David James. Black et al.

Patent Trials and Appeals Board

Nov 29, 2019

15206660 - (D) (P.T.A.B. Nov. 29, 2019)

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.
15/206,660 07/11/2016 David James Black JR. 15-2080-US-NP (800-154) 4486
107112 7590 11/29/2019
The Small Patent Law Group LLC
225 S. Meramec, Suite 725
St. Louis, MO 63105
EXAMINER
HUTCHINSON, ALAN D
ART UNIT PAPER NUMBER
3669
NOTIFICATION DATE DELIVERY MODE
11/29/2019 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):
docket@splglaw.com
patentadmin@boeing.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte DAVID JAMES BLACK JR.,
PATRICK A. BLAKELY, and
CHRISTOPHER J. YEELES
__________

Appeal 2019-001452
Application 15/206,660
Technology Center 3600
__________

Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5, 7, 9–17, and 20–22.2 We have
jurisdiction 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. Appellant identifies the real party in interest as The Boeing
Company. Appeal Br. 4.
2 Claims 6, 8, 18, and 19 have been canceled. Appeal Br. 4.
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STATEMENT OF THE CASE
Claims 1, 14, and 20 are the independent claims on appeal. Claim 1,
reproduced below with disputed limitations italicized for emphasis, is
exemplary of the subject matter on appeal.
1. A test flight system, comprising:
a test aircraft;
an atmospheric conditions-detecting vehicle including a
propulsion system that is separate and distinct from the test
aircraft, wherein the atmospheric conditions-detecting vehicle is
configured to be deployed during a test flight of the test aircraft
to detect atmospheric conditions of an environment in which the
test aircraft operates during the test flight, wherein the
atmospheric conditions-detecting vehicle is configured to be
deployed from the test aircraft during the test flight; and
a control unit, wherein the control unit maintains a
predetermined separation range between the test aircraft and the
atmospheric conditions-testing vehicle.

THE REJECTIONS
I. Claims 1–5, 9–13, 21, and 223 stand rejected under 35 U.S.C. § 103 as
unpatentable over Woodland (US 6,056,237; issued May 2, 2000) and
Applicant Admitted Prior Art (AAPA), as evidenced by Dropsonde.4

3 Claims 6 and 18 have been canceled (see Amendment filed May 17, 2018)
and their subject matter have been added to claims 1 and 14, respectively
(see Advisory Action dated May 24, 2018). Claims 14–17 were rejected
over Woodland and AAPA, and claim 18 was rejected over Woodland,
AAPA, and Lacaze. See Final Act. 3, 8. However, because of these
Amendments, we understand that claims 14–17 are now rejected as obvious
over Woodland, AAPA, and Lacaze. See Appeal Br. 15.
4 Article retrieved by Examiner at
https://en.wikipedia.org/w/index.php?title=Dropsonde&oldid=699309957
(accessed March 18, 2018).
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II. Claims 7 and 14–17 stand rejected under 35 U.S.C. § 103 as
unpatentable over Woodland, AAPA, and Lacaze (US 2007/0260366 A1;
published Nov. 8, 2007), as evidenced by Dropsonde.
III. Claim 20 stands rejected under 35 U.S.C. § 103 as unpatentable over
Denton (US 2014/0142788 A1; published May 22, 2014), AAPA, and
Lacaze.

ANALYSIS
Rejection I
Claims 1–4, 9, 11–13, 21, and 22:
Appellant does not offer arguments in favor of claims 2–4, 9, 11–13,
21, and 22 separate from those presented for independent claim 1. See
Appeal Br. 10–13. We select claim 1 as the representative claim, and claims
2–4, 9, 11–13, 21, and 22 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv). We address claims 5 and 10 separately below.
Regarding independent claim 1, the Examiner finds, inter alia, that
Woodland discloses a flight system having an “aircraft; and an atmospheric
conditions-detecting vehicle [(i.e., UAV 10.0)] including a propulsion
system that is separate and distinct from the aircraft” in which the
atmospheric conditions-detecting vehicle is configured “to detect
atmospheric conditions of an environment in which the aircraft operates
during the flight.” Final Act. 3 (citing Woodland 9:40–44, Figs. 37–43).5

5 Woodland discloses that “deployed sensors” are “products typical of
dropsondes.” Woodland 9:40–42. The Examiner relies on the Dropsonde
article as evidencing that dropsondes “detect atmospheric conditions of an
environment.” Final Act. 3.
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The Examiner acknowledges that “Woodland appears to be silent as to
a test flight of a test aircraft.” Final Act. 4. The Examiner, however, relies
on the AAPA for disclosing that it is known to configure probes “to detect
atmospheric conditions during the test flight” of a test aircraft. Id. (quoting
Spec. ¶ 2). The Examiner concludes that it would have been obvious to
modify the flight system of Woodland for use in a test flight of a test
aircraft, as taught by the AAPA, and that “the combination would have
yielded predictable results.” Id.
The Examiner finds that Woodland discloses a control unit but also
acknowledges that “Woodland appears to be silent” concerning a control
unit that “maintains a predetermined separation range between the aircraft
and the atmospheric conditions-testing vehicle.” Final Act. 5 (citing
Woodland 19:61–20:15). The Examiner, however, concludes that “th[is]
limitation would have been obvious” because an ordinary artisan would have
recognized from the AAPA that “the point for the gathering of data is to test
a region around a test aircraft” and “to maintain the separation range to keep
the point of interest in view of sensors.” Id.
Appellant contends that “[t]here is nothing in the AAPA” that
discloses “a control unit, wherein the control unit maintains a predetermined
separation range between the test aircraft and the atmospheric conditions-
testing vehicle,” as claimed. Appeal Br. 11. In support, Appellant submits
that paragraph 2 of the Specification only discloses a “trailing cone coupled
to the aircraft via a connecting hose” but that “[a] trailing cone is not a
vehicle, in general, or one including a propulsion system that is separate and
distinct from the aircraft.” Id.; see also Reply Br. 2–3.
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Appellant’s contentions are unpersuasive because they do not address
the Examiner’s rejection. “Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references. [The reference] must be read, not
in isolation, but for what it fairly teaches in combination with the prior art as
a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
Examiner responds correctly that Woodland discloses “a control unit that is
used to control the UAV,” which corresponds to the claimed atmospheric
conditions-testing vehicle (Ans. 4 (citing Woodland 14:31–40, 59–67;
16:27–31; 20: 39–40)) and that Woodland’s control unit is “functionally
capable of performing the functions of the claims (i.e. ‘maintain a
predetermined separation range between the test aircraft and the atmospheric
conditions-testing vehicle’)” (Ans. 3). Put another way, the Examiner relies
on Woodland, rather than the AAPA, for disclosing an atmospheric
conditions-testing vehicle that has a propulsion system that is separate and
distinct from the aircraft and a control unit for controlling the atmospheric
conditions-testing vehicle. See Final Act. 3, Ans. 4.
Appellant contends that the Examiner’s rejection is a product of
impermissible hindsight reconstruction. Appeal Br. 12.
“[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.” KSR Int’l. Co. v.
Teleflex Inc., 550 U.S 398, 418 (2007).
Woodland discloses an atmospheric conditions-testing vehicle (i.e.,
UAV 10.0) that has a propulsion system that is separate and distinct from an
aircraft in that “[o]nce the UAV 10.0 is in flight under the power of its cruise
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engine, stability is achieved by the inertial GPS-based navigation system
19.” Woodland 19:61–63. Woodland also discloses a control unit (i.e.,
Command, Control, Communications, Computer Intelligence (C4I)
assembly 6.0) that is capable of maintaining a predetermined separation
range between an aircraft and the atmospheric conditions-testing vehicle. Id.
at 14:31–40, 20:39–44, Figs. 37–43.
The AAPA discloses that: (1) “[d]uring development, various
aircraft[s] are tested to determine operational characteristics, capabilities,
limitations, and the like”; (2) “[t]ypically, as a prototype or test aircraft is
flown, a trailing cone coupled to the aircraft via a connecting hose is
extended behind the aircraft”; and (3) “[t]he tethered trailing cone may
include one or more probes that are configured to detect atmospheric
conditions during the test flight” so that “[t]he detected atmospheric
conditions are analyzed to determine a particular atmospheric environment
in which the test aircraft is operating.” Spec. ¶ 2. The Examiner explains
correctly that deployment of the trailing cone from the test aircraft would
require a control unit that reels out the trailing cone and maintains it at a
predetermined distance from the test aircraft due to the length of the hose
that connects to the trailing cone. See Adv. Act. 2.
Thus, we agree with the Examiner that it would have been obvious to
provide a predetermined separation range between a test aircraft and an
atmospheric conditions-testing device as taught by the AAPA to the aircraft
and the atmospheric conditions-testing vehicle of Woodland. See Final Act.
5. The combined teachings of the AAPA and Woodland regarding
providing a predetermined separation range between a test aircraft and an
atmospheric conditions-testing vehicle, would yield predictable results of
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gathering of data to test a region around a test aircraft. See id. Stated
differently, if Woodland’s UAV has a GPS system (see Woodland 7:57–8:9,
19:61–63) and a control unit for controlling the UAV, and data relating to
localized weather, i.e., atmospheric conditions, is needed for testing an
aircraft, it would have been obvious to determine and control the location of
the UAV; otherwise, there would be no value in collecting the data for the
atmospheric conditions.6 As such, we find that the Examiner’s rejection is
based on sound technical reasoning and evidence disclosed in the cited prior
art, rather than improper hindsight reconstruction.
In sum, Appellant’s arguments do not apprise us of error in the
Examiner’s combination of Woodland and AAPA, as evidenced by
Dropsonde. Accordingly, we sustain the Examiner’s rejection of claims 1–4,
9, 11–13, 21, and 22.
Claim 5:
Claim 5 recites “wherein the atmospheric conditions-detecting vehicle
is configured to transmit one or more atmospheric data signals regarding at
least one of the atmospheric conditions to the test aircraft.” Appeal Br. 25
(Claims App.). The Examiner finds that Woodland discloses an atmospheric
conditions-detecting vehicle (i.e., UAV 10.0) that is configured to transmit
one or more atmospheric data signals regarding at least one of the
atmospheric conditions to an aircraft and reiterates that AAPA discloses a
test aircraft. Final Act. 5 (citing Woodland 11:12–14, 14:52–56, 16:29–30).

6 Notably, as discussed infra, Lacaze and Denton also disclose aircrafts that
are separated by a predetermined distance. See Lacaze ¶ 111, Denton Abstr.
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Appellant contends that “there is nothing in . . .Woodland that
expressly or necessarily describes, teaches, or suggests that the vehicle 10.0
is transmitting data to a separate and distinct test aircraft.” Appeal Br. 13;
see also Reply Br. 3–4.
Appellant’s contention is unpersuasive. The Examiner responds
correctly that Woodland discloses “process[ing] the flight data in
conjunction with other mission payload data for transmission” and
“telemetry of flight, positional, or sensor data to and from C4I assembly 6.0
[which corresponds to the claimed control unit].” Ans. 5–6 (quoting
Woodland 8:10–14, 20:39–40). The Examiner relies on AAPA for
disclosing a test aircraft. Final Act. 4. Notably, AAPA discloses “probes . .
. are configured to detect atmospheric conditions during the test flight” and
“there may be delays between when data is received by the aircraft and when
the data is sensed by the probes of the trailing cone” such that atmospheric
data signals are transmitted to the test aircraft. See Spec. ¶¶ 2, 4; see also
Adv. Act. 2. See In re Merck & Co., 800 F.2d at 1097. Thus, Appellant’s
argument does not apprise us of Examiner error.
For these reasons, we sustain the Examiner’s rejection of claim 5.
Claim 10:
Claim 10 recites “wherein the atmospheric conditions-detecting
vehicle is controlled from the test aircraft.” Appeal Br. 25 (Claims App.).
The Examiner finds that Woodland discloses this limitation. Final Act. 6
(citing Woodland 14:59–15:21, 16:29–30).
Appellant contends that “[the] relied-upon portions [of Woodland] are
wholly silent with respect to the vehicle 10.0 of Woodland being controlled
from a test aircraft.” Appeal Br. 14–15; see also Reply Br. 4.
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This argument is unpersuasive because it does not address the
rejection. The Examiner correctly responds that Woodland is relied upon as
disclosing a control unit (i.e., C4I assembly 6.0) that controls the
atmospheric conditions-detecting vehicle (i.e., the UAV 10.0) and AAPA is
relied upon as disclosing a test aircraft. Ans. 6 (citing Woodland 14:31–40,
59–67; 16:27–31, 20:39–40). Notably, Woodland discloses an “aircraft
launch scenario deploying UAVs” such that the UAV 10.0 is necessarily
controlled from the aircraft. See Woodland 5:67–59; Figs. 37–43.
Woodland further discloses “controlling and tasking of the UAV 10.0 is
accomplished with the use of a highly mobile Command, Control,
Communications, Computer Intelligence (C4I) assembly 6.0” (Woodland
14:31–35), and data from console case 150 (which is part of C4I assembly
6.0) is routed through a data relay cable 151 “which allows direct hardwire
interface to [an] aircraft” (id. at 16:27–30), meaning that the UAV 10.0 can
be controlled from the C4I assembly 6.0 that is on the aircraft. Further,
AAPA discloses controlling the trailing cone which collects data such that
an ordinary artisan would be motivated to control Woodland’s UAV 10.0 in
order to collect atmospheric data. Thus, Appellant does not apprise us of
Examiner error.
For these reasons, we sustain the Examiner’s rejection of claim 10.
Rejection II
Claims 7 and 14–16:
Claim 7 depends from claim 1 and recites “wherein the predetermined
separation range is one or more distances at which the test aircraft and the
atmospheric conditions-detecting vehicle are subjected to approximately the
same atmospheric conditions, and at which the test aircraft does not affect
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atmospheric conditions detected by atmospheric conditions-detecting
vehicle.” Appeal Br. 25 (Claims App.). Independent claim 14 recites
limitations similar to claim 1, and claims 15 and 16 depend from claim 14.
Id. at 24, 26. Claim 14 further recites a similar limitation as that of claim 7.
Id. at 25–26. Appellant does not offer arguments in favor of claims 15 and
16 separate from those presented for independent claim 14. See id. at 15–17.
We select claim 14 as the representative claim, and claims 15 and 16 stand
or fall with claim 14. We address claim 17 separately below.
In regard to claims 7 and 14, the Examiner finds that Woodland and
the AAPA disclose limitations discussed supra for claim 1 and that Lacaze
discloses a predetermined separation range that is one or more distances at
which an aircraft and an atmospheric conditions-detecting vehicle are
subjected to approximately the same atmospheric conditions, and at which
the aircraft does not affect atmospheric conditions detected by the
atmospheric conditions-detecting vehicle. Final Act. 6–7, 9–107 (citing
Lacaze ¶¶ 111–114). The Examiner concludes that it would have been
obvious to modify the flight system of Woodland and AAPA to provide a
predetermined separation range that is one or more distances at which the
test aircraft and the atmospheric conditions-detecting vehicle are subjected
to approximately the same atmospheric conditions, and at which the test
aircraft does not affect atmospheric conditions detected by atmospheric

7 As noted supra, the rejection of claim 18 is now effective for claim 14
because its subject matter has been added to claim 14 by way of the
Amendment filed May 17, 2018. See Final Act. 10, Appeal Br. 15.
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conditions-detecting vehicle as taught by Lacaze “for improving a particular
class of devices” and the results would be predictable. Final Act. 9–11.8
Appellant contends that Woodland and AAPA are deficient for the
same reasons argued for claim 1, namely that AAPA merely discloses a
trailing cone and does not disclose maintaining a predetermined separation
range between a test aircraft and an atmospheric conditions-detecting device.
See Appeal Br. 16; see also Reply Br. 4–5.
These contentions are unpersuasive for the reason discussed supra.
Appellant contends that paragraph 111 of Lacaze discloses that two
aircrafts are “located at no more than a predetermined distance” from each
other but that Lacaze does not disclose “anything maintaining the two
aircrafts at such a distance.” Appeal Br. 17; see also Reply Br. 5–6.
Appellant’s contention is unpersuasive. Lacaze discloses maintaining
the aircrafts at a predetermined distance from each other, and therefore, a
preponderance of the evidence supports the Examiner’s determination that
Lacaze would use a control unit to perform this operation. Even if crediting
Appellant’s argument that Lacaze does not disclose anything about
maintaining the aircrafts at such a distance, Woodland discloses a control
unit that is capable of performing this operation as discussed supra. See
Ans. 3.
Therefore, Appellant’s arguments do not apprise us of error in the
Examiner’s combination of Woodland, AAPA, and Lacaze, as evidenced by

8 The Examiner inadvertently refers to Denton instead of Woodland. See
Final Act. 9–10; Appeal Br. 15, n. 53.
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Dropsonde. Accordingly, we sustain the Examiner’s rejection of claims 7
and 14–16.
Claim 17:
Claim 17 recites a similar limitation to that of claim 5, namely
“transmitting one or more atmospheric data signals regarding at least one of
the atmospheric conditions to the test aircraft.” See Appeal Br. 25–26
(Claims App.). The Examiner finds that Woodland discloses this limitation.
Final Act. 7 (citing Woodland 11:12–14, 14:52–56, 16:29–30).
Appellant again contends that “there is nothing in this portion of
Woodland that expressly or necessarily describes, teaches, or suggests that
the vehicle 10.0 is transmitting data to a separate and distinct test aircraft.”
Appeal Br. 18; see also Reply Br. 5.
Appellant’s contention is unpersuasive for the reasons discussed supra
for claim 5. We thus sustain the Examiner’s rejection of claim 17.
Rejection III
Regarding independent claim 20, the Examiner finds, inter alia, that
Denton discloses a flight system having an aircraft (i.e., cargo aircraft 10),
an atmospheric conditions-detecting vehicle that is configured to be
deployed from an aircraft to detect atmospheric conditions of an
environment, and a control unit that is configured to maintain a
predetermined separation range between the aircraft and the atmospheric
conditions-testing vehicle. Final Act. 11–12 (citing Denton ¶¶ 19–21, 28;
Fig. 1). The Examiner acknowledges that “Denton appears to be silent as to
a test flight of a test aircraft.” Id. at 12. The Examiner, however, finds that
“[the] AAPA however teaches ‘probes that are configured to detect
atmospheric conditions during the test flight’ of the test aircraft.” Id. The
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Examiner concludes that it would have been obvious to modify the flight
system of Denton for use in a test flight of a test aircraft as taught by the
AAPA, and that “the combination would have yielded predictable results.”
Id.
The Examiner also acknowledges that “Denton discloses that [a]
dropsonde is activated at a predetermined separation from the aircraft but
appears to be silent as to maintain[ing] a predetermined separation range.”
Id. at 13. The Examiner, however, concludes that it would have been
obvious to modify the flight system of Denton to have this feature based on
the teaching of AAPA because the point of interest is “for the gathering of
data [that] has changed from a drop site to a region around a test aircraft”
and “to maintain the separation range to keep the point of interest in view of
sensors.” Id.
The Examiner further acknowledges that “Denton does not appear to
be explicit” in disclosing a “predetermined separation range [that] is one or
more distances at which the test aircraft and the atmospheric conditions-
detecting vehicle are subjected to approximately the same atmospheric
conditions, and at which the test aircraft does not affect atmospheric
conditions detected by atmospheric conditions- detecting vehicle.” Id.
However, the Examiner finds that Lacaze discloses this limitation. Id.
(citing Lacaze ¶¶ 111–114). The Examiner concludes that it would have
been obvious to modify the flight system of Denton and AAPA to have a
“predetermined separation range [that] is one or more distances at which the
test aircraft and the atmospheric conditions-detecting vehicle are subjected
to approximately the same atmospheric conditions, and at which the test
aircraft does not affect atmospheric conditions detected by atmospheric
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conditions- detecting vehicle as taught by Lacaze” to improve “a particular
class of devices” which “would have yielded predictable results.” Id. at 13–
14.
Appellant again contends that AAPA is deficient in that it only
discloses a “trailing cone coupled to the aircraft via a connecting hose” but
that “[a] trailing cone is not a vehicle, in general, or one including a
propulsion system that is separate and distinct from the aircraft.” Appeal Br.
20 (quoting Spec. ¶ 2). This argument is unpersuasive for the reasons
discussed supra. Further, Denton, notably discloses two aircrafts are
separated by “a predetermined distance” from each other. See Denton,
Abstract.
Appellant contends that the combination of cited references fails to
teach the limitation “a control unit that is configured to maintain a
predetermined separation range between the test aircraft and the atmospheric
conditions-testing vehicle, . . . and at which the test aircraft does not affect
atmospheric conditions detected by atmospheric conditions-detecting
vehicle.” Appeal Br. 21; see also Reply Br. 6. Appellant again argues that
paragraph 111 of Lacaze discloses that two aircrafts are “located at no more
than a predetermined distance” from each other but that Lacaze does not
disclose anything maintaining the aircrafts at such a distance. Appeal Br.
22.
Appellant’s contentions are unpersuasive. The Examiner correctly
responds that Denton discloses a control unit for the atmospheric conditions-
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testing vehicle (i.e., Remotely Piloted Aircraft 20)9, AAPA discloses a test
flight with test aircraft and a predetermined distance from the test aircraft by
disclosing detecting “a particular atmospheric environment in which the
aircraft is operating.” Ans. 7 (citing Denton ¶ 28); see also Spec. ¶ 2.
Notably, as Lacaze discloses maintaining the aircrafts at a predetermined
distance from each other, Lacaze would necessarily disclose a control unit to
carry out this operation. Alternatively, Denton discloses a control unit that
is capable of this operation because Denton discloses two aircrafts are
separated by “a predetermined distance” from each other and Aircraft 20 is
“Remotely Piloted.” See Denton ¶ 28, Abstr. See In re Merck & Co., 800
F.2d at 1097. Thus, Appellant does not apprise us of Examiner error.
Accordingly, we sustain the Examiner’s rejection of claim 20.

DECISION
The Examiner’s rejections of claims 1–5, 7, 9–17, and 20–22 under 35
U.S.C. § 103 are AFFIRMED.

9 As Aircraft 20 is “Remotely Piloted,” it is necessarily controlled by a
control unit remotely.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–5, 9–13,
21, 22
103 Woodland, AAPA,
as evidenced by
Dropsonde
1–5, 9–13,
21, 22

7, 14–17 103 Woodland, AAPA,
Lacaze, as
evidenced by
Dropsonde
7, 14–17
20 103 Denton, AAPA,
Lacaze
20
Overall
Outcome
1–5, 7, 9–
17, 20–22

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