Ex Parte Harding

Board of Patent Appeals and Interferences

Mar 17, 2005

09847224 (B.P.A.I. Mar. 17, 2005)

1 Application for patent filed May 2, 2001, entitled
"Autonomous Mission Profile Planning."
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The opinion in support of the decision being
entered today was not written for publication
and is not binding precedent of the Board.
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Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte WILLIAM V. HARDING

Appeal No. 2004-0267
Application 09/847,2241

ON BRIEF

Before JERRY SMITH, BARRETT, and DIXON, Administrative Patent
Judges.
BARRETT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from
the final rejection of claims 1-75.
We reverse.
Appeal No. 2004-0267
Application 09/847,224
2 "The term 'autonomous,' as used herein, means under
programmed control without human intervention." Specification,
page 7, lines 17-18. See also brief, pages 3 and 4.
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BACKGROUND
The invention relates to a method and apparatus for planning
a mission profile to locate a target. The method uses target
information to calculate a search pattern, such as the serpentine
pattern shown in Fig. 4B.
Claim 1 is reproduced below.
1. A method for planning a mission profile in real time,
comprising:
ascertaining a plurality of target information, including a
target location, a target velocity, and a target
location error; and
autonomously2 determining a pattern from the ascertained
target information.
The examiner relies on the following references:
Reedy 5,631,653 May 20, 1997
Saban 6,043,867 March 28, 2000
Claims 1-75 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point
out and distinctly claim the subject matter which applicant
regards as his invention.
Claims 1-75 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by either Saban or Reedy.
We refer to the final rejection (Paper No. 8) (pages
referred to as "FR__") and the examiner's answer (Paper No. 12)
Appeal No. 2004-0267
Application 09/847,224
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(pages referred to as "EA__") for a statement of the examiner's
rejection, and to the brief (Paper No. 11) (pages referred to as
"Br__") for a statement of appellant's arguments thereagainst.
OPINION
35 U.S.C. § 112, second paragraph
The examiner considers the phrase "determining a pattern" in
all of the independent claims to be vague and indefinite since it
is not clear what pattern is being determined (FR2). The
examiner asks the question (FR2): "What is forming the pattern
and what type of pattern is being formed?"
Appellant argues that it is readily apparent in the context
of the art and in light of the specification that the "pattern"
is a "search pattern," referring to the specification at page 8,
lines 17-20; page 11, lines 15-23; page 12, lines 7-12; Figs. 4B
and 5 and their associated text (Br7). It is noted that these
arguments were previously made but not addressed by the examiner
in the final rejection (Br7).
The term "pattern" is broad, but "[b]readth is not
indefiniteness," In re Gardner, 427 F.2d 786, 788, 166 USPQ 138,
140 (CCPA 1970). We do not consider the word "pattern" to be
indefinite. The specification discloses that the "pattern"
refers to the "pattern for the submunitions 120 to use in
searching for and locating the target 110" (page 8, line 8),
i.e., a search pattern. As to the examiner's question about
Appeal No. 2004-0267
Application 09/847,224
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"[w]hat is forming the pattern" (FR2), we note that a method
claim, such as claim 1, does not need to describe the structure
for performing the method step; the apparatus claims, such as
claim 65, recite a computing device. Accordingly, the rejection
of claims 1-75 on this ground is reversed. Nevertheless,
"pattern" is not interpreted to be limited to a "search pattern"
for the purposes of defining over the prior art. Before the
application is granted, there is no reason to read into the claim
the limitations of the specification. See In re Zletz,
893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989). We
only conclude that the term "pattern" is not indefinite.
The examiner considers claims 2, 19, and 51 to be indefinite
since they claim "assuming a value" yet are dependent from claims
in which that value is "ascertained." The examiner states (FR2):
"Ascertained or ascertaining implies determining a fact, not
making an assumption. Therefore, the claims are contradictory."
"Ascertain" is defined as "to find out or learn with
certainty." Webster's New Collegiate Dictionary (G.&C. Merriam
Co. 1977). "Assume" is defined as "to take as granted or true :
SUPPOSE." Id. We construe "assuming" to be one form of
"ascertaining." Accordingly, the rejection of claims 2, 19,
and 51 on this ground is reversed.
Appeal No. 2004-0267
Application 09/847,224
3 It is noted alternative language also appears in
claims 3, 7, 9, 26, 40, 43, 53, 56, which have not been rejected.
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The examiner considers claims 6, 23, 59, 67, and 69 to be
alternative and indefinite (FR2).3
There is nothing inherently indefinite about the use of
alternative expressions: the claims can be met by any one of the
alternative limitations. The examiner has not pointed to any
other language in the claims that would be indefinite. The
rejection of claims 6, 23, 59, 67, and 69 on the grounds of
alternative language is reversed.
35 U.S.C. § 102(b)
Appellant argues that Saban and Reedy each fail to teach
"autonomously determining a pattern," and that the examiner has
failed to identify any teaching of this limitation (Br10).
The examiner states (EA4):
These references have been applied as art which shows all
claimed elements, when the claims are read in view of the
very broad and indefinite claim language noted above. The
heart of the invention, as claimed, is "autonomously
determining a pattern from the ascertained target
information" and since the language allows no precise
determination of what pattern is being determined, the prior
art is believed to read over the language of the claims.
In the final rejection, the examiner refers to Saban, column 12,
lines 10-45, and column 4, line 40 to column 8, line 60 (FR2).
Appeal No. 2004-0267
Application 09/847,224
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The examiner does not explain the correspondence between the
claim limitations and the references, especially as to what is
considered the "target location error" and the "pattern" and how
the references anticipate the limitation of "autonomously
determining a pattern from the ascertained target information
[including the target location error]." The examiner does not
provide his own definition of pattern. Although representative
claim 1 is very broad, we do not find all the limitations taught
by either Reedy or Saban.
Reedy discloses a maneuver detection method for use in
target trackers in weapon guidance systems (abstract). Reedy
detects a maneuver, for example, a turn. However, a maneuver is
a random event by a target and we fail to see how maneuver
detection can be considered a "pattern." Moreover, Reedy uses
position (range, bearing) and velocity (range-rate) for maneuver
detection (col. 4, lines 40-44) and the examiner does not point
out where Reedy teaches "ascertaining ... a target location
error." Thus, Reedy does not disclose "ascertaining ... a target
location error" and "autonomously determining a pattern [using a
target location error]." The rejection of claims 1-75 over Reedy
is reversed.
Saban discloses an interceptor fitted with a target tracker
that uses laser range finder (LRF) even under low signal to noise
conditions to enhance the likelihood of detecting a target soon
Appeal No. 2004-0267
Application 09/847,224
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enough that the interceptor can be steered to the target (e.g.,
col. 2, lines 27-43). Saban calculates target range and velocity
(e.g., Fig. 5, block 61) but the examiner does not point out
where Saban teaches "ascertaining ... a target location error."
The only "pattern" mentioned is a "pattern recognition (PR)
analyzer" for detecting reflections that were scattered from a
target (col. 7, lines 40-67). The examiner does not explain how
recognizing a pattern from target reflections and noise in Saban
meets the claim limitation of "autonomously determining a pattern
[using a target location error]." Thus, the rejection of
claims 1-75 over Saban is reversed.
CONCLUSION
The rejections of claims 1-75 are reversed.
REVERSED
JERRY SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOSEPH L. DIXON )
Administrative Patent Judge )
Appeal No. 2004-0267
Application 09/847,224
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WILLIAMS, MORGAN & AMERSON, P.C.
10333 RICHMOND, SUITE 1100
HOUSTON, TX 77042