United Technologies Corporation

Patent Trials and Appeals BoardMar 2, 2021

2020002079 (P.T.A.B. Mar. 2, 2021)

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. 15/424,930 02/06/2017 Gabriel L. Suciu 96132US01; 67097-3571PUS1 8656 54549 7590 03/02/2021 CARLSON, GASKEY & OLDS/PRATT & WHITNEY 400 West Maple Road Suite 350 Birmingham, MI 48009 EXAMINER BURKE, THOMAS P ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 03/02/2021 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 GABRIEL L. SUCIU, BRIAN MERRY, and IOANNIS ALVANOS Appeal 2020-002079 Application 15/424,930 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL J. FITZPATRICK, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–23. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies United Technologies Corporation as the real party in interest. Appeal Br. 1. Appeal 2020-002079 Application 15/424,930 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to a gas turbine engine with certain components comprising ceramic matrix composite (CMC) material. Spec. ¶¶ 1–4. Claims 1, 9, and 17 are independent, and claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A turbine exhaust assembly for a gas turbine engine comprising: a turbine exhaust case comprising ceramic matrix composite (CMC) material and attachable to a turbine case; a tail cone comprising CMC material and including a leading edge and a trailing edge; an exhaust mixer comprising CMC material and coupled to the turbine exhaust case, the exhaust mixer including a plurality of lobes arranged about the tail cone to define an exhaust flow path; and a plurality of struts extending from the tail cone to support the exhaust mixer at a location aft of the leading edge of the tail cone. Appeal Br. 8 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Maguire US 4,548,034 Oct. 22, 1985 Gekht US 2006/0010852 A1 Jan. 19, 2006 Sheridan US 2009/0090096 A1 Apr. 9, 2009 Lefebvre US 2011/0036068 A1 Feb. 17, 2011 Suciu US 2012/0297791 A1 Nov. 29, 2012 Dindar US 2015/0107225 A1 Apr. 23, 2015 Marini US 2015/0337761 A1 Nov. 26, 2015 Appeal 2020-002079 Application 15/424,930 3 REJECTIONS I. Claims 1–10, 12–14, and 16–20 are rejected under 35 U.S.C. § 103 as unpatentable over Gekht, Suciu, and Dindar. II. Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable over Gekht, Suciu, Dindar, and Sheridan. III. Claim 15 is rejected under 35 U.S.C. § 103 as unpatentable over Gekht, Suciu, Dindar, and Marini. IV. Claim 21 is rejected under 35 U.S.C. § 103 as unpatentable over Gekht, Suciu, Dindar, and Lefebvre. V. Claim 22 is rejected under 35 U.S.C. § 103 as unpatentable over Gekht, Suciu, Dindar, and Maguire. VI. Claim 23 is rejected under 35 U.S.C. § 103 as unpatentable over Gekht, Suciu, Dindar, Maguire, and Lefebvre. OPINION Rejection I (Gekht, Suciu, and Dindar) Claims 1, 9, and 17 Appellant makes arguments for the patentability of claims 1, 9, and 17 as a group. Appeal Br. 3. We select claim 1 as representative. The Examiner finds that Gekht discloses many of the elements recited in claim 1, including a turbine exhaust case, tail cone, and exhaust mixer. Final Act. 4. However, the Examiner finds that Gekht does not disclose that these components comprise CMC as claimed. Id. The Examiner relies on Suciu to teach a turbine exhaust case and tail cone that comprise CMC, and on Dindar to teach an exhaust mixer that comprises CMC. Id. The Appeal 2020-002079 Application 15/424,930 4 Examiner reasons that it would have been obvious to modify the relevant components in the assembly disclosed by Gekht to include CMC to reduce weight and cost. Id. (citing Suciu ¶ 18). Additionally, the Examiner reasons that modifying the above-noted components to incorporate CMC would have been obvious as a selection of a known material on the basis of its suitability for the intended purposed. Id. at 4–5 (citing In re Leshin, 227 F.2d 197 (CCPA 1960)). Appellant argues that the Examiner’s reasoning for the proposed modification is inadequate because (i) Gekht does not disclose the use of CMC materials, (ii) Suciu does not disclose an exhaust mixer made of CMC, and (iii) Dindar does not disclose an exhaust case or tail cone made of CMC. Appeal Br. 3. These arguments do not apprise us of Examiner error because they do not address the Examiner’s findings or stated rationales, and, instead, assert each of the three cited references is missing one or more claim elements that the Examiner finds to be disclosed in another reference. The Examiner acknowledges that Gekht does not disclose components comprising CMC as recited in claim 1. “Gekht does not teach the use of ceramic matrix composite (CMC) material.” Final Act. 4. Appellant’s restatement of this finding does not identify Examiner error. Similarly, Appellant’s argument that the structure the Examiner finds in Suciu is not found in Dindar (and vice versa) is inapposite. Appellant also argues “Appellant previously pointed out that one would eliminate the airfoils 31 of Gekht in view of the teachings of Dindar. The Examiner does not address this deficiency in the Examiner's alleged motivation to combine.” Appeal Br. 4. Appeal 2020-002079 Application 15/424,930 5 Appellant does not provide any explanation in the Appeal Brief or even specifically identify where this argument was “previously pointed out.”2 In any event, the Examiner’s proposed modification addressing claim 1 merely incorporates CMC material based on the teachings of Suciu and Dindar. We are not apprised of any reason a person of ordinary skill in the art would eliminate airfoils from Gekht’s arrangement when incorporating CMC material to the turbine exhaust case, tail cone, and exhaust mixer disclosed by Gekht. We sustain the rejection of claims 1, 9, and 17 as unpatentable over Gekht, Suciu, and Dindar. Claim 5 Claim 5 depends indirectly from claim 1 and requires that “each of the plurality of struts extends between the exhaust mixer and the tail cone.” Appeal Br. 8 (Claims App.). The Examiner finds Figure 2A of Gekht discloses struts 31 extending between mixer 37 and tail cone 27. Final Act. 5. Appellant argues the Examiner’s finding is in error because “Fig. 2A of Gekht appears to disclose airfoils 31 being axially forward of the mixer 37.” Appeal Br. 4. In response, the Examiner finds Appellant’s argument unsound because “claim 5 does not require that the struts . . . be located at the same axial location as the mixer.” Ans. 5. Appellant replies that “[t]he Examiner suggests that a different interpretation of the claims, including the recitation of ‘between,’ is permitted because Appellant’s Specification does not explicitly exclude the Examiner’s interpretation . . . [,] [b]ut this is contrary to the law.” Reply Br. 3. Appellant goes on to set forth claim interpretation principles from case law and then concludes by stating “[t]he 2 See 37 C.F.R. § 41.37(c)(1)(iv)(“any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal”) Appeal 2020-002079 Application 15/424,930 6 rejection should be reversed.” Id. However, Appellant does not refer to any portion of the Specification or propose any alternative claim construction in support of this conclusion. See id. at 2–3. Thus, from Appellant’s discussion of a lack of axial alignment of the strut and mixer in Gekht’s Figure 2A, the Examiner’s response, and Appellant’s reply, the issue presented is whether the broadest reasonable interpretation of claim 5 in light of Appellant’s disclosure requires axial alignment of strut and mixer. We determine that it does not. In particular, Appellant’s argument is undermined by the language in dependent claims 21 and 23. For example, claim 21 recites, “[t]he propulsion system as recited in claim 9, wherein each of the plurality of struts extends between the exhaust mixer and the tail cone such that the plurality of struts are axially aligned with the exhaust mixer relative to the engine axis.” Appeal Br. 10 (Claims App.) (emphasis added). Claim 23 depends from claim 22, but recites the same limitations as claim 21. See id. at 11. Thus, claims 21 and 23 include the same “extends between” language of claim 5, but also explicitly recite the limitation Appellant asserts should be included by implication in the broadest reasonable interpretation of claim 5, namely, axial alignment of the tail cone and exhaust mixer. This explicit recitation of axial alignment in claims 21 and 23 is an indication that claim 5 does not implicitly require such alignment. Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., 296 F.3d 1106, 1115 (Fed. Cir. 2002) (proposed construction that rendered a portion of the claim language meaningless held improper). Accordingly, Appellant’s argument does not apprise us of Examiner error in rejecting claim 5 as unpatentable over Gekht, Suciu, and Dindar. The rejection is sustained. Appeal 2020-002079 Application 15/424,930 7 Claims 10 and 20 Claim 10 recites, “[t]he propulsion system as recited in claim 9, wherein the exhaust mixer defines a portion of the bypass flow path.” Appeal Br. 9 (Claims App.). Similarly, claim 20 recites, in part, “the exhaust mixer defines a portion of a bypass flow path downstream of a fan.” Id. The Examiner finds Gekht discloses this structure because “the outer surface of mixer 37 defines an inner surface of the bypass flowpath.” Final Act. 7, 10 (citing Gekht, Figs. 1–2B). Appellant contends that Gekht does not meet the requirements of claims 10 and 20 because “Fig. 1 of Gekht appears to disclose mixer 37 being axially aft of an exit of nacelle 10.” Appeal Br. 4. In response, the Examiner finds that mixer 37 of Gekht receives bypass flow and mixes it with other flow, and, therefore, mixer 37 is in the bypass flow path. Ans. 5 (citing Gekht ¶ 23). In reply, Appellant points out that claim 9, from which claim 10 depends, requires the fan nacelle and core cowling to define the bypass flow path. Reply Br. 3; see also Appeal Br. 9 (Claims App.) (claim 9 reciting “the fan nacelle and the core cowling arranged about an engine axis to define a bypass flow path”). The Examiner does not adequately explain how a mixer located aft of the nacelle and core cowling could be interpreted as including a flow path defined by the nacelle and core cowling as required by claim 9. Appellant’s argument is persuasive as to claim 10 because the Examiner’s finding that mixer 37 of Gekht receives bypass flow, and, therefore, defines a portion of the bypass flow path, does not account for the additional limitations requiring the core cowling and nacelle to define the bypass flow path as set forth in claim 9. Specifically, a portion of the bypass flow path of claim 10 must be defined by the recited mixer and while, consistent with parent claim 9, also being defined by the fan nacelle and core Appeal 2020-002079 Application 15/424,930 8 cowling. An exemplary arrangement satisfying those requirements is illustrated in Figure 2 of Appellant’s disclosure. Mixer 37 of Gekht does not meet these requirements. Therefore, we do not sustain the rejection of claim 10 as unpatentable over Gekht, Suciu, and Dindar. Appellant’s argument is not persuasive as to claim 20 because this claim depends from independent claim 17, not independent claim 9. Appeal Br. 10 (Claims App.). Claim 17 does not include the language Appellant touts as distinguishing mixer 37 of Gekht. See id. Accordingly, Appellant’s argument in support of the patentability of claim 20 is not commensurate with the scope of this claim. Appellant makes no additional arguments in support of the patentability of any of claims 2–4, 6–8, 12–14, 16, 18, and 19. Accordingly, these claims fall with respective independent claims 1, 9, and 17. Thus, we sustain Rejection I with respect to claims 1–9, 12–14, and 16–20 and reverse it with respect to claim 10. Rejections II, V, and VI Appellant argues for the patentability of claims 11, 22, and 23 based on dependency. See Appeal Br. 5, 7. Accordingly, for the same reasons, as those indicated with regard to claim 10, we reverse the rejections of claims 11, 22, and 23. Rejection III (Gekht, Suciu, Dindar, and Marini) Claim 15 recites, “[t]he propulsion system as recited in claim 9, wherein each of the plurality of struts is positioned aft of the turbine exhaust case relative to the engine axis.” Appeal Br. 9 (Claims App.). The Examiner finds Marini discloses struts 58 located aft of turbine exhaust 28, Appeal 2020-002079 Application 15/424,930 9 relative to axis 34. Final Act. 11. The Examiner reasons that modifying Gekht to include struts at the recited location would assist in deswirling flow of exhaust gases and mix them with the bypass air stream. Id. (citing Marini ¶ 28). Appellant contends “the rejection does not point to any objective evidence that Marini discloses struts 58 or turbine exhaust case 28 being made of CMC,” and “[t]he rejection does not point to any objective evidence that it was known to couple a CMC mixer and CMC tail cone with CMC struts aft of a CMC turbine exhaust case.” Appeal Br. 6–7. Based on these assertions, Appellant contends “the rejection fails to establish that one would have been motivated to make the Examiner's proposed modification.” Id. at 7. Appellant’s argument does not contest the Examiner’s findings of fact regarding the references cited in Rejection III or the Examiner’s stated rationale for the proposed modification. The Examiner does not find that Marini discloses components made from CMC, and, instead, relies on a combination of the teachings of Marini with those of Gekht, Suciu, and Dindar to address claim 15. See Final Act. 11. Arguments must address the Examiner’s action. 37 C.F.R. § 41.37(c)(1)(iv)(“The arguments shall explain why the examiner erred as to each ground of rejection contested by appellant”). Thus, Appellant’s arguments do not apprise us of Examiner error. Rejection IV (Gekht, Suciu, Dindar, and Lefebvre) As discussed above, claim 21 requires that “each of the plurality of struts extends between the exhaust mixer and the tail cone such that the Appeal 2020-002079 Application 15/424,930 10 plurality of struts are axially aligned with the exhaust mixer relative to the engine axis.” Appeal Br. 10, 11 (Claims App.). In both of Rejections IV and VI, the Examiner relies on Lefebvre to address the requirement that the struts are axially aligned with the exhaust mixer. Final Act. 12, 13 (finding struts 54 of Lefebvre are axially aligned with exhaust mixer 32). The Examiner reasons it would have been obvious “to include the location of the struts as taught by Lefebvre in order to directly connect the struts to the inner lobes.” Id. (citing Lefebvre ¶ 22). The Examiner also determines that modifying the arrangement disclosed by Gekht to meet the requirements of claim 21 would have been an obvious matter of design choice. Id. Appellant asserts that claim 9 (from which claim 21 depends) recites that the plurality of struts comprising CMC material extends from the tail cone. Appeal Br. 6. Appellant asserts that, similarly, “[t]he rejection suggests that struts 54 in Figs. 2-6 of Lefebvre directly connect the exhaust mixer 32 and exhaust [tail] cone 28, which directly conflicts with the cited portions of Lefebvre.” Appeal Br. 6. Appellant contends that, in conflict with the Examiner’s rationale, the struts disclosed by Lefebvre merely hang from mixer 32 and are not directly connected to Lefebvre’s tail cone 28. Id. at 5–6; see also Lefebvre ¶ 22. In response, the Examiner states, “the claims do not require, nor does the Examiner’s proposed modification demand, the struts to be directly connected to the exhaust cone. The motivation to modify Gekht in view of Suciu and Dindar to include the location of the struts as taught by Lefebvre is to directly connect the struts to the inner lobes (see Paragraph 0022 of Lefebvre).” Ans. 6 (emphasis added, underlining omitted). The Examiner states, “[t]he term ‘extend’ is defined as ‘to continue in a specified direction Appeal 2020-002079 Application 15/424,930 11 or over a specified distance, space, or time: to stretch out or across something’ as provided by Merriam Webster’s Online dictionary.” Id. Based on this interpretation, the Examiner states, “[a]s can be seen from Lefebvre’s Figures 5-6, his struts (54, 154) continue over a specified distance from the tail cone (at 27 – the circumferential ledge of tile exhaust cone) to the exhaust mixer (at 26b – the outer surface of the inner lobe).” Id. (emphasis added). In other words, based on the above-noted definition of the word “extend,” the Examiner determines that Lefebvre’s struts 54 extend from tail cone 28 even if they do not make direct contact with tail cone 28. In reply, Appellant reiterates that claim 9 requires the recited plurality of struts to extend from the tail cone, which, Appellant contends, requires the struts to be directly connected to the tail cone. Reply Br. 4. Appellant contends that the Examiner is applying an unreasonably broad interpretation of claim 21 in finding that Lefebvre discloses that struts 54 extend from tail cone 28. Id. We agree with Appellant that the Examiner erred in interpreting claim 21 as not requiring the struts to be directly connected to the exhaust/tail cone. As Appellant points out, independent claim 9 recites “a plurality of struts comprising CMC material and extending from the tail cone to support the exhaust mixer.” Appeal Br. 9 (Claims App.) (emphasis added). A person of ordinary skill in the art would understand the word “from” (in the recitation that the struts extend from the tail cone) to require that the struts start at, i.e., are in contact with, the tail cone. Thus, the Examiner’s rejection of claim 21 is based on an unreasonably broad interpretation of claims 21, which led to an unsupported finding that Lefebvre’s struts 54 extend from tail cone 28. We do not sustain Rejection IV. Appeal 2020-002079 Application 15/424,930 12 CONCLUSION The Examiner’s rejections are affirmed in part. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–10, 12– 14, 16–20 103 Gekht, Suciu, Dindar 1–9, 12– 14, 16–20 10 11 103 Gekht, Suciu, Dindar, Sheridan 11 15 103 Gekht, Suciu, Dindar, Marini 15 21 103 Gekht, Suciu, Dindar, Lefebvre 21 22 103 Gekht, Suciu, Dindar, Maguire 22 23 103 Gekht, Suciu, Dindar, Maguire, Lefebvre 23 Overall Outcome 1–9, 12–20 10, 11, 21– 23 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 IN PART