Ex Parte Bailey et al

Patent Trial and Appeal Board

Mar 20, 2018

13898507 (P.T.A.B. Mar. 20, 2018)

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
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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
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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
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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.
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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
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