Ex Parte Chaudhry et al

Patent Trial and Appeal Board

Mar 7, 2013

11299158 (P.T.A.B. Mar. 7, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ZAFFIR CHAUDHRY, MING CAO,
and BRIAN E. WAKE

____________________

Appeal 2010-006732
Application 11/299,158
Technology Center 3600
____________________

Before: CHARLES N. GREENHUT, REMY J. VANOPHEM, and
BARRY L. GROSSMAN, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-32. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The Claimed Subject Matter
The claimed subject matter relates to rotorcraft (e.g., helicopter)
control systems. Spec. [0002] – [0003]. Claim 1 (directed to a rotocraft
control system), claim 15 (directed to a method of flight control), claim 21
(directed to a rotocraft), and claim 26 (directed to a rotocraft control system)
are independent claims. Claim 26, reproduced below, is illustrative of the
claimed subject matter:
26. A rotorcraft control system comprising:
a rotor blade;
a primary flap movably mounted relative to said rotor
blade;
a primary actuator mounted to said rotor blade and said
primary flap, said primary actuator comprises a first stroke
capability to drive said primary flap between a positive position
and a negative position;
a secondary flap movably mounted relative to said rotor
blade; and
a secondary actuator mounted to said rotor blade and said
secondary flap, said secondary actuator comprises a second
stroke capability to drive said secondary flap between a positive
position and a negative position, said second stroke capability
less than said first stroke capability.
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References
The Examiner relied upon the following prior art references:
Chamberlain US 4,630,441 Dec. 23, 1986
Aubry US 4,946,354 Aug. 7, 1990
Charles US 6,478,541 B1 Nov. 12, 2002
Toulmay US 6,530,542 B2 Mar. 11, 2003
Bagai US 6,984,109 B2 Jan. 10, 2006

Rejections
Appellants seek review of the following rejections (App. Br. 4):
1

1. Claims 1-11, 14-18, 19-21, 24-27, and 30
2
rejected under 35
U.S.C. § 103(a) as unpatentable in view of Toulmay and Charles;
2. Claims 12 and 13 rejected under 35 U.S.C. § 103(a) as
unpatentable in view of Toulmay, Charles, and Chamberlain;

1
Citations to “App. Br. ___” are to the indicated page in the Appeal Brief
filed on November 24, 2008.
2
Although not listed by Appellants, claims 28 and 29 also are rejected under
Section 103 as unpatentable in view of Toulmay and Charles. The initial
Examiner’s Answer, dated March 18, 2009, was vacated by the Board’s
“Order Returning Undocketed Appeal To Examiner”, dated September 4,
2009. As stated in the Order, claims 1-32 were rejected and are on Appeal.
The Final Rejection, mailed June 26, 2008, and the Examiner's Answer,
mailed March 18, 2009, included the argument for rejected Claims 28 and
29. However, Claims 28 and 29 were not included in any of the statements
of rejection. This was corrected in the Examiner’s Answer mailed
December 15, 2009. As stated therein, claims 28 and 29 also are included in
the statement of rejection. Appellants’ Appeal Brief state that claims 1-32
are being appealed but neither the Appeal Brief nor the Reply Briefs provide
any argument concerning claims 28 and 29.
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3. Claims 22 and 23
3
rejected under 35 U.S.C. §103(a) as
unpatentable over Toulmay, Charles, and Aubry; and
4. Claims 31 and 32 rejected under 35 U.S.C. § 103(a) as
unpatentable over Toulmay, Charles, and Bagai.
ANALYSIS
Rejection No. 1
Appellants argue as a group many of the claims subject to the first
ground of rejection, i.e., claims 1-11, and 14-21. App. Br. 5. Claims 28 and
29 also are included in this group (see footnote 2).
We choose claim 1 as representative of claims that include limitations
calling for the primary flap being used principally for primary flight control
and the secondary flap being used principally for higher harmonic control.
In addition to claim 1, the claims grouped with claim 1 include claims 2-11
and 14-21.
We separately consider claim 26 as representative of claims that do
not include the limitations regarding primary flight control and higher
harmonic control. In addition to claim 26, these claims include claims 28
and 29.
Appellants have separately argued claims 24, 25, 27, and 30, which
we consider separately. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner considered claims 1 and claim 26 together, as do we.
We address differences in these claims below. The Examiner found that
Toulmay discloses a rotor blade having a plurality of trailing edge flaps,
with each flap having an electrical actuation device (reference numeral 7) for

3
We note claim 23 should apparently depend from claim 21. Correction
should be made in any further prosecution.
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each flap. Each actuation device 7 can cause the flap with which it is
associated to pivot in either direction. Ans. 4.
4
Toulmay also discloses that
each actuation device 7 is composed of two electric actuators 7A and 7B in
parallel.
As shown in Figure 3 of Toulmay to which the Examiner cited (Ans.
4), Toulmay shows a first actuation device 7 connected to flap 6.1 of each
rotor blade; a second actuation device 7 connected to flap 6.2 of each rotor
blade; and a third actuation device 7 connected to flap 6.p. For some of the
flaps shown in Figure 3, the components of actuation device 7 are labeled as
7A or 7B. In referring to Figure 3, the Examiner referred to “two primary
actuators (7A) and a secondary actuator (7B)” (Ans. 4), since Figure 3 uses
the component reference numerals, not the reference numeral 7 for the
actuation device itself. However, it is clear from Figure 3 that on blades 5.1
and 5.m, the reference numeral 7B is referring to a component of a first
actuation device 7 for flap 6.p, whereas reference numeral 7A is referring to
a component of a second actuation device for flap 6.1. On blade 5.i in
Figure 3, reference numerals 7A and 7B both are referring to components of
the same actuation device 7.
A more precise terminology is to focus on the actuation device and its
associated flap. Thus, to avoid confusion, we will use a naming convention
that refers to actuation device 7.1 for flap 6.1; actuation device 7.2 for flap
6.2; and actuation device 7.p for flap 6.p.
5

4
Citations to “Ans. ___” are to the indicated page in the Examiner’s Answer
mailed on December 15, 2009.
5
Using our naming convention, actuation device 7.1, for example, includes
component elements 7.1A and 7.1B.
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The Examiner found that Toulmay disclosed all the elements and
limitations of claim 1 and claim 26 (Ans. 4) but acknowledged that Toulmay
was “silent” about the stroke of the actuators. Id. The Examiner also found
that the flaps of Toulmay have the capability to have different stroke
capabilities, since each flap has a separate channel. Ans.11. The Examiner
found that Charles disclosed different “stroke capabilities” for the flap
segments on a rotor blade used on rotorcraft, such as helicopters. Id. The
Examiner concluded that it would have been obvious to someone of ordinary
skill in the art at the time of the invention to modify Toulmay with the
varying stroke capabilities as taught in Charles. Id. The rationale provided
by the Examiner for making this modification was to more “accurately
control the movement and noise of the rotor blades.” Id.
Appellants argue that each flap in Toulmay discloses two electric
actuators for each flap, shown and described with reference numeral 7A and
7B, mounted in parallel, and that these two actuators “must be identical.”
App. Br. 6; Reply Br. 3.
6
Appellants’ focus on the component parts of
actuation device 7 is misplaced. The Examiner’s reliance on Toulmay,
consistent with the claim limitations, is for a flap and its associated actuator.
Toulmay clearly discloses a plurality of flaps (6.1, 6.2, 6.p) and an actuation
device (7.1, 7.2, 7.p using our defined naming convention) associated with
each flap. The component parts of the actuator are irrelevant to the claim
limitations and to the rejections. Thus, Appellants arguments directed to
whether the component parts of actuation device “must be identical” because
they control the same flap (Reply Br. 4) does not apprise us of error because

6
Citations to “Reply Br. ___” are to the indicated page in the Reply Brief
filed February 15, 2010.
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actuators 7.1, 7.2, 7.p, are each connected to different flaps 6.1, 6.2, 6.p,
respectively.
Regarding the Charles reference, Appellants argue that a fundamental
teaching of Charles relates “radial position of the flap with the deflection
angle stroke capability thereof.” App. Br. 11. The Examiner’s reliance on
Charles, however, was for the proposition that “…Figure 2 of Charles
teaches the different segments or flaps having varying stroke capabilities.”
Ans. 4. Appellants have not pointed to any evidence or stated any reasoning
to apprise us that it would not have been obvious to a person having ordinary
skill in the relevant technology to glean from Charles the general disclosure
that flaps or flap segments can be independently controlled with varying
stroke capabilities, as found by the Examiner.
Appellants also argue that the flap segments in Charles are operated
for the single purpose of reductions in noise. App. Br. 11. The Examiner’s
reliance on Charles, however, as stated above, was for the disclosure of
different segments or flaps having varying stroke capabilities. The
Examiner’s reasons for incorporating such features need not be for the
specific use or function of this structure disclosed in the prior art.
Appellants focus on noise reduction of Charles is misplaced and inconsistent
with the disclosed purpose of the varying stroke capabilities of the claimed
secondary flaps.
Charles discloses devices for controlling blade-vortex interaction
(BVI) noise include Higher Harmonic blade pitch control (HHC), which
seeks to change the blade tip vortex strength through blade pitch changes.
See, Charles, col. 1, generally, and specifically ll. 51-57. BVI noise and
vibration can also be alleviated using blade-mounted trailing edge multi-
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segment flaps. Charles col. 2, ll. 32-43. This is precisely what Appellants
disclose is the objective of the secondary flaps 26, which preferably are
“dedicated to HHC.” Spec. [0031]. As Appellants explain in their
Specification, the control system 10 “is capable of both primary flight
control (PFC) and higher harmonic control (HHC). …HHC relates to
changing the individual orientation (i.e. pitch) of the blades at higher
harmonics as it rotates to improve rotor performance, such as reducing the
overall noise and vibration of the rotorcraft (emphasis added). Spec.
[0021]; see also, Spec. [0030] (secondary flaps 26 “reduce noise and
vibration”) . Thus, Charles is focused on the same issue, noise reduction, on
which the secondary flap in the claimed invention is focused.
As held by the Supreme Court:
when a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill.
KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). The
operative question is whether the improvement is more than the predictable
use of prior art elements according to their established functions. The fact
that the reference uses the disclosed structure, different segments or flaps
having varying stroke capabilities, for one purpose and the claimed
invention uses the disclosed structure for this same and for other purposes, is
not persuasive of error in the rejection, particularly in light of Appellants
disclosed purpose for secondary flaps 26.
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Finally, Appellants assert that even if Charles were combined with
Toulmay, the combined structure fails to suggest utilization of primary flaps
for primary flight control and secondary flaps for higher harmonic control
which Appellants assert necessarily requires different operational
characteristics then the utilization of multiple flap segments for but a single
purpose. App. Br. 11. Appellants do not point to any claim or claim
limitation in which the argued distinction appears, but we note that
representative claim 1 calls for the primary flap being used principally for
primary flight control, which the Specification refers to as “PFC,” and also
calls for the secondary flap being used principally for higher harmonic
control, which the specification refers to as “HHC.”
As defined in Appellants Specification, PFC relates to the lift of the
rotorcraft that results in the vertical and translational movement of the
rotorcraft through the magnitude and tilt of the rotor thrust. HHC relates to
changing the individual orientation (i.e. pitch) of the blades at higher
harmonics as it rotates to improve rotor performance, such as reducing the
overall noise and vibration of the rotorcraft. Spec. [0021]. While Charles
may focus on HHC, it is clear that Charles’ flaps can help control flight
aerodynamics as well. See col. 5, l. 56-col. 6, l. 65.
As claimed in representative claim 1, the primary and secondary flaps
and actuators have no specific unique structure differentiating one from the
other. Both the primary flaps and the secondary flaps perform their
designated principal assignments merely by rotating between neutral,
positive, or negative positions. Spec. [0027], [0029]. While representative
claim 1 states a preferred dedicated function for the primary and secondary
flaps, the Specification makes clear that the secondary actuator and the
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secondary flap are also capable of being used for PFC to supplement and/or
enhance PFC. Spec. [0035]. The Specification also makes clear that the
terms "first", "second", "primary", "secondary", and the like do not imply a
spatial, sequential, or hierarchical order to the modified elements unless
specifically stated. Spec. [0046]. Thus, the recitation relating to the
principal intended use of each particular flap does not create any structural
distinction over the prior art. See e.g., K-2 Corp. v. Salomon S.A., 191 F.3d
1356, 1363 (Fed. Cir. 1999) (functional language limits an apparatus claim
where that language describes something about the structure of the
apparatus).
Based on the analysis above, Appellants argument that the primary
and secondary flaps necessarily require different operational characteristics
is not persuasive of any error in the Examiner’s findings and conclusions.
Appellants have not pointed to any evidence or reasoning to apprise
us that the Examiner erred in his findings and conclusions regarding the
rejection of representative claims 1 and 26. Accordingly, we affirm the
rejections of claims 1 and 26. The remaining claims in this group, claims 2-
11 and 14-21, and 28 and 29 fall with claims 1 and 26.
In sustaining the rejection of claims in this group, we have relied on
findings from the record concerning the Toulmay actuator 7 which the
Examiner did not make specifically. Recognizing that the Examiner’s
citation to components 7A and 7B in Figure 3 may have been confusing to
Appellants, in order to provide Appellants a full and fair opportunity to
respond to the grounds of rejection as sustained here, pursuant to 37 C.F.R.
§ 41.50(b), we designate our decision to sustain the rejection of independent
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claims 1, 15, 21, and 26, and the claims dependent thereon, as a NEW
GROUND OF REJECTION.

Claims 24 and 30
Claims 24 and 30, dependent on claims 1 and 26, respectively, call for
the frequency capacity of the secondary actuator, which operates the
secondary flap, to be greater than the frequency capacity of the primary
actuator, which operates the primary flap.
The Examiner found that Toulmay is silent about the secondary
actuator having a frequency capability higher that the primary actuator. Ans.
8. The Examiner also found that Charles teaches that a blade-mounted
trailing edge flap can be used to alleviate rotor BVI noise and vibration
levels using nonharmonic and harmonic flap schedules. Id. The Examiner
concluded that it would have been obvious to someone of ordinary skill in
the art at the time of the invention to modify Toulmay with the ability to use
harmonic and nonharmonic flap movements which inherently would have
different frequencies as taught by Charles in order to alleviate rotor noise.
Appellants allege error in the Examiner’s conclusion because
providing different frequency capabilities for the primary and secondary
actuators in Toulmay “would provide no benefit” to the Toulmay structure
and “would ruin the stated goal of Toulmay by rendering Toulmay
immobilized.” App. Br. 9. Appellants’ first argument fails to address the
Examiner’s position regarding the ability to attenuate noise and vibration
having different frequencies. Appellants’ second argument is based upon
the incorrect interpretation of Toulmay’s actuator connections as discussed
above.
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Claims 25 and 27
Claims 25 and 27, dependent on claims 1 and 26, respectively, call for
the force capability of the secondary actuator, which operates the secondary
flap, to be less than the force capability of the primary actuator, which
operates the primary flap.
The Examiner found that Toulmay and Charles are silent about the
secondary actuator having more force capability than the primary actuator.
Ans. 9. The Examiner concluded, however, that one skilled in the art using
the Toulmay/Charles device would choose this structure since there would
be a need for more power or force based on factors such as the location or
drag force on the actuators. Id; see also Charles cols. 5-6.
Similar to their argument for claims 24 and 30, Appellants state the
conclusion, without supporting evidence or reasoning, that providing
different force capabilities for the primary and secondary actuator would
provide no benefit to the combination of Toulmay in view of Charles as
proposed by the Examiner, and would leave Toulmay “immobilized.” App.
Br. 10.
Appellants’ unsupported conclusions do not apprise us of any error in
the rejection of claims 25 and 27.
Rejections Nos. 2 and 3
Appellants do not specifically argue the rejections of claims 12, 13,
22, and 23. Accordingly, we affirm the rejections of these claims. 37 CFR
41.37(c)(1)(vii).

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Rejection No. 4
Claim 31 calls for the frequency capability of the first actuator to be
once per revolution of said rotor blade and the frequency capability of the
second actuator to be greater than once per revolution of the rotor blade.
Claim 32 calls for the frequency capability of the second actuator to
be between 2 to 5 per revolution of the rotor blade.
The Examiner found that Toulmay and Charles are silent about the
second frequency being between 2 and 5 per revolution of the rotor blade.
The Examiner also found that Bagai teaches that smart actuators can be
made to deflect at frequencies greater than the rotational frequency of the
rotor. Ans. 10-11. Based on this disclosure the Examiner concluded that it
would have been obvious to someone of ordinary skill in the art at the time
of the invention to modify Toulmay and Charles with the actuators as taught
in Bagai. Id. at 11, 14. The rationale provided for this modification is that it
would allow accurate control of the movement and noise of the rotor blades.
Id. at 11.
Appellants argue that Charles “refers to HHC [higher harmonic blade
pitch control] as a passive control technique. [Col. 1, lines 61 - 62].” App.
Br. 12. Appellants further argue that the “purpose of Charles is, in fact, not
to use higher harmonic control but trailing edge flap deployment schedules
in an azimuth-dependent active manner,” citing column 7, lines 56-65, and
column 8, lines 52-67 for support of their position. Id. at 12-13. Based on
these cited passages in Charles, Appellants conclude that the disclosure in
Charles specifically refutes “the Examiner's interpretation and thus defeats
the rejections.” Id. at 13.
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Appellants arguments regarding whether HHC disclosed in Charles is
passive or active is irrelevant to the rejection, since neither claim 31 or 32
refer to either passive or active HHC controls. Appellants incorrectly equate
the Examiner’s reference to harmonic flap frequency movements, or
schedules, to blade pitch control. Cf Charles col. 1, ll. 54-56 with col. 2, ll.
32-37; see also col. 3, ll. 2-4. Accordingly, Appellants’ assertions do not
apprise us of error in the Examiner’s rejection.
Appellants’ quotation and citation to passages from column 7 and 8 in
Charles also do not apprise us of error in the rejection of claims 31 and 32.
Appellants do not point to anything in the long quoted passages that
establishes any error in the Examiner’s findings and conclusions that Bagai
teaches that smart actuators can be made to deflect at frequencies greater
than the rotational frequency of the rotor, and that it would have been
obvious to someone of ordinary skill in the art at the time of the invention to
modify Toulmay and Charles with the actuators as taught in Bagai.
Accordingly, we sustain the rejection of claims 31 and 32.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1-32.
Pursuant to 37 C.F.R. § 41.50(b), we designate our affirmance of the
rejection of claims 1-32 as NEW GROUNDS OF REJECTION.
37 C.F.R. § 41.50(b) provides that, “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
Regarding the new ground of rejection, Appellants must, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, exercise one of
the following options with respect to the new ground of rejection, in order to
avoid termination of the appeal as to the rejected claims:
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(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner … .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record … .

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED; 37 C.F.R. § 41.50

ELD