Ex Parte Khan et al

Patent Trial and Appeal Board

Apr 28, 2016

13204777 (P.T.A.B. Apr. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/204,777 08/08/2011 Abdul Rafey Khan
52082 7590 05/02/2016
General Electric Company
GE Global Patent Operation
3135 Easton Turnpike
Fairfield, CT 06828
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.
247861-1 1705
EXAMINER
MEADE, LORNE EDWARD
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
05/02/2016 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):
gpo.mail@ge.com
marie.gerrie@ge.com
lori.E.rooney@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ABDUL RAFEY KHAN and KRISHNA KUMAR
VENKA TARAMAN
Appeal2014-001104
Application 13/204,777 1
Technology Center 3700
Before MICHAEL C. ASTORINO, CYNTHIA L. MURPHY, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 2, 4--10, 12-17, 19 and 20. Non-Final Act. 1
(Office Action Summary). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is General Electric
Company. Appeal Br. 1.
Appeal2014-001104
Application 13/204,777
ILL US TRATIVE CLAiivI
1. A combustor assembly comprising:
a combustor body including a combustion chamber;
a nozzle support mounted to the combustor, the nozzle
support including a central opening, and a plurality of openings
extending about the central opening;
a central swozzle assembly positioned within the central
opening; and
a plurality of non-swirling micro-mixer nozzle
assemblies mounted in respective ones of the plurality of
openings about the central swozzle assembly, each of the
central swozzle assembly and the plurality of non-swirling
micro-mixer nozzle assemblies being configured and disposed
to deliver an air-fuel mixture into the combustion chamber,
wherein each of the plurality of non-swirling micro-mixer
nozzle assemblies includes a plurality of tubes arranged in the
respective ones of the plurality of openings.
CITED REFERENCES
The Examiner relies upon the following references:
Roffe et al.
(hereinafter "Roffe")
Borkowicz
Tuthill et al.
(hereinafter "Tuthill")
us 4,262,482
us 5,199,265
US 6,438,961 B2
Apr. 21, 1981
Apr. 6, 1993
Aug.27,2002
Ziminsky et al. US 7, 185,494 B2 Mar. 6, 2007
(hereinafter "Ziminsky '484")
York et al. US 2010/0101229 Al Apr. 29, 2010
(hereinafter "York '229")
Ziminsky et al. US 2010/0192581 Al Aug. 5, 2010
(hereinafter "Ziminsky '581 ")
York et al. US 2010/0263383 Al Oct. 21, 2010
(hereinafter "York '3 83 ")
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Application 13/204,777
REJECTIONS
I. Claims 1, 2, 4, 5, 7-10, 12, 13, 15-17, 19, and 20 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Ziminsky '494, York '229 (as
evidenced by Tuthill), and Ziminsky '581. Non-Final Act. 3-16.
II. Claims 6 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ziminsky '494, York '229 (as evidenced by Tuthill),
Ziminsky '581 and York '383. Non-Final Act. 16-17.
III. Claims 1, 2, 4, 5, 7-10, 12, 13, 15-17, 19, and 20 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Roffe (as evidenced by
Borkowicz), York '229 (as evidenced by Tuthill) and Ziminsky '581. Non-
Final Act. 17-28.
IV. Claims 6 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Roffe (as evidenced by Borkowicz), York '229 (as
evidenced by Tuthill), Ziminsky '581 and York '383. Non-Final Act. 29-
30.
FINDINGS OF FACT
We rely upon and adopt the Examiner's findings stated in the Non-
Final Action and the Answer, except where noted. Additional findings of
fact may appear in the Analysis below.
ANALYSIS
The Appellants argue the claims as a group, as to all grounds of
rejection, and offer no arguments specific to any dependent claim. 2 Insofar
2 Although section 1 of the "Argument" portion of the Appeal Brief refers to
claims 1, 2, 4, 5, 7-10, 12, 13, 15-17, 19 and 20 (Appeal Br. 5), it elsewhere
refers to "the independent claims" (Appeal Br. 6). Sections 2 and 3 of the
"Argument" refer to "the independent claims" (Appeal Br. 7) and section 4
does not refer to any claim specifically (Appeal Br. 8-9). No arguments in
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Application 13/204,777
as any particular claim is addressed in the analysis herein, claim 1 is
selected, although all appealed claims stand or fall together. See 37 U.S.C.
§ 41.37(c)(l)(iv).
For the reasons explained below, Rejections I and II are sustained and
Rejections III and IV are not sustained.
Rejections I and 113
The subject matter of claim 1 relates to a combustor assembly having
a central "swozzle" - generally, a nozzle with vanes that swirl air and fuel
passing between them (see Spec. i-f 22) - surrounded by a plurality of
multiple-tube nozzles for introducing air and fuel in a non-swirling manner
(see Appeal Br. 11, Claims App.).
According to the Appellants, Ziminsky '494 teaches a center swirling
nozzle surrounded by a number of outer swirling nozzles. Appeal Br. 6,
Reply Br. 2.
The Appellants contend that the Examiner has not provided a reason
for modifying Ziminsky '494, so as to employ the non-swirling premixing
assemblies, shown in Ziminsky '581, in place of Ziminsky '494' s outer
swirling nozzles. Appeal Br. 6, 7. See also Reply Br. 2, 3.
the Appeal Brief are directed to any dependent claim. Accordingly, it is
understood that all claims on appeal are argued as a group. See 37 U.S.C.
§ 41.37(c)(l)(iv).
3 It is understood that sections 1 and 2 of the "Argument" portion of the
Appeal Brief are directed to what are identified herein as Rejections I and II
because sections 1 and 2 refer to Ziminsky '494 (which the Examiner relied
upon in Rejections I and II only). See Appeal Br. 5-7. It is also understood
that sections 3 and 4 of the "Argument" portion of the Appeal Brief relate to
what are identified herein as Rejections III and IV because sections 3 and 4
discuss Roffe (which the Examiner relied upon for Rejections III and IV
only). See Appeal Br. 7-9
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Application 13/204,777
Yet, the Appellants fail to address the Examiner's explanation that a
person of ordinary skill in the art would have chosen to modify Ziminsky
'494 with the non-swirling assemblies, based upon the desirable
characteristics of the latter identified in Ziminsky '581 - e.g .. , that the
configuration of non-swirling mixing tubes makes it possible to bum high-
hydrogen or syngas fuel with relatively low NOx, without significant risk of
flame holding and flame flashback from the ignition zone into the mixing
tubes. Non-Final Act. 5-7 (citing Ziminsky '581, Fig. 4, i-fi-1 4, 5, 26-28).
See also Answer 3--4, 5-9 (citing Ziminsky '581, Figs. 2, 4, i-fi-13, 4, 5, 26-
28).
The Appellants also contend that "[t]here is simply no teaching or
suggestion that Ziminsky [ '494] would operate as designed if outer swirling
nozzles were replaced by non-swirling micro-mixer assemblies" (Appeal Br.
6) or that, so modified, Ziminsky '494 would "maintain the desired flame
characteristics" (Appeal Br. 7). The Examiner responded to this contention
by pointing out that the Appellants' statement is merely attorney argument
lacking evidentiary support. Answer 4--5. Moreover, "[c]ombining the
teachings of references," as the Examiner has done, "does not involve an
ability to combine their specific structures." In re Nievelt, 482 F.2d 965, 968
(CCP A 1973). The Reply Brief does not clarify the Appellants' argument,
but simply urges that the Examiner improperly shifted the burden to them
without having first established a prima facie case of obviousness. Reply
Br. 2. Because the Examiner has established a prima facie case of
obviousness, the Appellants' argument is not persuasive.
The Appellants also contend that "the arrangement of elements" of the
independent claims "operates synergistically to produce a desired
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Application 13/204,777
combustion environment." Appeal Br. 6. But the Appellants do not
elaborate this assertion or support it with evidence. For example, as the
Examiner points out, the Appellants do not allege that unexpected results
flow from the arrangement of elements set forth in the appealed claims.
Answer 7.
Further, the Appellants allege, without citation to the record, that
Ziminsky '494 teaches away from using non-swirling nozzles. Appeal Br. 6.
The Examiner responds by pointing out that Ziminsky '494 taught one way
to pre-mix fuel and air- i.e., employing a swirling nozzle -but was silent
as to alternatives and, hence, did not teach away from any such alternatives.
Answer 3 (citing Ziminsky '494 at col. 4, 11. 30-50 and Fig. 2). In the Reply
Brief, the Appellants (again, without a record citation) allege that Ziminsky
'494 "notes that all the nozzles should be substantially similar" and
"describes that the outer nozzle assemblies 32 and center nozzle assembly
132 are substantially similar." Reply Br. 2. On the contrary, Ziminsky '494
merely says that "[t]he center nozzle may be structurally similar to the outer
fuel nozzle assemblies" - not that it should be so. Ziminsky '494, col. 5, 11.
9-10 (emphasis added). Moreover, Ziminsky '494 "does not 'criticize,
discredit, or otherwise discourage' investigation into" non-swirling nozzles
and thus does not teach away from their use. DePuy Spine, Inc. v.
Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009)
(quoting In re Fulton, 391F.3d1195, 1201 (Fed. Cir. 2004)).
In view of the foregoing analysis, the Appellants' arguments directed
to Rejections I and II are not persuasive. Rejections I and II are sustained.
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Rejections III and IV
In Rejections III and IV, the Examiner relies upon Roffe, which the
Examiner characterizes as having "a central swirling nozzle assembly
surrounded by a plurality of non-swirling nozzle assemblies." Non-Final
Act. 20. Roffe does not state that its central nozzle has swirling features, but
the Examiner (id. at 19-20) determines Roffe to have a central swirling
nozzle, "as evidenced by Borkowicz" (id. at 20) - that is, based upon
similarities between Roff e's cross-sectional drawing of "flameholder 53"
(Roffe Fig. 2, col. 3, 1. 46) and Borkowicz's cross-sectional drawings of
"swirler 54" and "flameholding swirler 116" (Borkowicz Figs. 1, 2, col. 4,
1. 12, col. 5, 11. 32-33). According to the Examiner, "both Roffe and
Borkowicz use standard illustrations recognized in the gas turbine art to be
swirler vanes." Answer 12.
The Appellants dispute the Examiner's finding that Roffe discloses a
central swirling nozzle. Appeal Br. 8; Reply Br. 3.
Although there are similarities in the depictions of Roffe' s
flameholder 53 and the identified elements 54 and 116 of Borkowicz, it is
unclear that Roffe was employing a standard illustration form to represent
swirling vanes. Indeed, the two examples in Borkowicz are not even
identical to each other, as element 54 is shown to include a roughly
triangular structure, whereas element 116 appears as overlapping or
intersecting triangular shapes. See Borkowicz Fig. 1 (element 54), Fig. 2
(element 116).
Accordingly, the Examiner's finding that Roffe teaches a central
swirling nozzle is not supported by a preponderance of the evidence.
Because the Examiner relies upon this erroneous finding to arrive at the
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combination of references (see Non-Final Act. 20-21), Rejections III and IV
are not sustained.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1, 2, 4--10, 12-
17, 19 and 20.
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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