Ex Parte Burch

Board of Patent Appeals and Interferences

Nov 21, 2007

10979908 (B.P.A.I. Nov. 21, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
___________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
___________ 6
7
Ex parte MATTHEW C. BURCH 8
___________ 9
10
Appeal 2007-2544 11
Application 10/979,908 12
Technology Center 3600 13
___________ 14
15
Decided: November 21, 2007 16
___________ 17
18
Before HUBERT C. LORIN, LINDA E. HORNER, and ANTON W. FETTING, 19
Administrative Patent Judges. 20
FETTING, Administrative Patent Judge. 21
DECISION ON APPEAL 22
STATEMENT OF CASE 23
Matthew C. Burch (Appellant) seeks review under 35 U.S.C. § 134 of a final 24
rejection of claims 1-4, 6-17, 19-27, and 29-32. These claims, and claims 5, 18, 25
and 28 which are objected to but otherwise allowable, are the only claims pending 26
in the application on appeal. 27
We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b) (2002). 28
We AFFIRM. 29
Appeal 2007-2544
Application 10/979,908

2

The Appellant invented a global positioning system (GPS) based avionic 1
device for automatically logging flight (Specification 1:Field of Invention). 2
An understanding of the invention can be derived from a reading of exemplary 3
claim 1, which is reproduced below [bracketed matter added]. 4
1. An avionics device, comprising: 5
[1] a processor; 6
[2] a memory operably coupled to the processor; 7
[3] a global positioning system (GPS) receiver operably coupled to the 8
processor and the memory for resolving a location of the 9
device; 10
[4] software operable in connection with the GPS receiver to 11
automatically maintain a flight log book; 12
[5] a display operable to access the flight log book; and 13
[6] a housing operable to house the processor, the memory and the 14
display. 15
16
This appeal arises from the Examiner’s Final Rejection, mailed August 10, 17
2005. The Appellant filed an Appeal Brief in support of the appeal on November 18
15, 2005. An Examiner’s Answer to the Appeal Brief was mailed on November 9, 19
2006. A Reply Brief was filed on December 20, 2006. 20
PRIOR ART 21
The Examiner relies upon the following prior art: 22
Fraker US 5,919,239 Jul. 6, 1999
Briffe US 6,112,141 Aug. 29, 2000
Jiang US 6,278,913 B1 Aug. 21, 2001
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REJECTION 1
Claims 1-4, 6-17, 19-27, and 29-32 stand rejected under 35 U.S.C. § 103(a) as 2
unpatentable over Briffe, Jiang, and Fraker. 3
ISSUES 4
The issue pertinent to this appeal is whether the Appellant has sustained its 5
burden of showing that the Examiner erred in rejecting claims 1-4, 6-17, 19-27, 6
and 29-32 under 35 U.S.C. § 103(a) as unpatentable over Briffe, Jiang, and Fraker. 7
The pertinent issue turns on whether placing a processor, a log recording 8
system memory and a display all within a common housing would have been a 9
predictable outcome from the art applied. 10
FACTS PERTINENT TO THE ISSUES 11
The following enumerated Findings of Fact (FF) are believed to be supported 12
by a preponderance of the evidence. 13
Claim Construction 14
01. Claim 1 requires that a processor, a memory connected to the 15
processor, and a display operable to access a flight log book be located 16
within a common housing. 17
02. The Specification provides no lexicographic definition of a housing. 18
The usual and customary meaning within the context of the invention is 19
something that covers, protects, or supports.1 20

1 American Heritage Dictionary of the English Language (4th ed. 2000).
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03. Claim 1 provides no limitation or guidance as to the construction or 1
size of the common housing, other than it inherently must be sized 2
sufficiently to contain those three elements of claim 1. 3
04. Claim 1 does not require that the GPS receiver or the software to 4
maintain a flight log book claim limitations be located within the recited 5
common housing. 6
05. Nothing in claim 1 precludes nested housings. Even were the display, 7
memory and processor each within a separate housing, so long as all of 8
those housings were nested within a common housing, this would be 9
within the scope of claim 1. 10
Briffe 11
06. Briffe is directed towards an aircraft flight management system. It has 12
a memory for storing a geographical map database, an aeronautical 13
information database, and a flight plan; a flat-panel color display; cursor 14
control and selection devices; and a flight computer. The computer 15
simultaneously displays on the display device selected portions of the 16
map database as a visible map display and portions of the aeronautical 17
information database as aeronautical information indicators. The 18
geographic locations of aeronautical information indicators are 19
correlated on the display device with the corresponding geographic 20
locations of the map display (Briffe 3:7-20). 21
07. All components of the flight deck are preferably implemented as 22
modules of modular avionics units (MAU) interconnected by a high-23
speed communications bus. One MAU contains a processor functioning 24
as a flight management system computer, including graphics drivers for 25
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LCD screens. Another MAU contains communications modules for 1
sensors such as GPS ADF, VOR, ILS, and MLS receivers and VHF and 2
HF communications transceivers. Another contains memory modules 3
for storing databases and for data input units such as a CD-ROM reader. 4
(Briffe 5:67 – 6:17). 5
08. Briffe’s Fig. 1 portrays the flight deck as a console with at least a top 6
(the surface that glare shield Briffe Ref. Numeral 30 is mounted upon – 7
drawn as a long horizontal line in Fig. 1, and the glare shield itself, since 8
the glare shield must be angled backward to accomplish glare reduction) 9
and a front display (Briffe Ref. Numeral 12), set up against the inside of 10
the nose of an airplane cockpit. 11
09. Briffe’s flight deck contains items that it covers and protects. Thus 12
Briffe’s flight deck is a housing that covers and protects its contents. 13
Similarly, Briffe’s airplane is a housing that covers, protects, and 14
supports everything within the airplane. 15
10. Briffe’s flight deck uses receivers for global positioning system 16
satellites (GPS) and inertial reference sensor (IRS) platforms as principal 17
navigation sensors (Briffe 6:53-56). 18
11. Most of the information provided to the pilots in the flight deck is 19
displayed on Primary Flight Display (PFDs) 16 and 22 and Multi-20
Function Displays (MFDs) 18 and 20 (Briffe 7:58-59). 21
Jiang 22
12. Jiang is directed toward a data processing system for automating the 23
process of managing flight data and generating reports based on that 24
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data. It accesses signals transmitted on an airborne databus, where the 1
signals represent sensor readings indicative of the values of a desired set 2
of flight parameters. The sensors are installed on or in the aircraft and 3
are used to measure flight parameters such as airspeed, heading, fuel 4
consumption, altitude, engine temperature, engine RPM, etc. The 5
accessed signals are sampled, filtered, decoded, encrypted, and subjected 6
to an adaptive compression process prior to being stored on a portable, 7
self-protected secure memory device (Jiang 2:49-60). 8
13. In one embodiment of Jiang’s system, each user of the system has an 9
associated self-protected secure memory device which contains their 10
personal identification data, authorization codes, a digital version of their 11
signature (if required for use in filing a report), and relevant data 12
pertaining to their performance of their job responsibilities. In the case 13
of a pilot, this data would include a flight history and the memory device 14
would be used to record the flight data while they are operating an 15
aircraft. The memory device of a ground station employee would 16
contain their own personal data and data access codes for downloading 17
or reviewing the flight or aircraft performance data generated during a 18
pilot's flight. In addition, a pilot log card can include files in which 19
specific operational parameters of an aircraft are identified for tracking 20
during the flight to monitor a pilot's mode of flying the aircraft or a 21
specific aircraft's performance. For example, if a pilot has a history of 22
operating aircraft under conditions of excessive speed or engine RPM, 23
then the pilot's log card can be configured to track those parameters 24
more carefully than for the case of a pilot who does not operate an 25
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aircraft in that manner. Similarly, if a specific aircraft or type of aircraft 1
is believed or known to have a problem which is indicated by certain 2
parameters, those parameters can be tracked more carefully (Jiang 4:6-3
28). 4
14. A user configurable aspect of Jiang is the ability to implement an 5
authorization hierarchy so that different authorization "keys" permit 6
access to the data or enable certain functions to be performed on the 7
data, depending upon the person requesting access. For example, the 8
pilot can be authorized to view the Pilot Log File using a Pilot Key, but 9
may not be given authorization to alter the data (Jiang 7:15-23). 10
Fraker 11
15. Fraker is directed toward a position and time-at-position logging 12
apparatus and system having a number of additional features. In 13
accordance with one aspect of Fraker, a time and position logging 14
system includes a receiver for receiving radio signals transmitted from a 15
plurality of earth orbiting satellites, a processor for processing the radio 16
signals and determining therefrom a position of the system in global 17
coordinates and associated time information corresponding to a time at 18
which the system resides at the determined position, memory for storing 19
a number of sets of global coordinates and associated time information, 20
means responsive to a first signal for logging each set of global 21
coordinates and associated time information in the memory, and a data 22
collection arrangement for collecting a number of sets of global 23
coordinates and associated time information from the memory and 24
compiling the sets for display (Fraker 2:22-37). 25
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16. As shown in Fraker, Figs. 1-3, a GPS receiver 34, a processor 20, a 1
memory 22, and a display 26 are all contained within a common housing 2
12. 3
17. Fraker records the position and the time of day at such a position that 4
the device is located for multiple positions (Fraker 7:49-65). Fraker 5
refers to this as recording time at position, i.e., time of day at a given 6
position. 7
PRINCIPLES OF LAW 8
Claim Construction 9
During examination of a patent application, pending claims are given 10
their broadest reasonable construction consistent with the specification. In 11
re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am. Acad. of Sci. 12
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). 13
Limitations appearing in the specification but not recited in the claim are not 14
read into the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. 15
Cir. 2003) (claims must be interpreted “in view of the specification” without 16
importing limitations from the specification into the claims unnecessarily). 17
Although a patent applicant is entitled to be his or her own lexicographer of 18
patent claim terms, in ex parte prosecution it must be within limits. In re Corr, 19
347 F.2d 578, 580 (CCPA 1965). The applicant must do so by placing such 20
definitions in the Specification with sufficient clarity to provide a person of 21
ordinary skill in the art with clear and precise notice of the meaning that is to be 22
construed. See also In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (although 23
an inventor is free to define the specific terms used to describe the invention, this 24
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must be done with reasonable clarity, deliberateness, and precision; where an 1
inventor chooses to give terms uncommon meanings, the inventor must set out any 2
uncommon definition in some manner within the patent disclosure so as to give 3
one of ordinary skill in the art notice of the change). 4
Obviousness 5
A claimed invention is unpatentable if the differences between it and the 6
prior art are “such that the subject matter as a whole would have been obvious at 7
the time the invention was made to a person having ordinary skill in the art.” 35 8
U.S.C. § 103(a) (2000); KSR Int’l v. Teleflex Inc., 127 S.Ct. 1727, 1729-30 (2007); 9
Graham v. John Deere Co., 383 U.S. 1, 13-14 (1966). 10
In Graham, the Court held that that the obviousness analysis is bottomed on 11
several basic factual inquiries: “[(1)] the scope and content of the prior art are to be 12
determined; [(2)] differences between the prior art and the claims at issue are to be 13
ascertained; and [(3)] the level of ordinary skill in the pertinent art resolved.” 383 14
U.S. at 17. See also KSR Int’l v. Teleflex Inc., 127 S.Ct. at 1734. “The 15
combination of familiar elements according to known methods is likely to be 16
obvious when it does no more than yield predictable results.” KSR at 1739. 17
“When a work is available in one field of endeavor, design incentives and 18
other market forces can prompt variations of it, either in the same field or [in] a 19
different one. If a person of ordinary skill [in the art] can implement a predictable 20
variation, § 103 likely bars its patentability.” Id. at 1740. 21
“For the same reason, if a technique has been used to improve one device, 22
and a person of ordinary skill in the art would recognize that it would improve 23
similar devices in the same way, using the technique is obvious unless its actual 24
application is beyond his or her skill.” Id. 25
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“Under the correct analysis, any need or problem known in the field of 1
endeavor at the time of invention and addressed by the patent can provide a reason 2
for combining the elements in the manner claimed.” Id. at 1742. 3
ANALYSIS 4
Claims 1-4, 6-17, 19-27, and 29-32 rejected under 35 U.S.C. § 103(a) as 5
unpatentable over Briffe, Jiang, and Fraker. 6
The Appellant argue these claims as a group. 7
Accordingly, we select claim 1 as representative of the group. 8
37 C.F.R. § 41.37(c)(1)(vii) (2007). 9
The Examiner found that Briffe discloses the invention as claimed which 10
includes an avionic device 12 which has a processor 65a, a memory 65d, a GPS 11
receiver 69, 71, a display operably coupled to the processor for receiving one or 12
more location data associated with a flight, electronically recording the one or 13
more location data points in a flight log, and allowing access through a display 14
user-interface to view the flight log (Answer 3:Last full ¶). 15
The Examiner found that Briffe does not explicitly disclose that the flight data 16
is automatically recorded. To make up for this deficiency, the Examiner found that 17
Jiang suggests an automated flight data management system for automating flight 18
data collection and generating a pilot flight log and other reports to replace the 19
paper Pilot Log Book which is typically used in the aviation industry. The 20
Examiner found that Jiang also suggests that the flight log record includes 21
departure and arrival airports, a flight date, a flight distance and a flight duration. 22
The Examiner found that Jiang provides the suggestion for combining its flight log 23
with Briffe and concluded that it would have been obvious to one of ordinary skill 24
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in the art to incorporate the teaching of Jiang into the system of Briffe in order to 1
provide the system with the enhanced capability of recording the flight data 2
automatically without the intervention by the fly crew and further reducing the 3
human error (Answer 3:Bottom ¶, continuing to Answer 4). 4
The Examiner also found that Briffe does not explicitly disclose a housing 5
operable to house the processor, the memory, and the display. To make up for this 6
deficiency, the Examiner found that Fraker suggests a portable handheld device for 7
storing position and time-at-position logging data which includes a housing 12 for 8
housing the processor, the memory, and the display. The Examiner implicitly 9
found that one of ordinary skill would have known that such a combination within 10
a single housing would simplify the device by making it portable. The Examiner 11
concluded that it would have been obvious to one of ordinary skill in the art at the 12
time the invention was made to incorporate the teaching of Fraker into the 13
combined system of Briffe and Jiang in order to simplify the flight log book in a 14
portable device which is easy for the pilot to carry and keep (Answer 4:First full ¶). 15
The Appellant contends that Briffe does not disclose a single housing but 16
requires at least five different components, each with their own housings (Br. 17
5:Bottom ¶). The Appellant further contends that Jiang requires two housings and 18
requires transfer of its memory card (Br. 6:Bottom ¶). The Appellant contends that 19
Fraker describes logging time at a position rather than time between positions (Br. 20
7:First full ¶). The Appellant further contends that Jiang teaches away from the 21
claimed invention because Jiang’s data is secured so that it is viewed subsequent to 22
a flight under the supervision of an authorized person (Br. 9:Bottom ¶, continuing 23
on to Br. 10). As a result, the Appellant further contends that this would render 24
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Briffe unsuitable for its intended purpose because securing the memory would 1
eliminate Briffe’s functionality (Br. 10:Bottom ¶). 2
We find that, as found by the Examiner, Briffe describes a GPS receiver, 3
memory for flight parameters, processor, and display within the flight deck (FF 06, 4
07, 09, and 10). Although Briffe describes each of these as being contained within 5
a module, all of the modules are contained within Briffe’s flight deck (FF 07), 6
which is in turn contained within Briffe’s airplane. Thus the issue is whether 7
Briffe describes or suggests having the processor, memory, and display within a 8
common housing. 9
The Specification provides no lexicographic definition of a housing, but its 10
usual and customary meaning is something that covers, protects, or supports (FF 11
02). Briffe’s flight deck has a front and top (FF 08) and contains items that it 12
covers and protects. Thus Briffe’s flight deck is a housing that covers and protects 13
its contents. Similarly, Briffe’s airplane is a housing that covers, protects, and 14
supports everything within the airplane (FF 09). 15
Claim 1 provides no limitation or guidance as to the construction or size of the 16
common housing, other than it inherently must be sized sufficiently to contain 17
those three elements of claim 1 (FF 03). Nothing in claim 1 precludes nested 18
housings. Even were the display, memory and receiver each within separate 19
housings, so long as all of those housings were nested within a common housing, 20
this would be within the scope of claim 1 (FF 05). Thus, we find that Briffe’s 21
flight deck and airplane are each a common housing that contain the processor, 22
memory, and display. 23
Jiang describes the use of automation for a flight log (FF 11-12). We find that 24
Jiang suggests that the data collected by Briffe should include flight log data. 25
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Although Jiang does not show the use of a display in its device, Briffe describes 1
the utility of presenting flight data on a screen for pilots (FF 06). 2
While we agree with the Appellant that Jiang secures its data, the purpose of 3
the security is to avoid tampering. Jiang does not suggest that pilots should be 4
unaware of the data that is being recorded, and even describes allowing the pilot to 5
view the data. To provide this security, Jiang describes authorization hierarchy 6
security to prevent tampering. Thus Jiang could display its data as suggested by 7
Briffe without compromising its security (FF 14). 8
Fraker’s device contains a GPS receiver, processor, memory and display within 9
a single housing. We find that Fraker suggests both the desirability and capability 10
of containing a processor, memory for a travel log program and display in a 11
common housing (FF 14-15). Although Fraker does not describe its application in 12
an air flight context, Fraker clearly describes its use in the context of 13
transportation. Thus, one of ordinary skill upon seeing the need for an automated 14
flight log in Jiang and the equipment parts in Briffe would have looked to 15
automated log machines used in transportation for implementation suggestions 16
among which Fraker is exemplary. 17
Regarding the Appellant’s contention that Fraker records time at position rather 18
than time between positions, the phrase “time at position” is ambiguous. Fraker 19
uses the term to mean the time of day the device was at a particular position, not 20
the length of time the device remained at a position (FF 17). Thus, from the record 21
of all of the positions and times at position recorded, a log is created. The time 22
lapse between each record is, of course, the time between positions. Therefore, 23
Fraker does suggest a log that records data showing positions and time at each 24
position during travel. 25
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The Appellant has not sustained its burden of showing that the Examiner erred 1
in rejecting claims 1-4, 6-17, 19-27, and 29-32 under 35 U.S.C. § 103(a) as 2
unpatentable over Briffe, Jiang, and Fraker. 3
CONCLUSIONS OF LAW 4
The Appellant has not sustained its burden of showing that the Examiner erred 5
in rejecting claims 1-4, 6-17, 19-27, and 29-32 under 35 U.S.C. § 103(a) as 6
unpatentable over the prior art. 7
On this record, the Appellant is not entitled to a patent containing claims 1-4, 8
6-17, 19-27, and 29-32. 9
DECISION 10
To summarize, our decision is as follows: 11
• The rejection of claims 1-4, 6-17, 19-27, and 29-32 under 35 U.S.C. § 103(a) 12
as unpatentable over Briffe, Jiang, and Fraker is sustained. 13
No time period for taking any subsequent action in connection with this 14
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007). 15
AFFIRMED 16
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