 1994) (noting that the preponderance of the evidence standard “only requires the fact finder ‘to believe that the existence of a fact is more probable than its nonexistence’” (quoting In re Winship, 397 U.S. 358, 371 (1970))). In this case, as both Vance and Ahmad disclose modular turbine vanes, made from ceramic and metal materials, and used in gas turbines subjected to a flow of hot gas, we agree with the Examiner that “the multi- piece structures of Vance and Ahmad are both blade/vane structures of a gas turbine/turbomachine system.” Ans. 19 (citing Vance, para. 1; Ahmad, para. 15); see also Vance, paras. 35, 40; Ahmad, para. 13. As such, the evidence is sufficient to establish a prima facie case that the modular construction and function of the turbine vanes of Vance and Ahmad are so similar, so as to shift the burden to Appellant to prove that the structure of Vance would not wear in the same manner as the structure of Ahmad. Id. at 20. However, Appellant provides neither evidence nor persuasive technical reasoning that purports to satisfy such burden. Appellant’s argument that the turbine structures of Vance and Ahmad do not exhibit similar wear patterns because Appeal 2019-004470 Application 14/887,847 7 “[t]urbomachines / gas powered turbine engines vary tremendously in scope, size, and application” (see Reply Br. 2)8 is unsupported attorney argument and cannot take the place of evidence in the record. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Furthermore, Vance discloses a multi-component vane assembly where “[a]n individual section having damage can be removed and replaced with a new sub-component.” Vance, para. 69. In other words, Vance is not limited to a specific wear pattern in which consumable aft portion 20 wears more than fore portion 18, 30, but rather, encompasses a variety of situations in which each of portion 18, 20, and 30 has a different wear characteristic and each can be individually removed and replaced with a new sub- component, 18, 20, or 30. The Examiner employs Ahmad to disclose a particular situation in which the replacement frequency is more frequent for consumable aft portion 3c than for fore portion 3b of a turbine blade because consumable aft portion 3c of a turbine blade has more wear than fore portion 3b. As such, when modifying Vance’s multi-component vane assembly, according to Ahmad, a skilled artisan would have readily understood that in a situation where Vance’s consumable aft portion 20 has more wear than fore portion 18, 30, the replacement frequency is more frequent for consumable aft portion 20 than for fore portion 18, 30. Likewise, the skilled artisan would have understood that in a situation where Vance’s fore portion 18, 30 has more wear than consumable aft portion 20, in light of Ahmad, the replacement frequency is more frequent for fore portion 18, 30 than for consumable aft portion 20. See In re Jacoby, 309 F.2d 513, 516 (CCPA 8 Appellant’s Reply Brief, filed May 17, 2019. Appeal 2019-004470 Application 14/887,847 8 1962) (An artisan must be presumed to know something about the art apart from what the references disclose.). As such, for the forgoing reasons, the combined teachings of Vance and Ahmad disclose an individual sub- component, i.e., a consumable aft portion, of a modular turbine having a replacement frequency higher than the replacement frequency of another sub-component, i.e., a fore portion. In conclusion, we sustain the rejection under 35 U.S.C. § 103 of independent claim 1 as unpatentable over Vance and Ahmad. Claims 2, 3, 6, 7, 9–12, 15, 16, and 18–21 fall with claim 1. Claim 4 Claim 4 depends from independent claim 1 and adds the limitation that “the consumable aft portion is a solid component.” Appeal Br. 9 (Claims App.) (emphasis added). The Examiner finds that Vance discloses aft portion 20 “is a solid component.” Final Act. 8 (citing Vance, para. 39). Appellant argues that Vance’s aft portion 20 does not constitute a “solid component” because it includes void 38. Appeal Br. 6. According to Appellant, a person of ordinary skill in the art “would reasonably understand ‘solid component’ as referring to a component lacking in voids.” Id. In response, the Examiner takes the position that because Appellant’s Specification does not provide an explicit definition of the term “solid,” it is appropriate to consult a general dictionary definition of the term “solid” for guidance in determining its ordinary and customary meaning as viewed by a person of ordinary skill in the art. Ans. 20. Thus, the Examiner determines that because an ordinary and customary definition of the term “solid” is Appeal 2019-004470 Application 14/887,847 9 “‘firm and stable in shape; not liquid or fluid’” and “Vance discloses that the consumable aft portion is made of metal or ceramic composite . . . the aft consumable portion is a solid material.” Id. (citing Vance, para. 7). Furthermore, the Examiner finds that “Vance discloses the aft portion, 20, is solid.” Id. (citing Vance, para. 39). “[C]laims under examination before the PTO are given their broadest reasonable interpretation consistent with the [S]pecification.” In re Abbott Diabetes Care Inc., 696 F.3d 1142, 1148 (Fed. Cir. 2012). In this case, Appellant’s Specification describes consumable aft portion 104 as “a solid component” or “constructed from a solid material.” Spec., paras. 8, 42. We further note that Appellant’s Figure 4 illustrates aft portion 304 as a solid lacking voids.9 Hence, consistent with Appellant’s Specification, an ordinary and customary meaning of the term “solid” is “being without an internal cavity.”10 Such a construction of the term “solid” is also consistent with Vance’s disclosure of aft portion 20 as “substantially solid,” that is, “approximately”11 solid, because it includes passageway 38. See Vance, para. 39; see also Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 (Fed. Cir. 1996) (Prior art references may be “indicative of what all those skilled in the art generally believe a certain term means . . . [and] can often help to demonstrate how a disputed term is used by those skilled in the 9 A drawing teaches all that it reasonably discloses and suggests to a person of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 914 (CCPA 1979). 10 See https://www.merriam-webster.com/dictionary/solid (last visited Mar. 24, 2020). 11 See Playtex Prods., Inc. v. Proctor and Gamble Co., 400 F.3d 901, 907 (Fed. Cir. 2005) (The term “substantial” is often used as a modifier to imply “approximate” rather than “perfect.”). Appeal 2019-004470 Application 14/887,847 10 art.”). Therefore, as Vance’s aft portion 20 includes passageway 38, Vance does not disclose “the consumable aft portion is a solid component,” as recited in claim 4. Accordingly, as the Examiner does not employ Ahmad to resolve the deficiency discussed supra, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 103 of claim 4 as unpatentable over Vance and Ahmad. Claim 22 Claim 22 depends from independent claim 1 and adds the limitation that “the consumable aft portion is characterized by a lack of direct cooling.” Appeal Br. 9 (Claims App.). The Examiner finds that Vance discloses aft portion 20 “is characterized by a lack of direct cooling” because passage 38 accommodates a fastener, is not used for cooling, and aft portion 20 is solid. Final Act. 10 (citing Vance, para. 38). Appellant responds that just because Vance does not explicitly disclose that passageway 38 is not used for cooling does not mean that Vance discloses a lack of direct cooling, and, thus, the Examiner’s position is based on either supposition or inherency. Id. at 7; Reply Br. 3. In particular, Appellant points to paragraph 38 of Vance, which describes using passageway 38 for either cooling or fastening, and, thus, contends that “Vance considers cooling of the aft portion an important feature.” Appeal Br. 6–7. We are not persuaded by Appellant’s arguments because Vance discloses “[o]ne or more radial passages 38” that extend through “one of the Appeal 2019-004470 Application 14/887,847 11 airfoil segments 18, 20, 30” for the purpose of “provid[ing] cooling to the segment or to accommodate a fastener.” Vance, para. 38 (emphasis omitted), Fig. 3. We, thus, agree with the Examiner that because Vance’s Figure 3 illustrates a single passageway 38, which is described for either cooling or fastening, “an embodiment of Vance is disclosed where the passage, 38, is used for a fastener and only a fastener and not for cooling purposes.” Ans. 21. Accordingly, the Examiner’s position is not based on supposition or inherency, as Appellant contends, but rather on the explicit disclosure of Vance. See Appeal Br. 7; Reply Br. 3. As such, for the foregoing reasons, we sustain the rejection of claim 22 over the combined teachings of Vance and Ahmad. Rejection III As Appellant does not separately argue the rejection of claims 8 and 23, we summarily sustain the rejection under 35 U.S.C. § 103 of claims 8 and 23 as unpatentable over Vance, Ahmad, and Campbell. CONCLUSION Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 23 112(b) Indefinite 23 1–4, 6, 7, 9–12, 15, 16, 18–22 103 Vance, Ahmad 1–3, 6, 7, 9–12, 15, 16, 18–22 4 8, 23 103 Vance, Ahmad, Campbell 8, 23 Overall Outcome 1–3, 6–12, 15, 16, 18–23 4 Appeal 2019-004470 Application 14/887,847 12 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). AFFIRMED-IN-PART