Ex Parte Schwarz et al

Patent Trial and Appeal BoardSep 26, 2018

14038886 (P.T.A.B. Sep. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/038,886 09/27/2013 Frederick M. Schwarz 54549 7590 09/28/2018 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. 71885US03; 67097-2451PUS2 8678 EXAMINER GOYAL,ARUN ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 09/28/2018 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 FREDERICK M. SCHWARZ and ROBERT E. MALECKI Appeal2018-002400 Application 14/038,886 Technology Center 3700 Before CHARLES N. GREENHUT, LISA M. GUIJT, and JEFFREY A. STEPHENS, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL 1 1 In Appeal No. 2014-009020 (PTAB Aug. 30, 2016), the Board rendered a decision on a previous appeal filed in this application. The present appeal is also related to Appeal No. 2018-002376, dealing with a related application, and Appeal No. 2015-000392 (PTAB Aug. 30, 2016), in which the Board rendered a decision on a previous appeal filed in the related application. Appeal2018-002400 Application 14/038,886 STATEMENT OF THE CASE Applicant United Technologies Corporation ("Appellant")2 seeks our review under 35 U.S.C. Â§ 134(a) from the Examiner's Final Office Action ("Final Act.") rejecting claims 1-3, 5, 6, 8, 10-14, 16, 17, 19, and 21, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. Claimed Subject Matter Claims 1 and 11 are independent. Claim 1, reproduced below, illustrates the claimed subject matter. 1. A propulsion system comprising: a fan; a gear system; a turbine section incorporating a high pressure turbine and a fan drive turbine configured to drive said gear to drive said fan, said turbine having an exit point at a last blade airfoil stage, and a diameter (Dt) defined as the diameter of said last blade airfoil stage in the turbine at said exit point; a compressor section including at least two compressor rotors with said high pressure turbine driving a high pressure compressor rotor and there being a lower pressure compressor rotor also being driven; a nacelle surrounding a core engine housing, said fan configured to deliver air into a bypass duct defined between said nacelle and said core engine housing to said low pressure compressor, and a bypass ratio defined as a volume of air delivered into said bypass duct compared to the volume of air delivered into said core engine housing; a core engine exhaust nozzle downstream of said exit point, with a downstream most point of said core engine exhaust nozzle being defined at a distance (Le or Ln) from the exit point, 2 Applicant is also identified as the real party in interest. Appeal Br. 1. 2 Appeal2018-002400 Application 14/038,886 wherein a distance/ diameter ratio of said distance (Le or Ln) to said diameter (Dt) is greater than or equal to 0.90; and the bypass ratio is greater than 6. Rejections I. Claims 1-3, 5, 6, 8, 10-14, 16, 17, 19, and 21 stand rejected under pre-AIA 35 U.S.C. Â§ 112, second paragraph, as being indefinite. Final Act. 2. II. Claims 1-3, 5, 6, 8, 10-14, 16, 17, 19, and 21 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as unpatentable over Chaudhry (US 2010/0005778 Al, Jan. 14, 2010), Orosa (US 8,337,153 B2, issued Dec. 25, 2012), Schwartz (US 3,830,431, issued Aug. 20, 1974), and Alletzhauser (US 7,966,827 B2, issued June 28, 2011). Final Act. 3-5. DISCUSSION Rejection I - Indefiniteness Appellant does not address the Examiner's rejection of claims 1-3, 5, 6, 8, 10-14, 16, 17, 19, and 21 as indefinite. See generally Appeal Br. Therefore, we summarily sustain the rejection. Rejection II - Obviousness Appellant argues the recitation of a bypass ratio in claims 1 and 11 "makes clear that these claims are for aircraft applications, and not for a land-based system." Appeal Br. 3--4. Appellant contends the Declaration of Robert E. Malecki ("Malecki Declaration" or "Malecki Deel."), submitted on appeal as item 1 of Appellant's Evidence Appendix, "makes clear that the Orosa reference cannot be properly combined with Chaudhry or 3 Appeal2018-002400 Application 14/038,886 Alletzhauser." Id. at 4. Mr. Malecki, who is listed as a co-inventor on the present application, declares that Orosa teaches a gas turbine engine operated on land and utilized for power generation. Malecki Deel. ,r 5. Mr. Malecki points to differences between Orosa's land-based, power-generation engine and an aircraft engine, including that Orosa's engine does not have a propulsor fan and includes a diffuser rather than a thrust-generating nozzle, and testifies that "weight is a less significant design factor for a land-based gas turbine engine." Id. ,r 7. Mr. Malecki states that "a diffuser on a land- based power generation system, to be aerodynamically efficient, will be long to manage an adverse pressure gradient that may occur," and opines that "[t]here would be no teaching or reason that such a diffuser would be incorporated into a geared gas turbine engine propulsion system." Id. We agree with Appellant that, on this record, the rejection lacks sufficient articulated reasoning as to why one of ordinary skill in the art would have relied on teachings in Orosa to make Chaudhry' s nozzle long enough to meet the distance/ diameter ratios recited in claims 1 and 11. The Examiner has not sufficiently explained why one of ordinary skill in the art would have used Orosa's apparent distance/diameter ratio in a propulsion system with the claimed bypass ratio despite the differing design considerations for a land-based power-generation turbine engine as presented by Appellant and the declarant, Mr. Malecki. The Examiner states that "[ e ]ngine noise is a problem in both aircraft-based and land-based engines and a tradeoff exists between the engine noise and the weight ( associated with increased diffuser length) which an engine designer must consider based on the maximum noise level dictated by regulations." Ans. 2. Although this statement may be true, it does not establish that one of skill 4 Appeal2018-002400 Application 14/038,886 in the art would have looked to Orosa when designing an appropriate nozzle length for an aircraft turbine engine as claimed and taught in Chaudhry. 3 We also agree with Appellant that the inclusion of Schwartz in the rejection is insufficient to cure any deficiencies in reliance on Orosa or the reasoning for incorporating the claimed distance/diameter ratio into Chaudhry's engine. See Appeal Br. 4. Although the Examiner indicates the claimed ratio is "obvious from" Figures 3 and 4 of Schwartz, these figures are not indicated as being drawn to scale, which explains why the rejection finds Orosa teaches the claimed ratio. Final Act. 4. We understand the rejection in the Final Office Action to rely on Schwartz and Alletzhauser to establish the desirability of reducing noise in aircraft engines. See id. (concluding it would have been obvious "to make Chaudhry's engine such that the ratio of said distance Ln to said diameter is greater than or equal to about 1.1 7 in order to minimize disturbance in the exhaust gas as taught by Orosa, and therefore reduce noise as taught by Schwartz and Alletzhauser" (internal citations omitted)). In the Answer, the Examiner finds Figures 3 and 4 of Schwartz show a long exhaust section and support the idea of modifying an exhaust for a particular application, such as supersonic flight and to use an afterburner. Ans. 3. "Similarly," the Examiner finds, "an engine designer can increase the weight to meet noise level requirements." Id. For the reasons discussed above, these findings are insufficient to 3 We do not understand the Examiner's rejection to be based on the obviousness of optimizing a results-effective variable. To the extent the Examiner's rejection is based on this rationale, we do not view Orosa as sufficient evidence to establish that one of skill in the art would have viewed the distance/diameter ratio recited in the claims to be a variable known to affect noise in the context of a propulsion system with the bypass ratio claimed. 5 Appeal2018-002400 Application 14/038,886 explain why one of skill in the art would look particularly to Orosa for determining the length of an aircraft engine exhaust nozzle. In view of the foregoing, we do not sustain the rejection of claims 1 and 11 under 35 U.S.C. Â§ 103(a) as unpatentable over Chaudhry, Orosa, Schwartz, and Alletzhauser. For the same reasons, we do not sustain the rejection on the same ground of dependent claims 2, 3, 5, 6, 8, 10, 12-14, 16, 17, 19, and 21. DECISION We affirm the Examiner's decision to reject claims 1-3, 5, 6, 8, 10- 14, 16, 17, 19, and 21 under pre-AIA 35 U.S.C. Â§ 112, second paragraph. We reverse the Examiner's decision to reject claims 1-3, 5, 6, 8, 10-14, 16, 17, 19, and 21 under 35 U.S.C. Â§ 103(a). 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 6