Ex Parte Collopy et al

Patent Trial and Appeal BoardMay 10, 2018

13415912 (P.T.A.B. May. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/415,912 03/09/2012 135291 7590 05/14/2018 Cantor Colburn LLP - Pratt & Whitney 20 Church Street 22 Floor Hartford, CT 06103 FIRST NAMED INVENTOR Gary Collopy 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 59764US01/U420495US 1040 EXAMINER WHITE, ALEXANDER A ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 05/14/2018 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): usptopatentmail @cantorcolburn.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GARY COLLOPY and MATTHEW R. FEULNER1 Appeal2017-003056 Application 13/415,912 Technology Center 3700 Before: WILLIAM A. CAPP, LEE L. STEPINA, and ARTHUR M. PESLAKAdministrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM-IN-PART and designate our affirmance as A NEW GROUND OF REJECTION pursuant to our authority under 37 C.F.R. Â§ 4 l.50(b ). 1 The Appeal Brief lists United Technology Corp. as the real party in interest. Br. 2. Appeal2017-003056 Application 13/415,912 CLAIMED SUBJECT MATTER The claims are directed to a low pressure compressor variable vane control for a two-spool turbofan or turboprop engine. Claim 1, reproduced below with emphasis added, is illustrative of the claimed subject matter: 1. A system for controlling a low pressure compressor of a gas turbine engine having at least two spools, comprising: [i] at least one stator vane rotatably coupled to a stationary case and directed inwardly along a radius of the stationary case; [ii] an actuator coupled to the at least one stator vane for imparting rotation to the at least one stator vane about said radius, the actuator linked to a controller; [iii] the controller including a memory stored with a plurality of low pressure compressor corrected aiiflow values, a plurality of low pressure compressor pressure ratio values, and a plurality of engine operability limit values, each engine operability limit value being associated with a combination of a particular low pressure compressor corrected airflow value and a particular low pressure compressor pressure ratio value, the controller configured to: [iv] receive data concerning a current low pressure compressor air flow and a current low pressure compressor pressure ratio and calculate the low pressure compressor's current operating state; [v] determine an optimum performance target for the low pressure compressor; [vi] determine whether the low pressure compressor's current operating state is within a tolerance of the optimum performance target and send a signal to the actuator to rotate the at least one stator vane until the current operating state is within the tolerance of the optimum performance target; and [vii] determine whether the low pressure compressor's current operating state is at or below one of the plurality of engine operability limit values stored in memory and send a signal to the actuator the act least one stator vane until the current operating state is at or below the one of the plurality of engine 2 Appeal2017-003056 Application 13/415,912 operability limit values stored in memory, while the current operating state is within the tolerance of the optimum performance target. Br. 15 (Claims App.) (enumeration added). REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Farrar Suciu Willshee Boyer2 McKelvey us 5,044,879 US 2009/0056306 Al US 2004/0240989 Al WO 2011042636 Al US 7,143,584 B2 REJECTIONS 3 Sept. 3, 1991 Mar. 5, 2009 Dec. 2, 2004 Apr. 14, 2011 Dec. 5, 2006 (I) Claims 1, 2, 5, 6, 8, 9, 12, and 13 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Suciu and Farrar, as evidenced by McKelvey. (II) Claims 3, 4, 10, and 11 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Suciu and Farrar, as evidenced by McKelvey, and Boyer. (III) Claims 7 and 14 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Suciu and Farrar, as evidenced by McKelvey, and Willshee. (IV) Claims 15-20 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Suciu, Boyer, and McKelvey. 2 The Examiner refers to US 8,649,954 B2, issued February 11, 2014, as an English translation of this reference. See Final Act. 15. Our citations to "Boyer" are to US 8,649,954 B2. 3 A rejection of claims 1-14 under 35 U.S.C. Â§ 112, second paragraph, as indefinite, is withdrawn on page 2 of the Advisory Action dated October 7, 2015. 3 Appeal2017-003056 Application 13/415,912 OPINION Re} ection (I) Appellants make arguments in support of the patentability of claims 1, 2, 5, 6, 8, 9, 12 and 13 as a group. See Br. 7-9. We select claim 1 as representative, and claims 2, 5, 6, 8, 9, 12 and 13 stand or fall with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv) The Examiner finds that Suciu discloses elements i and ii of claim 1, but does not disclose the recited controller linked to an actuator as recited in elements iii-vii. Final Act. 5-9. The Examiner finds that Farrar teaches elements iii-vii, with the exception of the details relating to "a tolerance of the optimum performance target," and the Examiner relies on McKelvey to remedy this deficiency. Id. Appellants argue that "[t]here is no indication in Farrar of a memory, much less a memory that includes the parameters of Appellants' claim 1, in particular the engine operability limits." Br. 7-8. The Examiner replies that in order for one to determine a desired value for airflow or pressure ratio, one must first have determined what the operational envelope is for the engine (i.e. the engine's operability limits). In order to have what kind of airflow or pressure ratio is desirable, one must have determined what kind of airflow or pressure ratio represented an engine operability limit. Thus in order for the controller of Farrar to work as it does, it must have some reference for what represents the operational limits of the engine so that it knows how best to continue with the operation of the engine. Hence the memory that must be present must further have the claimed values stored within it in some form such that the controller may properly function and thus allow the engine to function as desired. 4 Appeal2017-003056 Application 13/415,912 Ans. 4--5 (emphases added). Thus, the Examiner finds that, in order to operate with the desired airflow and pressure ratio, the controller in Farrar must include a memory as recited in claim 1. In other words, the Examiner determines that a memory with a plurality of engine operability limit values is an inherent feature of the controller in Farrar. We agree with the Examiner that, in light of the functionality of the controller disclosed by Farrar, this controller includes a memory in which certain values are stored. See Ans. 3--4; see also Farrar, 2:59---68, 4:4--28 (explaining that the Farrar's controller makes comparisons with predetermined characteristics). However, the Examiner's finding that Farrar stores, in a memory, a plurality of operability limit values is not supported by a preponderance of the evidence. The Examiner's finding that the memory in Farrar stores operability limit values is premised on the finding that Farrar determines a desired value of airflow or value of pressure ratio. See Ans. 4 (stating, "In order to have what kind of airflow or pressure ratio is desirable, one must have determined what kind of airflow or pressure ratio represented an engine operability limit."). Thus, the Examiner's finding is based on a finding that Farrar inherently requires the of operability limit values to determine desired airflow and pressure ratio values. The Examiner does not direct our attention to any evidence supporting such a conclusion, and we are not persuaded that it is necessary to determine operating limits in order to determine a desired value of airflow or pressure ratio inasmuch as these values seem to address different things. Specifically, one set of values is desired or optimal, and one set of values sets a limit. The fact that the controller recited in claim 1 determines, in two separately recited steps, the 5 Appeal2017-003056 Application 13/415,912 relationship of the current operating state with (a) the optimum performance target and (b) the engine operability limit values, supports a conclusion that a value within the tolerance of the optimum performance target is not necessarily at or below one of the plurality of engine operability limit values. In any event, even assuming arguendo that it is a requirement to determine the operation envelope (engine operability limit values) in order to determine the desired operation point, we are not persuaded that storing limit values on a memory of the controller is also a requirement. Rather, it appears that Farrar stores the desired values on its implicitly disclosed memory. See Farrar 2:63---68 (stating, "The controller may compare detected compressor parameters with predetermined characteristics of the compressor and determines any adjustments necessary to the stages of the variable stator vanes to more nearly match the compressor parameters with the predetermined characteristics of the compressor."). As the "desired" values appear to be stored in the memory of the controller in Farrar, we see no requirement that any type of limit value, such as the operability limit values recited in claim 1, also be stored in that location, even if such limit values were used to obtain the desired values. To the extent that such values were required to determine the "desired" values, this purpose may have been served in a location other than on the controller. Therefore, as the Examiner's conclusion of obviousness is based on an unsupported finding of fact, we do not sustain the Examiner's rejection of claims 1, 2, 5, 6, 8, 9, 12, and 13 as unpatentable over Suciu and Farrar, as evidenced by McKelvey. Rejections (II) and (III) In Rejection (II), the Examiner relies on Boyer to teach details related to the adjustment of an angle of a stator vane of a compressor of a twin spool 6 Appeal2017-003056 Application 13/415,912 gas turbine engine. See Final Act. 15-19. In Rejection (III), the Examiner relies on Willshee to teach the control of a stator vane in a turboprop engine. See id. at 19. The Examiner's use of Boyer and Willshee does not remedy the deficiency discussed above regarding Rejection (I). Accordingly, we do not sustain Rejections (II) and (III). Rejection (IV) Appellants make arguments for the patentability of claims 15-20 as a group (Br. 9-13), and we select claim 15 as representative. The Examiner finds that Suciu teaches many of the steps recited in claim 15, but relies on Boyer to teach, among other things, "determining whether the low pressure compressor's current operating state is at or below an engine operability limit and sending a signal to the actuator and rotating the stator vanes until the current operating state is at or below the engine operability limit[.]" Final Act. 21-22 (citing Boyer, 3: 13-31 ). The Examiner relies on McKelvey to teach the use of a "tolerance," specifically, controlling engine parameters by keeping an operational state within set limits. Id. at 23. Appellants refer to portions of columns 1 and 8-11 and Figures 4--8 of McKelvey, cited by the Examiner, and contend that "none of these passages teach or suggest the element: 'determining whether the low pressure compressor's current operating state is within a tolerance of the optimum performance target', as required by claim 15."' Br. 9-11 (emphasis omitted). In response, the Examiner states, "The control of variable vanes is already taught by Suciu and Boyer, but the principal of providing a tolerance 7 Appeal2017-003056 Application 13/415,912 as a means of controlling the operational state of a gas turbine by way of controlling physical engine components is taught by McKelvey." Ans. 7. The Examiner has the better position on this point because the Examiner relies on McKelvey only for the above-noted general teaching of using a tolerance in controlling a gas turbine. Appellants' contention, on pages 9-11 of the Appeal Brief, that McKelvey does not disclose the specific details of the "determining" step related to "tolerance," amounts to an individual attack on McKelvey, whereas the rejection of claim 15 addresses this limitation via a combination of Suciu, Boyer, and McKelvey (see Ans. 6-7). The Examiner finds that Boyer teaches "sending a signal to an actuator coupled to the ring of stator vanes and rotating the stator vanes until the current operating state is near the optimum performance target." Final Act. 21-22 (citing Boyer, 3:13-21) (emphasis added). Appellants argue, "Neither Suciu, nor Boyer nor McKelvey, alone or in combination, disclose 'sending a signal to an actuator coupled to the ring of stator vanes and rotating the stator vanes until the current operating state is within tolerance of the optimum performance target' as required by Appellant[s'] Independent Claim 15." Br. 9 (underlining omitted). In this regard, Appellants argue, (i) being "near" is not the same as being within a tolerance, and (ii) Boyer adjusts its blade to be at particular position, not merely within a tolerance of an optimum target position. Br. 11-12. In reply, the Examiner states, "As the current operating state is at an optimized position it is within the tolerance of Â±0 around the optimum performance target. Thus, the examiner maintains that the combination of Suciu, Boyer and McKelvey teaches this limitation of the claim." Ans. 8. 8 Appeal2017-003056 Application 13/415,912 We do not agree with the Examiner's statement that a range of "Â±0 around the optimum performance target" qualifies as a "tolerance" as recited in claim 15. Rather, a plain and ordinary meaning of "tolerance" is an allowable (non-zero) amount of deviation from a standard. See WEBSTER'S TENTH NEW COLLEGIATE DICTIONARY (1998). This meaning corresponds with how Appellants' Specification uses this term. See Spec. i-f 22. Thus, the Examiner's finding that Boyer discloses sending a signal to an actuator coupled to the ring of stator vanes and rotating the stator vanes until the current operating state is within the tolerance of the optimum performance target is based on an unreasonably broad interpretation of the term "tolerance." However, as the Examiner correctly finds (see Final Act. 23), McKelvey teaches the general principle of using a tolerance in controlling a gas turbine. Appellants do not address persuasively the Examiner's use of McKelvey's disclosure in the rejection of claim 15 in relation to the above- noted "sending/tolerance" limitation. We agree with the Examiner that a person of ordinary skill in the art would have found it obvious to modify the method taught by Suciu to incorporate a tolerance around the optimum performance target because doing so would allow one to prevent overshooting and allow for stable operation of the gas turbine engine. See id. Accordingly, the Examiner has the better position regarding the above- noted "sending/tolerance" limitation in claim 15. Furthermore, under the broadest reasonable interpretation of claim 15, in light of Appellants' disclosure, this step is not required. Rather, this step is conditional. According to our precedent, as a matter of claim construction, the broadest reasonable interpretation of claim 15 encompasses 9 Appeal2017-003056 Application 13/415,912 a method in which the conditional steps are not performed. See Ex parte Schulhauser, Appeal No. 2013-007847, 2016 WL 6277792, at 3-5 (PTAB Apr. 28, 2016) (precedential). The "sending/tolerance" step will only occur when the "determining" step, recited immediately before this step, results in a determination that the current operating state is not within a tolerance of the optimum performance target. In claim 15, if the current operating state is already within the recited tolerance of the optimum performance target, no signal is required to be sent. See Fig. 2. Appellants next argue Neither Suciu, nor Boyer nor McKelvey, alone or in combination, disclose "determining whether the low pressure compressor's current operating state is at or below an engine operability limit and sending a signal to the actuator and rotating the stator vanes until the current operating state is at or below the engine operability limit, while the current operating state is within the tolerance of the optimum performance target" as required by Appellant[s'] independent claim 15. Br. 12 (emphasis omitted). Appellants refer to the Examiner's reliance on column 3, lines 13-31 of Boyer (see Final Action, 21-22) and contend that "the cited passage fails to teach or suggest any engine operability limit, and further fails to disclose the closed-loop control of rotating the stator vanes while the current operating state is within a tolerance of the optimum performance target." Br. 13. The Examiner replies that "Boyer further teaches the process including an inhibition means that makes it possible to prevent the iterative angle correction process from placing the engine in a potentially harmful state of operation (see Boyer; Translation; Cols. 2-3, lines 6-10) ... As such, Boyer teaches the use of engine operability limits." Ans. 8-9. 10 Appeal2017-003056 Application 13/415,912 Although we agree with the Examiner's finding that Boyer uses engine operability limits to prevent Boyer's correction process from placing the engine in a potentially harmful state of operation, we do not agree that this disclosure meets the requirement in claim 15 to determine whether the low pressure compressor's current operating state is at or below an engine operability limit. In other words, preventing a future operating state from exceeding an engine operability limit is different from making a determination regarding the current operating state of the engine. Accordingly, for this reason, we agree with Appellants' assertion that the Examiner erred in the rejection of claim 15 as unpatentable over Suciu, Boyer, and McKelvey. Although the Examiner's finding that Boyer teaches the step of determining whether the engine's current operating state is at or below an engine operability limit is not supported by a preponderance of the evidence, in light of Boyer's disclosure, a person of ordinary skill in the art would have found it obvious to implement this step. Boyer teaches providing a correction to a current operating state to achieve a more desirable operating state. See Boyer, 2 :45-59. Boyer prevents the correction from placing the engine in a state outside the engine's operability limits. See id., 3: 6-9 (stating, "Preferably, the correction module comprises means for limiting the value of the correcting angle, said means being arranged to limit the value of the correcting angle in order to remain within a risk-free operating range."). In other words, Boyer teaches adjusting a stator blade to be in a more desirable position and that it is undesirable for the blade to be outside the engine's operability limits. In light of these teachings in Boyer, it would have been obvious to modify the method of operation of the turbine engine 11 Appeal2017-003056 Application 13/415,912 disclosed by Suciu to determine whether the low pressure compressor's current operating state is at or below an engine operability limit. Doing so would allow an adjustment from one position to a more desirable position, namely, a position that does not exceed the engine's operability limits. Further, it would have been obvious to perform this "determining" step while the current operation state is within the tolerance of the optimum performance, as required by claim 15, inasmuch as Boyer prevents its correction from placing the engine in a state outside the engine's operability limits in order to reduce risk. It would have been obvious to reduce risk, as taught by Boyer, at all times, including while the current operation state is within the tolerance of the optimum performance state. As for the step of "sending a signal to the actuator and rotating the stator vanes until the current operating state is at or below the engine operability limit," this step is conditioned upon determining that the current operating state is not at or below an engine operability limit, and, thus, need not be performed. See Ex parte Schulhauser at 3-5. Appellants also argue that Boyer fails to disclose the use of a tolerance as recited in the last paragraph of claim 15. Br. 13. As we explained above, the Examiner also relies on McKelvey for the principle of using a tolerance to avoid overshooting and to provide stability. See Final Act. 23. Appellants do not address the Examiner's findings or rationale relating to this disclosure in McKelvey. See Br. 9-13. We agree with the Examiner that, in light of the teachings of McKelvey, the use of a tolerance as set forth in the last paragraph of claim 15 would have been obvious to a person of ordinary skill in the art in order to prevent overshooting and to provide more stable operation of the gas turbine. 12 Appeal2017-003056 Application 13/415,912 Accordingly, we sustain the rejection of claim 15 and claims 16-20 depending therefrom. Because our conclusion is based on findings of fact, reasoning, and a claim construction that differ from the rejection articulated by the Examiner, we designate our affirmance as a NEW GROUND OF REJECTION under 37 C.F.R. Â§ 41.50(b) to provide Appellants with a full and fair opportunity to respond to the rejection. See In re Biedermann, 733 F.3d 329, 336-337 (Fed. Cir. 2013) (Appellants are entitled to a fair opportunity to react to the thrust of the rejection). DECISION (I) We reverse the rejection of claims 1, 2, 5, 6, 8, 9, 12, and 13 as unpatentable over Suciu and Farrar, as evidenced by McKelvey. (II) We reverse the rejection of claims 3, 4, 10, and 11 as unpatentable over Suciu and Farrar, as evidenced by McKelvey, and Boyer. (III) We reverse the rejection of claims 7 and 14 as unpatentable over Suciu and Farrar, as evidenced by McKelvey, and Willshee. (IV) We affirm the rejection of claims 15-20 as unpatentable over Suciu, Boyer, and McKelvey, and we designate our affirmance a new ground of rejection. FINALITY OF DECISION This decision contains a new ground of rejection pursuant to 37 C.F.R. Â§ 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: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise 13 Appeal2017-003056 Application 13/415,912 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 examiner, in which event the prosecution will be remanded to the examiner. 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 examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under Â§ 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 Â§ 1214. 01. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART UNDER 37 C. F. R. Â§ 41.50(b) 14