Ex Parte 7161525 et al

Patent Trial and Appeal Board

Feb 27, 2017

95001860 (P.T.A.B. Feb. 27, 2017)

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.
95/001,860 12/23/2011 7161525 143925.90 7396
7590 02/27/2017
ROCKWELL COLLINS, INC.
ATTENTION: KYLE EPPELE
M/S 124-323
400 COLLINS RD. NE
CEDAR RAPIDS, IA 52498
EXAMINER
CAMPBELL, JOSHUA D
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
02/27/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

HONEYWELL INTERNATIONAL INC.,
Requester,

v.

ROCKWELL COLLINS, INC.,
Patent Owner.
____________

Appeal 2017-001182
Reexamination Control 95/001,860
Patent 7,161,525 B1
Technology Center 3900
____________

Before JOHN A. JEFFERY, STEPHEN C. SIU, and
DENISE M. POTHIER, Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION
In an earlier Decision (Appeal 2014-007048, mailed October 17,
2014) (“Decision”), another panel of this Board1 reversed the Examiner's
decision favorable to the patentability of claims 1, 5–7, 11, 12, 21–26, 29,

1 Judge Jeffery replaces then-Judge Dillon on the current panel.
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and 31 over RDR-4B Manual2 and Muller.3 Decision 11–12. The earlier
panel’s reversal of the Examiner’s decision not to reject claims 1, 5–7, 11,
12, 21–26, 29, and 31 as unpatentable over RDR-4B Manual and Muller was
designated as a new ground of rejection pursuant to 37 C.F.R.
§ 41.77(b). Id. Patent Owner elected to reopen prosecution under 37 C.F.R.
§ 41.77(b)(1) (“PATENT OWNER’S RESPONSE TO BOARD DECISION IN INTER
PARTES REEXAMINATION,” filed November 17, 2014, “PO Request”) and
submitted the “DECLARATION OF JEFFERY A. FINLEY UNDER 37 C.F.R.
§ 1.132,” dated November 17, 2014 (“Finley Decl.”) and the “DECLARATION
OF KEITH A. STOVER UNDER 37 C.F.R. § 1.132,” dated November 17, 2014
(“Stover Decl.”). Patent Owner also submitted claim amendments for
consideration.
Requester filed comments pursuant to 37 C.F.R. § 41.77(c) in
response to Patent Owner's request to reopen prosecution (“THIRD-PARTY
REQUESTER'S COMMENTS ON RESPONSE REOPENING PROSECUTION,” filed
December 16, 2014, “3PR Comments” or “Requester’s Comments”) and
also filed the “DECLARATION UNDER 37 C.F.R. §1.132” of Brian J. Cottrell,
dated December 16, 2014 (“Cottrell Decl.”). In Requester’s Comments,
Requester argued that “Rockwell’s amendments to claims 26 and 31 are
insufficient to overcome the Board’s new rejection,” “the 525 Patent
specification provides no basis for the skilled artisan to determine the scope
of the subject matter added by the amendments [to claims 26 and 31] with

2 Honeywell, RDR-4B: FORWARD LOOKING WINDSHEAR
DETECTION/WEATHER RADAR SYSTEM USER’S MANUAL WITH RADAR
OPERATION GUIDELINES 2–103 (Rev. 6, July 2003) (“RDR-4B Manual”).
3 U.S. Patent No. 5,839,080 (issued Nov. 17, 1998) (“Muller”).
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‘reasonable certainty’,” and claims 1, 5–7, 11, 12, 21–26, 29, and 31 are
unpatentable under 35 U.S.C. § 103(a) over Feyereisen4 and Muller. 3PR
Comments 12–33. Hence, Requester argues that Patent Owner fails to
overcome the new ground of rejection, that amended claims 26 and 31 are
unpatentable under 35 U.S.C. § 112, second paragraph, and that claims 1, 5–
7, 11, 12, 21–26, 29, and 31 are also unpatentable under 35 U.S.C. § 103(a)
over Feyereisen and Muller.
In the Order Remanding Inter Partes Reexamination Under 37 C.F.R.
§ 41.77(d) to the Examiner, dated March 30, 2015 (“Remand”) 5, the matter
was remanded to the Examiner for consideration of Patent Owner’s and
Requester’s comments and evidence as they pertain to grounds of rejection.
In accordance with 37 C.F.R. § 41.77(d), the Examiner considered
Patent Owner’s response under 37 C.F.R. § 41.77(b)(1) and written
comments of the Requester under 37 C.F.R. § 41.77(c) and issued a
determination that Patent Owner’s evidence “overcomes the new grounds of
rejection.” Examiner’s Determination Under 37 C.F.R. § 41.77(d), dated
June 5, 2015, (“Exr’s Determ.”) 13, 17.
In response to Examiner’s Determination, Requester filed
“REQUESTER’S COMMENTS UNDER 37 C.F.R. §41.77(e) IN RESPONSE TO
EXAMINER’S DETERMINATION,” filed July 6, 2015 (“3PR Comments on Exr’s
Determ.”) and Patent Owner filed “PATENT OWNER’S REPLY TO
REQUESTER’S COMMENTS AFTER EXAMINER’S DETERMINATION UNDER 37
C.F.R. § 41.77(E),” filed August 6, 2015 (“PO Comments on Exr’s

4 U.S. Patent No. 6,289,277 B1 (issued Sept. 11, 2001) (“Feyereisen”).
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Determ.”). Requester also filed “REQUESTER’S SUR-REPLY AUTHORIZED BY
DECISION ON PETITIONS,” dated June 7, 2016 (“3PR Sur-Reply”).
Pursuant to 37 C.F.R. § 41.77(f), the proceeding has been returned to
the Board so that we may reconsider the matter and issue a new decision.
Claim 1 (unamended) reads as follows:
1. A method of displaying areas of turbulent weather,
comprising:
processing data representative of weather conditions
within a predefined area;
displaying the weather conditions on a display;
detecting turbulence within the predefined area;
determining a level of the detected turbulence;
superimposing first graphical elements upon the display of
weather conditions when the level of the detected turbulence is
less than a predetermined amount; and
superimposing a second graphical element upon the
display of weather conditions when the level of the detected
turbulence is more than the predetermined amount,
wherein the first graphical elements are a plurality of dots
superimposed upon the display of weather conditions, wherein a
number of the plurality of dots increases as the level of the
detected turbulence increases up to the predetermined amount.

Obviousness — RDR-4B Manual and Muller
As stated above, the Examiner determined that the new ground of
rejection based on RDR-4B Manual and Muller for certain claims of the
’525 patent was overcome by the new evidence presented and Patent
Owner’s Request. Exr’s Determ. 13, 17. As set forth previously in the
Decision, RDR-4B Manual discloses “the display of weather conditions and
turbulence within a predefined area, with the display of the turbulence
overlaid (superimposed) . . . over the weather display” and Muller discloses
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that it would have been known to one of skill in the art to have used a “dot
pattern in an avionics system to provide additional information regarding
specific . . . threats without obscuring the display of background . . .
information and while indicating the severity of the threat by varying the
density of the superimposed dot pattern.” Decision 8–9 (citing RDR-4B
Manual 56–57, Muller 22:4–14, Fig. 25).
Patent Owner argues that RDR-4B Manual and Muller fail to disclose
or suggest “lower-level turbulence” because, according to Patent Owner and
Patent Owner’s Declarant (Mr. Jeffery A. Finley, also one of the inventors of
record), “lower-level turbulence information is completely missing in the
system of RDR-4B Manual,” “RDR-4B Manual consistently . . . discusses
displaying only turbulence above the threshold of moderate to heavy
turbulence,” is “focused exclusively on higher-level turbulence,” “is
completely silent with respect to turbulence below the threshold[ and]
appears to simply disregard such lower-level turbulence,” and “would have
provided a clear indication to a skilled person that a weather display system
should not bother a pilot with information relating to lower-level
turbulence.” PO Request 15–16, 19–20, 27 (citing RDR-4B Manual 4, 7,
21, 22, 56, 57, 59, 64, 68, 69; Finley Decl. ¶¶ 14, 16, 18, 30) (emphasis
omitted). Patent Owner’s Declarant (Mr. Finley) further testifies that “prior
to the invention of the ’525 patent, pilots . . . had to choose a flight path
without awareness of any lower-level turbulence.” PO Request 16 (citing
Finley Decl. ¶ 17). In addition, Mr. Finley testifies that systems disclosed
by RDR-4B “provide[] no information about less severe turbulence.” Finley
Decl. ¶ 17. In other words, Patent Owner and Patent Owner’s Declarant
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argue that RDR-4B Manual and Muller fail to disclose or suggest “lower-
level turbulence.” The Examiner concurs with Patent Owner, and states that
“RDR-4B Manual teaches displaying only higher-level turbulence above a
threshold” and fails to disclose detected turbulence that is “less than a
predetermined amount.” Exr’s Determ. 10–11 (citing RDR-4B Manual 4,
7, 22, 56, 57).
Claim 1 recites superimposing a first graphical element when the level
of the detected turbulence is less than a predetermined amount. Claim 1
does not recite “lower-level turbulence.” Therefore, we are not persuaded
by Patent Owner’s or Patent Owner’s Declarant’s argument. To the extent
that Patent Owner or Patent Owner’s Declarant argues that RDR-4B Manual
fails to disclose or suggest detecting turbulence that is “less than a
predetermined amount,” as recited in claim 1, we note that RDR-4B Manual
discloses detecting turbulence “associated with light to medium [or
moderate] rainfall” as well as turbulence in the “presence of large areas of
heavy rainfall and shear zones.” RDR-4B Manual 58–60. In other words,
RDR-4B Manual discloses detecting turbulence “associated with light to
medium” or “moderate” rainfall, which is “less than a predetermined
amount” that corresponds to turbulence in the “presence of . . . heavy rainfall
and shear zones.” For at least this additional reason, we are not persuaded
by Patent Owner’s or Patent Owner’s Declarant’s implied argument.
Patent Owner argues that Muller “does not teach or suggest providing
turbulence-related information” or increasing a plurality of dots as the level
of the “detected turbulence increases” and that “the dot patterns in Muller
are exclusively related to a relative proximity of the aircraft to the terrain
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elevation.” PO Request 17–18, 27. In other words, Patent Owner argues
that Muller fails to disclose turbulence. The Examiner concurs with Patent
Owner and states that “Muller is directed to relative proximity of the aircraft
to the terrain elevation” and would only provide information on “how close
the aircraft is to the turbulence.” Exr’s Determ. 12. We are not persuaded
by Patent Owner’s argument or the Examiner’s determination for reasons
previously set forth in the Decision. For example, as previously indicated,
RDR-4B Manual is relied upon for disclosing turbulence. Decision 8. One
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. In re Keller, 642 F.2d
413, 426 (CCPA 1981).
Patent Owner argues that RDR-4B Manual and Muller do not
“contemplate the problem of turbulence information obscuring weather
conditions” and do not “recognize the problem of providing lower-level
turbulence information while providing visibility through to weather
conditions over which the turbulence elements are superimposed.” PO
Request 24–25. Patent Owner’s Declarant (Mr. Finley) also testifies that
“[a] skilled person would have been . . . dissuaded from modifying the RDR-
4B manual to include lower-level turbulence information.” Finley Decl.
¶ 21. In other words, Patent Owner (and Patent Owner’s Declarant) argues
that RDR-4B Manual and Muller do not disclose or suggest methods of
addressing turbulence information obscuring weather conditions or methods
of providing “lower-level turbulence information.”
Regarding Patent Owner’s argument pertaining to “lower-level
turbulence information,” as discussed previously, claim 1 does not recite
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“lower-level turbulence information” and, in any event, RDR-4B Manual
discloses this feature (see discussion above). Regarding Patent Owner’s
argument pertaining to the alleged lack of disclosure by the cited references
of methods to address turbulence information obscuring weather conditions,
Patent Owner does not demonstrate sufficiently that claim 1 recites
obscuring weather conditions or a specific feature recited in claim 1 that
pertains to the alleged addressing of obscuring of weather conditions that
RDR-4B Manual and Muller supposedly fail to disclose. In any event, even
assuming that claim 1, for example, recites “methods of addressing
turbulence information obscuring weather conditions” (claim 1 does not
recite this alleged feature, however), RDR-4B Manual discloses this feature.
For example, RDR-4B Manual discloses that “[t]he system displays the
areas of turbulence as an overlay” “in magenta on the radar indicator.”
RDR-4B Manual 57. In other words, RDR-4B Manual discloses “methods
of addressing” information “obscuring” (i.e., overlaying) a display. For at
least these reasons, we are not persuaded by Patent Owner’s argument.
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined the teachings of RDR-4B Manual
and Muller because allegedly no rationale has been provided as to “why
Muller . . . would have . . . rendered adding such information[, i.e., “lower-
level turbulence”] to the RDR-4B Manual obvious.” PO Request 19. As
previously explained above, claim 1 does not recite “lower-level
turbulence.” For at least this reason, we are not persuaded by Patent
Owner’s argument. To the extent that Patent Owner argues that it would not
have been obvious to one of skill in the art to have superimposed a graphical
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element upon the display when the level of the detected turbulence is less
than a predetermined amount based on Muller, we note that RDR-4B
Manual is relied upon for this teaching (see discussion above).
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined the teachings of RDR-4B Manual
and Muller because “Muller . . . teaches away from such a modification.”
PO Request 21. In particular, Patent Owner argues that Muller fails to
disclose “add[ing] lower-level turbulence elements” (emphasis omitted),
“reinforces that the display should not be cluttered with information other
than the single level of higher-severity turbulence,” and “avoid[s] the display
of nuisance warnings to the pilot.” Id. (citing Finley Decl. ¶ 20, Muller
1:45–49, 2:22–25, 4:5 – 5:3, 8:66 – 9:5, 13:31–35, 16:30–31, 20:17–29,
Abstract).
As previously discussed in the Decision, “RDR-4B Manual discloses
the display of weather conditions and turbulence within a predefined area,
with the display of the turbulence overlaid (superimposed) . . . over the
weather display” and Muller discloses superimposing a “dot pattern” on a
display indicative of threats within a predefined area. Decision 8–9 (citing
RDR-4B Manual 57, Muller 22:4–14, Fig. 25).
The earlier panel also determined that it would have been obvious to
one of skill in the art to have combined the teachings of RDR-4B Manual
and Muller because, considering “‘. . . the combined teachings, knowledge
of one of ordinary skill in the art, and the nature of the problem to be solved
as a whole . . . ’”:
We find that the RDR-4B Manual clearly teaches the
desirability of superimposing a turbulence indication upon a
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weather display and, further, that Muller teaches the desirability
of utilizing a graphic element to show the severity of threats that
does not obscure the background image. That is, given that the
turbulence discussed in RDR-4B Manual is a type of threat, an
ordinarily skilled artisan would have recognized using various
known formats to display such threats to the user, including the
variable density dot format taught by Muller as an indication of
a terrain threat.
Decision 9 (internal citations omitted), 10.
We also note that combining the known feature of an avionics system
for detecting undesirable conditions in predetermined areas by
superimposing a graphical element over a display of the predetermined area
(i.e., RDR-4B Manual) with another known feature of utilizing a dot pattern
as a graphical element in a display of a predetermined area containing
undesirable conditions (i.e., Muller) would have resulted in no more than the
predictable and expected result of a system for detecting undesirable
conditions in predetermined areas by superimposing a graphical element
over a display of the predetermined area (as taught by RDR-4B Manual or
Muller) in which the graphical element is a known dot pattern (as taught by
Muller). “The combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007).
Patent Owner argues that Muller “teaches away” from RDR-4B
Manual because Muller supposedly “reinforces that the display should not
be cluttered with information other than the single level of higher-severity
turbulence,” and “avoid[s] the display of nuisance warnings to the pilot.”
PO Request 21. We agree with Patent Owner that it is improper to combine
references where the references teach away from their combination. In re
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Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983). However, “[t]he prior art’s
mere disclosure of more than one alternative does not constitute a teaching
away from any of these alternatives because such disclosure does not
criticize, discredit, or otherwise discourage the solution claimed . . . . ” In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
In the present case, RDR-4B Manual discloses one alternative of
displaying a (known) color-coded graphical element on a display, and
Muller discloses a different alternative of displaying a (known) dot pattern
graphical element on a display. Patent Owner does not demonstrate
persuasively that RDR-4B Manual criticizes, discredits, or otherwise
discourages the use of a (known) dot pattern graphical element, or that
Muller criticizes, discredits, or otherwise discourages the use of a (known)
color-coded graphical element. Even assuming Patent Owner’s assertion to
be correct that Muller discloses a display “should not be cluttered with
information,” Patent Owner does not demonstrate persuasively that using a
dot pattern graphical element (of Muller) in lieu of using a color-coded
graphical element (of RDR-4B) would result in “cluttering” of information
or would somehow display nuisance warnings. Nor does either RDR-4B
Manual or Muller criticize, discredit, or otherwise discourage the use of such
a (known) dot pattern graphical element, as previously discussed. Therefore,
we are not persuaded by Patent Owner’s (and Patent Owner’s Declarant’s)
argument.
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined the teachings of RDR-4B Manual
and Muller because, according to Patent Owner, RDR-4B Manual fails to
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disclose or suggest “lower-level turbulence information” and Muller “treats
weather and terrain information as separate types of information that cannot
be displayed together.” PO Request 22 (citing Finley Decl. ¶¶ 21–22,
Muller, Fig. 23, 21:14–16, 30–35).
Regarding Patent Owner’s argument pertaining to the alleged lack of
teaching in RDR-4B Manual of “lower-level turbulence information,” as
previously discussed, claim 1 does not recite “lower-level turbulence” and,
in any event, contrary to Patent Owner’s assertion, RDR-4B Manual
discloses different “levels” of turbulence (see discussion above).
Regarding Patent Owner’s argument that Muller discloses an example
in which weather and terrain information is not displayed together, we note
that claim 1 does not recite or otherwise require displaying weather and
terrain information together (or separately). Also, as previously noted,
RDR-4B Manual (and not Muller) is relied upon for the teaching of
superimposing a graphical element on a display when the level of the
detected turbulence is less than a predetermined amount. To the extent that
Patent Owner may be arguing that it would not have been obvious to one of
skill in the art to have bodily incorporated the teachings of Muller into those
of RDR-4B Manual, 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 to those of ordinary skill
in the art.” Keller, 642 F.2d at 425.
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined the teachings of RDR-4B Manual
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and Muller because “turbulence [of RDR-4B Manual] and terrain [of
Muller] threats are not simply interchangeable” and are “substantially
different [in] nature.” PO Request 23–24 (citing Finley Decl. ¶ 23). In other
words, Patent Owner argues that one of ordinary skill in the art would not
have bodily incorporated the features of Muller (e.g., a display of a plurality
of dots indicative of a threat) into the structure of RDR-4B Manual (e.g., a
system that displays a graphical element indicative of a threat). As
previously noted, “[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 to those of ordinary skill in the art.”
Keller, 642 F.2d at 425.
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined the teachings of RDR-4B Manual
and Muller because no “sufficient reason why a skilled person would have
modified the RDR-4B Manual based on Muller” has been provided and that
“there is nothing in either Muller or the RDR-4B Manual that would have
led a skilled person to modify the RDR-4B Manual to display lower-level
turbulence information that is disregarded by the RDR-4B Manual system.”
PO Request 25–28 (citing Finley Decl. ¶ 31). This issue was addressed in
the previous Decision (see, e.g., Decision 8–11) and further discussed above.
Patent Owner argues that the claimed invention would not have been
obvious to one of ordinary skill in the art in view of alleged industry praise
of the claimed invention as evidenced by Patent Owner’s Declarant’s (Mr.
Keith A. Stover) testimony that supposedly “praise[s]” the claimed invention
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and that “there is a direct nexus between the praise of Mr. Stover and the
features recited in the claims.” PO Request 30. Praise in the industry for a
patented invention, and specifically praise from a competitor tends to
indicate that the invention was not obvious. See, e.g., Power-One, Inc. v.
Artesyn Tech., Inc., 599 F.3d 1343, 1352 (Fed. Cir. 2010).
We first determine the weight entitled to Patent Owner’s Declarant’s
testimony. Mr. Stover testifies that he is employed by Patent Owner and
“hold[s] the title of Technical Program Manager for the owner of [the ’525
patent].” Stover Decl. ¶ 3. Patent Owner’s sole support for the contention
of industry praise of the claimed invention is alleged “praise” from one of
Patent Owner’s employees. However, testimony from a single individual
alone is insufficient to lead us to conclude definitively that the single
individual’s opinion reflects that of the entire industry. Therefore, we
cannot conclude that Mr. Stover’s testimony, by itself, can be justifiably
substituted as “industry” praise. This observation indicates that Mr. Stover’s
testimony should be accorded little weight.
Also, while praise from a competitor “tends to indicate that the
invention was not obvious,” Patent Owner does not provide such evidence.
Instead, Mr. Stover testifies that he is an employee of Patent Owner rather
than a competitor. Mr. Stover is an employee of Patent Owner who is tasked
by Patent Owner to provide testimony supporting one of Patent Owner’s
claimed inventions. In view of the extensive degree of association between
Mr. Stover and Patent Owner, this factor reduces the probative value of Mr.
Stover’s testimony. For this additional reason, we conclude that Mr.
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Stover’s testimony should be accorded some weight, but that the probative
value accorded to Mr. Stover’s testimony should be low.
Mr. Stover testifies that typical systems display “only a single level of
higher-severity turbulence” and do not display “lower-level turbulence . . . in
a particular area,” but “the Rockwell Collins test system” displays “lower-
level turbulence” and “multiple-level turbulence,” which Mr. Stover testifies
allows him to “choose more direct flight paths than I would have otherwise
chosen.” Stover Decl. ¶¶ 10–13. Hence, Mr. Stover testifies that the nexus
between the asserted “praise” offered by Mr. Stover and the claimed
invention is the display of graphical elements for “multiple-level
turbulence,” including “lower-level turbulence,” which Mr. Stover testifies
is beneficial.
As discussed above, RDR-4B Manual discloses detecting turbulence
“associated with light to medium” or “moderate” rainfall, which is “less than
a predetermined amount” that corresponds to turbulence in the “presence of
. . . heavy rainfall and shear zones.” See, e.g., RDR-4B Manual 58–60. In
other words, RDR-4B manual discloses detecting turbulence at multiple
levels (i.e., “multiple-level turbulence”) that includes a level of turbulence
that is “lower” than a higher level of turbulence (i.e., “lower-level
turbulence”). Even assuming that Mr. Stover’s testimony to be correct that
“multiple-level turbulence” detection is beneficial and praiseworthy and that
Mr. Stover’s testimony can be substituted as “industry” praise, the asserted
“nexus” of “multiple-level turbulence” between this praise and this claimed
feature is disclosed in RDR-4B Manual, which predates the ’525 patent.
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Hence, even assuming that 1) Mr. Stover’s testimony that displaying
“multiple-level turbulence” was beneficial to those of skill in the art, 2) that
Mr. Stover’s testimony would have been considered “praise,” 3) that one of
skill in the art would have considered Mr. Stover’s presumed “praise” as
“industry” praise, 4) that claim 1, for example, recites “multiple-level
turbulence,” and 5) that the alleged claim feature of “multiple-level
turbulence” constitutes the required “nexus” between the alleged “praise”
and the claimed invention,5 Patent Owner does not demonstrate sufficiently
that the alleged “praise” is directed to the alleged claim feature that is not
known or disclosed by the prior art (e.g., RDR-4B Manual). Given that
RDR-4B Manual predates the ’525 patent and discloses that the practice of
displaying “multiple-level turbulence” was known and practiced in the art,
any “praise” of displaying “multiple-level turbulence” may have been
attributed to the features of the system disclosed in RDR-4B Manual as
opposed to the (later) alleged recitation of the “multiple-level turbulence” in
the claims of the’525 patent. Under these circumstances, any praise stems
from what was known in the prior art so that there can be no nexus. Tokai
Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1369 (Fed. Cir. 2011). For at
least these reasons, we are not persuaded by Patent Owner’s arguments.
In any event, after careful consideration of Patent Owner’s and Patent
Owner’s Declarant’s arguments pertaining to secondary considerations of
praise, and in view of the strength of the prima facie showing of
obviousness, and the fact that Patent Owner’s Declarant’s testimony is

5 Patent Owner and Mr. Stover provide insufficient evidence supporting any
of these assumptions, however.
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accorded little weight (see discussion above), we conclude that Patent
Owner’s evidence on secondary considerations, even if assumed to be true,
is inadequate to overcome the strong prima facie showing of obviousness.
“[S]econdary considerations of nonobviousness . . . simply cannot overcome
a strong prima facie case of obviousness.” Wyers v. Master Lock Co., 616
F.3d 1231, 1246 (Fed. Cir. 2010).
For example, as previously discussed, RDR-4B Manual discloses a
system that superimposes a graphical element on a display in areas where
the level of turbulence is less than a predetermined amount, and Muller
discloses that using a plurality of dots as a graphical element on a display in
areas confronted with a threat was known and practiced in the art. See, e.g.,
Muller 22:4-14. Patent Owner provides insufficient evidence that using a
plurality of dots (as disclosed by Muller) as the graphical element to indicate
a level of turbulence is less than a predetermined amount as opposed to
using a graphical element other than a plurality of dots (i.e., RDR-4B
Manual) was “uniquely challenging or difficult for one of ordinary skill in
the art” or that using a plurality of dots as a graphical element (as opposed to
using any other graphical element) “represent[s] an unobvious step over the
prior art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418–19). Instead, Patent
Owner (and Mr. Stover) merely assert that “multiple-level turbulence” is
beneficial, but fails to provide sufficient explanation as to how “multiple-
level turbulence,” even if assumed to be beneficial, relates to the
nonobviousness of using a plurality of dots on a display as a graphical
Appeal 2017-001182
Patent 7,161,525 B1
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18
element as opposed to using a graphical element of something other than a
plurality of dots.
With respect to amended claim 26, Patent Owner argues that “RDR-
4B Manual discloses only displaying items relating to higher-level
turbulence above a threshold,” and “Muller provides no teaching or
suggestion . . . to [add] lower-level turbulence information to the display.”
PO Request 35. Patent Owner also argues that “RDR-4B Manual cannot be
properly combined with Muller.” PO Request 36. These issues were
previously addressed above and we refer to the above discussion for details.
With respect to amended claim 31, Patent Owner repeats arguments
presented in support for claim 26. PO Request 36–37. These issues were
previously addressed above. We refer above for details.
Patent Owner does not provide additional, substantive arguments in
support of claims 5, 6, 7, 11, 12, 21–25, and 29 with respect to this issue.
In view of the above, we need not reach the newly proposed grounds
of unpatentability. Cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009)
CONCLUSION
We have reconsidered the matter as set forth in 37 C.F.R. § 41.77(f).
The Examiner erred in determining that the rejection of claims 1, 5–7, 11,
12, 21–26, 29, and 31 under 35 U.S.C. § 103(a) as unpatentable over RDR-
4B Manual and Muller has been overcome.
We maintain the rejection of claims 1, 5–7, 11, 12, 21–26, 29, and 31
under 35 U.S.C. § 103(a) as unpatentable over RDR-4B Manual and Muller.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.
Appeal 2017-001182
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19
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141–144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
2, 2002 may not be taken “until all parties’ rights to request rehearing have
been exhausted, at which time the decision of the Board is final and
appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MANUAL OF PATENT EXAMINING PROCEDURE § 2682 (9th ed., Rev.
07.2015, Nov. 2015).
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

37 C.F.R. § 41.77(f)

hh
Appeal 2017-001182
Patent 7,161,525 B1
Reexamination Control 95/001,860

20
PATENT OWNER:

ROCKWELL COLLINS, INC.
ATTENTION: KYLE EPPELE
MIS 124-323
400 COLLINS RD. NE
CEDAR RAPIDS, IA 52498

THIRD PARTY REQUESTER:

OLIFF & BERRIDGE, PLC
P.O. BOX 320850
ALEXANDRIA, VA 22320-4850