Ex Parte Cox et al

Patent Trial and Appeal Board

Sep 29, 2017

13410120 (P.T.A.B. Sep. 29, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12189.US 2909
EXAMINER
WANG, MICHAEL H
ART UNIT PAPER NUMBER
3647
MAIL DATE DELIVERY MODE
13/410,120 03/01/2012
22991 7590 09/29/2017
BOREALIS TECHNICAL LIMITED
23545 NW SKYLINE BLVD
NORTH PLAINS, OR 971339204
Isaiah W. Cox
09/29/2017 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 ISAIAH W. COX and JOSEPH COX
Appeal 2016-007947
Application 13/410,120
Technology Center 3600
Before BRETT C. MARTIN, MICHELLE R. OSINSKI, and
LISA M. GUIJT, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 4, 6, 14, and 17—21, claims 1 — 3, 5, 7 — 13, 15, and 16
have been canceled. Final Act. 2. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as Borealis Technical Limited.
Appeal Br. 3.
Appeal 2016-007947
Application 13/410,120
THE INVENTION
Appellants’ claims are directed “to a method for reducing the amount
of fuel required to be carried by an aircraft during flight by reducing fuel
required for taxiing between takeoff and landing.” Spec., p. 1. Claim 18,
reproduced below, is illustrative of the claimed subject matter:
18. A method for reducing a taxi margin amount of fuel in
excess of a required minimum flight plan amount of fuel carried
by an aircraft during flight to a selected destination comprising
the steps of:
a. equipping at least one landing gear wheel of an aircraft
with onboard electric drive means for moving the aircraft at a
speed for optimum ground movement with minimal fuel use
during taxi;
b. selecting a route for the aircraft's flight to a selected
destination and generating a flight plan comprising a calculated
minimum amount of fuel required by the flight plan to reach the
selected destination;
c. determining an amount of taxi margin fuel needed for
taxi and to compensate for potential taxi delays based on the
minimal fuel use during taxi and adding the determined amount
of taxi margin fuel to the calculated minimum amount of fuel
required by the fight plan, and loading the determined amount of
taxi margin fuel and the calculated minimum amount of fuel
required by the flight plan in the aircraft prior to takeoff; and
d. activating the onboard electric drive means and
controlling the electric drive means to move the aircraft with
minimal fuel use in reverse during push back and then to a
takeoff location where the aircraft commences a takeoff roll with
no less taxi margin fuel than the determined amount of taxi
margin fuel needed to fly to the selected destination.
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Application 13/410,120
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
McCoskey US 2006/0065779 A1 Mar. 30, 2006
“Flight Planning,” Wikipedia, April 25, 2008 (hereinafter “Wikipedia”).
REJECTIONS2
The Examiner made the following rejections:
Claim 4 stands rejected under 35U.S.C. § 112, first paragraph, as
failing to comply with the enablement requirement. Final Act. 2—3.
Claims 4, 6, 14, and 17—21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over McCoskey in view of Wikipedia. Final Act. 4; Ans.
2.
ANALYSIS
Enablement
As explained in the footnote below, the objection relating to the
Specification is not properly before us. The related enablement issue,
however, is before us. The Examiner finds that the limitation that the
electric drive means be selected from the group consisting of electric
induction motors, permanent magnet brushless DC motors, and switched
reluctance motors has “not [been] described in the [Specification in such a
way to enable one skilled in the art to make and/or use the invention.” Id.
As to the question of the enablement of an applicant’s disclosure, the
Examiner has the initial burden of advancing acceptable reasoning
2 The Examiner’s objection to the Specification is a petitionable (not an
appealable) matter. Final Act. 2.
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Application 13/410,120
inconsistent with enablement so as to shift the burden to the applicant to
show that one of ordinary skill in the art could have practiced the claimed
invention without undue experimentation. In re Strahilevitz, 668 F.2d 1229,
1232 (CCPA 1982). Factors to be considered in determining whether a
disclosure would require undue experimentation include “(1) the quantity of
experimentation necessary, (2) the amount of direction or guidance
presented, (3) the presence or absence of working examples, (4) the nature
of the invention, (5) the state of the prior art, (6) the relative skill of those in
the art,(7) the predictability or unpredictability of the art, and (8) the breadth
of the claims.” In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988).
Here, the Examiner has not met the initial burden of considering and
weighing all the evidence related to the factors used to support a
determination that the disclosure fails to satisfy the enablement requirement
and that the experimentation to make and use the invention is undue. It
appears that the Examiner’s rejection merely relates to the supposed lack of
disclosure elsewhere in the Specification for the claimed subject matter. For
the foregoing reasons, we do not sustain the rejection of claim 4 under 35
U.S.C. 112, first paragraph, as failing to comply with the enablement
requirement.
McCoskey and Wikipedia
Regarding independent claim 18, the Examiner finds, inter alia, that
McCoskey discloses that equipping landing gear with onboard electric drive
means (i.e., electric wheel motors) reduces fuel usage during taxiing. Final
Act. 4 (citing McCoskey 132 (“[ijncorporating means to maneuver the
aircraft 12 on the ground with only auxiliary power enables the main engines
37 to be OFF.”)). The Examiner determines that “McCoskey does not
disclose . . . determining an amount of taxi margin fuel needed for taxi and
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Application 13/410,120
to compensate for potential taxi delays,” and relies on Wikipedia for such
teachings. Id. at 5. The Examiner reasons that it would have been obvious
“to modify McCoskey using the teachings from Wikipedia in order to avoid
carrying to[o] little or too much fuel for a flight.” Id. at 6.
Appellants argue that the combination of McCoskey and Wikipedia
fails to teach determining a taxi margin amount of fuel as recited in
independent claim 18. See, e.g., Reply Br. 2-4; see also Appeal Br. 12
(“McCoskey ... is completely silent with respect to taxi margin fuel.”); id.
at 13 (“Wikipedia neither describes, mentions, [n]or otherwise suggests
determining a taxi margin amount of fuel.”); id. at 15 (“Wikipedia’s
acknowledgement of taxi fuel ‘in numerous places as part of the fuel carried
on board’ and that ‘minimizing necessary fuel on board would inherently
include minimizing taxi fuel’” would not necessarily result in determining a
taxi margin amount of fuel as recited in claim 18 and “would not inherently
result [in the subject matter of claim 18].”). Appellants further argue that
“Wikipedia contains scant references to fuel used for taxiing and no
reference whatever to a taxi margin amount of fuel based on minimal fuel
use during taxi.” Reply Br. 4. Appellants submit that Wikipedia’s “fuel
used for taxiing” does not disclose the “taxi margin amount needed ... to
compensate for potential taxi delays,” as claimed. Appeal Br. 14.
Appellants also argue that the Examiner failed to articulate any reasoning for
combining the teachings of McCoskey and Wikipedia. Id. at 15. Appellants
conclude that the Examiner impermissibly relied on hindsight. Id. at 16.
The Examiner determines that because “Wikipedia discloses ‘Safety
regulations require aircraft to carry fuel beyond the minimum needed to fly
from origin to destination, allowing for unforeseen circumstances . . . ,”
Wikipedia shows that “the amount of fuel required for taxiing and potential
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Application 13/410,120
problems is clearly considered during fuel calculations.” Ans. 2—3 (quoting
Wikipedia, p. 1). The Examiner also determines that Wikipedia teaches that
‘“planners normally wish to minimize flight cost... by loading the
minimum necessary fuel on board’ so fuel in excess of a required minimum
amount is not loaded.” Id. at 3 (quoting Wikipedia, p. 1).
A preponderance of the evidence supports the Examiner’s findings
that Wikipedia’s determination of “fuel used for taxiing”3 discloses the
claimed “determining an amount of taxi margin fuel needed for taxi,” as
claimed, and also that Wikipedia’s disclosure of calculating a minimum fuel
required discloses “determining an amount of taxi margin fuel needed for
taxi.”4 Because Wikipedia discloses that fuel calculations must allow for
unforeseen circumstances, we are not apprised of error in the Examiner’s
reasoning that potential taxi delays are generally known as unforeseen
circumstances,” such that Wikipedia suggests to one skilled in the art that
“determining an amount of fuel used for taxiing” includes fuel needed to
compensate for potential taxi delays, as claimed.
Regarding the Examiner’s proposed combination, Wikipedia discloses
determining fuel used for taxiing (or taxi margin amount) separately from
required fuel (or the fuel required for an aircraft’s flight), despite
Appellants’ arguments to the contrary (see, e.g., Reply Br. 4—5). Once one
of skill in the art knows, as McCoskey teaches, that taxiing according to
3 Wikipedia discloses, and Appellants not dispute, that Wikipedia teaches
calculating a “fuel used for taxiing.”
4 Regarding the claim term “taxi margin fuel,” the Specification explains
that “[t]he amount of extra fuel beyond the minimum required for an
aircraft’s flight to a selected destination includes the amount required for the
estimated taxi time and also to compensate for potential taxi delays prior to
takeoff or upon landing,” wherein “[m]uch of this extra fuel, referred to as
the taxi fuel margin, is budgeted for taxiing, but is not used.” Spec. 8:13—18.
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McCoskey’s electric drives reduces taxi fuel usage, then it would naturally
flow that, when calculating the separate fuel needed for taxiing as taught in
Wikipedia, one would take into account the fuel usage reduction in
determining how much fuel to allot for taxiing. Thus, the Examiner’s
reasoning has factual underpinnings, and Appellants’ arguments do not
apprise us of errors in the Examiner’s reasoning.
As set forth supra, claim 18 also requires “equipping at least one
landing gear wheel. . . with onboard electric drive means for moving the
aircraft . . . with minimal fuel use during taxi” and also “activating the
onboard electric drive means and controlling the electric drive means to
move the aircraft with minimal fuel use in reverse during push back.” The
Examiner finds that McCoskey discloses these claim limitations. Final Act.
4. Appellants argue that not only does Wikipedia fail to disclose these claim
limitations (Appeal Br. 10), McCoskey also “does not suggest moving the
aircraft at a speed for optimum ground movement with minimal fuel use
during taxi or moving the aircraft with minimal fuel use in reverse during
push back,” as recited in claim 18 {id. at 12).
As to the failure of the combination to teach the claimed “push back”
features of claim 18 {see, e.g., Reply Br. 5—6), we agree with the Examiner
that “[p]ush back is part of normal gate operations for an aircraft, and it is
well-known in the art that push back inherently involves moving the aircraft
in reverse in order to move it away from the gate.” Ans. 4. As the Examiner
states, McCloskey discloses that “[t]he wheel motors 106 may be designed
for both forward and rearward operation” and that “[t]he main controller 18
permits normal ground taxi and gate operations with the main engines 37 of
the aircraft 12 in a depowered or OFF state.” Ans. 3^4. Accordingly,
because push back is part of normal gate operations and McCoskey
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specifically teaches that its drive motors are designed for both forward and
rearward operation, then push back is necessarily part of the disclosed
operation in McCoskey.
Furthermore, McCoskey discloses that “[ajircraft maneuvering during
ground operations can pose a significant expense in terms of fuel costs”
(McCoskey 1 5), and that an advantage of providing landing gear motors is
the reduction in “fuel costs” {id. 19). More specifically, McCoskey
discloses that “[t]he wheel motor assemblies may be used instead of aircraft
primary engines, when taxiing on the tarmac, which reduces fuel
consumption.” Id.f 45 (emphasis added). Thus, a preponderance of the
evidence supports the Examiner’s findings that McCoskey discloses that
equipping onboard electric drive means minimizes fuel use, including during
push back, as claimed.
Regarding each of claims 6, 14, and 19, Appellants argue that
McCloskey does not contemplate minimal fuel use during taxi (App. Br. 17—
18), but as discussed supra, McCloskey teaches fuel savings utilizing
electric motors, and so when looking to calculate fuel needed for taxiing as
contemplated by Wikipedia, including accounting for unforeseen
circumstances, we are not apprised of error in the Examiner’s reasoning that
one of skill in the art would have taken into account the fuel savings when
determining the fuel needed for taxiing, to avoid carrying too little or too
much fuel for a flight. For example, regarding dependent claim 6, which
recites, in relevant part, that one landing gear wheel comprises at least one of
the aircraft nose or main landing gear wheels, the Examiner finds that
McCoskey discloses “a powered nose aircraft wheel system 62.” Final Act.
7 (citing McCoskey 140); Appeal Br. 26 (Claims App.). Appellants argue
that McCoskey fails to disclose that the powered nose aircraft wheel system
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“moves the aircraft at a speed for optimum ground movement with minimal
fuel use during taxi,” as required by claim 18. Appeal Br. 17. However,
Appellants’ argument does not address the limitations of claim 6 apart from
the arguments presented for claim 18, which are addressed supra.
Therefore, Appellants’ argument does not apprise us of error in the
Examiner’s rejection of claim 6.
Regarding claim 20, which recites, in relevant part, equipping a
plurality of all of an airline’s aircraft with onboard electric drive means, we
are not apprised of error in the Examiner’s finding that McCoskey discloses
using onboard electric drive means on “multiple aircraft” (see Final Act. 8
(citing McCoskey 111)), or in the Examiner’s reasoning that it would have
been obvious “to apply the onboard drive means to a plurality of all of the
airline’s aircraft in order to provide better operating margins, convenience,
and efficiency for the airline.” Id. at 8—9.
With respect to claim 4, which requires the electric motor to be
selected from the group comprising electric induction motors, permanent
magnet brushless DC motors, and switched reluctance motors,” (Appeal Br.
26 (Claims App.)), the Examiner finds that McCoskey discloses that “wheel
motors 63 . . . may be of the traction motor type” or “alternating current
(AC) or direct current (DC) motors” (Final Act. 7 (citing McCoskey 143)),
and also that “[a] magnetic field is generated between the stator 142 and the
rotor 146, which causes rotation of the rotor 146.” (Ans. 8 (citing McCoskey
| 58)). The Examiner determines that “[t]he kind of motor described [in
paragraph 58 of McCoskey] is known in the art as an induction motor.” Id.
Appellants’ argument addressing only McCoskey’s paragraph 43 does not
apprise us of error in the Examiner’s findings with respect to paragraph 58.
See Appeal Br. 20 (arguing that McCoskey’s disclosure of alternating and
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direct current motors in paragraph 43 do not disclose the motors recited in
claim 4).
Lastly, Appellants also argue that the Examiner has improperly relied
on official notice in rejecting claim 17. App. Br. 21—23. Claim 17 requires,
in relevant part, equipping all aircraft with nose landing gear wheels
powered by auxiliary power units, and operating the units to power
independent ground movement with minimal fuel use. Appeal Br. 26—27
(Claims App.). As the Examiner correctly states, “official notice was not
repeated for the rejection of claim 17 because claim 17 was dependent on
claim 16,” for which official notice was taken. Ans. 8. The official notice
was taken to the subject matter and the fact that the subject matter now
appears in a different claim does not change the status of the Examiner’s
taking of official notice. Furthermore, Appellants assert that the official
notice was traversed, but claim to do so by way of showing the non­
obviousness of claim 18, which is not a proper rebuttal of official notice.
App. Br. 22. The Examiner’s official notice does not apply to the specifics
of claim 18, merely the general concept that once an improvement is
discovered for use on a single plane that it would then be obvious to apply
that improvement to multiple planes in the fleet. Ans. 8. We are not
persuaded that the Examiner’s use of official notice as to that concept is
improper. Moreover, as discussed supra, McCoskey discloses using
onboard electric drive means on “multiple aircraft” (see Final Act. 8 (citing
McCoskey 111)).
Appellants rely on the same arguments presented for claim 18 in
rebuttal of the Examiner’s rejection of independent claim 21. Appeal Br. 24.
Having already sustained the rejection of claim 18, we sustain the rejection
of claim 21 on the same basis.
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DECISION
For the above reasons, we AFFIRM the Examiner’s decision to reject
claims 4, 6, 14, and 17—21 under 35 U.S.C. § 103(a) and we REVERSE the
Examiner’s rejection of claim 4 for failure to comply with the enablement
requirement.
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) (2009).
AFFIRMED
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