Ex Parte Aylor

Patent Trial and Appeal Board

Oct 30, 2017

11706676 (P.T.A.B. Oct. 30, 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.
11/706,676 02/15/2007 Robert Benson Aylor AYLOR-US3 7845
7590 10/31/2017
ROBERT B. AYLOR
9502 BLUEWING TERRACE
CINCINNATI, OH 45241
EXAMINER
ABDOSH, SAMIR
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
10/31/2017 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
____________

Ex parte ROBERT BENSON AYLOR
____________

Appeal 2015-004357
Application 11/706,676
Technology Center 3600
____________

Before JOHN C. KERINS, ANNETTE R. REIMERS, and HYUN J. JUNG,
Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

STATEMENT OF THE CASE
Robert Benson Aylor (Appellant) has filed a Request for Rehearing
(“Request”) under 37 C.F.R. 41.52. The Request seeks reconsideration on
the merits and reversal of our Decision dated August 23, 2017 (“Decision”),
affirming the rejection of claims 21–32 and 34–39 under 35 U.S.C. § 112,
first paragraph, and, additionally, a reversal specifically directed to claim 38
for additional reasons. We have jurisdiction under 35 U.S.C. § 6(b).
Requests for Rehearing are limited to points that Appellant believes
have been misapprehended or overlooked by the Board. 37 C.F.R.
§ 41.52(a)(1).

Appeal 2015-004357
Application 11/706,676

2
Looking first to Appellant’s request that our affirmance of the
rejection of claim 38 be overturned, Appellant cites to our decision to
reverse the § 112 rejection as to claim 33, on the basis that claim 33
excludes the possibility that an air passageway is created by a directed
explosion, and asserts that claim 38 similarly excludes that subject matter.
Request 2. Claim 38 does not, however, stand in the same stead as claim 33.
We specifically noted, in reversing the rejection of claim 33, that the
Examiner “presents no findings, reasoning, or conclusions” as to the subject
matter of claim 33, which requires the use of an underground tunnel to
provide the claimed air passageway, and that Appellant pointed out the
absence of same. Decision 7. In contrast, claim 38 limits the scope of
independent claim 21 to the use of incendiary devices deployed around the
eye wall of a cyclonic wind in reducing damage from a hurricane, the
Examiner provides an analysis as to why the limitations appearing in the
claims directed to hurricanes are regarded as not being enabled. Final Act.
4. Appellant did not present any substantive argument for claim 38
countering the Examiner’s position, but merely reiterated the claim
language, and baldly asserted that the claimed technique “is especially easy
to execute for a hurricane since the eye wall is easy to locate.” Appeal Br. 5.
These assertions are analogous to those in In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (“we hold that the Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and naked assertion that the corresponding
elements were not found in the prior art.”). Accordingly, we decline to
change our position with respect to claim 38, the rejection of which remains
affirmed.
Appeal 2015-004357
Application 11/706,676

3
Appellant, for all claims, essentially repeats many of the arguments
already presented in the Appeal Brief and Reply Brief. Request, passim.
Appellant concludes with statements that implicitly allege that we
misunderstood those arguments. Request 5. To wit, Appellant maintains
that “the implied meanings of appellant’s disclosure cited as reasons for
affirming the rejection are not the actual meanings intended,” and “the
decision relies upon [] concessions which appellant did not make.” Id.
After again carefully reviewing the arguments presented, we remain
of the belief that we have interpreted Appellant’s disclosure in the same
manner as would a person of ordinary skill in the art, and have not attributed
meanings to the portions of the Specification cited in the analysis set forth in
the Decision that are different from the meanings that would be gleaned by
that person of ordinary skill. That those may not be “the actual meanings
intended” does not persuade us that we have misunderstood them. To the
extent that Appellant characterizes any portion of the analysis as based on
concessions not made, we attribute that to whatever differences may exist
between what the person of ordinary skill in the art would understand, as
explained in greater detail in the Decision, and “the actual meanings
intended” by Appellant.
Accordingly, the Request for Rehearing is denied in terms of the relief
sought.

REQUEST DENIED