Trials@uspto.gov
`571-272-7822
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`Paper 42
`Entered: June 26, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GENERAL ELECTRIC COMPANY,
`Petitioner,
`
`v.
`
`UNITED TECHNOLOGIES CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-00531
`Patent 8,511,605 B2
`____________
`
`Before HYUN J. JUNG, SCOTT A. DANIELS, and
`GEORGE R. HOSKINS, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`571-272-7822
`
`
`
`
`
`
`
`Paper 42
`Entered: June 26, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GENERAL ELECTRIC COMPANY,
`Petitioner,
`
`v.
`
`UNITED TECHNOLOGIES CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-00531
`Patent 8,511,605 B2
`____________
`
`Before HYUN J. JUNG, SCOTT A. DANIELS, and
`GEORGE R. HOSKINS, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`IPR2016-00531
`Patent 8,511,605 B2
`
`I.
`
`INTRODUCTION
`
`A. Background
`General Electric Company (“Petitioner” or “GE”) filed a Petition
`requesting inter partes review of claims 1, 2, and 7–11 of U.S. Patent No.
`8,511,605 B2 (Ex. 1001, “the ’605 patent”). Paper 1 (“Pet.”). GE’s Petition
`is supported by declarations from Dr. Reza Abhari (Ex. 1003, “Abhari
`Declaration,” and Ex. 1036, “Abhari Reply Declaration”). Pet. 4. United
`Technologies Corp. (“Patent Owner” or “UTC”) filed a Preliminary
`Response. Paper 6 (“Prelim. Resp.”). On June 30, 2016, the Board
`instituted a trial, determining that GE had shown a reasonable likelihood of
`prevailing on at least one of the challenged claims of the ’605 patent. Paper
`7 (“Inst. Dec.”) 2.
`After institution of trial, UTC filed a Patent Owner Response, along
`with declarations by Dr. Jack Mattingly (Ex. 2009, “Mattingly Declaration”)
`and Mr. Paul Duesler (Ex. 2022, “Duesler Declaration”). Paper 15 (“PO
`Resp.”). GE entered subsequently a Reply (Paper 24, “Pet. Reply”). In a
`motion authorized by the Board, UTC also moves to strike certain portions
`of the Abhari Reply Declaration and GE’s Reply. Paper 30. GE provided a
`rebuttal to UTC’s motion. Paper 34.
`Notably, UTC disclaimed claims 1 and 2 of the ’605 patent leaving
`only claims 7–11 at issue in this proceeding. PO Resp. 5.1
`A hearing for IPR2016-00531 was held on May 4, 2017. The
`transcript of the hearing has been entered into the record. Paper 41 (“Tr.”).
`
`
`1 UTC filed a Disclaimer under 37 C.F.R. 1.321 of claims 1–6 and 12–14 in
`the ’605 patent with the USPTO on October 14, 2016. For completeness of
`the record, we enter the Disclaimer as Exhibit 3001.
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`We have jurisdiction under 35 U.S.C. § 6(c). This final written
`decision is issued pursuant to 35 U.S.C. § 318(a).
`GE has not shown by a preponderance of the evidence that claims 7–
`11 of the ’605 patent are unpatentable, and UTC’s motion to strike is denied.
`B. Additional Proceedings
`In addition to this petition, GE has filed a petition challenging the
`patentability of claims 1–6 and 12–16 of the ’605 patent. See IPR2016-
`00533. GE indicates that they are unaware of any litigation involving the
`’605 patent. Pet. 1; see also Paper 5, 2 (Patent Owner indicating the same).
`C. The ’605 Patent
`The ’605 patent issued August 20, 2013 from an application filed
`May 31, 2012, and claims priority as a continuation-in-part from application
`No. 12/131,876, filed June 2, 2008, now U.S. Pat. No. 8,128,021. Ex. 1001,
`cover page. The ’605 patent is titled “Gas Turbine Engine With Low Stage
`Count Low Pressure Turbine.” Id. at 1:1–2. Figure 1A, reproduced below,
`illustrates the invention:
`
`Figure 1A depicts a partial fragmentary schematic view of gas
`turbofan engine 10 suspended from engine pylon 12. Id. at 3:32–34.
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`Turbofan 10 includes fan section 20 within fan nacelle F and a core engine
`within core nacelle C. Id. at 3:36–39, Fig. 1A. In operation, airflow enters
`fan nacelle F, which at least partially surrounds core nacelle C. Id. at 3:66–
`67. The fan passes air both into the core engine (core air flow) and around
`the core engine (bypass air flow). Id. The bypass air flow provides a certain
`amount of the engine thrust as does the core engine, and the low pressure
`turbine in the core drives the fan. See id. at 4:2–12, 4:42–43.
`In one described embodiment relevant to the remaining ground in this
`proceeding, a Variable Area Fan Nozzle, (“VAFN”), varies the fan nozzle
`exit area in order to adjust the pressure ratio of the fan bypass airflow. Id. at
`4:31–34. We note the VAFN mechanism is not, apparently, depicted in any
`of the figures in the ’605 patent. See Ex. 1001, Figs. 1–5, and see Tr. 5:2.
`According to the ’605 patent, the VAFN’s ability to selectively adjust the
`pressure ratio of the bypass air flow, “allows the engine to change to a more
`favorable fan operating line at low power, avoiding the instability region,
`and still provide the relatively smaller nozzle area necessary to obtain a
`high-efficiency fan operating line at cruise.” Id. at 4:37–41.
`D. Illustrative Claims
`The remaining challenged claims are claims 7–11. Claims 1 and 7
`illustrate the claimed subject matter and are reproduced below:
`1. A gas turbine engine comprising:
`a gear train defined along an engine centerline axis;
`a spool along said engine centerline axis which drives said gear
`train, said spool includes a low stage count low pressure
`turbine
`a fan rotatable at a fan speed about the centerline axis and driven
`by the low pressure turbine through the gear train, wherein
`the fan speed is less than a speed of the low pressure turbine;
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`a core surrounded by a core nacelle defined about the engine
`centerline axis;
`a fan nacelle mounted at least partially around said core nacelle
`to define a fan bypass airflow path for a fan bypass airflow,
`wherein a bypass ratio defined by the fan bypass passage
`airflow divided by airflow through the core is greater than
`about ten (10).
`7. The engine as recited in claim 1, further comprising:
`a fan variable area nozzle axially movable relative said fan
`nacelle to vary a fan nozzle exit area and adjust the fan
`pressure ratio of the fan bypass airflow during engine
`operation.
`Ex. 1001, 7:43–8:7, 8:19–23 (emphasis added). Claims 8–11 depend
`directly or indirectly from claim 7.
`E. The Alleged Ground of Unpatentability
`GE contends that the challenged claims are unpatentable on the
`following specific ground.2
`References
`Willis3 and Duesler4
`
`
`Basis
`§ 103
`
`Claims Challenged
`7–11
`
`II.
`CLAIM CONSTRUCTION
`UTC asserts no construction for any claim terms. See PO Resp.
`Although GE proposed constructions for a number of claim terms in its
`Petition (Pet. 12–22), neither party disputes our initial determination that no
`claim term requires construction. See Inst. Dec. 5, and see Vivid Techs., Inc.
`v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (only those
`
`2 GE supports its challenge with the Abhari Declarations (Exs. 1003, 1036).
`See infra.
`3 William S. Willis, Quiet Clean Short-Haul Experimental Engine (QCSEE)
`Final Report (Aug. 1979) (Ex. 1011).
`4 US 5,778,659 (July 14, 1998) (Ex. 1006 or Duesler ’659).
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`terms which are in controversy need to be construed, and only to the extent
`necessary to resolve the controversy).
`III. ANALYSIS
`A. Claims 7–11 — Alleged obviousness over Willis and Duesler
`GE asserts that claims 7–11 would have been obvious over Willis and
`Duesler. Pet. 31–43. A patent is invalid for obviousness:
`if the differences between the subject matter sought to be
`patented and the prior art are such that the subject matter as a
`whole would have been obvious at the time the invention was
`made to a person having ordinary skill in the art to which said
`subject matter pertains.
`35 U.S.C. § 103. Obviousness is a question of law based on underlying
`factual findings: (1) the scope and content of the prior art; (2) the differences
`between the claims and the prior art; (3) the level of ordinary skill in the art;
`and (4) objective indicia of nonobviousness. See Graham v. John Deere Co.
`of Kansas City, 383 U.S. 1, 17–18 (1966). We must consider all four
`Graham factors prior to reaching a conclusion regarding obviousness. See
`Eurand, Inc. v. Mylan Pharms., Inc. (In re Cyclobenzaprine Hydrochloride
`Extended-Release Capsule Patent Litig.), 676 F.3d 1063, 1076–77 (Fed. Cir.
`2012). As the party challenging the patentability of the claims at issue, GE
`bears the burden of proving obviousness by a preponderance of the
`evidence. See 35 U.S.C. § 316(e).
`B. Scope and Content of the Prior Art
`1. Willis
`Willis, titled “Quiet Clean Short-Haul Experimental Engine,”
`describes “the design, fabrication, and testing of turbofan propulsion systems
`for two short-haul transport aircraft and delivery of these systems to NASA
`for further testing.” Ex. 1011, 019. The developed engines use low-pressure
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`ratio fans at lower fan tip speeds, and also include “[a] variable-area fan-
`exhaust nozzle [] necessary to keep the fan pressure ratio from dropping too
`low at cruise.” Id. at 026. Figure 8 depicts the Under-the-Wing (UTW)
`version of Willis’ turbofan engine, Figure 8 is reproduced below:
`
`
`
`As depicted in Figure 8 the UTW engine comprises a fan with
`variable pitch composite blades, a two-stage power turbine driving a star -
`type, epicyclic main reduction gear, which in turn drives the fan, and, a
`variable area fan nozzle. Id. at 032–033. Willis depicts a radially hinged
`flap acting as a VAFN, labeled “Variable Area Composite Fan Nozzle,” in
`Figure 8, above. Willis explains that in Figure 8 “[t]he fan nozzle is shown
`in the cruise position. It opens part way for takeoff and approach and further
`for reverse, where it functions as an inlet.” Id. at 032.
`2. Duesler ’659
`Duesler ’659 describes a variable area fan exhaust nozzle for an
`aircraft gas turbine engine. Ex. 1006, 1:12–20. An annotated version of
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`Figure 2 depicts the downstream portion of outer nacelle 20 with translating
`sleeve 38, which we highlight in yellow, Figure 2 annotated is reproduced
`below:
`
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`
`
`Figure 2, as annotated above, depicts downstream portion 24 of outer
`nacelle 20 including fixed geometry fan exhaust nozzle translating sleeve 38
`disposed in a stowed position. Id. at 4:22–26, 49–51. The sleeve is
`translatable between the stowed position and a deployed position, illustrated
`below, in Figure 3. Id. at 4:52–55.
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`Figure 3 depicts fan exhaust nozzle translating sleeve 38, highlighted
`in yellow, disposed in a deployed position. Id. As shown by comparing
`reference numbers 30 and 30′ in Figure 3, aftward movement of the sleeve
`causes an increase in the throat area while forward movement causes a
`decrease in the throat area. Id. at 4:58–61. This movement between the
`stowed and deployed positions is the exclusive means for varying the throat
`area and the quantity of forward thrust from gases discharged from the duct.
`Id. at 4:55–58.
`C. Differences Between the Prior Art and the Claimed Invention
`Claim 1
`Claim 7 depends directly from claim 1, and by its dependency,
`includes all the limitations of claim 1. See Ex. 1001, 7:43–8:7, 8:19–23. GE
`argues that Willis anticipates and discloses each limitation in claim 1. Pet.
`24–31. UTC has now disclaimed claim 1. PO Resp. 5. We were persuaded
`in our Decision to Institute that GE “demonstrated a reasonable likelihood of
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`prevailing at trial on its challenge of claims 1 and 2 as anticipated by
`Willis.” Inst. Dec. 7. UTC presents no arguments in its Response
`contradicting GE’s assertions of anticipation or refuting the Board’s
`anticipation analysis in our Decision to Institute with respect to claim 1.
`We adopt GE’s contentions as our findings with regard to anticipation
`of the challenged independent claim 1 because, upon review of the full
`record in this proceeding, the cited portions of Willis reasonably support
`GE’s assertions that the elements of claim 1 are known and explicitly shown
`by Willis. See Pet. 24–31 (citing Exs. 1003 ¶ 64–72; 1011, .024, .026, .032,
`.034, .088, .092, .135).
`
`Claim 7
`To meet the “fan variable area nozzle axially moveable” limitation
`recited in claim 7, GE relies on Duesler’s translating sleeve 38 in
`combination with Willis. Pet. 31–37. GE contends that “Duesler discloses a
`variable area fan nozzle that varies the nozzle exit area with an axially
`movable sleeve.” Pet. 32–33 (citing Ex. 1006, 2:48–58; Ex. 1003 at ¶ 75).
`GE asserts that a person of ordinary skill in the art would have known about
`different structures for varying the fan nozzle exit area and that “a variable
`area fan nozzle could include a plurality of flaps actuated in the radial
`direction, or a sleeve that is actuated in the axial direction.” Id. at 33
`(emphasis added) (citing Ex. 1006, Ex. 1008).
`Relying on its declarant, Dr. Abhari, a Professor of
`Aerothermodynamics and the Director of the Laboratory for Energy
`Conversion in Zurich, Switzerland, GE argues that substituting translating
`sleeve 38 of Duesler, for the flaps in Willis is just a design choice, and,
`“simply the application of a known structure to achieve a predictable result
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`(adjusting the nozzle exit area).” Id. at 33 (citing Ex. 1003 ¶ 77).
`Dr. Abhari opines that one of ordinary skill in the art understands that the
`hinging flap structure in Willis is interchangeable with sleeve 38 from
`Duesler to serve the same purpose, i.e. varying the fan nozzle exit area. Ex.
`1003 ¶ 77 (“The radially moveable flaps and axially moveable sleeve are
`both known structures used for the same purpose—varying the fan nozzle
`exit area.”). Dr. Abhari states for example that hinged flaps “can be
`advantageous for military applications (e.g., fighter jets) that require optimal
`performance and maneuverability.” Id. ¶ 78 (citing Ex. 1014, .100–.101).
`On the other hand, by using a translating sleeve “airflow leakage is
`minimized because the nozzle is comprised of only a few components and
`therefore has a relatively continuous inner surface.” Id. (citing Ex. 1006,
`3:21–25). Size, weight, and cost are other factors noted by Dr. Abhari for
`choosing one structure over the other. Id.
`UTC disagrees with Dr. Abhari’s assertion that substituting Duesler’s
`translating sleeve 38 for Willis’s radially moveable flaps is simply a matter
`of “design choice.” PO Resp. 28. UTC points out that the primary objective
`of the Willis engine was specifically to have a high reverse-thrust for very
`short runways. See id. at 29 (“creating an engine capable of effective
`reverse thrust and very low noise was Willis’s intended purpose and
`principle of operation”). UTC argues that the “proposed substitution would
`change the principles under which the Willis engine was designed to operate
`and render the engine unsuitable for its intended purpose.” Id. at 30 (citing
`Plas-Pak Indus., Inc. v. Sulzer Mixpac AG, 600 F. App’x 755, 758 (Fed. Cir.
`2015)).
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`Specifically, UTC argues that “Duesler’s translating-sleeve nozzle can
`only serve effectively as an exhaust and not an inlet, so it could never meet
`the reverse-thrust requirements that are central to Willis’s mission.” Id. at
`2–3. In support of this position UTC provides testimony from Dr. Jack D.
`Mattingly, Professor Emeritus of Mechanical Engineering at Seattle
`University College of Science and Engineering. Ex. 2009 ¶ 3. Also, UTC
`presents testimony from Paul W. Duesler, the first named inventor of the
`Duesler ’659 patent. See Ex. 2022; see also Ex. 1006, “Cover Page.” Based
`on Dr. Mattingly’s testimony, UTC alleges that one of ordinary skill in the
`art would not combine Duesler with Willis because Duesler “would render
`Willis’s engine inoperable for its intended purpose.” PO Resp. 29.
`Specifically, UTC contends that using Duesler’s sleeve would make Willis’s
`reverse-thrust “performance worse” and the engine “too loud” for Willis’s
`stated noise design requirements. Id. at 35–36.
`We agree with GE that Duesler’s translating sleeve 38, and the
`pivoting flaps used in the Willis engine, accomplish at least one common
`task, that is—varying the fan outlet area. Compare Ex. 1006, 2:66–3:1 with
`Ex. 1011, .032 (Willis’s “[fan nozzle] opens part way for takeoff and
`approach and further for reverse, where it functions as an inlet.”). Both
`Dr. Abhari and Dr. Mattingly provide testimony supporting the
`determination that Duesler and Willis both disclose a variable area fan
`nozzle (VAFN). Compare Ex. 1003 ¶¶ 75–77 with Ex. 2009 ¶¶ 51, 65. The
`question addressed below is whether one of ordinary skill in the art would
`have, as a matter of design choice and given that both structures vary the fan
`outlet (exhaust) area of a turbofan engine, substituted Duesler’s axially
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`translating sleeve nozzle configuration for the radially hinged VAFN
`structure in Willis?
`D. The Level of Ordinary Skill in the Art
`GE’s declarant, Dr. Abhari, testifies that a person of ordinary skill in
`the art “would include someone who has a M.S. degree in in Mechanical
`Engineering or Aerospace Engineering as well as at least 3–5 years of
`experience in the field of gas turbine engine design and analysis.” Ex. 1003
`¶ 4. Disagreeing with Dr. Abhari’s opinion as to the years of experience one
`of ordinary skill would have in this field, Dr. Mattingly states that:
`a person of ordinary skill in this art would have . . . at least ten
`years of work experience or equivalent study in the design of gas
`turbine engines for aircraft. Persons of ordinary skill in the art
`typically have worked as component designers, gained
`familiarity with engine components, and then been promoted to
`system-level design responsibilities.
`Ex. 2009 ¶ 40.
`The difference in opinion between declarants fails mainly to settle on
`a time frame, i.e. years of experience, in aircraft gas turbine engine design,
`that a person of ordinary skill in the art would generally have. These
`positions, however, are not as far afield as they might seem. We recognize
`from Dr. Abhari’s and Dr. Mattingly’s testimony that gas turbine aircraft
`engines and their operating conditions are functionally and structurally
`complex. See Ex. 1003 ¶¶ 21, 53, 55, 60; Ex. 2009 ¶ 38. From the
`testimony of both declarants we understand that a person of skill in the art of
`aircraft turbine design is not a newly minted mechanical or aeronautical
`engineer fresh from undergraduate, or even graduate studies, without a
`number of years of work experience in the field of aircraft engine design.
`See Ex. 1003 ¶ 4, and see Ex. 2009 ¶ 40. Our review of the prior art in
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`conjunction with the declarants’ testimony informs us of the complexity of
`the structural and functional aspects of aircraft engine design and indicates
`that the level of ordinary skill in the art of aircraft turbofan engine design is
`fairly high, requiring significant time working in the field. We reconcile the
`declarants’ inconsistent statements as to years of work experience by
`determining that a person of ordinary skill in the art of gas turbine engines
`for aircraft would have a professional background that includes at least an
`M.S. degree in mechanical or aeronautical engineering and, along with
`whatever additional engineering background knowledge and skill set they
`possess, at least 5–10 years of work and study experience in design and
`analysis of aircraft gas turbine engines. We point out that regardless of the
`difference in years of experience asserted by the declarants, our ultimate
`findings and conclusions would be the same under either definition.
`E. Secondary Considerations of Non-Obviousness
`Evidence of secondary considerations of non-obviousness, when
`present, must always be considered en route to a determination of
`obviousness. See Cyclobenzaprine, 676 F.3d at 1075–76. However, the
`absence of secondary considerations is a neutral factor. See Custom Acc.,
`Inc., v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 960 (Fed. Cir. 1986).
`Neither party introduced evidence on secondary considerations of
`nonobviousness. Consequently, we will focus our attention on the first three
`Graham factors.
`F. Whether the Prior Art Could Have Been Combined and/or
`Substituted to Achieve the Claimed Invention
`The Supreme Court instructs us to take an expansive and flexible
`approach in determining whether a patented invention was obvious at the
`time it was made. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415
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`(2007). Where “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 predictable results.” Id.
`at 416. It is well settled, however, that prior art combinations cannot change
`the “basic principles under which the [prior art] was designed to operate.”
`In re Ratti, 270 F.2d 810, 813 (1959). Also, a combination that renders prior
`art “‘inoperable for its intended purpose,’ may fail to support a conclusion of
`obviousness.” Plas-Pak Indus., Inc. v. Sulzer Mixpac AG, 600 F. App’x 755,
`757–58 (Fed. Cir. 2015) (citing In re Gordon, 733 F.2d 900, 902 (Fed. Cir.
`1984)).
`UTC argues that the proposed combination changes the principle of
`operation of Willis’s engine, and would make Willis’s engine inoperable for
`its intended purpose by having decreased reverse-thrust capability that could
`not stop an aircraft on a short runway, and that it would also make the
`engine noisier. PO Resp. 30. Alleging that the Willis engine would, thus,
`become unsuitable for its intended purpose of powering “a fleet of new
`aircraft that would operate from smaller airports close to city centers,” (Ex.
`1011, .024) UTC asserts that a person of ordinary skill in the art of gas
`turbine aircraft engine design would not simply substitute Duesler’s
`translating sleeve for Willis’s pivoting flap design. Id.
`The stated objective of the Willis engine development program was
`“to develop the technology needed to meet the stringent noise, exhaust
`emissions, performance, weight, and transient thrust-response requirements
`of future short-haul aircraft” so aircraft could land in smaller airports closer
`to population centers. Ex. 1011, .019, .024. These objectives were based on
`major problems facing the air transport industry in the early
`1970’s [including] noise and airport congestion. Noise had
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`forced the closing of certain runways, the imposition of curfews
`at some airports, and the use of special flight restrictions . . . .
`The congestion problem was manifested by traffic and parking
`problems, baggage-handling delays, and (especially in bad
`weather) long delays in departures and arrivals due to congested
`air space.
`Id. at .024. To develop a feasible engine for “short-haul” aircraft that could
`land on a very short runway in smaller airports, Willis discloses an engine
`having a variable pitch fan, that is—a fan that is arranged in a pitch angle
`producing forward thrust, and then moved, i.e. closed, to a pitch angle
`producing reverse-thrust through the engine. See id. at .043 (“During
`closure, the normal forward flow drops smoothly to zero, then reverse flow
`is gradually established.”). To adequately stop an aircraft, Willis required a
`combination airflow and pressure ratio across the fan to meet the reverse-
`thrust objective of 35% of the forward-thrust. Id. at .049.
`Additionally, as depicted in Willis’s Figure 3 another goal was to keep
`the noise level below a certain level because smaller airports
`accommodating such short-haul aircraft were closer to busier population
`centers. Id. at .024–.025.
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`Willis Figure 3 is reproduced below:
`
`
`Figure 3 from Willis illustrates graphically fan pressure ratio as a function of
`noise level, and a desired total system noise goal. Id. at .025.
`Based on these goals, the structural and functional design
`requirements for Willis’s short-haul engine are quite specific as shown
`listed, below, in Willis’s Table III.
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`Ex. 1011, .034.
`A cross-section of Willis’s Under-the-wing (“UTW”) engine as
`designed based on the stated objectives and requirements is shown, below, in
`Figure 8 reproduced from Willis.
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`Ex. 1011, .033. Willis discloses in Figure 8 an inlet as depicted and labeled
`on the left side of the figure, and a nozzle defined between the pivoting flaps
`and the core on the right side of the figure. In the forward-thrust state, the
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`airflow through the fan enters the inlet and emanates from the nozzle. Id. at
`.032. In the reverse-thrust state, the airflow is reversed to help brake the
`aircraft upon landing, with the air entering the engine through the nozzle and
`exiting from the engine inlet. Id. Willis’s nozzle flaps pivot about a
`connection between the base of the flap and the outer nacelle to vary the fan
`nozzle area. Id. at .134, Fig. 74. Figure 8 illustrates the flaps in a cruise
`position, and in the image of Figure 74 the flaps are shown, open, in a
`reverse-thrust position. Id. at .032–033, .128, .134. Figure 74 is reproduced
`below:
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`
`In the reverse-thrust position shown in Figure 74 Willis’s flaps are
`open, showing how the nozzle structure now acts as an inlet when the
`variable pitch fan blades are altered to produce a reverse airflow through the
`engine and hence, reverse-thrust. Ex. 1011, 32, 34–35, 134; Ex. 2009 ¶ 60.
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`UTC’s declarant, Dr. Mattingly, testifies that pivoting flaps “have the
`ability to open wider than the fan nacelle itself, enabling Willis to draw in
`the necessary airflow to produce sufficient reverse thrust.” Ex. 2009 ¶ 60.
`Dr. Mattingly explains that the flap structure is important “because most of
`the airflow does not enter the nozzle in a straight or linear direction, but
`rather it approaches at a steep angle.” Id. ¶ 61. Dr. Mattingly provides an
`annotated Figure from his own textbook, illustrating this steep angle, defined
`by air having a Mach number close to 0. Id. Dr. Mattingly explains that
`based on such airflow and flap structure “a person of ordinary skill in the art
`would recognize that the thrust reverser of Willis’s UTW engine is an
`effective design for generating the large amount of reverse thrust (e.g., 35%
`of max forward thrust) needed to stop quickly on a short-haul runway (2000
`feet).” Id. ¶ 62. Dr. Mattingly explains further that Duesler’s translating
`sleeve nozzle does not function as an inlet and “the engine would not be able
`to draw air in over the sharp, axial-direction trailing edge 32 of the sleeve
`38.” Id. ¶ 72.
`Hypothesizing that Duesler’s sleeve could act as an inlet,
`Dr. Mattingly offers a summary of inlet area geometry and air flow
`comparison calculations between Willis’s and Duesler’s nozzles, asserting
`that Duesler’s nozzle has a 28–37% higher inlet drag, i.e. loss of reverse-
`thrust, compared to Willis’s nozzle. Id. ¶¶ 90–94. Based on his calculations
`of reverse-thrust loss in Duesler, Dr. Mattingly states
`A person of ordinary skill in the art would view this as especially
`critical to Willis’s short-haul goal for an “effective thrust
`reverser (GE-1011.026) that could produce up to 35% of its
`forward thrust in reverse (GE-1011.301) and . . . would not view
`the Willis-Duesler combination as an effective thrust reverser.
`Id. ¶ 95.
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`Dr. Mattingly testifies further that Duesler’s translating sleeve would
`exceed the noise requirements for Willis’s engine of “100 dB at a 500-foot
`sideline for maximum reverse thrust” Id. ¶ 95 (citing Ex. 1011, 19). Dr.
`Mattingly states that
`[a] person of ordinary skill in the art would recognize that
`attempting to draw in a large amount of air over Duesler’s sharp,
`trailing edge 32 at maximum [reverse] thrust on the UTW engine
`would generate noise well above Willis’s intensity limit. This
`would have been unacceptable in the congested areas where
`Willis’s short-haul airports are located.
`Id. ¶ 96.
`In response, GE points out that its obviousness analysis rests simply
`on the substitution of Duesler’s translating sleeve for Willis’s flaps.5 See
`Pet. Reply 4. GE relies mainly on the testimony of Dr. Abhari that both
`types of variable area nozzles were known in the art at the time of filing of
`the ’605 patent. Pet. 33 (citing Exs. 1006, 1008); Pet. Reply 6 (citing Ex.
`1003 ¶ 77; Ex. 2019, 112 at 399:7–14, 128 at 415:5–17). GE points out that
`Dr. Mattingly was unable to rebut Dr. Abhari’s testimony that axially
`moveable variable area fan nozzles were known in the art. Pet. Reply 7–8.
`GE argues also that Dr. Abhari provided sufficient evidence of
`motivation to combine, i.e. a reason to substitute an axially moveable sleeve
`for the hinged flaps in Willis because with a translating sleeve “airflow
`
`
`5 GE takes issue with UTC’s analysis of the combination of Duesler’s thrust
`reversing mechanism in addition to the translating sleeve. Pet. 4–5; see also
`PO Resp. 22–25. GE asserts Duesler’s thrust reversing mechanism and
`blocking doors is not part of the combination of references asserted by GE.
`Pet. Reply 4–5. Our analysis in this Final Written Decision rests only on the
`asserted substitution of Duesler’s translating sleeve 38 for Willis’s hinged
`flaps.
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`leakage is minimized because the nozzle is comprised of only a few
`components and therefore has a relatively continuous inner surface.” Pet.
`Reply 9 (citing Ex. 1003 ¶ 78). GE contends further that the “intended
`purpose” proposed by UTC for Willis’s engine is too narrow because
`“[r]everse thrust mode accounts for several seconds of engine operation,
`while the engine also must take-off, climb, cruise, and descend.” Id. at 13.
`GE argues also that Dr. Mattingly’s conclusion that Duesler would be louder
`than Willis’s engine is unsubstantiated by sufficient facts or data and that we
`should give this testimony no weight. Id. at 13–14 (citing 37 C.F.R.
`§ 42.65).
`It is GE’s ultimate burden of persuasion to show by a preponderance
`of the evidence that a person of ordinary skill in the art would have been
`motivated to use an axially translating sleeve in place of Willis’s radially
`hinged flaps. See Dynamic Drinkware, LLC v. National Graphics, Inc., 800
`F.3d 1375, 1378 (Fed. Cir. 2015) (“In an inter partes review, the burden of
`persuasion is on the petitioner to prove ‘unpatentability by a preponderance
`of the evidence,’ 35 U.S.C. § 316(e), and that burden never shifts to the
`patentee[.]”). On the other hand, the burden of production, i.e. the burden of
`going forward with evidence, shifts between parties. Id. at 1379.
`As noted above, our review of the asserted references, along with the
`testimony of both Dr. Mattingly and Dr. Abhari, supports the conclusion that
`Duesler and Willis disclose different structures that perform the function of
`varying the fan nozzle exhaust area, and thus, are both understood by those
`of ordinary skill in the art as variable area fan nozzles. See Ex. 1006, 4:52–
`58 and see Ex. 1011, .032. Thus, GE’s argument that Dr. Mattingly could
`not “rebut” Dr. Abhari’s testimony that such structures were known in the
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`art is of no consequence. Dr. Mattingly, in fact, appears to agree, although
`he is somewhat reticent to discuss specifics of Duesler’s nozzle, and the fact
`that both Willis and Duesler disclose VAFN’s that vary the nozzle exhaust
`area. See Ex. 1033, 90:9–12 (“When I compared the radial variable nozzle
`of Willis to the axial variable fan nozzle of Duesler, it’s my opinion that the
`Duesler nozzle is heavier.”).
`Dr. Abhari asserts in his declaration that substituting the axial
`translating sleeve 38 from Duesler into Willis’s engine “is simply the
`application of a known structure (an axially movable fan nozzle) to achieve
`a desired and predictab
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