Ex Parte Barry et al

Patent Trial and Appeal Board

Jul 3, 2017

13731396 (P.T.A.B. Jul. 3, 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.
40125/06102 6340
EXAMINER
FIGUEROA, KEVIN W
ART UNIT PAPER NUMBER
2124
MAIL DATE DELIVERY MODE
13/731,396 12/31/2012
30636 7590 07/05/2017
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
James BARRY
07/05/2017 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 JAMES BARRY, TIM CINELLO, RON DUNSKY,
CHRIS MACCARONE, THOMAS O’HALLORAN,
and THOMAS WHITE
Appeal 2017-004193
Application 13/731,3961
Technology Center 2100
Before CARL W. WHITEHEAD JR., JON M. JURGOVAN, and
DAVID J. CUTITTAII, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s decision rejecting claims 1—14, which constitute all of the
pending claims in the application on appeal. Appeal Br. 2. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Passur Aerospace,
Incorporated. See Appeal Br. 2.
Appeal 2017-004193
Application 13/731,396
STATEMENT OF THE CASE
According to Appellants, the invention relates to providing non-
traditional airport, airline and flight information, such as predictive analysis
and alert information, to the flight deck of an aircraft. See Spec. 113.2
CLAIMED SUBJECT MATTER
Claims 1, 6, and 11 are independent. Claim 1 is representative and is
reproduced below with disputed limitations italicized:
1. A method comprising:
generating, by a server, predictive analysis and alert
information;
displaying the predictive analysis and alert information to
a user on the ground;
receiving on a screen, from the user, a selection of
categories of the predictive analysis and alert information to be
transmitted in a message to a flight deck of an aircraft',
formatting the message including the predictive analysis
and alert information corresponding to the selected categories;
and
transmitting the message to the flight deck of the aircraft.
Appeal Br. 11.
2 Throughout this Decision, we refer to the following documents: (1)
Appellants’ Specification filed December 31, 2012 (“Spec.”); (2) the Final
Office Action (“Final Act.”) mailed October 28, 2015; (3) the Appeal Brief
(“Appeal Br.”) filed June 9, 2016; (4) the Examiner’s Answer (“Ans.”)
mailed November 8, 2016; and (5) the Reply Brief (“Reply Br.”) filed
January 9, 2017.
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Application 13/731,396
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
Crane et al. (“Crane”) US 2005/0231390 A1 Oct. 20, 2005
Kauffman US 2008/0102824 Al May 1,2008
Dana Hal & Larry Surace, Real Time Runway Incursion Cockpit Advisory,
IEEE, 5.A.2-1—5.A.2-9 (2007) (hereinafter “Hal”).
REJECTIONS
Claims 1, 4—6, 9-11, 13, and 14 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Hal and Crane.
Final Act. 2—6.
Claims 2, 3, 7, 8, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Hal, Crane, and Kauffman.
Final Act. 6—8.
Our review in this Appeal is limited only to the above rejections and
issues raised by Appellants. We have not considered other possible issues
that have not been raised by Appellants and which are, therefore, not before
us. See 37 C.F.R. § 41.37(c)(l)(iv).
ISSUES
(1) Does the Examiner err in finding the combination of Hal and
Crane teaches or suggests “receiving on a screen, from the user, a selection
of categories of the predictive analysis and alert information to be
transmitted in a message to a flight deck of an aircraft,” as recited in
claim 1?
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(2) Does the Examiner err in combining the teachings and
suggestions of Hal and Crane?
CONTENTIONS AND ANALYSIS
With respect to the rejection of claim 1 under 35 U.S.C. § 103(a), we
disagree with Appellants’ contentions, and we adopt as our own (1) the
findings and reasons set forth by the Examiner in the Final Office Action
from which this appeal is taken (Final Act. 2-4) and (2) the reasons set forth
by the Examiner in the Examiner’s Answer in response to Appellants’
Appeal Brief (Ans. 9—10). We highlight the following points for emphasis.
Issue 1
The Examiner finds the combination of Hal and Crane teaches
“receiving on a screen, from the user, a selection of categories of the
predictive analysis and alert information to be transmitted in a message to a
flight deck of an aircraft,” as recited in claim 1. Ans. 9—10.
Appellants argue claim 1 is patentable over Hal and Crane because
“Crane fails to disclose a method that describes a user on the ground
selecting categories of information.” Appeal Br. 6.
We find Appellants’ arguments unpersuasive because the Examiner
relies on Hal rather than Crane to suggest the argued feature and, therefore,
the argument is not responsive to the rejection. Ans. 9—10. See Nat’l Steel
Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1336—37 (Fed. Cir.
2004) (rejecting argument directed at the wrong prior art). Specifically, the
Examiner finds “Hal has alerts and predictive data transmitted from the ATC
users to the pilots through an audio signal.” Ans. 9, see e.g., Hal Abstract
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Application 13/731,396
discussing how a ground-based ATC controller (user) “provide[s] a warning
or recommended resolution to the aircrew via voice communication.”
Appellants further argue that in Crane there is no need to transmit a
message of the selection to the flight deck. Appeal Br. 9. Specifically,
Appellants argue because “the user in Crane is a pilot in the cockpit, the
message selected by the user is not then transmitted in a message to the
flight deck of an aircraft. Instead, the pilot in Crane is selecting information
from the cockpit directly into the flight deck of an aircraft.” Appeal Br. 9
(emphasis omitted).
Appellants’ argument does not address the actual reasoning of the
Examiner’s rejections. Instead Appellants attack the references singly for
lacking teachings that the Examiner relies on a combination of references to
show. It is well established that one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA
1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). This
form of argument is inherently unpersuasive to show Examiner error. Our
reviewing court requires that references must be read, not in isolation, but
for what they fairly teach in combination with the prior art as a whole.
Merck, 800 F.2d at 1097.
Here, the Examiner relies on Hal rather than Crane to teach the
claimed “user” and “transmitting the [audible] message to the flight deck.”
Ans. 9 (“the Hal reference was cited for essentially teaching the entire
claim,” except displaying the message on a screen). The Examiner relies on
Crane to teach displaying the user selected “categories of the predictive
analysis and alert information” on a screen instead of as “an audio message.”
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Ans. 9. Thus, because Appellants fail to address the combination as cited by
the Examiner, we find Appellants argument unpersuasive.
Appellants argue in Crane “[tjhere is still no screen disclosed that
receives a selection of categories from a user on the ground.” Reply Br. 4
(emphasis omitted). We find this argument unpersuasive because the
Examiner relies on Hal rather than Crane to teach receiving a selection of
categories from a user on the ground in the form of an audible warning
message. Ans. 9. The Examiner relies on Crane to teach displaying the
user-selected “categories of the predictive analysis and alert information” on
a screen instead of as “an audio message.” Id.
Appellants argue the Examiner parses the claim in a way that causes a
key claimed element to lose its “meaning and purpose.” Reply Br. 4.
Specifically, Appellants argue:
[t]he claimed element of a selection of categories from a user on
the ground is a single element that cannot be subdivided into
parts without losing its meaning and purpose. It is a key element
of the invention that contributes to the effective communication
between the ground and the pilots. Thus, Appellants maintain
that there is no element disclosed in either Hal or Crane that
discloses a selection of categories from a user on the ground.
Reply Br. 4.
We find Appellants’ arguments unpersuasive. Setting aside that
“[e]ach claim begins with a capital letter and ends with a period” (MPEP
§ 608.01 (m))—and, thus, analysis of a claim’s limitations typically entails
some form of subdividing into parts (i.e., providing findings and reasoning
with respect to portions of the claim)—Appellants do not cite to any
authority precluding the use of multiple references to teach or suggest
particular limitations within a larger recitation. Appellants submit that the
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claimed element “cannot be subdivided into parts without losing its meaning
and purpose.” Reply Br. 4. However, the issues raised by Appellants’
arguments relate to whether the combination of Hal and Crane teaches or
suggests the disputed limitation, not to whether the Examiner, by parsing the
claim, has caused the limitation to “los[e] its meaning and purpose.”
Appellants do not persuasively demonstrate how the Examiner’s use of Hal
for one part of the disputed claim and Crane for another part of the disputed
claim establishes the Examiner unreasonably interpreted the disputed claim
or parts thereof.
Appellants do not dispute the Examiner’s finding that Hal teaches all
of the claimed features except the displaying of the received data on a screen
instead of as an audio message. Ans. 9-10. Moreover, Appellants provide
no reason why one skilled in the art would not have found it obvious to
display Hal’s selection of categories on the display of Crane. On the other
hand, the Examiner has found actual teachings to suggest all of the claimed
limitations and has additionally provided a rationale for the combination.
Specifically, the Examiner concludes:
it would have been obvious ... to combine the teachings of Hal’s
predictive analysis and alert information with that of Crane's
controlling of an aircraft display in order to have the
methodologies cooperate with each other since “it may be
desirable to provide the pilot with additional information and
additional options for displaying the information” Crane
abstract. Additionally a combination of known methods would
yield predictable results i.e. displaying information on a screen.
Final Act. 4 (emphasis omitted). Accordingly, Appellants’ arguments are
unpersuasive of error. For all of the reasons discussed above, we agree with
the Examiner that the combination of Hal and Crane teaches the disputed
limitation of claim 1.
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Issue 2
Appellants argue the proposed combination of Hal and Crane is
improper because it alters Hal’s principle of operation and would render Hal
unsatisfactory for its intended purpose. Appeal Br. 6—7; Reply Br. 5—6.
Specifically, Appellants argue:
the principle of operation is to provide a notification of potential
incursions as quickly as possible to the ATC controller and the
air deck simultaneously so as to gain seconds that may
differentiate an avoided surface collision from an actual
incursion. If the alert system of Hal were modified to include all
of the options for display using the MFDs [(multi-function
displays)] in Crane, extra time would be required by the pilots
on board to select the desired delay option, thereby adding time
needed for the pilots to take action. This addition of time directly
contradicts the teachings of Hal.
Appeal Br. 7 (emphasis added).
At the outset, we note Appellants have mischaracterized the nature of
the Examiner’s rejection. The rejection does not entail modifying Hal’s alert
system to include all of the options for display using the multi-function
displays in Crane, as Appellants allege. Ans. 9 (“The problem with this
argument is that the rejection never proposed to include all of Crane’s
display options”). Rather, the Examiner relies on Hal to teach “transmitting
the [audible] message to the flight deck.” Ans. 9. The Examiner relies on
Crane to teach displaying the message on a screen instead of as “an audio
message.” Ans. 9. Thus, the Examiner modifies Hafs teaching of
“transmitting the message to the flight deck of the aircraft” as an audible
message to instead displaying the message data on a display, based on the
teachings of Crane. Accordingly, we do not agree modifying Hal based on
Crane changes the principle of operation of Hal because the Examiner’s
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rejection does not modify Hal to include all of the options for display using
the multi-function displays in Crane as argued by Appellants. For similar
reasons, Appellants fail to establish the modification would render Hal
unsatisfactory for its intended purpose.
Appellants further argue:
it is irrelevant whether “all” or only “a portion” of additional
information is added to the display. A person of ordinary skill in
the art would still be deterred from combining the references
since even a portion of additional information would increase the
amount of time for a pilot to select the desired display option.
Reply Br. 5—6.
Appellants’ argument is unpersuasive for lack of persuasive evidence
or reasoned explanation in support of the asserted conclusion. Attorney
argument alone is afforded little weight in the absence of persuasive
evidence in support of the conclusion. In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997). Appellants have not established that modifying Hal’s
audible message to a displayed message as taught by Crane would increase
the amount of time for a pilot to select the desired display option and, thus,
deter a person of ordinary skill in the art from combining the references as in
the rejection. Accordingly, we also find this argument unpersuasive of error.
Appellants argue the Examiner fails to establish the proposed
combination is obvious “because the results would not produce a predictable
improvement.” Appeal Br. 7.
We are not persuaded because the Examiner has provided reasoning
with rational underpinnings, which Appellants’ argument neglects to
specifically address. Final Act. 4; Ans. 9-10; see also In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds [require]
some articulated reasoning with some rational underpinning to support the
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legal conclusion of obviousness”) (cited with approval in KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007)).
For the above reasons, we sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 1. We also sustain the Examiner’s § 103(a) rejection of
independent claims 6 and 11, which are argued with independent claim 1,
for similar reasons. Appeal Br. 8. Dependent claims 2—5, 7—10, and 12—14,
are not argued separately and fall with their respective independent claims.
Appeal Br. 8—9.
DECISION
We affirm the Examiner’s decision rejecting claims 1—14 under
35U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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