Ex Parte HOUSER et al

Patent Trial and Appeal Board

Jul 30, 2018

14565056 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/565,056 12/09/2014
109501 7590 08/01/2018
Tarolli, Sundheim, Covell & Tummino
FIRST NAMED INVENTOR
PETER BENNETT HOUSER
LLP and Northrop Grumman Systems Corporation
1300 East Ninth Street
Suite 1700
Cleveland, OH 44114
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.
NG(NCD)023926 US PRI 5169
EXAMINER
MATHEW,MAX
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
rkline@tarolli.com
docketing@tarolli.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER BENNETT HOUSER, MARY ANNE LORRAINE
DOMM, and CHARLES JACKSON NESBITT IV
Appeal 2017-009718
Application 14/565,056
Technology Center 2600
Before DENISE M. POTHIER, JUSTIN BUSCH, and JOHN D. HAMANN,
Administrative Patent Judges.
POTHIER,Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1,2 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-21. Appeal Br. 3. We have jurisdiction under
35 U.S.C. § 6(b). Weaffrrm in part.
1 Throughout this opinion, we refer to the Final Action (Final Act.) mailed
September 1, 2016; the Appeal Brief (Appeal Br.) filed January 31, 2017;
the Examiner's Answer (Ans.)mailed May 19, 2017; and the Reply Brief
(Reply Br.) filed June 28, 2017.
2 The real party in interest is listed as Northrop Grumman Corporation.
Appeal Br. 3.
Appeal 2017-009718
Application 14/565,056
Invention
Appellants' invention relates to "a launchable communication device
for a distributed communication system." Spec. ,r 1. The technique involves
a distributed communication system (e.g., 400) that includes launching at
least one launchable communications device (e.g., 50 in Figure 2 or 406 in
Figure 9) for deployment in an operational environment (e.g., 408,410,412)
and the launchable communications device having a communication system
(e.g., 54 in Figure 2) to receive and transmit communication signals (e.g.,
COM in Figure 1 or 401 in Figure 9). The system also includes transmitting
communication signals from a frrst communication station (e.g., 12 in Figure
1 or 402 in Figure 9) and receiving and processing communication signals at
a second communication station (e.g., 14 in Figure 1 or 404 in Figure 9).
Spec. ,r,r 2--4, 19-26, 55, Figs. 1-3, 6, 9. This system and device provides
temporary communications capability. Spec. ,r,r 2--4, 22, 33.
Claim 1 is reproduced below with emphasis:
1. A launchable communications device comprising:
an electronic payload comprising a communication
system configured to receive a frrst communications signal and
to transmit a second communications signal along a
communications path between a frrst communication station
and a second communication station;
deployment equipment configured to deploy the
launchable communications device and to sustain a deployment
state of the launchable communications device with respect to a
predetermined operational environment; and
a rigid housing configured to substantially enclose the
electronic payload and the deployment equipment prior to and
during at least a portion of deployment of the launchable
communications device to the predetermined operational
environment.
2
Appeal 2017-009718
Application 14/565,056
The Examiner relies on the following as evidence ofunpatentability:
Snead
Trone
Frolov
Trook
us 4,884,769
US 2014/0105100 Al
US 8,897,770 Bl
US 2015/0162974 Al
The Rejections
Dec. 5, 1989
Apr. 17, 2014
Nov. 25, 2014
June 11, 2015
Claims 1-21 are rejected under 3 5 U.S. C. § 112( a) as failing to
comply with the written description requirement. Final Act. 5---6.
Claims 1-11 and 18-21 are rejected under 35 U. S.C. § 112(b) as
being indefmite for failing to particularly point out and distinctly claim the
subject matter which the inventors regards as their invention. Final Act.
6-7.
Claims 1, 2, 5, 7-13, 16, and 17 3 are rejected under 35 U.S.C.
§ 103 as unpatentable over Frolov and Trook. Final Act. 7-12.
Claims 3, 4, 14, 15, and 18-21 4 are rejected under 35 U.S.C. § 103 as
unpatentable over Frolov, Trook, and Trone. Final Act. 12-18.
Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over
Frolov, Trook, and Snead. Final Act. 18-19.
3 Although omitting claims 2 and 10 from the rejection's heading (Final
Act. 7), the rejection's body discusses these claims (Final Act. 8, 10).
4 The Examiner mistakenly includes claim 21 under the Frolov/Trook
rejection. Final Act. 7, 12-13. Because claim 21 depends from claim 18
and claim 18 is rejected based on Frolov, Trook, and Trone, claim 21 should
have been included as part of the rejection based onFrolov, Trook, and
Trone. Appeal Br. 14. Even so, we view this error as an organizational
oversight and harmless.
3
Appeal 2017-009718
Application 14/565,056
THE LACK OF WRITTEN DESCRIPTION REJECTION
The Examiner states claims 1-21 5 lack written description support
under 35 U.S.C. § 112(a). Final Act. 5. Specifically, the Examiner asserts
the following limitations are not described in the Specification:
(1) "deployment equipment configured to deploy the launchable
communications device and to sustain a deployment state of the launchable
communications device with respect to a predetermined operational
environment," (2) "a rigid housing configured to substantially enclose the
electronic payload and the deployment equipment prior to and during at least
a portion of deployment of the launchable communications device to the
predetermined operational environment," and (3) "predetermined operational
environment" in independent claims 1 and 18, and "deployment equipment
configured with respect to the operational environment and substantially
enclosed within a rigid housing prior to and during at least a portion of
deployment" in independent claim 12. Final Act. 5---6. 6
Appellants argue support for these limitations is found in paragraphs
3, 5, 19, 22, 23, 26, and 27 of the Specification. Appeal Br. 8-9. We agree
with Appellants. For example, the Specification discusses a launchable
communication device that includes
deployment equipment configured to deploy the launchable
communications device and to sustain a deployment state of the
5 Although omitting claim 21 from the rejection's heading (Final Act. 5), the
rejection's body addresses claim 21 (Final Act. 6).
6 Although not addressing Appellants' arguments in the Answer (see
generally Ans.), the Examiner has not withdrawn this rejection. Ans. 3
( stating "Every ground of rejection set forth in the Office action dated 31
January 2017 ... is being maintained by the examiner"). The Advisory
Action mailed December 22, 2016, also does not address this rejection.
4
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Application 14/565,056
launchable communications device with respect to a
predetermined operational environment. The device further
includes a rigid housing configured to substantially enclose the
electronic payload and the conveyance equipment prior to and
during at least a portion of deployment of the launchable
communications device to the predetermined operational
environment.
Spec. ,r 3; see also Spec. ,r,r 5, 19, and 26.
Based on the record, Appellants have persuaded us of error in the
rejection of (1) independent claim 1; (2) independent claims 12 and 18,
which recite commensurate limitations; and (3) dependent claims 2-11,
13-17, and 19-21 for similar reasons.
THE INDEFINITENESS REJECTION
TheExaminerfurtherrejectsclaims 1-11 and 18-21 under35 U.S.C.
§ 112(b ). Final Act. 6-7. In particular, the Examiner states there is
insufficient antecedent basis for the limitation "deployment equipment
configured to deploy the launchable communications device" because, as
written, the launchable communication device appears to be an element of
the deployment equipment. Final Act. 7. 7 Appellants argue this limitation
"should be read to recite that the deployment equipment is a component of a
launchable communications device" and describes the function of the
deployment equipment. Appeal Br. 10.
7 Although not addressing Appellants' arguments in the Answer (see
generally Ans.), the Examiner has not withdrawn this rejection. Ans. 3
( stating "Every ground of rejection set forth in the Office action dated 31
January 2017 ... is being maintained by the Examiner"). The Advisory
Action mailed December 22, 2016, also does not address this rejection.
5
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Application 14/565,056
The language in claim 1 is somewhat confusing given that claim 1
recites the "launchable communications device" comprises "deployment
equipment" but then recites the "deployment equipment" is "configured to
deploy the launchable communications device," which includes deployment
equipment. Appeal Br. 20 (Claims App.). As written, claim 1 appears at
frrst blush to include deployment equipment being configured to deploy
itself. Appeal Br. 20 (Claims App.).
However, when an ordinary artisan considers this limitation in light of
the disclosure, claim 1 's "deployment equipment" recitation as a whole
distinctly recites the claimed invention. The Specification states the
launchable communications device has already been launched (e.g., using
tube launcher 200) but further deploys other equipment (e.g., legs 103, a
float, balloon 110, or propulsion device in Figure 3) within an operational
environment (e.g., 254,256,258). Spec. ifif 29-33, 39, 41, Figs. 3, 5, 6.
That is, the recited deploying function of the deployment equipment is to
deploy at least a portion of the launchable communications device, including
the deployment equipment itself, within an operational environment. As
such, we further understand the recitation "with respect to a predetermined
operational environment" of the "deployment equipment" limitation
modifies both its configurable operation (1) "to deploy the launchable
communications device" and (2) "to sustain a deployment state of the
launchable communications device."
On the record, we determine the phrase "deployment equipment
configured to deploy the launchable communications device" points out and
distinctly claims the claimed invention when considered by one skilled in the
art in light of the disclosure.
6
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Application 14/565,056
OBVIOUSNESS REJECTION OVER FROLOV AND TROOK
Regarding representative claim 1, 8 the Examiner fmds Frolov teaches
all its limitations, except for the launchable communications device's
housing being rigid. Final Act. 8 (citing Frolov 5:60----67, 7:10-25, Abstract,
Fig. 1 ). The Examiner turns to Trook to teach this missing feature. Final
Act. 8 ( citing Trook ,r,r 2, 41, 45--46, 56, 90, Fig. 2).
Appellants argue Trook fails to describe a protective case such that
the electronic payload and deployment equipment are substantially enclosed
within a rigid housing prior to and during at least a portion of the
deployment of the launchable communication device to the predetermined
operational environment as recited. Appeal Br. 11-12. Appellants further
contend it would not have been obvious to combine Frolov and Trook to
arrive at the claimed "rigid housing" and Trook's protective case cannot be
used to protect Frolov' s electronic payload and deployment equipment.
Appeal Br. 12; Reply Br. 2--4.
ISSUE
Under§ 103, has the Examiner erred in rejecting claim 1 by fmding
that Frolov and Trook collectively would have taught or suggested "a rigid
housing configured to substantially enclose the electronic payload and the
deployment equipment prior to and during at least a portion of deployment
of the launchable communications device to the predetermined operational
environment"?
8 The claims rejected on this ground are argued collectively. Appeal Br. 10-
14. We select claim 1 as representative. See37C.F.R. §4I.37(c)(l)(iv).
7
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Application 14/565,056
ANALYSIS
Based on the record before us, we are not persuaded of error in the
Examiner's rejection of independent claim 1.
At the outset, we note Appellants contest that Frolov and Trook do not
teach or suggest a launchable communications device with a
communications system and deployment equipment configured to deploy the
launchable communications device and sustain a deployment state with
respect to a predetermined operation environment. Appeal Br. 10.
However, other than this mere assertion, Appellants do not explain why
these references fail to teach the above features. Because counsel's
arguments cannot take the place of factually supported objective evidence,
we are not persuaded. See In re Huang, 100 F.3d 135, 139--40 (Fed.
Cir. 1996).
As to whether Frolov or Trook alone or collectively teach the recited
"rigid housing configured to substantially enclose the electronic payload and
the deployment equipment prior to and during at least a portion of
deployment of the launchable communications device" (Appeal Br. 11-12),
Frolov's UAVs (Unmanned Aerial Vehicles) 110 are launched using some
mechanism. See Frolov 28:44--48, Figs. 1-2, 36 (step 3650). Moreover, the
Examiner determines Frolov's deployment equipment is "inbuilt in the
UAV' (Final Act. 8), but does not elaborate on this point. Final Act. 8; see
Ans. 3--4. As such, the Examiner determines Frolov's deployment
equipment, along with the payload, is enclosed by some housing. See Final
Act. 8.
Regarding the deployment equipment being "inbuilt," Appellants
indicate that the Examiner determines Frolov includes wings and a
8
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Application 14/565,056
propulsion system (e.g., deployment equipment) that are "inbuilt." Appeal
Br. 12; see also Frolov 15:32--46, Fig. 14. In particular, Frolov discusses
and shows the U AV' s platform can include a skin and a shell (e.g., a
housing) that contains its elements. Frolov 15:43--46, Figs. 14--15.
However, Appellants contend that making Frolov's housing rigid would not
have been obvious because "there is no indication as to how the UAV of
Frolov could take off and fly if the wings and propulsion system were
enclosed by any sort of rigid enclosure." Appeal Br. 12.
To clarify, the Specification does not define the term "rigid" or what
makes the housing "rigid," but does describe the housing's shape can have a
substantially tubular, circular, hexagonal, or square cross-sectional shape to
protect its payload and conveyance equipment. Spec. ,r 27. Claim 1,
however, does not require the housing have a specific shape. Although
Frolov does not discuss its skin or shell's material, Frolov discusses UAVs'
wings include "airfoil cross-section with high lift coefficient" and "low
weight composite construction (e.g.[,] based on carbon, glass or polymer
fibers)" (Frolov 7:52-54) and shows the UAVs flying (Frolov, Fig. 1). In
the event that Frolov' s construction is not rigid, the Examiner relies on
Trook to teach and suggest that rapidly deployed equipment (e.g., RDAR
systems) are known to be mechanically designed to be robust and not easily
damaged by rough handling and to protect against shock. Trook,r,r 45--46,
cited in Final Act. 8; see also Trook ,r 43. Trook, thus, suggests to one
skilled in the art selecting a rigid material for Frolov's device, including its
housing, which is rapidly deployed, in order for the UAVs to be robust and
to prevent damage during launching and deployment.
9
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Additionally, asJn re Oetiker, 977F.2d 1443, 1445 (Fed. Cir. 1992)
indicates, the Examiner bears the initial burden of presenting a prima facie
case of patentability. The Examiner has established a prima facie case of
obviousness for claim 1 as explained above and in the Final Action (Final
Act. 7-8), which relies on Trook for the limited purpose of making Frolov' s
housing (e.g., its skin or shell) rigid. See Final Act. 8. The burden now
shifts to Appellants-not the Examiner-to present evidence that Frolov
could not "take off and fly if the wing and propulsions system were enclosed
by any sort of rigid enclosure," as Appellants assert. Appeal Br. 12. On the
record, there is insufficient evidence that Frolov's UAV are not able to
operate as intended if its wings and propulsion system are enclosed by a
rigid housing.
Appellants also argue Trook does not teach a helium blimp, or another
deployment equipment is substantially enclosed by a protective case.
Appeal Br. 11. However, claim 1 is not limited to a blimp. Nor does the
Specification defme "deployment equipment," such that the equipment is
limited to specific structures. Spec. ,r,r 30-32, Figs. 2-3 ( discussing and
showing deployable legs or stand (e.g., 103), a drogue (e.g., 58), a float, a
balloon (e.g., 110), and an airborne propulsion equipment (e.g., 112 9)).
Lastly, in the Answer, the Examiner discusses Trook teaches a cable
winch deployment system. Ans. 4 ( citing Trook, Fig. 21 ). Appellants state
Trook' s winch is connected to case 102 and does not teach this equipment
being enclosed in case 102. Reply Br. 3. Given the record, we agree. Even
so, as discussed above and as presented in the Final Action, Frolov and
9 Element 112 (Spec. ,r 32) is not labeled in Figure 3 but is shown. Spec.,
Fig. 3.
10
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Application 14/565,056
Trook collectively teach or suggest the disputed, recited "rigid housing" in
claim 1.
For the fore going reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and claims 2, 5, 7-13, 16, and 17,
which are not separately argued. 10
THE OBVIOUSNESS REJECTION OVERFROLOV,
TROOK, AND TRONC
Claims 3, 4, 14, 15, and 18-21 are rejected under 35 U.S. C. § 103 as
unpatentable over Frolov, Trook, and Trone. Final Act. 12-18.
Representative claim 3 11 recites, in pertinent part, the electronic payload
comprises "a receiver configured to demodulate the received first
communications signal in a frrst communications parameter; and a
transmitter configured to modulate the demodulated frrst communications
signal in a second communications parameter." Appeal Br. 21 ( Claims
App.). The Examiner relies on Trone, in combination with Frolov and
Trook, to teach or suggest using modulator and demodulator circuits in a
pay load. Final Act. 13 ( citing Trone ,r,r 94--97, 15 4--15 5, 192-19 8, 2 00,
Figs. 1, 6 (elements 130, 140)).
Appellants argue Tronc's satellites only relay or repeat signals.
Appeal Br. 14. Appellants contrast the claimed device, which demodulates a
received signal and modulates the demodulated signal, with Trone. Appeal
Br. 14--15 (citing Spec. ,r 18 and https://en.wikipedia.orglwiki/Repeater);
1 ° For the remaining claims, Appellants refer to the arguments presented for
claim 1. See Appeal Br. 13-14.
11 The claims rejected on this ground are argued as a group. Appeal Br. 14--
17. We select claim 3 as representative. See37C.F.R. §4I.37(c)(l)(iv).
11
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Application 14/565,056
Reply Br. 4--5. We are not persuaded. First, the Specification describes
launchable communications devices provide communications capabilities,
including relaying communication signals. Spec. ,r 21. Second, as the
Examiner indicates (Ans. 5), Trone discloses a payload that includes a
demodulator ( e.g., 130) that receives signals, which are later passed to a
modulator (e.g., 140). Trone ,r,r 154--155, 192-197, 200, Fig. 6. When
combined with Frolov and Trook, the combination both demodulates a
received signal and modulates the demodulated signal.
Appellants also contend Trone' s demodulator and modulator "are
used in order to allow the system to utilize signal multiplexing" (Appeal Br.
15) in contrast with claim 3, which uses the modulator and demodulator to
transform a signal in some way (e.g., code or frequency). Appeal Br. 15;
Reply Br. 5. This argument is unavailing. Claim 3 recites "a transmitter
configured to modulate the demodulated first communications signal in a
second communications parameter that is different from the first
communications parameter to generate the second communications signal"
and does not claim transforming the signal into a different code or
frequency. Also, although the Specification (Spec. ,r 18, cited in Reply Br.
5) informs our construction of the disputed phrase in claim 3, we decline to
import such an embodiment into claim 3, which fails to recite transforming
the communications signal's code or frequency.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 3 and claims 4, 14, 15, and 18-21,
which are not separately argued.
12
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Application 14/565,056
THE OBVIOUSNESS REJECTION OVERFROLOV,
TROOK, AND SNEAD
Lastly, claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over
Frolov, Trook, and Snead. Final Act. 18-19. Claim 6 recites, in pertinent
part, "the deployment equipment comprises a drogue configured to delay
descent of the launchable communications device during deployment."
Appeal Br. 21 (Claims App.).
The Examiner turns to Snead to show using parachutes to delay
descent of a payload was known. Final Act. 18-19 ( citing Snead, Abstract).
The Examiner proposes this teaching would "improve the repeater payloads
as taught by Trook with parachute[ s] use[ d] to delay" payload descent and to
deploy payloads safely. Final Act. 19. Among other arguments, Appellants
contend including Snead's parachute in Trook's repeater device would not
be intuitive to one skilled in the art. Appeal Br. 18.
We are persuaded. The Examiner has proposed to include Snead's
parachute in Trook' s-not Frolov' s-system in order "to improve the
repeater payloads as taught by Trook with parachute[ s] use[ d] to delay the
de[ s ]cent of the payload as taught by Snead." Final Act. 19. As discussed
above, the deployment equipment includes Frolov's wings and propulsion
system. See Appeal Br. 12 (noting this finding). As such, the Examiner's
proposal to include Snead's parachute in a repeater, such as Trook's, lacks a
reason with a rationale underpinning. See KSR Int 'l Co. v. Teleflex Inc., 550
U.S. 398,418 (2007). Nor has the rejection explained sufficiently or
provided a rationale on the record how Snead's teachings suggest to one
skilled in the art to include Snead's teachings with the mapped "deployment
equipment"in Frolov. Final Act. 8, 18-19.
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Also, when addressing claim 1, we agreed with Appellants that
Trook's repeater system with the winch (Ans. 4) does not yield a rigid
housing configured to enclose both the payload and the deployment
equipment as recited. As such, in the event the Examiner has proposed to
substitute Frolov's UAV with Trook's repeater and to include such a
repeater in Frolov's UAV, the Examiner provides an insufficient explanation
as to how such a combination teaches or suggests the disputed, recited "rigid
housing" that encloses both the payload and the deployment equipment
( claim 1 ), which is then further proposed to include a drogue as part of the
deployment equipment as recited in claim 6. We refer above for more
details.
For the foregoing reasons, Appellants have persuaded us of error in
the rejection of claim 6.
DECISION
We affrrm the Examiner's rejection of claims 1-5 and 7-21 under
§ 103.
We reverse the Examiner's rejection of claims 1-21 under§ 112(a).
We reverse the Examiner's rejection of claims 1-11 and 18-21 under
§ 112(b).
We reverse the Examiner's rejection of claim 6 under § 103.
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).
AFFIRMED IN PART
14