Ex Parte Pardington et al

Patent Trial and Appeal Board

Aug 28, 2017

11867195 (P.T.A.B. Aug. 28, 2017)

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.
11/867,195 10/04/2007 Ronald B. Pardington H0014498 (002.4332) 8579
89955 7590 08/30/2017
HONEYWELL/LKGlobal
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
KIM, TAE JUN
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
08/30/2017 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):
patentservices-us @ honey well, com
docketing @LKGlobal.com
DL-PMT-SM-IP@Honeywell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD B. PARDINGTON and JONATHAN N. KETTINGER
Appeal 2016-000559
Application 11/867,195
Technology Center 3700
Before JILL D. HILL, LISA M. GUIJT, and PAUL J. KORNICZKY,
Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 seek our review under 35 U.S.C. § 134 of the Examiner’s
decision2 rejecting claims 1—8, 11—16, and 19—24. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM the rejections of claims 1—8, 11—16, and 19-24, and we
designate our affirmance of claims 7, 13, and 22, under 35 U.S.C. § 103(a) as
unpatentable over Matthews and either Roberts or Hudson, and optionally,
1 Appellants identify the real party in interest as Honeywell International,
Inc. Appeal Br. 1.
2 Appeal is taken from the Final Office Action dated September 19, 2014
(“Final Act.”).
Appeal 2016-000559
Application 11/867,195
over Fox, as a NEW GROUND OF REJECTION. We also enter a NEW
GROUND OF REJECTION of claims 1-4 and 21-24 under 35 U.S.C.
§112, first paragraph, pursuant to our authority under 37 C.F.R. § 41.50(b).
CLAIMED SUBJECT MATTER
Claims 1, 5, and 14 are the independent claims on appeal.
Independent claim 1 and claim 22, which depends from claim 1, are
reproduced below, as illustrative of the subject matter on appeal, with
disputed limitations italicized for emphasis.
1. A dome assembly for a gas turbine engine, the dome
assembly, comprising:
a plurality of flat faceted segments coupled together to
form a dome structure that is configured to be disposed between
an inner liner and an outer liner that circumscribes the inner liner;
and
a plurality of openings, each opening formed within a
respective flat, faceted segment and configured to at least
partially house an atomizer therein, and
a plurality of heat shields, each of the heat shields mounted
against a different respective one of the flat, faceted segments
such that a gap exists between each of the heat shields and the
respective one of the flat, faceted segments to which the heat
shield is mounted, wherein each gap is uniform across the
respective one of the flat, faceted segments to which the heat
shield is mounted, and wherein each gap is uniform with one
another.
22. The dome assembly of Claim 1, wherein each of the flat,
faceted segments are joined together to form an annular ring for
the dome structure.
2
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Application 11/867,195
REJECTIONS
I. Claims 1—3, 5, 6, 8, 11, 14—16, 19, and 21—23 stand rejected
under 35 U.S.C. § 102(e) as anticipated by Monty (US 5,623,827; issued
Apr. 29, 1997).3
II. Claims 1, 3, 5, 7, 8, 11, 13, 14, 19, 20, 22, and 23 stand rejected
under 35 U.S.C. § 102(e) as anticipated by Bessagnet (US 2008/0010997
Al; published Jan. 17, 2008).
III. Claim 24 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Monty.
IV. Claims 7, 13, and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bessagnet and Matthews (US 4,365,470; issued Dec. 28,
1982).4
V. Claims 1—8, 11—16, and 19-24 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Matthews and either Roberts (GB 2011546 A;
published July 11, 1979) or Hudson (US 2,882,681; issued April 21, 1959);
and optionally, over Fox (US 4,265,085; May 5, 1981).
VI. Claims 1,2, 5—8, 13—17, and 21—24 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Cobum (US 4,686,823; issued Aug.
3 The Examiner’s inclusion of claim 7 in the rejection under 35 U.S.C.
§ 102(e) as anticipated by Monty is a typographical error. Final Act. 2; Ans.
3.
4 The Examiner’s omission of claim 13 in the rejection under 35 U.S.C.
§ 103(a) as unpatentable over Bessagnet and Matthews is a typographical
error. Final Act. 8; Ans. 2. Further, the Examiner includes 7 in the
statement of this rejection in the Answer. See Ans. 10.
3
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Application 11/867,195
18, 1987) and either Roberts or Fox; or optionally, over Mathews and Fox.5
ANALYSIS
NEW GROUND OF REJECTION
Independent claim 1 and claims 2—4 and 21—24
An ordinary meaning of the claim term “segment” consistent with the
Specification is “a piece or separate fragment of something.” Webster’s
Third New Int’l Dictionary 2056 (1993). Thus, we understand the
claimed segments (i.e., segments 208) to be separate pieces that are “coupled
together form a dome structure,” according to claim 1. See, e.g., Spec. 122.
An ordinary meaning of the claim term “flat” consistent with the
Specification is “having or marked by a continuous surface that is horizontal
or nearly so without significant curvature or inclination and without
noteworthy elevations or depressions.” Webster’s Third New Int’l
Dictionary 865 (1993). Thus, we understand that each segment has a flat
surface; we do not agree that the claim language “flat segment” requires the
segment to have a particular shape, for example, a rectangular or arcuate
shape. Cf, Reply Br. 8—9.
Further, the claims require the segments to be “faceted.” An ordinary
meaning of the claim term “faceted” consistent with the Specification is
“having or made with facets,” and an ordinary meaning of the term “facet” is
“one of the small plane surfaces produced on a diamond ... or other
5 Claim 18 has been cancelled. See Appeal Br. 15. Therefore, we regard
the inclusion of claim 18 in the Examiner’s statement of rejection as a
typographical error. See Final Act. 13.
4
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Application 11/867,195
material.” Webster’s Third New Int’l Dictionary 812 (1993). Thus, we
understand that the claim term faceted means a structure with more than one
small planar surface. Because a segment with a single flat surface is not
faceted, we understand that the claim term “flat faceted segments” means
that each flat segment is faceted relative to another flat segment, such that
when coupled together the flat, faceted segments form a dome structure.
An ordinary meaning of the claim term “dome” consistent with the
Specification is “a structure . . . arched and rounded that has some
resemblance to a cupola or rounded ceiling.” Webster’s Third New Int’l
Dictionary 670 (1993). Thus, claims 1 and 22 require flat segments, which
are faceted relative to each other, to be coupled together to form a dome
structure (i.e., having an arched or rounded shape) (claim 1), and further, to
be joined together to form an annular ring for the domed structure (claim
22). A dome structure is different than a conical structure, which is defined
as “resembling a cone.” Webster’s Third New Int’l Dictionary 479
(1993); see also Webster’s Third New Int’l Dictionary 474 (1993)
(“cone” means “a solid generated by the rotation of a right triangle about one
of its legs as axis”); cf Reply Br. 8 (regarding claim 22, “[Appellants assert]
that the ‘annular ring for the dome structure’ formed by the joining of the
flat faceted segments would comprise a ‘conical’ dome structure under the
common meaning of the term ‘conical.’”).
The Specification lacks an adequate description as to how the flat,
faceted segments are coupled together to form a dome structure. Figure 2
depicts “an end view of a portion of a combustor section,” and Figure 3
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depicts “a close-up plan view of a portion of a combustor section of FIG. 2.”
However, neither figure clearly depicts a structure having a dome shape,
which is formed by coupling the flat, faceted segments together. Although
the Specification discloses that the flat, faceted segments are each connected
to walls that are at least partially conical in shape, a conical shape is
different from a dome shape. See Fig. 4 of the Drawings submitted May 16,
2011. Further, although the prior art recognizes that a “dome assembly” is a
known component of an annular combustor for a gas turbine engine, and the
prior art also refers to flat components as “a dome wall”—not because the
dome wall must have a dome shape, but because the dome wall is generally
part of the dome assembly, (see, e.g., Monty, Abstract, Figs. 1, 2 (numeral
20 referencing a “domed end” or “dome,” and numeral 36 referencing “a
first dome wall”)), claim 1 uses the claim term “dome assembly” in the
preamble and the more specific claim term “dome structure” in claims 1 and
22. Thus, we determine that the claim term “dome structure” is a structure
that requires a dome (i.e., arched or rounded) shape, and not a term of art
referring to a section of an annular combustor, such as the “dome assembly.”
We have reviewed the Specification (and Figures), and determine that
the Specification provides inadequate support for the claimed subject matter.
In particular, the Specification (and Figures) does not adequately describe
how the flat, faceted segments are coupled together to form a dome
structure, as claimed, or even more broadly, how any structures within the
claimed dome assembly form a dome structure, as claimed.
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Thus, we enter a new ground of rejection as to independent claim 1
and the claims depending therefrom, including dependent claim 22, under 35
U.S.C. § 112, first paragraph, for failure to comply with the written
description requirement. To satisfy the written description requirement, “the
[original] specification must describe an invention understandable to that
skilled artisan and show that the inventor actually invented the invention
claimed.” AriadPharms., Inc. v. EliLilly & Co., 598 F.3d 1336, 1351 (Fed.
Cir. 2010) (en banc). “[T]he test for sufficiency is whether the disclosure of
the application relied upon reasonably conveys to those skilled in the art that
the inventor had possession of the claimed subject matter as of the filing
date.” Id. “[T]he level of detail required to satisfy the written description
requirement varies depending on the nature and scope of the claims and on
the complexity and predictability of the relevant technology.” Id. The
claimed invention need not be recited in haec verba in the original
specification in order to satisfy the written description requirement. Id. at
1352. “[DJrawings alone may be sufficient to provide the ‘written
description of the invention’ required by § 112, first paragraph.” Vas-Cath,
Inc. v. Mahurkar, 935 F.2d 1555, 1564 (Fed. Cir. 1991).
For these reasons, we find the disclosure of the Specification relied
upon fails to reasonably convey to those skilled in the art that Appellants had
possession of the subject matter of claims 1 and 22 as of the filing date.
Accordingly, we enter a new ground of rejection of claims 1—4 and 21—24.
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Rejection I
Claims 1, 3, 5, 6, 8, 11, 14—16, 19, 21, and 236
Appellants do not present arguments for the patentability of claims 1—
3, 5, 6, 8, 11, 14—16, 19, 21, and 23 under 35 U.S.C. § 102(e) as anticipated
by Monty; consequently, Appellants have waived any argument of error, and
we summarily sustain the Examiner’s rejection. See MPEP § 1205.02, 9th
ed., Rev. 11,2013 (Nov. 2015) (“If a ground of rejection stated by the
examiner is not addressed in the appellant's brief, appellant has waived any
challenge to that ground of rejection and the Board may summarily sustain
it”).
Dependent claim 22
Regarding independent claim 1, from which claim 22 depends, the
Examiner finds that Monty teaches an annular combustor (Ans. 5), including
a dome assembly comprising flat, faceted segments (i.e., first dome walls
36) coupled together to form a dome structure, and that the dome structure is
configured to be disposed between inner and outer liners 16, 18 (Final Act.
2—3). The Examiner also finds that Monty’s baffle 40 corresponds to the
claimed heat shield, and that uniform gaps exist between each of walls 36
and their respective baffles 40. Final Act. 3. Regarding claim 22, which
depends from claim 1, the Examiner finds that Monty’s first dome walls 36
6 To the extent Appellants’ arguments addressing Monty are intended to be
presented for the rejection of claims 7 and 13 under 35 U.S.C. § 102(e),
claims 7 and 13 are not subject to a rejection in view of Monty. See Final
Act. 2, 10; Ans. 3; Appeal Br. 4—5.
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are joined together to form an annular ring for the dome structure (Final Act.
2—3 (citing Monty, Figs. 2, 3, 4)), and in particular, that each of the first
dome walls are joined together “at 72” (Ans. 26 (citing Monty, Fig. 3)).
With respect to claim 22, Appellants argue that Monty “does not
disclose the joining of flat segments joined together to form a conical
structure, let alone to form an annular ring for the dome structure as recited
in claim 22.” Appeal Br. 8. Appellants argue that instead Monty discloses
“a rectangular dome structure, and does not have conical first and second
walls coupling the flat faceted segments to the inner and outer liner.” Id.
The Examiner correctly responds that claim 22 (and claim 1 from
which it depends) does not require the plurality of flat, faceted segments to
form conical walls or a conical dome structure, but only to be “coupled
together to form a dome structure” (claim 1) and also to be “joined together
to form an annular ring for the dome structure” (claim 22). Ans. 25.
Further, the Examiner correctly determines that claims 1 and 22 do not
require conical first and second walls to couple the segments to the liners.
Id. at 26. Notwithstanding, the Examiner further finds that a dome structure
is formed by modules 60, 60’, which include first dome walls 36. Id. at 5.
Appellants reply that “there is no disclosure in Monty that modules
60, 60’ . . . would be somehow comprised of segments 36.” Appeal Br. 3.
However, Monty discloses that “[cjombustor 10 ... is generally annular in
form and is comprised of an outer liner 16, an inner liner 18, and a domed
end or dome 20,” and that “dome assembly 20 ... is comprised of a plurality
of modules,” wherein each “[mjodule 60 includes a first dome wall 36.'”
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Monty 3:26—29, 45^47 (emphasis added); see also Monty 4:45—47 (“module
60 is an integral structure comprised offirst dome wall 36, second dome
wall 42, baffle 40, venturi 32, and flare cone 34”) (emphasis added). Thus,
we are not apprised of error in the Examiner’s finding that Monty discloses
first dome walls 36 that form a dome structure.
Appellants also reply that “even if Monty discloses flat, faceted
segments (36), and even if Monty discloses an annular ring (with module 60,
60’), there is no disclosure] that the flat, faceted segments (36) actually
form the annular ring (for modules 60, 60’),” as required by claim 22. Reply
Br. 3; see id. at 3—7; see also Reply Br. 4—5 (“the ring formed via modules
60, 60’ would not necessarily coincide with the joining of faceted segments
36 in Monty”).
Appellants’ argument, however, does not address the Examiner’s
finding that Monty’s first dome walls 36 are joined together at sealing strip
72 to form an annular ring for the dome structure, as required by claim 22.
See Ans. 5 {“each of the flat, faceted segments 36 are joined together [at 72
in Fig. 3] to form an annular ring for the dome structure — note that Fig. 4
shows a portion of the annular ring] aspect of the dome structure [with
modules 60, 60’].” (brackets in original)). Indeed, Monty discloses that
“modules 60 and 60’ are attached by means of a sealing strip 72 [at their
downstream ends]” (Monty 4:65—67), and Figure 3 of Monty depicts sealing
strip 72 connecting first dome wall 36 of module 60 to first dome wall 36 of
module 60’. Thus, a preponderance of evidence supports that Examiner’s
finding that Monty’s first dome walls 36, which are an integral part of each
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module 60, 60’, are joined together by sealing strip member 72, to form an
annular ring for the dome structure (i.e., the annularly configured dome 20).
See id., Figs. 3, 4.
Appellants further argue that “the gaps in Monty would also not
necessarily be uniform,” as required by claim 1. Reply Br. 5. Appellants
submit that
[f]or example, Monty may appear to have a uniform gap when a
cross section is taken through the engine centerline, the gap in
Monty would become non-uniform when a cross section is taken
at any location except directly through the engine center (e.g.,
because the ring of modules 60, 60’ in Monty is not necessarily
comprised of the faceted segments 36 of Monty).
Id.
We address Appellants’ argument relating to the gap recited in claim
1, which is presented for the first time in the Reply Brief, as possibly
responsive to the Examiner’s reference to Monty’s modules 60, 60’, which is
made for the first time in the Examiner’s Answer. Ans. 5. Notwithstanding,
Appellants’ argument does not address the gap according to the Examiner’s
findings, which is between Monty’s first dome wall 36 and baffle 40, and
not between modules 60, 60’ and other structures depicted in Appellants’
figures. See Final Act. 3; Reply Br. 7. Moreover, Monty discloses that each
module 60 is “an integral structure comprised of first dome wall 36 [and]. . .
baffle 40,” and that “module 60 may be made from precision investment
castings which allow the use of high temperature materials” and that have
the “benefit of controlling the size and orientation of cooling passages 39,
54, 56and 58 so as to maximize their effect with respect to hot areas (and
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thereby reduce the amount of air required).” Monty 4:45—53. Thus, a
preponderance of evidence supports the Examiner’s finding that gaps
between first dome wall 36 and baffle 40 of each precision cast module 60
are uniform across respective flat, faceted segments (i.e., first dome walls
36) and with respect to the same gaps in other modules, as required by
claim 1.
Accordingly, we sustain the Examiner’s rejection of claim 22 under
35 U.S.C. § 102(e) as anticipated by Monty.
Rejection II
Claims 1, 3, 5, 8, 11, 14, 19, 20, and 23
Appellants do not present arguments for the patentability of claims 1,
3,5,8, 11, 14, 19, 20, and 23 under 35 U.S.C. § 102(e) as anticipated by
Bessagnet; consequently, as supported supra, Appellants have waived any
argument of error, and we summarily sustain the Examiner’s rejection.
Dependent claims 7 and 13
Regarding independent claim 5, from which claim 7 depends, the
Examiner finds that Bessagnet’s longitudinal walls 6, 8 correspond to the
claimed inner and outer liners, and that Bessagnet’s transverse wall (or
chamber bottom 10) corresponds to the claimed plurality of flat, faceted
segments. Final Act. 5; see e.g., Bessagnet 118 (“longitudinal walls 6, 8 are
joined upstream ... by a transverse wall 10 forming the chamber bottom”).
Regarding dependent claim 7, the Examiner finds that Bessagnet discloses
first and second conical walls, as claimed. Id. at 5—6. Dependent claim 13,
which also depends from independent claim 5, recites identical claim
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limitations as dependent claim 7,7 and the Examiner does not distinguish
between claims 7 and 13 in the rejection. See Final Act. 5—6.
With respect to claims 7 and 13, Appellants do not dispute the
Examiner’s finding that chamber bottom 10 comprises faceted segments;
rather, Appellants argue that Bessagnet’s chamber bottom 10 is depicted in
Figures 2 and 3 of Bessagnet “as conical segments, and not flat.” Appeal Br.
5. Appellants submit that Bessagnet’s dome segment 10 “is made of sheet
metal, and . . . that it would be very difficult if not impossible to make a
conical or curved dome with flat segments out of sheet metal (e.g., without a
‘crumpling’ effect in the comers where each of the flat segments would
touch).” Id.
The Examiner responds that Figures 1 through 3 of Bessagnet support
the Examiner’s finding that transverse wall 10 is flat. Ans. 30. Further, the
Examiner determines that Bessagnet teaches first and second conical walls
(i.e., inner and outer flanges 16, 18) that couple the flat chamber bottom 10
to liners 6, 8, in the same way Appellants’ first and second (at least partially)
conical walls 209, 211 couple each faceted segment 208 to inner and outer
liners 204, 206. Id. at 31 (citing Bessagnet, Figs. 1, 3).
Appellants reply that the Examiner erred by relying on a cross-
sectional view of Bessagnet’s chamber bottom 10 in support of finding that
Bessagnet’s chamber bottom 10 is flat, as claimed. Reply Br. 9—10.
7 The Examiner advises Appellants that “should claim 7 be found allowable,
claim 13 will be objected to under 37 CFR 1.75 as being a substantial
duplicate thereof.” Ans. 4 (citing MPEP § 706.03(k)).
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However, Appellants’ argument does not address the partial perspective
view of Figure 2, as relied on by the Examiner.
Appellants do not dispute the Examiner’s finding that Bessagnet’s
chamber bottom 10 (excluding flanges 16, 18) corresponds to the claimed
flat, faceted segments. See Bessagnet 120 (“chamber bottom 10 comprises
an inner flange 16 and an outer flange 18”). We determine that a
preponderance of evidence supports the Examiner’s finding that chamber
bottom 10 has a flat surface (excluding flanges 16, 18) as depicted in Figure
2. We also agree with the Examiner that Appellants’ arguments regarding
the sheet metal construction and cornering of Bessagnet’s chamber wall 10
does not have adequate support, in view of Appellants’ own disclosure of the
claimed subject matter. See Ans. 31; see also In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (“Attorney's argument cannot take the place of
evidence”). Thus, a preponderance of evidence supports the Examiner’s
finding that chamber bottom 10 is flat (excluding flanges 16, 18).
Accordingly, we sustain the Examiner’s rejection of claims 7 and 13
under 35 U.S.C. § 102(e) as anticipated by Bessagnet.
Dependent claim 22
Appellants present the same argument for the patentability of claim 22
as presented for claims 7 and 13 supra. See Appeal Br. 8 (“the segments in
Bessagnet are conical segments, rather than flat segments”) (citations
omitted). For the same reasons discussed supra, we are not persuaded by
Appellants’ argument.
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Accordingly, we sustain the Examiner’s rejection of claim 22 under
35 U.S.C. § 102(e) as anticipated by Bessagnet.
Rejection //A
Appellants do not present arguments for the patentability of claim 24
under 35 U.S.C. § 103(a) as unpatentable over Monty; consequently, as
supported supra, Appellants have waived any argument of error, and we
summarily sustain the Examiner’s rejection.
Rejection IV
Appellants do not present arguments for the patentability of claim 24
under 35 U.S.C. § 103(a) as unpatentable over Bessagnet and Matthews;
consequently, as supported supra, Appellants have waived any argument of
error, and we summarily sustain the Examiner’s rejection. Appellants’
arguments directed to claims 7 and 13 are discussed infra.
Regarding claims 7 and 13, the Examiner relies on Bessagnet as
applied to claims 7 and 13 in Rejection II, and further on Matthews for
disclosing that welding is “a conventional fastening and assembly technique
used in the art.” Final Act. 8. Appellants do not dispute the Examiner’s
reliance on Matthews for disclosing welding, and thus, for the same reasons
discussed supra, we are not apprised of error in the Examiner’s findings or
reasoning.
8 To the extent Appellants’ arguments addressing Monty are intended to be
presented for the rejection of claims 7 and 13 under 35 U.S.C. § 103(a),
claims 7 and 13 are not subject to this rejection. See Final Act. 8; Appeal
Br. 4—5.
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Accordingly, we sustain the Examiner’s rejection of claims 7, 13, and
24 under 35 U.S.C. § 103(a) as unpatentable over Bessagnet and Matthews.
Rejection V
Appellants do not present arguments for the patentability of claims 1—
6, 8, 11, 12, 14—16, and 19-21, 23, and 24 under 35 U.S.C. § 103(a) as
unpatentable over Matthews and either Roberts or Hudson; and optionally,
over Fox; consequently, as supported supra, Appellants have waived any
argument of error, and we summarily sustain the Examiner’s rejection.
Appellants’ arguments directed to claims 7, 13, and 22 are discussed infra.
Dependent claims 7 and 13
Regarding independent claim 5, from which claims 7 and 13 depend,
the Examiner finds, inter alia, that Matthews’ machined bulkhead flange 22
corresponds to the claimed flat, faceted segments, wherein Matthew’s
Figures 1 and 3 depict the flatness of flange 22. Final Act. 9. Regarding
dependent claims 7 and 13, the Examiner finds that the “radially inner wall
downstream of 20” corresponds to the first conical wall and the “radially
outer wall downstream of 20” corresponds to the second conical wall. Id. at
10—11. The Examiner relies on Roberts for teaching that a continuous and
segmented dome assembly are equivalents {id. at 11 (citing Roberts,
Abstract, Fig. 5)), and alternatively, on Hudson for teaching that “[a] dome
made up of adjoining separate substantially rectangular segments p is well
known in the art” {id.). The Examiner relies on Fox for providing external
evidence that a fuel injector may be an atomizer. Id. at 13 (citing Fox,
Abstract).
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Regarding claims 7 and 13, Appellants argue that “Matthews
comprises a single niece, rather than a plurality of flat segments coupled
together,” and that “even if [Matthews’ bulkhead flange 22] is flat,
[Matthews’ bulkhead flange 22] would still not comprise a plurality of flat,
faceted segments coupled together, let alone to form a conical dome
structure.” Appeal Br. 5. The Examiner responds that, in Matthews, “each
fuel injector . . . has its own flat segment 22.” Ans. 32.
The Examiner has not provided, nor can we find, support in Matthews
for the Examiner’s finding that Matthews’ bulkhead flange 22 is comprised
of a plurality of segments; rather, a preponderance of the evidence supports
Appellants’ argument that Matthews discloses that bulkhead flange 22 is a
single piece. See, e.g., Matthews 2:32—38 (“[d]ome 20 is formed with a
plurality of circumferentially spaced apertures for receiving an equal number
of fuel nozzles,” and “bulkhead flange 22 is butt welded as shown by
weldment 24 to the dome 20”). However, we determine that the Examiner’s
reliance on either Roberts or Hudson for teaching that it is known in the art
of annular combustion chambers for combustors that a segmented end wall
or base plate (i.e., sheet metal segments) is a known equivalent for a
continuous end wall or base plate cures this deficiency in the Examiner’s
finding.
Regarding Roberts and Hudson, Appellants argue that Roberts’ plates
22 and Hudson’s segments p are “‘arcute’ (i.e., curved segments), and
therefore, not flat,” and that “it would not be a natural or logical extension to
use flat segments for a curved dome, let alone the type of conical dome
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structure,” as recited in claims 7 and 13. Appeal Br. 5 (citing Roberts
1:108—110; Hudson, Fig. 2). However, the Examiner relies on Matthews for
disclosing a flat bulkhead flange 22, and on Roberts and Hudson for
individually disclosing that continuous and segmented combustion base
plates are known equivalents. Appellants do not dispute the Examiner’s
finding that Matthews’ bulkhead flange 22 (excluding the radial portions or
conical walls, as set forth supra) comprises flat, faceted segments, and we
determine that a preponderance of evidence supports the Examiner’s reliance
on Matthews for disclosing that a leg of the U-shaped bulkhead 22 (e.g., at
reference numeral 22 in Figure 1) has a flat surface. See Matthews 3:11
(describing bulkhead flange 22 as “U-shaped”). Thus, Appellants’ argument
does not address the Examiner’s rejection or apprise us of error in the
Examiner’s findings or reasoning.
Accordingly, we sustain the Examiner’s rejection of claims 7 and 13
under 35 U.S.C. § 103(a) as unpatentable over Matthews and either Roberts
or Hudson and optionally, Fox. To the extent our findings differ from the
Examiner’s, we designate our affirmance a new ground to give Appellants a
full and fair opportunity to react to this rejection.
Dependent claim 22
Similar to claims 5, 7, and 13 above, with respect to claim 22, which
depends from independent claim 1, the Examiner relies on Matthews for
disclosing a “flat faceted segments 22.” Final Act. 9. Appellants present the
same argument regarding Matthews as presented supra for claims 7 and 13
(i.e., “the dome assembly of Matthews comprises a single piece, rather than
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a plurality of flat faceted segments”). Appeal Br. 8. Again, we determine,
as set forth supra, that Roberts and Hudson individually cure this deficiency
in the Examiner’s findings.
Appellants also argue that the references do not “disclose the joining
of a plurality of flat faceted segments together to form an annular ring,” as
recited in claim 22, or “the joining of flat faceted segments together to form
a curved structure.” Appeal Br. 8—9.
Claim 22 recites “wherein each of the flat faceted segments are joined
together to form an annular ring for the dome structure.” Appeal Br. 16
(Claims App.). As set forth supra, the Examiner relies on Matthews for
disclosing that U-shaped bulkhead flange 22 has a flat surface, and on
Hudson for teaching that “[a] dome made up of adjoining separate
substantially rectangular segments p is well known in the art.” Final Act.
15. Thus, Appellants’ argument does not address the Examiner’s proposed
combination. Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
We decline to consider Appellants’ argument that the Examiner erred
in determining that Roberts and Hudson disclose a uniform gap, as claimed,
which is raised for the first time in Appellants’ Reply Brief. Reply Br. 9
(“Appellants’ discussion . . . with respect to Monty . . . regarding the
reference’s lack of a uniform gap in any orientation . . . would also apply to
[Roberts] and Hudson.”). Appellants have not presented persuasive
arguments in the Reply Brief attempting to demonstrate good cause for why
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this argument was not raised earlier. Notwithstanding, the Examiner relies
on Matthews, not on Roberts or Hudson, for disclosing the claimed uniform
gap. Final Act. 9.
Accordingly, we sustain the Examiner’s rejection of claim 22 under
35 U.S.C. § 103(a) as unpatentable over Matthews and either Roberts or
Hudson and optionally, Fox. To the extent our findings differ from the
Examiner's, we designate our affirmance a new ground to give Appellant a
full and fair opportunity to react to this rejection.
Rejection VI
Claims 1, 2, 5—6, 8, 14—17, 21, 23, and 24
Appellants do not present arguments for the patentability of claims 1,
2, 5—6, 8, 14—17, 21, 23, and 24 under 35 U.S.C. § 103(a) as unpatentable
over Cobum and either Roberts or Hudson; and optionally, over Matthews
and Fox; consequently, as supported supra, Appellants have waived any
argument of error, and we summarily sustain the Examiner’s rejection.
Appellants’ arguments directed to claims 7, 13, and 22 are discussed infra.
Dependent claims 7 and 13
The Examiner finds that Cobum’s flat bulkhead 36 corresponds to the
claimed dome assembly, and that Cobum also teaches inner and outer liners
47, 48. Final Act. 14 (citing Cobum, Fig. 2). The Examiner determines that
Cobum does not teach that “the dome is made of segments,” and relies on
Roberts for teaching that a continuous and segmented dome assembly are
equivalents {id. at 15 (citing Roberts, Abstract, Fig. 5)) and alternatively, on
Hudson for teaching that “[a] dome made up of adjoining separate
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substantially rectangular segments p is well known in the art” (id. ). The
Examiner reasons that it would have been obvious “to make the dome of
adjoining segments, as taught by [Roberts] and Hudson, to utilize an art
recognized equivalent arrangement in the art.” Id. The Examiner
determines that the resulting dome assembly would have “flat faceted
segments] of dome 36.” Id.
Regarding claims 7 and 13, Appellants argue that similar to Matthews,
Cobum’s bulkhead 36 “comprises a single piece, rather than a plurality of
flat faceted segments coupled together,” and that “even if [Cobum’s
bulkhead 36] is flat, [Cobum’s bulkhead 36] would still not comprise a
plurality of flat, faceted segments coupled together, let alone to form a
conical dome structure.” Appeal Br. 6. However, Appellants’ argument
does not respond to the Examiner’s rejection, which acknowledges that
Cobum discloses that bulkhead 36 is a single piece and proposes modifying
Cobum’s bulkhead 36 to be segmented, in view of the teachings of Roberts
and Hudson. Thus, Appellants’ argument does not apprise us of error in the
Examiner’s findings.
We decline to consider Appellants’ argument that Cobum’s first dome
walls 36 are not “flat,” as claimed, which is raised for the first time in
Appellants’ Reply Brief. Reply Br. 9 (The Examiner erred by relying on a
cross-sectional view of Cobum’s bulkhead 36 to support the finding that
Cobum discloses a flat bulkhead 36.) Although Appellants characterize this
argument as in response to an interpretation in the Examiner’s Answer, the
Examiner clearly determined that Cobum’s bulkhead 36 is flat in the Final
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Action, and this position is not changed by the Examiner Answer. See Final
Act. 14 (“dome assembly 36 is flat [clearly seen in e.g. Fig. 2]”) (brackets in
original)). Appellants have not presented persuasive arguments in the Reply
Brief attempting to demonstrate good cause for why this argument was not
raised earlier.
Accordingly, we sustain the Examiner’s rejection of claims 7 and 13
24 under 35 U.S.C. § 103(a) as unpatentable over Cobum and either Roberts
or Hudson; and optionally, over Matthews and Fox.
Dependent claim 22
Similar to claims 5, 7, and 13 above, with respect to claim 22, which
depends from independent claim 1, the Examiner relies on Cobum for
disclosing a “flat faceted segments 22.” Final Act. 9. Appellants present the
same argument regarding Cobum as presented supra for claims 7 and 13
(i.e., “structure 36 of Cobum comprises a single niece, rather than a plurality
of flat faceted segments coupled together to form an annular ring”). Appeal
Br. 8. However, as discussed supra, Appellants’ argument is not responsive
to the rejection as articulated by the Examiner.
We decline to consider Appellants’ argument that the Examiner erred
in determining that Roberts and Hudson disclose a uniform gap, as claimed,
which is raised for the first time in Appellants’ Reply Brief. Reply Br. 9
(“Appellants’ discussion . . . with respect to Monty . . . regarding the
reference’s lack of a uniform gap in any orientation . . . would also apply to
[Roberts] and Hudson.”). Appellants have not presented persuasive
arguments in the Reply Brief attempting to demonstrate good cause for why
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this argument was not raised earlier. Notwithstanding, the Examiner relies
on Cobum, not on Roberts or Hudson, for disclosing the claimed uniform
gap. Final Act. 14.
Accordingly, we sustain the Examiner’s rejection of claim 22 under
35 U.S.C. § 103(a) as unpatentable over Cobum and either Roberts or
Hudson; and optionally, over Matthews and Fox.
DECISION
We enter a NEW GROUND OF REJECTION of claims 1-4 and 21-
24 under 35 U.S.C. § 112, first paragraph, as failing to comply with the
written description requirement.
The Examiner’s rejection of claims 1—3, 5, 6, 8, 11, 14—16, 19, and
21—23 under 35 U.S.C. § 102(e) as anticipated by Monty is AFFIRMED.
The Examiner’s rejection of claims 1—3, 5, 6, 8, 11, 14—16, 19, and
21—23 under 35 U.S.C. § 102(e) as anticipated by Bessagnet is AFFIRMED.
The Examiner’s rejection of claim 24 under 35 U.S.C. § 103(a) as
unpatentable over Monty is AFFIRMED.
The Examiner’s rejection of claims 7, 13, and 24 under 35 U.S.C.
§103(a) as unpatentable over Bessagnet and Matthews is AFFIRMED.
The Examiner’s rejection of claims 1—8, 11, 12—16, and 19—24 under
35 U.S.C. §103(a) as unpatentable over Matthews and either Roberts or
Hudson; and optionally, over Fox, is AFFIRMED and the rejection of claims
7, 13, and 22 is designated a NEW GROUND OF REJECTION.
The Examiner’s rejection of claims 1, 2, 5—8, 13—17, and 21—24 under
35 U.S.C. §103(a) as unpatentable over Cobum and either Roberts or
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Hudson; and optionally, over Matthews and Fox, is AFFIRMED.
FINALITY OF DECISION
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 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
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 § 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 § 1214.01.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED; 37 C.F.R. $ 41.50(b)
25