Ex Parte Duelm et al

Patent Trial and Appeal BoardOct 12, 2018

13723941 (P.T.A.B. Oct. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/723,941 12/21/2012 Shelton 0. Duelm 54549 7590 10/16/2018 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 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. 62913US01; 67097-2089PUS1 8638 EXAMINER SEHN, MICHAEL L ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 10/16/2018 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): ptodocket@cgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHEL TON 0. DUELM and MICHAEL G. McCAFFREY Appeal2017-007544 Application 13/723,941 Technology Center 3700 Before BIBHU R. MOHANTY, TARA L. HUTCHINGS, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL 1 The Appellants2 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1-3, 5, 6, 8-10, and 12-21. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Throughout this Opinion, we refer to the Appellants' Appeal Brief ("Appeal Br.," filed Jan. 19, 2017), Reply Brief ("Reply Br.," filed Apr. 20, 2017) and Specification ("Spec.," filed Dec. 21, 2012), and to the Examiner's Answer ("Ans.," mailed Mar. 20, 2017) and Final Office Action ("Final Act.," mailed Sept. 1, 2016). 2 According to the Appellants, the real party in interest is United Technologies Corporation. Appeal Br. 1. Appeal2017-007544 Application 13/723,941 STATEMENT OF THE CASE The Appellants' invention relates to "[a] vane assembly for a gas turbine engine." Spec. ,r 4. Claims 1, 9, and 14 are the independent claims on appeal. Claim 1 (Appeal Br. 9 (Claims App.)) is exemplary of the subject matter on appeal and is reproduced below (with added bracketing and paragraphing): 1. A vane assembly for a gas turbine engine comprising: [(a)] a plurality of individual vane segments forming an annular ring with each of the plurality of vane segments [ ( a 1)] formed of a ceramic matrix composite [ ( a2)] including at least one airfoil extending between an inner platform and an outer platform; and [ (b)] a ceramic matrix composite wrap [(bl)] attached to one of an outer periphery and an inner periphery of the annular ring and over an interface between a corresponding inner and outer platform of adjacent ones of the plurality of vane segments such that each of the plurality of individual vane segments is fixed to the ceramic matrix composite wrap, [(b2)] wherein each of the plurality of vane segments includes a cavity extending through the outer platform, the at least one airfoil, the inner platform, and the ceramic matrix composite wrap. THE REJECTIONS ON APPEAL Claims 1-3, 6, 8-10, 13-15, and 19-21 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Campbell (US 2011/0297344 Al, pub. Dec. 8, 2011), Morrison (US 7,824,152 B2, iss. Nov. 2, 2010), and Keller (US 2009/0252907 Al, pub. Oct. 8, 2009). 2 Appeal2017-007544 Application 13/723,941 Claims 5 and 12 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Campbell, Morrison, Keller, and Jarmon (US 4,909,872, iss. Mar. 20, 1990). Claim 16 stands rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Campbell, Morrison, Keller, and Merrill (US 7,648,605 B2, iss. Jan. 19, 2010). Claims 17 stands rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Campbell, Morrison, Keller, and Widrig (US 6,648,597 Bl, iss. Nov. 18, 2003). Claims 18 stands rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Campbell, Morrison, Keller, and Angus (US 4,786,347, iss. Nov. 22, 1988). ANALYSIS Independent claims 1, 9, and 14 The Appellants contend that the Examiner's rejection of independent claims 1, 9, and 14 is in error. After careful consideration of the arguments presented in the Appeal Brief at pages 3---6 and the Reply Brief at pages 1--4, we are not persuaded of Examiner error. The Examiner finds that Campbell teaches a vane assembly for a gas turbine engine comprising a plurality of individual vane segments forming an annular ring, with each segment including at least one airfoil extending between an inner platform and an outer platform, as recited in limitations (a) and (a2), and a wrap attached to one of an outer periphery and an inner periphery of the annular ring and over an interface between a corresponding inner and outer platform of adjacent ones of the plurality of vane segments 3 Appeal2017-007544 Application 13/723,941 such that each of the plurality of individual vane segments is fixed to the wrap, as partially recited in limitations (b) and (b 1 ). Final Act. 3. The Examiner acknowledges that Campbell does not teach the plurality of vane segments formed of a ceramic matrix composite, as recited in limitation (al), the wrap being made of a ceramic matrix composite, as recited in limitation (b ), and the vane segments including a cavity, as recited in limitation (b2). The Examiner relies on Morrison for teaching limitations (al) and (b2) of the vane segments being formed of a ceramic matrix composite and including a cavity extending through an airfoil, platforms, and a wrap. Id. The Examiner determines it would have obvious to one of ordinary skill in the art to modify the vane segments of Campbell with the teachings of Morrison "for the purpose of providing the vane segments with a high temperature strength, improved fracture toughness, damage tolerance, and thermal shock resistance, all of which are advantageous in a gas turbine engine environment" (id. at 3--4) ( citing Morrison, col. 1, 11. 59---63), and "for the purpose of being able to place load bearing struts through the vane segment" (id. at 4). The Examiner relies on Keller for teaching the wrap being made of a ceramic matrix composite, as recited in limitation (b ), determining that one of ordinary skill in the art would modify the wrap of Campbell/Morrison with the ceramic wrap of Keller "for the purpose of providing the wrap with the high temperature stability of ceramics without the brittleness of monolithic ceramics and providing stiffness to the overall vane structure." Id. (citing Keller ,r 2). The Appellants argue that the references teach way from the proposed combination because "neither Campbell nor Morrison disclose nor teach that the inner and outer rings are formed from a ceramic matrix composite 4 Appeal2017-007544 Application 13/723,941 [("CMC")]," and "the addition of Keller does not fix the problems with the combination of Campbell and Morrison, and is not properly combinable with either Campbell or Morrison." Appeal Br. 4; see also Reply Br. 2. Specifically, the Appellants argue that "Morrison teaches a structure that provides springs to enable relative movement between the CMC vanes 18 and metal inner and outer rings 14, 16 and therefore teaches away from fixing or otherwise attaching ceramic vanes to outer or inner metal rings as is disclosed in Campbell" (id.) and "completely changes the structure of Campbell and therefore there is no rational reason to support the proposed modification" (id. at 5). See also Reply Br. 1-3. It is not clear to what the Appellants are referring as the "inner and outer rings." No such terms are used in the claims. To the extent the Appellants refer to the platforms, the claims do not recite the material of the platforms. To the extent the Appellants refer to the annular ring, the ring is comprised of the vanes, for which the Examiner relies on Morrison as being made from a ceramic matrix composite, which is supported. See Morrison col. 1, 11. 57----67. To the extent the Appellants refer to the wrap, the Examiner relies on Keller for teaching a ceramic wrap, a teaching against which the Appellants do not argue. Further, the Examiner relies on Morrison only for the teachings that the vanes are formed of a ceramic matrix composite, and include a cavity extending through an airfoil, platforms, and a wrap. Final Act. 4. The combining of the teachings of Campbell and Morrison does not mandate bodily incorporation of their embodiments that would result in any such change in structure that would teach away from fixing the modified vanes. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) ("The test for obviousness 5 Appeal2017-007544 Application 13/723,941 is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference .... Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art."). Further, the Appellants do not provide persuasive argument or reasoning why the Examiner's rational reasoning for modifying the structure of Campbell as proposed is incorrect. See Final Act. 3--4; Ans. 3--4. The Appellants also argue that [ o ]ne skilled in the art would not look to modify a bi-cast molding process as is disclosed in Campbell with the addition of CMC wraps. Moreover, the Campbell molding process secures metal vanes to metal rings and therefore one skilled in the art would not look to Morrison for modification. Appeal Br. 6; see also id. at 5. As the Examiner states (Ans. 3), only the prior art embodiment as depicted in Campbell's Figure 1 is relied upon, not those embodiments with a molten alloy as depicted in Figures 2 and 3. To the extent Campbell teaches, in Figures 2 and 3 and the remainder of the disclosure, improvements and benefits over the prior art, they are not relied upon by the Examiner. Thus, the Appellants' argument does not address the Examiner's rejection. In the Reply Brief, the Appellants newly argue "Keller does not even disclose nor teach a platform or ring used in any type of vane structure," "[ n ]othing in Campbell, Morrison or Keller discloses or teaches openings through a ceramic matrix composite wrap," and "the rejections and record do not provide any evidence or reason required to support a prima facie case of obviousness for extending tie-rods through a ceramic matrix composite wrap." Reply Br. 4. These arguments were not raised in the Appeal Brief, are not responsive to an argument raised in the Examiner's Answer, and 6 Appeal2017-007544 Application 13/723,941 good cause has not been shown why they could not have been raised earlier. See 37 C.F.R. Â§ 4I.41(b)(2). As such, the arguments are untimely and will not be considered for purposes of the present appeal. Id. A 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." Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) ( addressing previous version of 3 7 C.F .R. Â§ 41.41 ). Respect for this principle is no mere formalism. In an Appeal, the Examiner has no opportunity to respond in writing to new arguments introduced in a Reply Brief, leaving the Board without the benefit of the Examiner's perspective concerning such matters - a situation that could impair the efforts of the Board. See id. at 1475-1476. Thus, we are not persuaded the Examiner erred in the rejection of independent claims 1, 9, and 14, and we sustain the Examiner's rejection. Dependent claims 2, 3, 6, 8, 10, 12, 15, and 19-21 The Appellants contend that the Examiner's rejection of dependent claims 2, 3, 6, 8, 10, 12, 15, and 19-21 is in error because they "depend from a patentable independent claim and are therefore are also patentable without regard to further patentable features contained therein." Appeal Br. 6; see also Reply Br. 5. Because we are not persuaded of error in the rejection of the independent claims, this argument is unpersuasive of error in the Examiner's rejection of the dependent claims. With regard to claims 19, 20, and 21, the Appellants further contend that the rejection is in error because the feature that "the 'vanes is [sic] fixed to the ceramic matrix composite wrap such that no relative movement occurs between each of the plurality of vanes and the ceramic matrix composite 7 Appeal2017-007544 Application 13/723,941 wrap' ... is neither disclosed nor taught by the cited prior art." Appeal Br. 6; Reply Br. 6. The Appellants' arguments are not persuasive of error. The Appellants' argument that "Campbell discloses a bi-casting method using molten metal" (id.) is not persuasive for the reasons discussed above, i.e., because it does not address the Examiner's rejection. The Appellants' argument that "Morrison discloses CMC vanes suspended between metal rings" (id.) is not persuasive for the reasons discussed above, i.e., because the test for obviousness is not whether the features of Morrison may be bodily incorporated into the structure of Campbell. Further, the Appellants do not provide adequate reasoning why the teaching would not allow movement. The Appellants' argument that "Keller discloses a CMC structure with cooling arrangements, but not the recited structure" (id.) is not persuasive because the Examiner does not rely on Keller for this teaching (see Final Act. 8 (citing Campbell ,r 19)). In the Reply Brief, the Appellants newly argue that the rejection of claim 3 is in error because "Keller does not disclose any wrap about an inner periphery" (Reply Br. 5), the rejection of claim 10 is in error because "[t]he cited prior art does not disclose nor teach openings within an inner ceramic matrix composite wrap" (id.), and the rejection of claim 15 is in error because "Keller does not disclose an inner matrix wrap" (id. at 6). These arguments were not raised in the Appeal Brief, are not responsive to an argument raised in the Examiner's Answer, and good cause has not been shown why they could not have been raised earlier. See 3 7 C.F .R. Â§ 41.41 (b )(2). As such, the arguments are untimely and will not be considered for purposes of the present appeal. Id. 8 Appeal2017-007544 Application 13/723,941 Thus, we are not persuaded the Examiner erred in the rejection of dependent claims 2, 3, 6, 8, 10, 12, 15, and 19--21, and we sustain the Examiner's rejection. Dependent claims 5, 12, and 16-18 The Appellants contend that the Examiner's rejections of dependent claims 5, 12, and 16-18 are in error because they "depend from an allowable independent claim for the reasons discussed above without regard to further patentable features contained therein" and the addition of Jarmon, Merrill, Widrig, and Angus do not correct the deficiencies in the base combination. Appeal Br. 6-7; see also Reply Br. 6. Because we are not persuaded of any error or deficiency in the rejection of the independent claims, these arguments are unpersuasive of error in the Examiner's rejections of the dependent claims. Thus, we are not persuaded the Examiner erred in the rejections of dependent claims 5, 12, and 16-18, and we sustain the Examiner's rejections. DECISION The Examiner's rejections of claims 1-3, 5, 6, 8-10, and 12-21 under pre-AIA 35 U.S.C. Â§ 103(a) are AFFIRMED. 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)(l )(iv). AFFIRMED 9