Ex Parte Hudson et al

Patent Trial and Appeal Board

May 16, 2018

13556296 (P.T.A.B. May. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/556,296 07/24/2012
7788 7590
General Electric Company
Attn: ERNEST CUSICK
1 Research Circle
Kl-3A60
Niskayuna, NY 12309
05/18/2018
FIRST NAMED INVENTOR
Michael Thomas Hudson
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.
261523 1591
EXAMINER
SEABE, JUSTIN D
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
05/18/2018 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):
shannon.cannizzaro@ge.com
ernest.cusick@ge.com
gpo.mail@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL THOMAS HUDSON
and RY AN WESLEY MURPHY
Appeal2017-007804 1
Application 13/556,2962
Technology Center 3700
Before HUBERT C. LORIN, NINA L. MEDLOCK, and
BRADLEY B. BAY AT, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 5, 7, 12-15, 18, 19, and 21. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision references Appellants' Appeal Brief ("Br.," filed March 10,
2016), the Examiner's Answer ("Ans.," mailed July 27, 2016), and Final
Office Action ("Final Act.," mailed November 3, 2015).
2 Appellants identify General Electric Company as the real party in interest.
Br. 3.
Appeal2017-007804
Application 13/556,296
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. An article of manufacture comprising:
a stator vane configured for use with a stator of a
turbomachine, the stator having a plurality of stages, the stator
vane configured for attachment to a ring segment, the ring
segment configured for use with the stator of the turbomachine;
wherein, the stator vane is configured to substantially
reduce the possibility of installation in an undesired stage of the
stator by modification of at least one characteristic of the stator
vane, and the ring segment is configured to substantially reduce
the possibility of installation in an undesired stage of the stator
by modification of at least one characteristic of the ring
segment, the at least one characteristic of the stator vane being
different for either each stage of the stator, adjacent stages or
nearby stages and the at least one characteristic of the ring
segment being different for either each stage of the stator,
adjacent stages or nearby stages; and
the at least one characteristic of the stator vane
comprising at least one of, a radial height of a forward sidewall,
a radial height of an aft sidewall or an axial length, and the at
least one characteristic of the ring segment comprising at least
one of, a radial height of a forward surface, a radial height of an
aft surface, a radial height of a forward projection, a radial
height of an aft projection or an axial length.
Br. 24 (Claims Appendix).
THE REJECTIONS
The following rejections are before us for review:
I. Claims 1, 5, 7, and 12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kasperski (US 2010/0183436 Al, published
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Application 13/556,296
July 22, 2010) ("Kasperski '436") and Kasperski et al.
(US 2010/0172755 Al, published July 8, 2010) ("Kasperski '755).
II. Claims 13-15, 18, 19, and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kasperski '436, Kasperski '755, Mielke et al.
(US 6,234, 7 50 B 1, issued May 22, 2001) ("Mielke"), and
Cormier et al. (US 7 ,097 ,420 B2, issued Aug. 29, 2006) ("Cormier").
III. Claims 1, 5, 7, 12-15, 18, 19, and 21 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Mielke, Cormier, Kasperski '436, and
Kasperski '755.
ANALYSIS
Rejection I
Appellants argue the rejection of independent claims 1 and 7, and
dependent claims 5 and 12 as a group. See Br. 15-18. We select claim 1 as
the representative claim for the group, and, thus, claims 5, 7, and 12 stand or
fall with claim 1. See 37 C.F.R. §41.37(c)(l)(iv).
The Examiner finds that Kasperski '436 discloses every limitation of
claim 1 except "[Kasperski] '436 fails to teach the characteristics as being
different in a different stage of the stator" (Final Act. 5---6). The Examiner
maintains that Kasperski '436 discloses preventing undesired installation, in
a general sense, because "[t]he radial height on one end of the tabs is
different on the forward and aft sidewalls of the base (36)" and, thus, "[i]t
would not be possible to flip the blade in a mirror fashion and correctly
install it because the tabs would not fit into their respective slots" (Id. at 3).
According to the Examiner, Kasperski '755 "teaches the dimensions and/or
characteristics can vary from stage to stage" (Id. at 6). And the Examiner
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concludes that it would have been obvious to a person having ordinary skill
in the art at the time of Appellants' invention "to modify the article of
manufacture of [Kasperski] '436 by modifying the at least one characteristic
of the stator vane and ring segment as being different from stage to stage as
taught by [Kasperski] '755 for the purposes of preventing the incorrect
installation of one stage with another stage" (Id.). According to the
Examiner, "Kasperski '755 teaches that the 'dimensions' of the casing/stator
are different from stage to stage ... " and "[ t ]his would lead one of ordinary
skill in the art at the time of the invention to modify the characteristics of
Kasperski '436 and vary them from stage to stage to correctly install the
stator vanes" (Id. at 3--4).
Appellants argue that "the only disclosed function of Kasperski's '436
[sic] ring segment's 32, fins 44 and sidewalls 45 is to absorb forces that
would otherwise be transmitted to the blade's base member 36 and the base
member's base slot 46 and sidewalls 47" and "Kasperski '436 does not state
that these elements function to reduce the possibility of undesired
installation" (Br. 15). Appellants concede that "[i]n Figure 2 of Kasperski
'436[,] base member 36 does have a right side with a different configuration
than the left side (from the figures perspective)" (Id. at 16); nevertheless,
Appellants contend that "this is not described in the text of Kasperski '436,
nor does Kasperski '436 state that this shape is varied for different stages"
(Id.).
Appellants' arguments do not persuade us of error in the rejection. As
to the Appellants' first point, our reviewing court has specifically stated that
"a drawing in a utility patent can be cited against the claims of a utility
patent application even though the feature shown in the drawing was
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Application 13/556,296
unintended or unexplained in the specification of the reference patent." In re
Aslanian, 590 F.2d 911, 914 (CCPA 1979) (collecting cases). A person of
ordinary skill in the art reviewing Figure 2 of Kasperski '436 would
understand that the asymmetrical left and right tabs of base member 36
would prevent incorrect installation, consistent with the Examiner's finding.
See Final Act. 3 (Examiner's annotated version of Figure 2 of
Kasperski '436 shows that the different radial heights of the tabs on base
member 36 would prevent incorrect installation by flipping). Accordingly, it
is immaterial whether Kasperski '436, in its written description, specifically
discloses that the asymmetrical tabs of base member 3 6 prevent incorrect
installation. We further note that Kasperski '755 discloses stator vanes
having the claimed functionality, i.e., "insuring the proper installation of
stator vanes" (see, e.g., Kasperski '755 i-fi-13-5).
Appellants' argument that Kasperski '436 does not disclose that the
shape is varied for different stages is also unpersuasive of Examiner error at
least because it is not responsive to the Examiner's rejection. The Examiner
acknowledged that Kasperski '436 does not disclose the stator vane and ring
member characteristics "being different for either each stage of the stator,
adjacent stages or nearby stages" as required by claim 1 (see Final Act. 6).
The Examiner relied on Kasperski '755 as disclosing this limitation (see id.).
Appellants next argue that Kasperski '755 does not disclose "a stator
vane's radial height of a forward sidewall, radial height of an aft sidewall or
axial length, or a ring segment's radial height of a forward surface, radial
height of an aft surface, radial height of a forward projection, radial height of
an aft projection or axial length" (Br. 17).
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Appellants' argument is unpersuasive of error in the rejection because
Appellants are attacking Kasperski '436 and Kasperski '755 individually;
the rejection is based on the combined teachings of Kasperski '436 and
Kasperski '755, not on either one of them alone. See In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) (Nonobviousness cannot be
established by attacking the references individually when the rejection is
based on the teachings of a combination of references). As the Examiner
explains in the Answer, the Examiner is not relying on Kasperski '755 as
disclosing the particular stator vane or ring segment characteristics recited in
claim 1. See Ans. 8 ("The different characteristics as listed in the claims
were already disclosed by Kasperski '436. Kasperski '755 was relied upon
to change characteristics between different stages, such that the
characteristics of Kasperski '436 were different from stage to stage.").
Appellants further argue that it would not have been obvious to
combine the teachings of Kasperski '436 and Kasperski '755, "because
Kasperski '436 is not concerned about error proofing installation as all the
parts are exactly the same, and Kasperski '755 only varies the bottom ribs 68
of stator portions 12, 14 and 16" (Br. 17).
Appellants have not adequately explained why the Examiner's
articulated reasoning for the combination is in error. The Examiner's reason
for modifying the characteristics disclosed in Kasperski '436 different in
different stages of the compressor is based on the express motivation
disclosed in Kasperski '755. See Kasperski '755, paragraph 26
("compressor case slots 66 in conjunction with the stator elevations prevent
incorrect stage-to-stage assembly of stator portions."). We further note the
following disclosure in paragraph 2 of Kasperski '755, along similar lines:
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Compressors often utilize complex non-uniform vane schemes
or other asymmetric vane arrangements for various reasons both
within each section, and between different sections. Non-
uniform vane schemes utilize differently shaped vanes in
addition to differently angled vanes. In the case of each stator
vane section, these non-uniform schemes must be assembled in
specific circumferential locations along the compressor case
section in order to have the desired effect. The art would
therefore be receptive to a method and apparatus for insuring
the proper installation of stator vanes.
Thus, it is evident from the explicit teachings of Kasperski '755 that one of
ordinary skill in the art would have been motivated to modify the prior art
for "insuring the proper installation of stator vanes" by utilizing "differently
shaped vanes in addition to differently angled vanes," as required by the
claim.
Accordingly, we sustain the rejection of independent claim 1 as
obvious over Kasperski '436 and Kasperski '755, including claims 5, 7, and
12, which fall with claim 1.
Re} ection II
This rejection includes independent claim 15 and dependent
claims 13, 14, 18, 19, and 21. Independent claim 15 contains similar
limitations as claim 1, with several additional limitations, including a stator
having an upper half and a lower half. The Examiner's rejection of claim 15
is essentially the same as the rejection of claim 1, with additional findings in
Mielke and Cormier, which the Examiner relies on as disclosing the
additional elements (Final Act. 7-9). The Examiner concludes that it would
have been obvious "to modify the stator of [Kasperski] '436 by dividing it
into an upper and lower half having locker and packing segments with the
upper and lower half having different characteristics as taught by Mielke and
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Cormier for the purposes of reducing vibrations in the stator" (Id. at 8-9).
Dependent claims 13 (which depends from claim 7) and 21 (which depends
from claim 1) contain similar limitations as claim 15 and are rejected based
on similar reasoning (Id. at 6-7).
Appellants argue the rejection of independent claim 15 and dependent
claims 13-15, 18, 19, and 21 as a group. See Br. 19-20. We select
independent claim 15 as the representative claim for the group, and, thus,
claims 13, 14, 18, 19, and 21 stand or fall with claim 15. See 37 C.F.R.
§41.37( c )(1 )(iv).
Appellants concede that "Mielke does disclose a stator formed in two
halves," but Appellants argue that Mielke "does not disclose the claimed
stator vane or ring segment features, or the different characteristics of two
stator halves" (Br. 19). Appellants also argue that "Cormier does not
disclose stator vanes and ring segments configured to reduce the possibility
of wrongful installation, as presently claimed" (Id.).
Appellants' arguments are not persuasive of Examiner error at least
because they are not responsive to the rejection. The Examiner does not rely
on either Mielke or Cormier as disclosing the argued limitations. As the
Examiner explains in the Answer, "Mielke was brought in to the rejection
statement to teach that stators are frequently divided into sectors, and
include respective locker and packing segments, for installation purposes"
(Ans. 8). The Examiner relies on Cormier as disclosing a stator having a top
half and bottom half with different characteristics, namely arc lengths (Final
Act. 8). And, as discussed above, the Examiner relies on Kasperski '436 as
disclosing the stator vane and ring segment characteristics, and
Kasperski '755 as disclosing that different stages have different
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characteristics. Appellants' arguments cannot show error in the rejection
without addressing the Examiner's actual findings.
Appellants further argue that Mielke and Cormier each teaches away
from the claimed invention (Br. 19--20). According to Appellants, "Mielke
actually teaches away from the presently claimed invention due to the
statement that the two stator halves are identical(' ... four sectors being
shown in each half), see column 3 lines 24--33" (Id. at 19). And, Appellants
also contend that "Cormier actually teaches away from the present invention
by focusing solely on reducing vibrations in the stator" (Id.)
There is no basis for a finding of a "teaching away" based on our
review of the record. Appellants do not point to any passage in Mielke that
criticizes, discredits, or otherwise discourages a stator having different
characteristics between the upper and lower half, which is required to
establish a "teaching away." See In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994) (A teaching away occurs when a reference discourages one skilled in
the art from following the claimed path, or when the reference would lead
one skilled in the art in a direction divergent from the path that was taken by
the applicant); see also In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(The prior art's mere disclosure of more than one alternative does not
constitute a teaching away from any of the alternatives when the disclosure
does not criticize, discredit, or otherwise discourage the solution claimed).
Nor have Appellants pointed to any passage in Cormier that criticizes,
discredits, or otherwise discourages providing stator vanes and ring
segments configured to reduce the possibility of wrongful installation.
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Accordingly, we sustain the rejection of independent claim 15 as
obvious over Kasperski '436 and Kasperski '755, Mielke, and Cormier, and
dependent claims 13, 14, 18, 19, and 21 which fall with claim 15.
Re} ection III
We affirmed the rejections of claims 1, 5, 7, 12-15, 18, 19, and 21
above. Consequently, we find it unnecessary to reach a decision about the
cumulative rejection of claims 1, 5, 7, 12-15, 18, 19, and 21 as unpatentable
over Mielke, Cormier, Kasperski '436, and Kasperski '755, which
encompasses the same claims (see MPEP 706.02 - Prior art rejections should
ordinarily be confined strictly to the best available art). See also 37 C.F.R.
§ 41.50(a)(l) ("The affirmance of the rejection of a claim on any of the
grounds specified constitutes a general affirmance of the decision of the
examiner on that claim . . . . ").
Thus, we vacate the Examiner's 35 U.S.C. § 103(a) rejection of
claims 1, 5, 7, 12-15, 18, 19, and21 over Mielke, Cormier, Kasperski '436,
and Kasperski '755 (see Ex parte Gutsch, 2009 WL 1899607 (BP AI 2009)
(nonprecedential) (vacating cumulative rejections).
DECISION
The Examiner's decision to reject claims 1, 5, 7, 12-15, 18, 19, and
21under35 U.S.C. § 103(a) is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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