Ex Parte Daly

Board of Patent Appeals and Interferences

Apr 28, 2009

10823951 (B.P.A.I. Apr. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte FRANCIS W. DALY, JR.
____________

Appeal 2009-1312
Application 10/823,951
Technology Center 2800
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Decided1: April 29, 2009
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Before KENNETH W. HAIRSTON, CARLA M. KRIVAK, and
KARL D. EASTHOM Administrative Patent Judges.

KRIVAK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1, 3-34, and 36-38.2 We have jurisdiction under 35 U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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Application 10/823,951

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We affirm.
STATEMENT OF CASE
Appellant’s claimed invention is a method and circuit for short term
prediction of storm cells using a modified weather radar system in aircraft
(Spec. 1:12-13). The method and circuit predict a coincidence of the flight
path of a host aircraft with a predicted storm cell and alert the aircraft crew
under predetermined conditions (Spec. 1:14-15). This modified weather
aircraft radar detects and records the position, direction, and intensity of a
weather condition, and tracks intensity information for forecasting a position
and intensity of the weather condition at a time in the near future. The
forecast is then displayed to the crew. (Spec. 11:20-27)
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.

Claim 1: A method for predicting the future state of a weather
condition relative to an aircraft, the method comprising:

accessing a first weather radar image generated relative to the
aircraft;

accessing a second weather radar image generated after said
first weather radar image and having a similar relationship to
the aircraft as said first weather radar image;

mapping said first weather radar image onto said second
weather radar image;

comparing said first and second weather radar images;

2 The rejection against claim 35 was withdrawn in the Examiner’s Answer
(Ans. 13).
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forecasting information describing a weather condition
represented by said first and second weather radar images;

retrieving a phase of flight of the aircraft; and

generating a warning as a function of comparing said forecast
information describing a weather condition and said phase of
flight.

REFERENCES
Kuntman US 5,077,558 Dec. 31, 1991
Frank US 5,615,118 Mar. 25, 1997
Otsuka US 5,974,360 Oct. 26, 1999

The Examiner rejected claims 1, 3-34, and 36-38 under 35 U.S.C.
§ 103(a) based upon the teachings of Otsuka, Frank, and Kuntman (Ans. 3).3
Appellant contends the Examiner is incorrect in the allegations that
Otsuka can be modified in the manner of Frank to provide a pilot with a
highly accurate forecast of a weather image so that the pilot can better
choose appropriate action based on a forecast. Appellant also contends that
the alert generated by Kuntman fails to remedy the deficiencies of Otsuka
and Frank, and that Otsuka and Frank do not teach or suggest receiving a
phase of flight of the aircraft and generating a warning as a function of
comparing forecast information describing a weather condition and phase of
flight (App. Br. 10).4

ISSUE

3 The Examiner’s Answer mailed April 16, 2008, is the Answer referred to
throughout this opinion.

4 The Supplemental Appeal Brief filed February 11, 2008, is the Appeal
Brief referred to throughout this opinion.
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Did Appellant establish that the Examiner erred in combining Otsuka,
Frank, and Kuntman?

FINDINGS OF FACT
1. In Appellant’s invention, a conventional weather radar is
modified to include a device for storing storm cell position and intensity
data. Further, recorded information is used to predict the future course and
intensity of a storm cell relative to the host aircraft (Spec. 12:18-21).
2. The weather incident prediction function of Appellant’s
invention communicates with an on-board flight management system to
access the aircraft’s intended flight path stored therein and compare it to a
predicted future position of the storm cell. If the path of the storm cell and
the aircraft’s intended flight path coincide, an appropriate warning is issued.
(Spec. 12:22-29; Spec. 14:13-17)
3. Otsuka teaches weather prediction where two weather radar
images are measured at an arbitrary time interval. One of the images is
shifted, the correlation value of the image gray level is calculated, and an
amount of movement of a weather field is determined. The amount of
movement is used to obtain a forecast image (col. 1, ll. 35-43).
4. Frank teaches an onboard flight path optimization system. The
system includes an onboard performance management computer,
temperature probe, weather radar, inertial navigation system, and comparing
apparatus. The onboard performance management system constantly
compares a remote variable, such as wind or temperature, and a respective
local variable to provide an economical and safe flight path to a destination.
(Col. 4, ll. 4-21)
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5. Kuntman teaches an airborne wind shear detection weather
radar. Wind shear detection can be incorporated as a mode of operation of
the weather radar. During cruise, climb, and approach phases of a flight, the
radar can be operated in any of its normal modes (col. 2, ll. 7-17). An alert
is displayed by a display/alert (32, Fig. 2) and is generated any time a severe
wind shear probability is detected (col. 4, ll. 27-29).

PRINCIPLES OF LAW
If the claimed subject matter cannot be fairly characterized as
involving the simple substitution of one known element for another or the
mere application of a known technique to a piece of prior art ready for the
improvement, a holding of obviousness can be based on a showing that
“there was an apparent reason to combine the known elements in the fashion
claimed.” KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1740,
1741 (2007). Such a showing requires
“some articulated reasoning with some rational
underpinning to support the legal conclusion of
obviousness” . . . . [H]owever, the analysis need not seek
out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person
of ordinary skill in the art would employ.

Id. at 1741 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
An improvement in the art is obvious if “it is likely the product not of
innovation but of ordinary skill and common sense.” KSR at 1742.
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
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doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). If the Examiner’s burden is met, the burden
then shifts to Appellants to overcome the prima facie case with argument
and/or evidence.
The scope of the claims in a patent application is determined not
solely on the basis of the claim language, but upon giving claims their
broadest reasonable construction in light of the Specification as it would be
interpreted by one of ordinary skill in the art. In re Amer. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
The test for obviousness is what the combined teachings of the
references would have suggested to the artisan. Accordingly, one can not
show nonobviousness by attacking references individually where the
rejection is based on a combination of references. In re Keller, 642 F.2d
413, 426 (CCPA 1981).

ANALYSIS
The Examiner rejected claims 1 and 3-38 under 35 U.S.C. § 103(a)
based upon the teachings of Otsuka, Frank and Kuntman. Appellant
addresses this rejection with respect to independent claims 1, 13, 20, 22, and
29, and separately with respect to dependent claims 3, 7, 11, 17, 27, 32, 35.
With respect to the independent claims, although each claim appears to be
argued separately, the arguments provided for each claim are substantially
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the same. Thus, the rejection of the independent claims is addressed with
respect to representative claim 1.
The Examiner finds that Otsuka teaches all the features of Appellant’s
claim 1 except for a weather radar resident on-board an aircraft and
generating a warning reflecting a threat to safety as a function of flight path
and phase of flight (Ans. 3-4). The Examiner then finds that Frank teaches
that weather radar images are generated by an on-board weather radar and
Kuntman teaches generating a warning reflecting a threat as a function of
flight path and phase of flight (Ans. 4).
Appellant contends that Kuntman fails to remedy the deficiencies of
Otsuka and Frank in that both fail to teach or suggest receiving a phase of
flight of the aircraft and generating a warning as a function of comparing
forecast information and phase of flight as claimed (App. Br. 10).
Appellant has not provided arguments with respect to the Examiner’s
use of Otsuka and Frank, but rather has argued that the Examiner is mistaken
in interpreting the teachings of Kuntman, that Kuntman is not a proper
reference, and that the “proposed modification cannot render the prior art
unsatisfactory for its intended purpose” (See App. Br. 12-19). Appellant
argues that Kuntman “only teaches that ‘wind shear detection can be
incorporated as a mode of operation of the weather radar and therefore could
be activated during the landing and takeoff phases of flight’” (FF 5; App. Br.
12). Thus, Appellant asserts Kuntman teaches “only that wind shear
detection can be turned on during critical phases of flight, and turned off
during other phases of flight” (App. Br, 12).
Appellant’s claims, however, refer to retrieving/accessing a phase of
flight (cls. 1, 13, 20, 22, and 29). As the term “phase of flight” is not
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defined in the Specification, giving this term its broadest definition as
required by In re Am. Acad. of Sci. Tech Ctr., supra., it is clear that this term
covers both critical and non-critical phases of flight. Going even further,
one could consider all phases of flight as critical. Thus, Appellant’s
argument is without merit. Further, Kuntman states that the weather radar
could be activated during take off and landing phases of flight (emphasis
added). It does not necessarily have to be activated during that time.
Rather, Kuntman leaves open the option of activating the weather operation
at a phase of flight other than takeoff and landing.
Appellant’s assertion that Kuntman is an improper reference and
actually teaches away (App. Br. 15) is also without merit. Appellant asserts
that “Kuntman teaches disabling the weather radar during the landing and
take off phases of flight” and then cites Kuntman, column 2, lines 7-17,
which states the wind shear detection could be activated during landing and
take off phases. This language does not suggest that Kuntman must disable
the weather radar during take off and landing, only that it could. Thus, there
is no teaching away.
Appellant asserts that “weather detection and wind shear detection are
different and mutually exclusive operations of the weather radar” (App. Br.
16). Appellant further contends that “Kuntman does NOT tie generating an
alert to phase of flight. Rather, Kuntman only ties generating an alert to if
the wind shear detection mode of the radar is being operated” (App. Br. 17).
However, as the Examiner states, Kuntman is cited only for the fact that it is
known in the art to generate a warning reflecting a threat to safety as a
function of flight path and phase of flight (Ans. 4, 9-10). Further, the
Examiner is correct in finding that since an alert is generated in Kuntman
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only when wind shear is detected and only when the device is in wind shear
detection mode, and since the device is in detection mode during critical
phases of flight, then Kuntman teaches generating a warning as a function of
the weather condition and the phase of flight (Ans. 10).
Appellant’s assertion that the proposed modification of Otsuka and
Frank by Kuntman renders the prior art unsatisfactory for its intended
purpose (App. Br. 19-20) is also unfounded. Appellant argues that
substituting the operations of weather forecasting and wind shear detecting
as taught by Kuntman would make the weather forecasting of Otsuka useless
during critical phase of flight (App. Br. 19-20). Further Appellant urges this
would also render Frank’s performance management computer useless (FF
4; App. Br. 20). Neither of these allegations has merit. Appellant is merely
attacking references individually where the rejection is based on a
combination of references (see In re Keller, supra.). Thus, Appellant has
not overcome the Examiner’s prima facie case of obviousness over the
collective teachings of Otsuka, Frank, and Kuntman.
Appellant separately argues dependent claims 3, 7, 11, 17, 27, 32, and
35.5 With respect to claim 3, Appellant argues that none of the references
teaches forecasting an intensity of a storm cell sufficient to threaten safety of
flight and generating a warning as a function of a predicted intersection with
the storm cell (App. Br. 20). However, Otsuka teaches forecasting weather
based on a precipitation field using a gray scale, the darker the gray scale,
the more severe the storm (FF 3). Issuing a warning when such a threat to
safety is determined, is taught by Kuntman (FF 5). Further, even if a
warning is not generated, a pilot will navigate away from any severe weather

5 As noted above, claim 35 is no longer before us and thus, is not addressed.
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shown on the radar. Thus, claim 3 is obvious over the collective teachings
of the cited references.
With respect to claim 7, the Examiner did address Appellant’s
contention that the references do not compare the intensity of the weather
condition with the intended phase of flight at the coincidence (Ans. 12-13).
As noted above in the arguments with respect to claim 1, Otsuka teaches
employing a gray scale indicating the intensity of the weather condition (FF
3). Thus, for the reasons articulated by the Examiner (Ans. 12-13) and those
set forth above, claim 7 is obvious over the collective teachings of the cited
references.
With respect to claim 11, for the reasons set forth above with respect
to claims 3 and 1, this claim is obvious over the collective teachings of the
cited references.
With respect to claim 17, Appellant provides the same arguments as
those provided for claim 11. Thus, claim 17 is obvious over the collective
teachings of the cited references.
With respect to claim 27, Appellant provides the same arguments as
those provided for claim 11. Thus, claim 27 is obvious over the collective
teachings of the cited references.
With respect to claim 32, Appellant provides the same arguments as
those provided for claim 11. Thus, claim 32 is obvious over the collective
teachings of the cited references.

CONCLUSION
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Appellant has not established that the Examiner erred in rejecting
claims 1, 3-34, and 36-38 under 35 U.S.C. § 103 over the collective
teachings of Otsuka, Frank, and Kuntman.

DECISION
The Examiner’s decision rejecting claims 1, 3-34, and 36-38 is
affirmed.
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

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