Ex parte HERMACH

Board of Patent Appeals and Interferences

Jul 24, 1997

08345292 (B.P.A.I. Jul. 24, 1997)

Application for patent filed November 28, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is not
binding precedent of the Board.
Paper No. 10
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte CARL J. HERMACH
__________
Appeal No. 96-2477
Application 08/345,2921
__________
ON BRIEF
__________
Before McCANDLISH, Senior Administrative Patent Judge, STAAB and
McQUADE, Administrative Patent Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 1-20, all the claims pending in the
application. We affirm-in-part.
Appellant’s invention pertains to a tandem-engine propulsion
module for an aircraft (claims 1-6), a powered dry-wing aircraft
Appeal No. 96-2477
Application 08/345,292
We note several instances in the appealed claims of terms2
which lack a clear antecedent. For example, “the wing means”
(claim 2, line 3 and claim 5, line 2); “the engine means” (claim
3, line 2) and “the propellers” (claim 3, line 2) do not have a
clear antecedent. While these deficiencies do not obscure the
metes and bounds of the claims, in the event of further
prosecution before the examiner, corrective action should be
taken.
2
including a tandem-engine propulsion module (claims 7-12), a
method of powering a fixed-wing aircraft (claims 13-17), and a
method of providing a fixed-wing aircraft with tandem-engine
propulsion (claims 18-20). Independent claims 1, 7, 13 and 18
are representative of the appealed subject matter, and copies
thereof, as they appear in the appendix to appellant’s brief, are
appended to this opinion.2
The references of record relied upon by the examiner in
support of rejections under 35 U.S.C. § 103 are:
Sanders 1,855,652 Apr. 26, 1932
Henrichsen et al. 1,874,523 Aug. 30, 1932
(Henrichsen)
Hall 2,619,301 Nov. 25, 1952
Claims 1-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hall in view of Henrichsen or Sanders.
Hall, the primary reference, pertains to a flight component
A adapted to be releasably attached to a ground vehicle B to
permit the ground vehicle to be airborne. The flight component A
Appeal No. 96-2477
Application 08/345,292
3
comprises wings 10 and 11, a cowled tractor-mounted power plant
20, a tail boom 25, and an empennage 30. The flight component
further includes control and instrument panel 53 positioned to be
readily accessible to the operator when the flight component is
in assembled and operative position with the ground vehicle B,
and an integral fuel tank 54 positioned behind the power plant.
Forward and rearward attachment fittings 60 and 61 are provided
for securing the flight component A to the ground vehicle B.
Henrichsen discloses an aircraft engine cowling having
tandem engines 11 and 13 mounted therein, the engine 11 being a
tractor mounted engine and the engine 13 being a pusher mounted
engine. Sanders discloses an aircraft including six pairs of
tandem mounted engines, each pair comprising a tractor mounted
engine 4 and a pusher mounted engine 5. In both Henrichsen and
Sanders, the propellers of a tandem mounted engine pair are
driven about axes of rotation that are in substantial alignment
with one another.
With respect to independent claim 1, Hall’s flight component
A constitutes a “propulsion module” within the broad meaning of
the claim terminology. Flight component A comprises a housing
having an engine 50, a fuel compartment 54, and engine
Appeal No. 96-2477
Application 08/345,292
4
instruments and controls 53. Further, as is made clear by
Figures 3 and 4, flight component A is adapted to be installed as
the only propulsion means for a fixed-wing aircraft having a
fuselage including a cabin for a flight crew, with the engine
instruments and controls 53 being accessible to the flight crew.
Thus, Hall discloses the subject matter of claim 1 except for the
propulsion module being a tandem-engine module with only two
engines.
Concerning independent claim 7, Hall discloses a powered
dry-wing aircraft comprising fuselage means in the form of
component B, wing means 10 and 11, and propulsion module 20
contiguous with and detachably secured to fuselage component B.
The propeller 51 of the propulsion module is forward of the
leading edge of the wing means. Further, as with appellant’s
aircraft, Hall’s wing means is secured to the fuselage in that it
is secured to the propulsion module, which is in turn secured to
the fuselage. Hall is therefore considered to disclose the
subject matter of claim 7 except for the propulsion module being
a tandem-engine module with a pusher propeller located aft of the
trailing edge of the wing means.
As to independent claim 13, Hall discloses a method of
powering a fixed-wing aircraft provided with a fuselage means B
Appeal No. 96-2477
Application 08/345,292
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and single-wing means 10 and 11, comprising the steps of
providing a propulsion module 20 detachably secured to the
fuselage means proximate to inboard ends of the wing means, and
detachably attaching the propulsion module to the upper portion
of the fuselage means. Hall is therefore seen as disclosing the
subject matter of claim 13 except for the propulsion module being
adapted to carry forward and aft engine means.
With respect to independent claim 18, Hall discloses a
method of providing a fixed-wing aircraft with engine propulsion,
comprising the steps of forming a propulsion module A having a
housing adapted to be juxtaposed to a dry-wing aircraft fuselage
B, mounting an aircraft engine 50 having a tractor propeller 51
on the propulsion module, and including an engine fuel
compartment 56 within the housing of the propulsion module.
Hence, Hall discloses the subject matter of claim 18 except for
mounting on the propulsion module A an aft engine having a pusher
propeller aligned with the tractor propeller 51.
In view of the above noted teachings of Henrichsen and
Sanders, the examiner’s conclusion that it would have been
obvious to one of ordinary skill in the art to provide the flight
component A of Hall with an aft mounted pusher engine, as called
for in the claims, is well taken. In this regard, in applying
Appeal No. 96-2477
Application 08/345,292
6
the teachings of Henrichsen or Sanders in Hall, we believe that
the ordinarily skilled artisan would have aligned the tractor and
pusher propeller along a common axis, as taught by Henrichsen and
Sanders, for the self evident advantages such an arrangement
provides, such as, the redundant safety of dual engines with
reduced off-axial mass and thrust.
Regarding the requirement of claim 1 that the housing of the
propulsion module comprises a housing with only two engines and
that said module is adapted to be installed as the only
propulsion means of the aircraft, the provision of only two
propulsion engines in Hall’s flight component A is considered to
be an obvious matter of engineering choice to one of ordinary
skill in the art dependent upon design factors such as the amount
of thrust desired. As to the requirement of claim 7 that the
tractor propeller and pusher propeller be located respectively
forward and aft of the leading and trailing edges of the wing
means, it is our view that the ordinarily skill artisan would
have recognized this arrangement as being the most
straightforward design approach in applying the aligned tandem-
engine teachings of Henrichsen and Sanders in Hall. In any
event, Sanders discloses such an arrangement.
Appeal No. 96-2477
Application 08/345,292
7
Appellant argues that Hall’s single-engine design is
incompatible with the tandem-engine arrangements of Henrichsen
and Sanders because Hall lacks accommodation for Henrichsen’s
struts and close-coupled engines or Sander’s relatively large
winglet 2 and stays 3. This argument is not well taken. In
order to justify combining reference teachings in support of a
rejection under 35 U.S.C. § 103, it is not necessary that a
device shown in one reference can be physically inserted into the
device shown in the other. In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981). Moreover, the artisan is not
compelled to blindly follow the teachings of one prior art
reference over the other without the exercise of independent
judgement. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881,
889, 221 USPQ 1025, 1032 (Fed. Cir. 1984).
Appellant’s arguments directed to the individual
deficiencies of the applied references, such as Hall being
directed to a single-engine propulsion module, and the failure of
Henrichsen and Sanders to disclose a fuel compartment in the
portions thereof that might be termed the propulsion module, are
noted. However, nonobviousness cannot be established by
attacking the references individually when, as here, the
rejection is predicated upon a combination of prior art
Appeal No. 96-2477
Application 08/345,292
On page 5 of the answer, the examiner states that the wings3
of Hall are detachable “in that they were assembled to the module
and if damaged they will be removed.”
In this regard, an artisan must be presumed to know4
something about the art apart from what the references disclose
(In re Jacoby, 309 F.2d 513, 516, 135 USPQ 317, 319 (CCPA 1962)),
and a conclusion of obviousness may be made from common knowledge
and common sense of the person of ordinary skill in the art
without any specific hint or suggestion in a particular reference
(In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA
1969)).
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disclosures. In re Merck & Co. Inc., 800 F.2d 1091, 1097, 231
USPQ 375, 380 (Fed. Cir. 1986).
In light of the foregoing, we will sustain the standing
§ 103 rejection of independent claims 1, 7, 13 and 18 as being
unpatentable over Hall in view of Henrichsen or Sanders.
Dependent claims 9, 10, 14 and 19, in one form or another,
call for the propulsion module to be detachably secured to the
wing means. While we do not necessarily concur with the
rationale advanced by the examiner in rejecting these claims, we3
nevertheless agree with the examiner’s bottom line position that
the subject matter of these claims would have been obvious to one
of ordinary skill in the art at the time of appellant’s
invention. In our view, the ordinarily skilled artisan would
have readily appreciated the advantages and disadvantages unitary
wing construction and detachable wing construction provide. 4
Appeal No. 96-2477
Application 08/345,292
9
Specifically, it is apparent that a detachable wing design would
greatly facilitate the replacement of a damaged wing component,
as well as provide the capability of removing the wings for
easier storage and transport. Based on these considerations, we
conclude that it would have been obvious to one of ordinary skill
in the art to provide the flight component A of Hall with
detachable wings in order to take advantage of the self evident
benefits such construction provides. Compare In re Heinrich, 268
F.2d 753, 756, 122 USPQ 388, 390 (CCPA 1959) (substitution of one
type of spring construction for another considered to be matter
of choice or engineering design where advantages and
disadvantages of each are apparent). Accordingly, we will
sustain the examiner’s rejection of claims 9, 10, 14 and 19.
We will also sustain the standing § 103 rejection of
dependent claims 2, 6, 8, 11, 15, 16 and 20 since Hall discloses
(1) flight component A detachably secured to the fuselage, as
called for in claims 2 and 8, (2) a control and instrument panel
53 on the flight component A accessible through opening 64 when
the components A and B are properly assembled (column 9, lines
45-50), as called for in claims 6, 15 and 20, (3) an
undercarriage landing gear means in the form of wheels 6 and 8
partially recessed in the fuselage, as called for in claim 11,
Appeal No. 96-2477
Application 08/345,292
10
and (4) an engine fuel compartment 54 in the propulsion module or
flight component A, as called for in claim 16.
Dependent claim 3 calls for the engines of the propulsion
unit to be adapted to drive the propellers about rotation axes in
substantial alignment with one another. In that, as explained
above in our discussion of claims 1, 7, 13 and 18, we believe the
artisan would have readily appreciated that tandem engines
aligned along a common axis, as taught by Henrichsen and Sanders,
have certain advantages, such as, the redundant safety provided
by dual engines with reduced off-axial mass and thrust, we will
sustain the § 103 rejection of claim 3.
We reach an opposite conclusion with respect to claims 4, 5
and 17. Dependent claim 4 calls for the fuel compartment to be
centered fore-and-aft in the propulsion module. Dependent claim
17 sets forth the step of centering the fuel compartment fore-
and-aft relative to the wing means of the propulsion unit. In
rejecting these claims, the examiner states that “Hall
specifically has a fuel compartment in the module in the
centerline thereof” (answer, page 5). However, the fuel
compartment 54 of Hall is located forward of the attachment
fitting 60 (Figure 4), which attachment fitting 60 is located at
the forward edge of the wings (Figure 6). Thus, the fuel
Appeal No. 96-2477
Application 08/345,292
11
compartment 54 of Hall is located forward of the wings in the
forward portion of the flight component. It is not apparent to
us, and the examiner has not explained, how Hall’s fuel
compartment location forward of the wings discloses or suggests
the centered fore-and-aft fuel compartment locations called for
in claims 4 and 17. In addition, Henrichsen and Sanders are not
relevant to claims 4 and 17 in that they are silent as to the
location of any fuel compartment. In light of the above, we
cannot sustain the examiner’s § 103 rejection of claims 4 and 17,
or claim 5 which depends from claim 4.
We also will not sustain the examiner’s rejection of claim
12, which depends from claim 7 and further requires that the
fuselage is boat like and that outboard stabilization means
depend from the wing means and flanks of the fuselage. In
rejecting this claim, the examiner has taken the position that it
is known in the art to provide wing pontoons to adapt an aircraft
to water landing, and that, accordingly, it would have been
obvious to provide Hall with pontoons. Even if it is assumed
that it is known generally to provide wing pontoons on an
aircraft to adapt it to water landing, the issue here is whether
it would have been obvious to provide Hall’s components A and B
with stabilization means for water operation. Here, Hall’s
Appeal No. 96-2477
Application 08/345,292
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device is not merely an airplane. Rather, Hall is directed to a
land component, an automobile, that may be mated to a flight
component in order to convert the land component into an
airplane. The modifications to Hall’s components, and in
particular automobile component B, that would be required in
order to adapt it for water operation would appear to be
significant and would certainly go beyond merely providing
pontoons of the wings of flight component A. Precisely why one
of ordinary skill in the art would have been motivated to modify
Hall’s land vehicle, given that it is known generally to provide
pontoons on an aircraft to adapt it to water landing, and how
this is to be accomplished, have not been adequately explained by
the examiner and, in our opinion, would not have been obvious
based on the applied reference teachings.
In summary, the rejection of claims 1-20 as being
unpatentable over Hall in view of Henrichsen or Sanders is
affirmed with respect to claims 1-3, 6-11, 13-16 and 18-20 but is
reversed with respect to claims 4, 5, 12 and 17.
The decision of the examiner is affirmed-in-part.
Appeal No. 96-2477
Application 08/345,292
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
HARRISON E. McCANDLISH )
Senior )
Administrative Patent Judge)
)
)
)
LAWRENCE J. STAAB ) BOARD OF PATENT
Administrative Patent Judge) APPEALS AND
) INTERFERENCES
)
)
JOHN P. McQUADE )
Administrative Patent Judge)
Appeal No. 96-2477
Application 08/345,292
14
APPENDIX
1. Tandem-engine propulsion module, comprising
a housing with only two engines, respectively fore-and-aft
in the housing, a fuel compartment in the housing, and engine
instruments and controls;
adapted to be installed as the only propulsion means for a
fixed-wing aircraft having fuselage means extending fore-and-aft,
including a forward cabin portion for a flight crew, with the
engine instruments and controls accessible to the flight crew.
7. Powered dry-wing aircraft, comprising in combination
fuselage means extending fore and aft along and about a
substantially horizontal centerline;
wing means extending substantially horizontally and
laterally outboard relative to the fuselage means, and secured
thereto; and
a tandem-engine propulsion module in part contiguous with
and detachably secured to at least one of the foregoing means,
the propulsion module being adapted to rotate a tractor
propeller and a pusher propeller located respectively forward and
aft of the leading and trailing edges of the wing means.
Appeal No. 96-2477
Application 08/345,292
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13. Method of powering a fixed-wing aircraft provided with
enclosed fuselage means extending fore-and-aft including a crew
cabin and having single-wing means extending outboard therefrom
in opposite lateral directions, comprising the steps of
providing a propulsion module detachably attachable to the
fuselage means proximate to inboard portions of the wing means
and adapted to carry forward and aft engine means, and
detachably attaching the propulsion module in substantial
contiguity to an upper portion of the fuselage means.
18. Method of providing a fixed-wing aircraft with tandem-
engine propulsion, comprising the steps of
forming a propulsion module having a housing adapted to be
juxtaposed to a dry-wing aircraft fuselage and detachably
attached thereto in substantial contiguity therewith; and
mounting, fore and aft on the the propulsion module housing,
aircraft engines with respective tractor and pusher propellers
with their respective rotational axes substantially mutually
aligned; and
including an engine fuel compartment within the housing and
adapted to connect to the respective engines.
Appeal No. 96-2477
Application 08/345,292
16
Charles A. McClure
P.O. Box 1168
Tampa, FL 33601