DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 8 objected to because of the following informalities:
claim 8 line 2 recites phrase “the upstream”. There is no antecedent basis for this phrase. In addition the term “upstream” is not a noun for example in Merriam-Webster Dictionary online where it is described as an adverb or adjective wherein the term appears to be used as a noun in claim 8. However this is interpreted as applicant being their own lexicographer consistent with applicant specification page 1 lines 10-15 stating “an axis X and includes from upstream to downstream …”
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Regarding claim 4, the limitations “means for rotationally or positionally coupling each flange segment” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “means” coupled with functional language “for rotationally or positionally coupling each flange segment” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier.
Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claim 4 has/have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: positioning stud, or flat section (see applicant page 3, l. 33 to applicant page 4, l. 19).
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “the upstream portion of each segment is fastened onto a radial or axial downstream portion of the exhaust case … via a connecting element” in claim 9.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Regarding claim 9, the limitations “the upstream portion of each segment is fastened onto a radial or axial downstream portion of the exhaust case … via a connecting element” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “connecting element” coupled with functional language “the upstream portion of each segment is fastened onto a radial or axial downstream portion of the exhaust case” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier.
Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claim 9 has/have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: bolts 36 (see figs. 10-12).
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: “the means for rotationally or positionally coupling include at least one positioning stud formed on the corresponding segment and engaged in a complementary recess or orifice of the exhaust case or the cone, or vice versa” in claim 5; and “the means for rotationally or positionally coupling include at least one flat section formed on the corresponding segment and pressing on an edge or a corresponding planar surface of the exhaust case or the cone, or vice versa” in claim 6.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-3 and 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent 4,907,743 (Bouiller) in view of Pub. No.: US 2010/0162725 A1 (Zeaton), Pub. No.: US 2008/0041033 A1 (Durocher) and French Patent Document FR3084916 A1 (Conete; Pub. No. US 2021/0293201 A1 cited below is English equivalent).
Regarding claim 1, Bouiller discloses (see figs. 1-2) an assembly for a turbomachine (see col. 3, ll. 10-15), comprising:
an exhaust cone (1; see annotated figure below); and
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an exhaust case 2,18 including an annular inner (one of ordinary skill would understand this to be an inner shell; such shell 2,18 is radially inward of the exhaust gas produced by the turbomachine of Bouiller; see Pertinent Prior Art section of the non-final office action mailed 09/23/2025 at page 19 regarding knowledge of the ordinary worker in this area) shell (case 2,18 extends around engine axis and thus surrounds such portion of the engine; see col. 3, ll. 10-15), the exhaust cone 1 and the exhaust case 2,18 extending about (see col. 3, ll. 10-15) a first axis (see annotated figure above), the exhaust cone 1 including an outer surface (see annotated figure above) extending in a projection (see shading representing “projection” in annotated figure above) of the inner shell 2,18, the exhaust cone 1 being connected to the exhaust case via a flange (brackets 5; flange is not required to be continuous circumferentially; see applicant page 3, ll. 15-20), the flange 5 including an upstream portion 6,7 (see fig. 3) fastened to (via bolts 12) the exhaust case 2,18 and lugs (see annotated figures above and below; the structure shown as being lug in annotated figure 3 below can be one lug or two lugs) extending downstream (regarding flow of exhaust gasses; see “downstream” of end 18 of exhaust case 2,18 and “upstream” end 17 of exhaust cone 1 as reference frame) from the upstream portion 6,7, the exhaust cone 1 being fastened to (see annotated figure above) the lugs (see annotated figure above),
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wherein the flange 5 is segmented and consists of angular segments (at least three; see col. 3, ll. 25-30) arranged circumferentially (the exhaust cone 1 and exhaust case 2,18 are annular, see col. 3, ll. 10-15 and thus the flanges 5 would be arranged circumferentially), each flange angular segment 5 including at least one of the lugs (see annotated figures above) extending in a rectilinear manner along a second axis (see annotated figure above).
wherein the at least one of the lugs (see annotated figures above) comprises a linear central portion (see annotated figures above) between an upstream linear end portion (see annotated figures above) and a downstream linear end portion (see annotated figures above), and
wherein the upstream linear end portion (see annotated figures above) is directly fastened (see annotated figures above) to the upstream portion 6,7 of the flange 5, the linear central portion (see annotated figures above) extends downstream (see annotated figures above) from the upstream linear end portion (see annotated figures above) and the downstream linear end portion (see annotated figures above) extends downstream (see annotated figures above) from the linear central portion (see annotated figures above). Bouiller does not explicitly disclose the flange angular segments arranged adjacent (Bouiller mentions three or more flange angular segments however it is not clear if the multiple flange angular segments would be considered by one of ordinary skill in the art to be circumferentially adjacent); the second axis parallel with the first axis; and the linear central portion is thinner than the upstream and downstream linear end portions.
Zeaton teaches (see figs. 1, 2 and 4 below) a turbomachine 50 and further teaches flange angular segments arranged (circumferentially) adjacent (flange of adapter ring 66, wherein flange connects an exhaust case (see annotated figures below) to an exhaust cone 60 of the turbomachine. See segment boundaries 118a-d in fig. 3 and see an example of a segment in fig. 4 (see par. 26, top and middle).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the current invention to provide Bouiller with the annular flange segments arranged adjacent as taught by Zeaton in order to facilitate reliable attachment of the exhaust cone to the engine and good operability (see Zeaton par. 4).
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Durocher teaches (see figs. 1 and 2) a turbomachine 10 and further teaches the second axis (see annotated figure below) parallel with the first axis 9. Annular lug 37 is parallel to the engine axis 9 (see par. 17, top: flange 44 of exhaust cone 24, annular lug 37 of exhaust case 22 and engine axis 9 are all parallel; the scope of substantially parallel includes “parallel” as pointed out in par. 17; this is shown in figs. 2 and 3; structure 22 can be considered an exhaust case, see Pertinent Prior Art section of the non-final office action mailed 09/23/2025 at page 19). It is further noted that “when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 at 1395 (U.S. 2007) (MPEP 2143 I.B.).
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the current invention to substitute the angle of the lug with respect to the engine axis of Durocher (i.e. zero angle) for the angle of the lug with respect to the engine axis of Bouiller in view of Zeaton (such angle being the angle between lug and fist axis in annotated figures above) for the purpose of substituting one known element for another in order to provide the expected result of using a lug to fasten an exhaust cone of the combination.
Conete teaches (see figs. 1, 2 and 5) a turbomachine 10 and further teaches (see annotated figure below) a linear central portion (of lug 11 connecting an exhaust cone 1 to an exhaust case 22) is thinner than upstream and downstream linear end portions (of lug 11).
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the current invention to provide Bouiller in view of Zeaton and Durocher with the linear central portion is thinner than the upstream and downstream linear end portions as taught by Conete in order to facilitate reducing weight and thus improving fuel consumption and ease of maintenance.
Regarding claim 2, Bouiller in view of Zeaton, Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses each flange angular segment 5 extends over an angular range less than 180°. There are at least three flange segments 5 (see col. 3, ll. 25-30) and thus the maximum angular range or each flange segment would be 120°.
Regarding claim 3, Bouiller in view of Zeaton, Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses each flange angular segment includes 1 to 100 lugs. See annotated fig. 3 above (such annotated figure showing two annotated lugs). Thus each flange segment 5 includes two lugs.
Regarding claim 9, Bouiller in view of Zeaton, Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses the upstream portion 6,7 of each flange angular segment 5 is fastened onto a radial 3 or axial downstream portion 18 of the exhaust case 2,18 directly or via a connecting element 12.
Regarding claim 10, Bouiller in view of Zeaton, Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses a turbomachine (see col. 3, ll. 10-15) including at least one assembly (the structure discussed in claim 1 analysis above including exhaust case 2,18, exhaust cone 1 and flange segments 5) according to claim 1.
Regarding claim 11, Bouiller in view of Zeaton, Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses each flange angular segment 5 includes 1 to 10 lugs. See annotated fig. 3 above (such annotated figure showing two annotated lugs). Thus each flange segment 5 can includes two lugs.
Claim(s) 4-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bouiller in view of Zeaton, Durocher and Conete as applied to claim 1 above, and further in view of Pub. No.: US 2002/0008387 A1 (Vasudeva).
Regarding claims 4-6, Bouiller in view of Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses (see fig. 1-3) (claim 4) means for rotationally or positionally coupling each flange angular segment (bolts or studs 12 prevent radial and circumferential movement of the flange segments 5; see col. 3, ll. 30-37); (claim 5) wherein the means 12 for rotationally or positionally coupling include at least one positioning stud 12 and engaged in a complementary recess or orifice 4 of the exhaust case 2,18 or the exhaust cone, or vice versa; (claim 6) the means for rotationally or positionally coupling 12 include at least one flat section 7 formed on the corresponding segment 5 and pressing on an edge or a corresponding planar surface 3 of the exhaust case 2,18 or the cone, or vice versa. Bouiller does not disclose (claim 5) the positioning stud formed on the corresponding flange angular segment.
Vasudeva teaches flanged connections for exhaust systems of combustion engines (see par. 3) and further teaches (see fig. 2) (claim 5) a positioning stud 10 formed on a flange of 2 of a pipe 3, or alternatively (see pars. 8 and 92) formed on the flange 1 of pipe 3 (left pipe in fig. 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the current invention to provide Bouiller in view of Zeaton, Durocher and Conete with the positioning stud extending from the corresponding flange angular segment or, regarding the “vice versa” claim language, the exhaust case (i.e., the inner shell 22a of Conete) as taught by Vasudeva in order to facilitate ease of manufacture and assembly (see Vasudeva pars. 6, 12 and 15).
Claim(s) 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bouiller in view of Zeaton, Durocher and Conete as applied to claim 1 above, and further in view of Pub. No.: US 2021/0270150 A1 (Lefebvre).
Regarding claim 7, Bouiller in view of Zeaton, Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses the exhaust cone 1 includes a radially outer skin (see “outer surface” in annotated figure above), the outer skin (see “outer surface” in annotated figure above) at least partially forming the outer surface (see annotated figure above) of the exhaust cone 1 (see annotated figure above). Bouiller does not disclose a radially inner skin and a chamber between the radially outer skin and the radially inner skin.
Lefebvre teaches a turbomachine (see fig. 1 and par. 14, top) and further teaches a radially inner skin 18 and a chamber 30 between a radially outer skin 28 and the radially inner skin 18.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the current invention to provide Bouiller in view of Zeaton, Durocher and Conete with a radially inner skin and a chamber between the radially outer skin and the radially inner skin in order to facilitate insulating internal gas turbine components from high temperature exhaust gasses (see Lefebvre par. 3 and par. 22, bottom).
Regarding claim 8, Bouiller in view of Zeaton, Durocher, Conete and Lefebvre teach the current invention as claimed and discussed above. Bouiller further discloses the radially outer skin (see “outer surface” in annotated figure above) extends axially toward (see annotated figures above) the upstream to the exhaust case 2,18, and wherein the flange angular segments 5 are located radially inside (see annotated figures above) the radially outer skin (see “outer surface” in annotated figure above). The teachings of Lefebvre applied in the claim 7 analysis above include (see fig. 2) lug 20 is fastened (see fig. 2) to the radially inner skin 18 (this teaching results in the lugs of Bouiller in view of Zeaton, Durocher, Conete and Lefebvre fastened to the radially inner skin of thereof).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bouiller in view of Zeaton, Durocher and Conete as applied to claim 1 above, and further in view of US Patent US 2638743 (Feilden)
Regarding claim 12, Bouiller in view of Zeaton, Durocher and Conete teach the current invention as claimed and discussed above. Bouiller further discloses each flange angular segment 5 includes lugs. See annotated fig. 3 above (the instant fig. 3 showing two annotated lugs). Thus each flange segment 5 can includes two lugs. Bouiller does not disclose 3 to 6 lugs.
Feilden teaches a turbomachine and further teaches the general concept regarding high temperature turbomachine structures (in this case a segment 23 of an annular turbine inlet nozzle; see col. 3, ll. 25-35). Each segment 23 may have four lugs 46 for example (see col. 4, ll. 55-60 and fig. 8). It is further noted that it has been held in re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960), “the duplication of parts has no patentable significance unless a new and unexpected result is produced” (see MPEP 2144.04 VI. B.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the current invention to duplicate one of the lugs of Bouiller in view of Zeaton, Durocher and Conete to arrive at each flange segment 5 includes 3 lugs in light of the teachings of Feilden.
Response to Arguments
Applicant's arguments filed 12/22/2025 have been fully considered but they are not persuasive.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., “the larger end in Bouiller (flange-side connection) is not directly fastened to the casing flange” and “direct fastening to the flange”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification or applicant arguments are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). As best understood applicant is referring to the claim 1 limitation “the upstream linear end portion is directly fastened to the upstream portion of the flange”. In response Bouiller discloses wherein the upstream linear end portion (see annotated figure below) is directly fastened (see annotated figure below) to the upstream portion 6,7 of the flange 5.
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The upstream linear end portion (see annotated figure above) is directly fastened integrally with the upstream portion 6,7. The claim does not require a particular way of fastening or a particular fastener. This is a known way to fasten structures in the gas turbine arts. See e.g. US 5660526 at col. 1, ll. 57-62 and fig. 1: “Gas turbine engine rotor assembly `a` includes a blade `b` fastened, integrally or through mechanical attachment, to a supporting hub `c`.”
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). For example, applicant argues that Zeaton and Durocher do not teach the claimed lugs. In response, the claimed lugs were disclosed by Bouiller discussed on pages 9-10 of the non-final office action mailed 09/23/2025.
Applicant argues “The proposed combination of Bouiller, Zeaton, Durocher, and Conete is improper as the hypothetical configuration changes the principles of operation of the claimed assembly” and does not explain what applicant believes is the principle of operation of applicant claimed assembly. Applicant argues “Removing the ring 14 to achieve ‘directly fastened’ upstream lug end would change the assembly method of Bouiller and load path (drilling jig and hollow rivet system; FIGS. 4-5, steps (a)-(e)).” In response this is non-persuasive because the instant non-final office action did not propose removing the ring. The “directly fastened” limitation is discussed above in this Response to Arguments section.
Applicant argues “There is no teaching nor suggestion to restructure the ring of Zeaton into a segmented flange bearing axial lugs while simultaneously implementing the flexible lugs of Conete and the axial-parallel flange wall geometry of Durocher in the claimed manner.” In response applicant is not claiming an assembly method and the claim does not require simultaneous implementation of structures. Zeaton’s teachings applied to in Bouiller include the benefit of mounting flanges for exhaust cone being circumferentially adjacent in order to facilitate reliable attachment of the exhaust cone to the engine (see Zeaton par. 4). It is noted applicant appears to argue that the teaching, suggestion, motivation rationale is the only rational permitted in 103 analysis. In contrast, the Court in KSR pointed out several other rational such as simple substitution (MPEP 2143 I.) that was the rational used regarding Durocher. Applying the teachings of Conete to Bouiller in view of Zeaton and Durocher facilitates reducing weight and thus improving fuel consumption and ease of maintenance.
Applicant argues “The hypothetical combination fails to teach, suggest, or render obvious the claimed configuration. The proposed modifications would change the principles of operation of the primary references, and there is no reasonable expectation of success to attain the claimed structure and associated technical effects absent impermissible hindsight”
A change in principle of operation occurs when a structure of the base reference is replaced by another structure taught by a secondary reference that makes the combination inconsistent with the principles of the base reference. For example in In re Ratti, 123 U.S.P.Q. 349, discussed in MPEP 2143.01 V.I., the court evaluated a set of facts regarding an aircraft engine wherein a shaft was fit within a bore of the aircraft engine such that the shaft was sealed against the bore inner wall with a sealing structure comprising an inner rubber annular gasket surrounding the shaft including an outer sheet metal frame attached to the inner wall of the bore. The combined gasket and sheet metal casing being press fitted into the bore to affect a seal via tight engagement. A secondary reference was applied replacing the sheet metal casing with resilient spring fingers taught by the secondary reference. The court held that it was major reconstruction to make the instant replacement because the primary reference relies on stiffness to make the seal and the secondary relies on the design of flexible spring fingers and thus there is a different principle of operation, Id at 352.
Unlike in Ratti, the modifications made to Bouiller in the claim 1 analysis in the 103 section above do not replace any structure in Bouiller that would change the principle of operation of Bouiller. Therefore, there is no reconstruction of Bouiller that results in a change of principle of operation of Bouiller. Applicant has provided no evidence of the alleged change of principle of operation.
The instant references are all regarding gas turbine exhaust cones and thus one of ordinary skill would understand there to be a reasonable expectation of success as demonstrated by the references themselves (MPEP 2143.02 I.) absent some evidence of a lack of reasonable expectation of success none of which has been provided by applicant. Arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) ("An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.") (MPEP 2145).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARC J AMAR whose telephone number is (571)272-9948. The examiner can normally be reached M-F 9:00-6:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Devon Kramer can be reached at (571) 272-7118. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARC AMAR/Examiner, Art Unit 3741 /DEVON C KRAMER/Supervisory Patent Examiner, Art Unit 3741