Ex Parte Constans et al

Patent Trial and Appeal Board

Sep 14, 2016

13719693 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131719,693 12/19/2012
23117 7590 09/16/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Florian CONSTANS
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.
SCS-5761-20 3547
EXAMINER
WORDEN, THOMAS E
ART UNIT PAPER NUMBER
3669
NOTIFICATION DATE DELIVERY MODE
09/16/2016 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FLORIAN CONSTANS, THIERRY BOURRET, and
FABIEN PERRIN
Appeal2014-008035
Application 13/719,693
Technology Center 3600
Before CHARLES N. GREENHUT, ANNETTE R. REIMERS, and
JILL D. HILL, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-15. We have jurisdiction under 35 U.S.C. § 6(b ).
We reverse and enter new ground of rejection.
CLAIMED SUBJECT MATTER
The claims are directed to a vehicle energy control system. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
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Application 13/719,693
1. A system for controlling energy level of an aircraft, said
energy comprising the sum of the aircraft kinetic energy and the
aircraft potential energy, said system comprising:
a control interface configured to generate at least one first
control instruction for setting a desired rate of change of the
energy level of the aircraft, and
a regulating unit, responsive to receiving said at least one
first control instruction, and configured to control at least one
device of the aircraft to change the energy level of the aircraft at
said desired rate of change of the energy level in accordance with
said at least one first control instruction,
wherein the control interface is in at least one of a first
state and a second state, the first state being an instruction state
in which the control interface generates said at least one first
control instruction and the second state being a resting state in
which said control interface does not generate any instruction,
wherein the control interface is configured to return to the second
state after having been brought into the first state.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Melsheimer
Mohning
Duggan
US 3,789,661 Feb. 5, 1974
US 2009/0198414 Al Aug. 6, 2009
US 2010/0292874 Al Nov. 18, 2010
REJECTIONS
Claims 1-10 and 12-15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mohning and Melsheimer.
Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Mohning, Melsheimer, and Duggan.
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Application 13/719,693
OPINION
In rejecting each of claims 1, 14, and 15, the independent
claims involved in this appeal, the Examiner states:
Pilots typically adjust engine power levels (thrust) manually in
order to maintain a desired glide slope; an instrument such as
applicant's claimed invention simply automates this task within
a single controller. While useful, this alone is not a patentable
trait as automating a well-known manual function is considered
a routine skill in the art. Therefore, it would have been obvious
to one of ordinary skill in the art, at the time of invention, to
modify the disclosed control system of Mohning et al. with the
use of glide angle characteristics of potential and kinetic energy
as taught by Melsheimer in order to automate the task of
controlling glide slope, and thus the rate of change of the sum of
kinetic and potential energy in an aircraft to aid pilots in properly
and safely navigating their aircraft.
Final Act. 2-3, 5---6, 6-7.
"[T]he precise language of 35 U.S.C. § 102 that '(a) person shall be
entitled to a patent unless,' concerning novelty and unobviousness, clearly
places a burden of proof on the Patent Office which requires it to produce
the factual basis for its rejection of an application under sections 102 and
103." In re Warner 379 F.2d 1011, 1016 (CCPA 1967). With respect to
core factual findings in a determination of patentability, the PTO "cannot
simply reach conclusions based on its own understanding or experience -
or on its assessment of what would be basic knowledge or common sense."
In re Zurko, 258 F.3d 1379, 1386 (Fed. Cir. 2001). Rather, the PTO "must
point to some concrete evidence in the record in support of these findings."
Id.
The Examiner does not produce any evidentiary support for the
findings above regarding what pilots typically do. Rather, the Examiner
appears to improperly rely on a per se rule in reasoning that automating a
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Application 13/719,693
well-known manual function is considered routine. "This method of
analysis is founded on legal error because it substitutes supposed per se rules
for the particularized inquiry required by section 103." In re Ochiai, 71 F.3d
1565, 1571 (Fed. Cir. 1995). Finally, the Examiner appears to attempt to
distill Appellants' claimed invention down to its gist by characterizing it as
something that "simply automates this task within a single controller" and
concluding it would be produced by mere "use of glide angle characteristics
of potential and kinetic energy." This analysis fails to address the claim
language. There is no legally recognizable essential gist or heart of the
invention. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721F.2d1540, 1548
(Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). All words in a claim
must be considered in judging the obviousness of the claimed subject matter.
See In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970).
Accordingly, for the foregoing reasons, we cannot sustain the
Examiner's rejection on the basis set forth by the Examiner.
New Ground: We reject claims 1, 14, and 15 under 35 U.S. C. § 102(b) as
anticipated by Mohning, as evidenced by Melsheimer. 1
Mohning discloses "[a] system" 100. Mohning's system 100 can
control the speed of an aircraft. Mohning para. 2. Speed is scalar magnitude
of velocity. Melsheimer, provides evidence that the "energy level of an
aircraft" may be calculated as the "sum of the aircraft kinetic energy and the
aircraft potential energy," which is expressed by the following equation:
E = I/2mV2 + mgh [(1 )]
1 See MPEP § 2131.01 for a discussion of Multiple Reference 35 U.S.C.
§ 102 rejections.
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Application 13/719,693
where
m is the mass of the aircraft
V is the true velocity of the aircraft
g is the gravitational constant
h is the altitude of the aircraft
Melsheimer col. 1, 11. 63-67. Melsheimer also demonstrates how the "rate
of change of the energy level of the aircraft" may be determined:
dE/dt = mVdV/dt + mgdh/dt [(2)]
Melsheimer col. 2, 1. 3. Equation (2) demonstrates that, for a moving
aircraft, the "rate of change of the energy level of the aircraft" may be set by
accelerating or decelerating the aircraft, i.e., providing a non-zero rate of
change of the velocity of the aircraft (dV/dt), and/or by changing the rate of
climb or descent of the aircraft (dh/dt).
In light of the relationship between velocity and the rate of change of
the energy level of the aircraft, a signal, such as Mohning' s second signal
(para. 19), that is used for setting a desired speed, and, therefore, changing
the velocity of, an aircraft, is reasonably interpreted as a "control instruction
for setting a desired rate of change of the energy level of the aircraft" as
required by claim 1. Similarly, this makes Mohning's system 100
reasonably regarded as "for controlling energy level of an aircraft."
The language of dependent claim 2, "the at least one first control
instruction corresponds to a variation in thrust of at least one engine of the
aircraft," further demonstrates the reasonableness of our interpretation of the
"first control instruction" of claim 1. As the desired speed is a function of
the second signal in Mohning, a change in that signal, as will be produced by
joystick 106 displacement (para. 19), is reasonably regarded as a "control
instruction [that] corresponds to a variation in thrust" according to even
dependent claim 2.
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Application 13/719,693
It is not clear, on the record before us, whether the Examiner
considered the claims to be more narrowly drawn and addressed the
patentability of some embodiment disclosed in Appellants' Specification.
"The invention disclosed in [Appellants'] written description may be
outstanding in its field, but the name of the game is the claim." In re
Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). To the extent that there
may be a distinction between a "command for a variation in energy and a
command for an engine thrust value," (see, e.g., Spec. 12: 1--4) independent
claims 1, 14, and 15 do not include any language to specifically require one
or the other. We leave consideration of that matter for the Examiner in any
further prosecution.
With the interpretation of the claim language discussed above, the
remaining claim limitations appear to clearly be met by Mohning' s system.
Mohning's controller 128, "responsive to receiving" the second signal, is
"configured to control at least one device of the aircraft," propulsion system
130, "to change the energy level of the aircraft ... "by altering the velocity,
as discussed above.
Paragraph 32 of Mohning (cited at Final Act. 2) may fall short of
disclosing that which is required to satisfy the "configured to return [to a
resting state not generating any instruction]" limitation. App. Br. 16.
However, the Examiner's citation to claim 6 ofMohning (Ans. 4) appears to
resolve this dispute as, in the Reply Brief, Appellants do not address this
finding and change the crux of their argument to refocus on the "control
instruction for setting a desired rate of change of the energy level of the
aircraft" limitation. See Reply Br. 7. Mohning' s claim 6, read in
combination with paragraph 19, which describes the signals as generated as
a result of "displacement from the neutral position" (emphasis added),
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demonstrates that Mohning discloses a control interface "configured to
return to" "a resting state in which said control interface does not generate
any instruction." The displaced joystick 106 is reasonably regarded as the
"energy control lever" of claim 15, which otherwise contains similar
limitations to claim 1.
Mohning's system, in its normal and usual operation, would perform
the method of claim 14. Thus, method claim 14 is also considered to be
unpatentable over Mohning's prior art system. See In re King, 801 F.2d
1324, 1326-27 (Fed. Cir. 1986).
For the foregoing reasons, pursuant to our authority under 37 C.F.R.
§ 41.50(b), we reject claims 1, 14, and 15 under 35 U.S.C. § 102(b) as
anticipated by Mohning, as evidenced by Melsheimer. We leave the
patentability of the dependent claims for the Examiner's consideration,
consistent with this opinion, in any further prosecution.
DECISION
The Examiner's rejection is reversed.
We reject claims 1, 14, and 15 under 35 U.S.C. § 102(b) as anticipated
by Mohning, as evidenced by Melsheimer.
37 C.F.R. § 41.50(b) provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
( 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. ...
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Application 13/719,693
(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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
REVERSED
37 C.F.R. § 41.50(b)
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