Ex Parte Achache

Board of Patent Appeals and Interferences

Aug 22, 2003

09190318 (B.P.A.I. Aug. 22, 2003)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 29
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte MARC ACHACHE
__________
Appeal No. 2003-0552
Application 09/190,318
___________
ON BRIEF
___________
Before COHEN, FRANKFORT, and NASE, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 19, 23, 27 and 31. Although the final
rejection (Paper No. 19) involved a rejection under 35 U.S.C.
§ 103(a) of all of claims 17 through 32 then pending in the
application, it is apparent from the record (e.g., Paper No. 22)
that appellant only seeks review of the examiner’s final
rejection as it applies to dependent claims 19, 23, 27 and 31.
Appeal No. 2003-0552
Application 09/190,318
2
Claims 1 through 16 have been canceled. Claims 17, 18, 20
through 22, 24 through 26, 28 through 30 and 32 have not been
appealed.
As noted on page 1 of the specification, appellant’s
invention relates to a system or device for operating a
controlled member on a rotary-wing aircraft, particularly a
helicopter. The controlled member, in the case of a helicopter,
may be the main lift and forward propulsion rotor or the
countertorque tail rotor. An objective of appellant’s invention
is to provide an improved mechanically-based control system or
device which allows high-performance control of the type achieved
with fly-by-wire control, but with high dependability, owing to
the fact that it is essentially a mechanically-based system and
can continue to operate when its electrical part (i.e., the
computer) breaks down, and at a low cost, because it is based on
a conventional mechanical system/device and requires no
redundancy between its constituent elements. A copy of parent
claims 17, 21, 25 and 29 (not appealed), and dependent claims 19,
23, 27 and 31 (which are on appeal) can be found in the Appendix
to appellant’s brief.
Appeal No. 2003-0552
Application 09/190,318
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The sole prior art reference of record relied upon by the
examiner in rejecting the appealed claims is:
Fernandez 5,489,830 Feb. 6, 1996
In addition to the foregoing prior art reference, the
examiner has also relied upon applicant’s admitted prior art
(hereinafter, the APA) set forth on page 1 of the specification
in the “Background of the Invention” section.
Claims 19, 23, 27 and 31 stand rejected under 35 U.S.C.
§103(a) as being unpatentable over the APA in view of Fernandez.
Rather than attempt to reiterate the examiner's commentary
with regard to the above-noted rejection and the conflicting
viewpoints advanced by appellant and the examiner regarding the
rejection, we make reference to the final rejection (Paper No.
19, mailed November 15, 2001) and the examiner's answer (Paper
No. 24, mailed July 16, 2002) for the reasoning in support of the
rejection, and to appellant’s brief (Paper No. 23, filed May 6,
2002) and reply brief (Paper No. 26, filed August 30, 2002) for
the arguments thereagainst.
Appeal No. 2003-0552
Application 09/190,318
4
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and claims, to
the applied prior art Fernandez patent and the APA, and to the
respective positions articulated by appellant and the examiner.
As a consequence of our review, we have made the determination
that the examiner’s rejection of claims 19, 23, 27 and 31 under
35 U.S.C. § 103(a) will not be sustained. Our reasons follow.
The examiner’s position in the final rejection (Paper No.
19, pages 2-3) is that the APA discloses an apparatus as set
forth in, for example, parent claim 17, except that the APA does
not disclose at least one sensor as required in the penultimate
clause of claim 17 and a computer which uses the values measured
by said sensor to determine control commands to create control
objectives. However, the examiner is of the view that Fernandez
discloses a sensor and computer as required in appellant’s
claims, e.g., claim 17, “in figure 5 and on lines 18-67, on
column 7.” From such teachings, the examiner concludes that
It would have been obvious to one of ordinary skill in the
art at the time the invention was made to use the sensor and
computer determining control commands of Fernandez in the
Appeal No. 2003-0552
Application 09/190,318
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prior art that is admitted to because such modification
would provide some type of input that would be necessary for
the control computer to provide load feel back to the pilot.
With particular regard to dependent claims 19, 23, 27 and 31
on appeal, the examiner further recognizes that the APA does not
disclose a sensor which measures “relative movement” of a control
(3) intended to be subject to the action of a pilot with respect
to the position of a trim means (13) acting on the control. In
this instance, the examiner is of the view that Fernandez teaches
a sensor which measures relative movement of a control intended
to be subject to the action of a pilot with respect to the
position of a trim means “in figure 6” and that it would have
been obvious to one of ordinary skill in the art at the time of
appellant’s invention to use the teachings of Fernandez in the
APA “because such modification would provide an aircraft control
with better load feel as stated in Fernandez” (final rejection,
page 4).
Additional insight into the examiner’s position regarding
the obviousness rejection of claims 19, 23, 27 and 31 is found in
the examiner’s answer (pages 3-4), wherein the examiner more
clearly makes note that it is the position sensor (26) of
Appeal No. 2003-0552
Application 09/190,318
6
Fernandez which is considered to measure the relative movement of
the control member (12) with respect to a trim means (34). The
examiner further contends that
This is evident because sensor (26) measures the movement of
the control member (12) with respect to the frame of the
vehicle. Also, from figure 2, it is clear that trim means
(34) is fixedly attached to the frame of the vehicle. This
makes sense since both the sensor and the trim means need to
be attached to some structure that provides a frame of
reference for the vehicle. Since the trim means (34) is on
the frame and the sensor (26) is measuring relative movement
of the control member (12) in relation to the frame, the
sensor(26) has to also be measuring relative movement of the
control member (12) relative to the trim means (34).
Like appellant, we are of the opinion that the APA and
Fernandez are not combinable in the manner urged by the examiner
so as to result in the apparatus defined in claims 19, 23, 27 and
31 on appeal. Even if one of ordinary skill in the art were to
attempt to combine a sensor like that seen at (26) in the fly-by-
wire system of Fernandez with a mechanically-based system
including a control intended to be subject to the action of a
pilot of a rotary-wing aircraft of the type set forth in the APA,
we see no basis for the examiner’s conclusion that the parameter
measured by such a sensor (26) associated with a control like
that of the APA would be “relative movement of said control with
respect to the position of the trim means” acting on said
Appeal No. 2003-0552
Application 09/190,318
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control, as in appellant’s claims before us on appeal. Nor did
the examiner in the final rejection provide any cogent reasoning
to support such a conclusion. Figures 5 and 6 of Fernandez
referred to by the examiner and the specification of Fernandez at
column 7, lines 18-67, also referenced by the examiner provide no
apparent support for the examiner’s stated position.
Moreover, the examiner’s belated comments in the paragraph
bridging pages 3 and 4 of the answer regarding mounting of the
sensor to the frame of the aircraft and also “the trim means
(34)” to the frame of the aircraft, along with the conclusion
that this arrangement is somehow responsive to the limitations
added by claims 19, 23, 27 and 31 are, for the reasons set forth
in appellant’s reply brief, untenable.
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Application 09/190,318
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In light of the foregoing, it is our determination that the
examiner has not made out a prima facie case of obviousness, and
that the decision of the examiner, accordingly, must be reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JEFFREY V. NASE )
Administrative Patent Judge )
CEF:pgg
Appeal No. 2003-0552
Application 09/190,318
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Marshall O’Toole Gerstein
Murray & Borun
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233 South Wacker Drive
Chicago, IL 60606-6402