Ex Parte Bailey et alDownload PDFPatent Trial and Appeal BoardMar 20, 201813898507 (P.T.A.B. Mar. 20, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/898,507 05/21/2013 Louis J. Bailey 64722 7590 03/22/2018 OSTRAGER CHONG FLAHERTY & BROITMAN, P.C. 570 LEXINGTON A VENUE FLOOR 19 NEW YORK, NY 10022 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 12-2012 4447 EXAMINER WORDEN, THOMAS E ART UNIT PAPER NUMBER 3669 NOTIFICATION DATE DELIVERY MODE 03/22/2018 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): JBROITMAN@OCFBLA W.COM patentadmin@boeing.com patentdockets@ocfblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LOUIS J. BAILEY, RYAN D. HALE, and GREGORY T. SACCONE Appeal2017-006898 1 Application 13/898,507 Technology Center 3600 Before BRUCE R. WINSOR, ADAM J. PYONIN, and MICHAEL M. BARRY, Administrative Patent Judges. PYONIN, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner's Final rejection of claims 2-5, 8-12, and 19-24, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 The Boeing Company is identified as the real party in interest. App. Br. 1. Appeal2017-006898 Application 13/898,507 STATEMENT OF THE CASE Introduction The Application is directed to "optimizing the speed schedule of an aircraft for improved fuel efficiency and aircraft predictability." Spec. 1 :5- 6. Claims 8, 19, and 23 are independent. Claim 8 is reproduced below for reference (emphasis added): 8. A method for controlling a speed of an aircraft to conform to a speed schedule, comprising: obtaining or calculating information concerning at least one economic constraint trajectory segment of a flight trajectory stored in a flight management system of an aircraft that is flying in an economy speed mode, said information comprising a current location of said aircraft, a current speed schedule of said aircraft, flight parameters, aircraft performance data, current and forecast weather conditions along said flight trajectory, and one or more economic constraints applicable to a first economic constraint waypoint of said flight trajectory; for said first economic constraint waypoint, calculating estimated values for one or more economic factors corresponding to said one or more economic constraints applicable to said first economic constraint waypoint based on said information; calculating a respective difference between each economic constraint applicable to said first economic constraint waypoint and the respective estimated value for the corresponding economic factor; determining whether the respective difference is greater than a configurable tolerance or not; responsive to a determination that a respective difference is greater than a configurable tolerance, adding a second economic constraint waypoint not previously included in the flight trajectory and having a geospatial location with a corresponding economic constraint; calculating speeds and determining speed modes of a new speed schedule to be flown by said aircraft along an economic constraint trajectory segment that starts at said second economic constraint waypoint and terminates at said first economic 2 Appeal2017-006898 Application 13/898,507 constraint waypoint, wherein said new speed schedule differs from said current speed schedule of said aircraft, and said speeds and speed modes of said new speed schedule are respectively calculated and determined to eliminate or reduce said respective differences within a configurable tolerance in accordance with user configuration data; constructing a speed schedule advisory comprising an instruction for said aircraft to fly along said economic constraint trajectory segment at said calculated speeds and in said determined speed modes of said altered new speed schedule; and controlling the aircraft to fly along said economic constraint trajectory segment at said calculated speeds and in said determined speed modes of said new speed schedule. References and Re} ections Claims 2-5, 8-12, and 19-24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Boorman (US 2011/0118908 Al; May 19, 2011) and Leslie (US 4,750,127; June 7, 1988). Final Act. 2-20. Claims 2-5, 8-12, and 19-24 stand additionally rejected under 35 U.S.C. § 103(a) as being unpatentable over Boorman. Final Act. 20-21. ANALYSIS The Examiner determines the claims would have been obvious in view of Boorman alone or combined with Leslie, as Boorman teaches a "pilot may visually compare the various flight profiles that are constructed by the computer" to select a new flight profile. Ans. 2. The Examiner further explains as follows: In Boorman, the computer automatically constructs a new speed schedule (the flight profile that is constructed/displayed by the computer which is then selected by the pilot after comparing it to at least one other flight profile) starting with a new economic constraint waypoint (representing the moment in time the new 3 Appeal2017-006898 Application 13/898,507 speed schedule is selected to replace the current one). . . . Regardless of the pilot's reasoning for selecting one flight profile over another, the pilot changing from a current flight plan to another inherently requires at least one economic factor (i.e. fuel/cost, time, passenger comfort, etc.) to be more than "a configurable tolerance" (which for example might be X minutes based upon the pilot knowing air traffic will rapidly increase at the landing location after X number of minutes beyond their planned landing time, or may be Y minutes based on the pilot knowing that a large number of passengers have connecting flights that they'll miss if they are more than Y minutes late, etc.). The differences between the flight plans must be shown on the computer in in order for the pilot to be able to differentiate the advantages/disadvantages of one flight path over the other. Ans. 2-3 (citing Boorman i-f 88). Appellants argue the Examiner's rejection is in error, because the Examiner's assertions are "devoid of any citation to any supporting extract in either Boorman or Leslie" and "the Examiner's assertions that the Boorman computer 'must have already calculated a respective difference' and that the computer as modified by Leslie would compare the status quo flight plan to an alternate flight plan are unsupported by evidence." Reply Br. 9-10. Appellants further contend that Boorman teaches the "'new' speed schedule already exists at the time when the pilot assesses the difference, whereas Appellant's claims require that the new speed schedule be calculated after the difference between the economic constraint and the estimated value for the corresponding economic factor has been calculated and compared to the tolerance." App. Br. 22. We agree the Examiner erred. "A rejection based on section 103 clearly must rest on a factual basis." In re Warner, 379 F.2d 1011, 1017 (CCPA 1967); see also KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A factfinder should be aware, of course, of the distortion caused by 4 Appeal2017-006898 Application 13/898,507 hindsight bias and must be cautious of arguments reliant upon ex post reasoning."). We agree with Appellants that the Examiner has not provided sufficient factual basis to support the determinations of obviousness in view of the cited art. See, e.g., Reply Br. 5. Rather, the Examiner presents conclusory assertions regarding a pilot's thought processes and potential actions that are not taught or suggested by either of the cited references. See, e.g., Final Act. 6 ("[A] pilot that chooses the modified flight plan over the current flight plan would clearly only do so if it eliminated or reduced the differences between an optimum flight plan (according to the particular economic constraint/-she/she was considering)[2J and the chosen flight plan."). Boorman teaches calculating alternative speed schedules and presenting them to the pilot before the pilot's action of selecting a schedule-which the Examiner maps to the claim 8 recitation "adding a second economic constraint waypoint"---can occur. Boorman iii! 87-88. The Examiner's post hoc reconstruction from the pilot's mental process does not provide a factual basis for why this renders obvious the requirements for performing the corresponding calculations after adding that waypoint, as required by independent claim 8. Cf Randall Mfg. v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013) ("In recognizing the role of common knowledge and common sense, we have emphasized the importance of a factual foundation to support a party's claim about what one of ordinary skill in the relevant art would have known."). Thus, we agree with Appellants that the cited references do not teach or suggest the recited "calculating speeds and determining speed modes ... 2 We note Appellants' Specification describes economic constraints as "any one of or a combination of time, fuel, and cost constraints." Spec. 3: 1-2. 5 Appeal2017-006898 Application 13/898,507 that starts at said second economic constraint waypoint." See App. Br. 22- 23; Reply Br. 12. Specifically, the Examiner finds the second economic constraint waypoint is "the point in time and the location of the aircraft at the moment at the modified flight plan is selected" by the pilot, which indicates the Examiner's modified flight plan is not calculated starting at the second economic constraint waypoint, as required by the claim. Final Act. 5; see also App. Br. 22. Accordingly, we are persuaded the Examiner erred in rejecting independent claim 8 as obvious in view of Boorman, and as obvious in view of Boorman and Leslie. We do not sustain the Examiner's obviousness rejections of independent claim 8, independent claims 19 and 23 which are rejected under the same grounds, and the claims dependent therefrom. See App. Br. 16. DECISION The Examiner's decision rejecting claims 2-5, 8-12, and 19-24 is reversed. REVERSED 6 Copy with citationCopy as parenthetical citation