AMPYX POWER B.V.

Patent Trials and Appeals Board

Aug 20, 2020

14467413 - (D) (P.T.A.B. Aug. 20, 2020)

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.
14/467,413 08/25/2014 Richard Ruiterkamp NMR-38390 4128
40854 7590 08/20/2020
RANKIN, HILL & CLARK LLP
38210 GLENN AVENUE
WILLOUGHBY, OH 44094-7808
EXAMINER
NGUYEN, VIET P
ART UNIT PAPER NUMBER
2832
NOTIFICATION DATE DELIVERY MODE
08/20/2020 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):
40854@rankinhill.com
spaw@rankinhill.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD RUITERKAMP
____________

Appeal 2019-002149
Application 14/467,413
Technology Center 2800
___________

Before KAREN M. HASTINGS, DONNA M. PRAISS, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 requests our review under 35 U.S.C. § 134 of the
Examiner’s final decision rejecting claims 1–15 under 35 U.S.C. § 103 as
being unpatentable over the combined prior art of Bevirt (US
2010/0032948 A1, Feb. 11, 2010), Bilaniuk (US 2011/0101692 A1, May 5,
2011), and Calverley (US 2011/0266809 A1, Nov. 3, 2011). We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Ampyx
Power B.V. (Appeal Br. 3).
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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the subject matter on appeal (emphasis added
to highlight key limitation in dispute):
1. A system for electric power production from wind
comprising:
a tether;
a fixed wing aircraft in a form of a glider, said glider
comprising
a fuselage,
a fixed main wing that comprises an airfoil,
controllable on-board steering devices having control
surfaces for aerodynamically exerting torque on the
glider to induce pitching, rolling and yawing of the glider
in flight,
a flight controller for controlling operation of the on-
board steering devices, and
a connection unit for the tether;
a ground station, said ground station comprising
a reel for the tether,
a rotating electrical machine connected to the reel, and
a ground station controller for controlling operation of
the reel and the rotating electrical machine; and
a master controller configured to communicate with the
flight controller to operate the glider in at least two
alternating operation modes, namely
a first operation mode in which the glider is steered using
the on-board steering devices to follow a first pattern that
generates a lift force via the airfoil of the glider being
exposed to the wind that pulls on and reels out the tether
from the reel thereby inducing rotation of the reel which
is converted into electric power via the rotating electrical
machine connected to the reel, and
a second operation mode in which the glider is steered
using the onboard steering devices to follow a second
flight pattern that reduces the pull on the tether as
compared to the first operation mode and the tether is
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reeled onto the reel by driving the reel with the rotating
electrical machine connected to the reel;
wherein said flight controller is also configured to control
the on-board steering devices to steer the glider on a stable,
controlled flight path and thereby safely land the glider
when the tether breaks and thus there is no connection
between the glider and the ground station provided by the
tether.
(Claims App. Appeal Br. 20–21).
Appellant argues the claims as a group, focusing on claim 1 (Appeal
Br. 12–19).

ANALYSIS
We review the appealed rejection for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections . . . .”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejection for the reasons expressed in the Final Office Action
and the Answer.
We add the following for emphasis.
It has been established that “the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex
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4
Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264–
65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings
thereof as well as the inferences one of ordinary skill in the art would have
reasonably been expected to draw therefrom).
The Examiner finds that Bevirt discloses many of the claim
limitations, but relies upon Bilaniuk to exemplify the obviousness of using
controllable on-board steering devices to induce pitching, rolling, and
yawing of the glider in flight, and relies upon Calverley to exemplify a flight
controller configured to land a glider safely when the tether breaks (Final
Action 3–5).
Appellant mainly contends that (1) Bilaniuk is directed to a lighter-
than-air craft/glider versus Bevirt’s heavier-than-air craft/glider, so its
control of the steering devices is different than Bevirt’s and thus cannot
render obvious the modification of Bevirt as proposed by the Examiner
(Appeal Br. 13–15; Reply Br. 2–3), and (2) the Examiner has misread the
teachings of Calverley such that the flight controller configured to land the
glider safely when the tether breaks does not encompass or is not rendered
obvious by Calverley’s teachings (Appeal Br. 15–18; Reply Br. 4–7).
Appellant contends the Examiner has used impermissible hindsight in
combining these references (Appeal Br. 19).
Appellant’s arguments are not persuasive of reversible error as they
fail to consider the applied prior art as a whole and the inferences that one of
ordinary skill would have made. We note that “[t]he test for obviousness is
not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference. . . . Rather, the test
is what the combined teachings of [those] references would have suggested
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to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA
1981). See also In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining
the teachings of references does not involve an ability to combine their
specific structures.”).
As the Examiner points out, Bilaniuk exemplifies that steering devices
on flying gliders may control pitch, roll, and yaw, “which is widely known
in the field of flight and aerodynamics (such as commercial airplanes)”
(Ans. 3). These steering devices are used to position and move the aircraft
glider based on wind conditions to optimize power generation. Appellant has
not shown reversible error in the Examiner’s determination that one of
ordinary skill in the art, using no more than ordinary creativity, would have
modified Bevirt’s glider which is also used to generate power from the wind
to include steering devices that induce “pitching, rolling, and yawing of the
glider in flight” as recited in claim 1.
Likewise, even assuming that Appellant is correct that the details of
Calverley’s safe landing control for its power-generating wind gyroglider
differ somewhat from the Examiner’s summary of Calverley (Ans. 4; Reply
Br. 4, 5), Appellant has not shown reversible error in the Examiner’s
determination that one of ordinary skill in the art, using no more than
ordinary creativity, would have modified Bevirt’s power generating glider
flight controller to control and include steering devices that allow it to safely
land when the tether breaks as exemplified in Calverley and as recited in
claim 1. KSR Int’l Co., 550 U.S. at 417 (“[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.”); Cf. DyStar
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Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
1356, 1368 (Fed. Cir. 2006) (“Indeed, we have repeatedly held that an
implicit motivation to combine exists not only when a suggestion may be
gleaned from the prior art as a whole, but when the ‘improvement’ is
technology-independent and the combination of references results in a
product or process that is more desirable, for example, because it is stronger,
cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient.”).
Accordingly, we sustain the § 103 rejection of all of the claims on
appeal.
CONCLUSION
The decision of the Examiner is affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–15 103 Bevirt, Bilaniuk, Calverley 1–15

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED