Ex Parte Huynh

Board of Patent Appeals and Interferences

Nov 18, 2011

10112815 (B.P.A.I. Nov. 18, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/112,815 03/29/2002 Neal V. Huynh 38190/244735 6244
67141 7590 11/18/2011
ALSTON & BIRD, LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
EXAMINER
DINH, TIEN QUANG
ART UNIT PAPER NUMBER
3644
MAIL DATE DELIVERY MODE
11/18/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte NEAL V. HUYNH
____________________

Appeal 2010-002492
Application 10/112,815
Technology Center 3600
____________________

Before: JENNIFER D. BAHR, LINDA E. HORNER, and
PHILLIP J. KAUFFMAN, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-002492
Application 10/112,815
2
STATEMENT OF CASE
Appellant seeks review of the rejections of claims 1, 3-5, 8, 9, 19-22,
24-27, and 39 under 35 U.S.C. § 103(a) as being unpatentable over
Appellant’s Admitted Prior Art (AAPA) and either Gregory (US 5,347,204;
issued September 13, 1994) or Rosenberg (US 6,147,674; issued November
14, 2000), and of claim 34 under 35 U.S.C. § 103(a) as being unpatentable
over AAPA, Black (US 4,426,607; issued January 17, 1984) and either
Gregory or Rosenberg.1 Claims 10-18, 28-33, 35, and 36 have been
withdrawn from consideration. Claims 2, 6, 7, 23, 37, 38, and 40-43 have
been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

THE INVENTION
Appellant’s claimed invention “relates to aircraft control surface
controllers, and, more particularly, to an active flight control suppressing
method and variable resistance damper that reduces a pilot’s authority over
the control system as the frequency of the pilot control input increases.”
Spec. 1:2-5. Independent claim 1, reproduced below, is representative of the
claimed subject matter (emphasis added):
1. An aircraft control surface controller for controlling
aerodynamic control surfaces on an aircraft, comprising:
a control surface interface having a range of motion for
providing pilot input for positioning the aerodynamic control
surfaces on an aircraft;
mechanical linkages interconnecting the control surface
interface and an aerodynamic control surface; and

1 The Examiner withdrew the rejection of 1, 3-5, 8, 9, 19-22, 24-27, and 39
under 35 U.S.C. § 103(a) as being unpatentable over AAPA and Hlipala, and
withdrew the rejection of claim 34 over AAPA, Hlipala and Black. Ans. 4;
Supp. Ans. dated September 4, 2009, 4.
Appeal 2010-002492
Application 10/112,815
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a variable resistance damper mechanically
interconnected to the pilot control surface interface, wherein the
damper provides physical resistance to the control surface
interface, the damper physical resistance increases
proportional to a rate of movement of the control surface
interface, wherein the variable resistance damper provides
physical resistance to the control surface interface at a greater
proportion of the rate of movement of the control surface
interface after the control surface interface exceeds a damping
criterion corresponding to a predetermined rate of the control
surface interface than prior to the control surface interface
reaching the damping criterion.

CONTENTIONS AND ISSUES
Independent claims 1 and 20 are directed to an aircraft control surface
controller that includes a variable resistance damper that provides a greater
physical resistance after the control surface interface exceeds a
predetermined rate of movement.
Regarding the obviousness rejection over AAPA and Gregory,
Appellant argues that the rejection is in error because Gregory discloses
changing damper physical resistance rates based on control stick
displacement rather than based on a predetermined rate of movement of the
control surface interface, as called for in independent claims 1 and 20. App.
Br. 10-11.
The first issue presented by this appeal is whether Gregory discloses a
variable resistance damper that changes physical resistance based on a
predetermined rate of movement of the control surface interface, as called
for in independent claims 1 and 20.
Regarding the obviousness rejection over AAPA and Rosenberg,
Appellant argues claims 1, 3-5, 8, 9, 19-22, 24-27, and 39 as a group, and we
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Application 10/112,815
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select claim 1 as representative.2 App. Br. 11-13; see 37 C.F.R.
§ 41.37(c)(1)(vii).  
Appellant argues that Rosenberg is not analogous art, and that AAPA
and Rosenberg are not properly combinable. App. Br. 12-13; Reply Br. 5-6.
Additional issues presented by this appeal are whether Rosenberg is
analogous art, and whether the Examiner articulated adequate reasoning
based on a rational underpinning to explain why a person of ordinary skill in
the art would have been led to modify AAPA to include a variable resistance
damper, as taught by Rosenberg, to reach the subject matter of independent
claim 1.

ANALYSIS
Claims 1, 3-5, 8, 9, 19-22, 24-27, and 39 over AAPA and Gregory
The Examiner found that Gregory’s disclosure of increasing the rate
of physical resistance after the control stick hits the “soft stops,” corresponds
to a variable resistance damper that provides a greater rate of physical
resistance after the control surface interface exceeds a predetermined rate of
movement. Ans. 5, 7. This finding is not supported by the reference.
Gregory discloses that the velocity (rate of movement) and
displacement (position) of the control stick (pilot control surface interface)

2 For claims 3 and 24, Appellants merely recite a portion of the claims,
repeat the arguments used for claim 1, and state the proposed combination
does not meet these claims without a supporting explanation of why that is
so. App. Br. 13-14. A statement that merely points out what a claim recites
is not a separate argument under 37 C.F.R. § 41.37(c)(1)(vii). These
assertions are analogous to those in In re Lovin, 652 F.3d 1349 (Fed. Cir.
2011) (“we hold that the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief that a mere recitation of the
claim elements and naked assertion that the corresponding elements were
not found in the prior art.”).
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Application 10/112,815
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are factors for determining the amount of force to be applied to the control
stick (pilot control surface interface). See, e.g., Gregory, col. 4, ll. 22-34;
col. 6, 35-46; col. 8, ll. 8-10, 20-39. However, we find no disclosure in
Gregory indicating the rate of physical resistance changes to an increased
rate based on the velocity (rate of movement) of the control stick (pilot
control surface interface). Rather, Gregory discloses that the physical
resistance applied to the control stick (pilot control surface interface)
increases to a greater rate when the control stick exits the null region3 and
again when the control stick reaches the position known as the soft stops.
Gregory, col. 4, ll. 10-17; col. 5, ll. 5-9; fig. 2 (non-linearities in the graph
depict changes in the rate of force). Given this, we agree with Appellant that
Gregory discloses changing the rate of physical resistance applied to the
pilot control surface interface based on the displacement (position) of the
pilot control surface interface, and not based on the rate of movement of the
pilot control surface interface as called for in claims 1 and 20. See App. Br.
11-12; Reply Br. 2-4.
As such, we cannot sustain the rejection of independent claims 1 and
20 or their respective dependent claims 3-5, 8, 9, 19, 21, 22, 24-27, and 39
over the AAPA and Gregory.

Claims 1, 3-5, 8, 9, 19-22, 24-27, and 39 over AAPA and Rosenberg
Appellant argues that Rosenberg is not analogous art because it is not
reasonably pertinent to the particular problem faced by Appellant, namely,
pilot-induced-oscillation and pilot-airplane-coupling. App. Br. 12.

3 “About null” is defined as typically less than about two percent of the full
displacement of the control stick. Gregory, col. 4, ll. 3-4.
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Appellant’s Specification describes that pilot-induced-oscillation
(PIO)4 is a known, common problem generally occurring as a result of
unusually high pilot control input rates provided to the control surface
hydraulic servo actuators. Spec. 1:23-29; 2:6-7. Specifically, the
Specification describes that when the input rate exceeds the rate limit of the
control surface actuators, the jam override device slips, forcing the artificial
feel system out of phase and reducing the reaction force for the pilot. Spec.
1:26-2:2. In response, the pilot makes a large reverse correction, and
repetition of this process creates oscillation. Spec. 2:2-4.
The Specification describes that due to the amplitude of aerodynamic
forces, rate-limited hydraulic servo actuators provide the necessary forces to
operate the control surfaces of an aircraft. Spec. 1:9-14. In order for the
pilot to correctly fly an aircraft equipped with such hydraulic servo
actuators, it is extremely important that the control linkages include an
artificially induced tactile feedback (“feel”) system that provides the pilot
with reactive forces. Spec. 1:14-17.
Thus, Appellant sought to prevent PIO in an aircraft having an
artificially induced tactile feedback system by providing physical resistance
to the control surface interface.
Rosenberg discloses an interface device useable with a joystick
(control surface interface) to fly a simulated aircraft that includes actuators
(variable resistance damper) on the joystick that convey tactile feedback in
the form of physical force sensations (physical resistance) to the user (pilot)
to “allow the user to feel realistic force sensations.” Rosenberg, col. 1,
ll. 23-35, 55-57; col. 2, ll. 2-3, 19.
With regard to analogous art, the Federal Circuit has explained:

4 Also known as pilot-airplane-coupling. Spec. 1:23-24.
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“A reference is reasonably pertinent if, even though it may be in
a different field from that of the inventor’s endeavor, it is one
which, because of the matter with which it deals, logically
would have commended itself to an inventor’s attention in
considering his problem.” In re Clay, 966 F. 2d 656, 659 (Fed.
Cir. 1992). In other words, “familiar items may have obvious
uses beyond their primary purposes.” KSR Int’l Co. v. Teleflex,
Inc., 550 U.S. 398 (2007). We therefore have concluded, for
example, that an inventor considering a hinge and latch
mechanism for portable computers would naturally look to
references employing other “housings, hinges, latches, springs,
etc.,” which in that case came from areas such as “a desktop
telephone directory, a piano lid, a kitchen cabinet, a washing
machine cabinet, a wooden furniture cabinet, or a two-part
housing for storing audio cassettes.” [In re ]Paulsen, 30 F.3d
[1475, ] 1481-82 [(Fed. Cir. 1994)].
In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379-80 (Fed. Cir.
2007).
Just as a person of ordinary skill in the art considering a hinge and
latch mechanism would look to references employing other springs and
latches, an inventor facing Appellant’s problem of preventing PIO in an
aircraft having a pilot control interface connected to an artificially induced
tactile feedback system logically would have considered other pilot control
surface interface devices utilizing tactile feedback systems, such as disclosed
by Rosenberg. Consequently, Rosenberg is analogous art.
Because Rosenberg provides tactile feedback in the form of physical
resistance to the pilot control interface (Rosenberg, col. 1, ll. 23-35, 55-57;
col. 2, ll. 2-3, 19), the Examiner’s conclusion that modification of AAPA to
include a variable resistance damper, as taught by Rosenberg, would give
Appeal 2010-002492
Application 10/112,815
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feedback to the pilot, is well supported by the reference.5 See Ans. 5.
Further, we agree with the Examiner that Rosenberg discloses a known
technique of providing tactile feedback to an aircraft control surface
interface to allow the user to feel realistic force sensations. See Ans. 8. A
person of ordinary skill in the art would recognize that Rosenberg’s device
would improve the similar AAPA device in the same way. Appellant has
not asserted that use of Rosenberg’s technique in the AAPA device would
have been beyond the level of skill in the art, and thus use of this technique
would have been obvious. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007).
As such, we sustain the rejection of claim 1 over AAPA and
Rosenberg, and claims 3-5, 8, 9, 19-22, 24-27, and 39 fall with claim 1.

Rejection of claim 34 over AAPA, Black, and Gregory
Appellant merely repeats the arguments related to Gregory to argue
for the patentability of claim 34 over the combination of AAPA, Black, and
Gregory. App. Br. 14-15; Reply Br. 2-4. The rejection of claim 34 relies
upon the same erroneous finding regarding Gregory used for the rejection of
claims 1 and 20 as obvious over AAPA and Gregory, and the Examiner does
not rely upon Black to correct this deficiency in Gregory. Ans. 5-6. As
such, we cannot sustain the rejection of claim 34.

5 Appellant also argues that Rosenberg does not address the problem of PIO.
Reply Br. 5. This argument is unpersuasive as any need (i.e., providing
realistic force sensations) known in the field of endeavor can provide a
reason for combining the elements. See KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 420 (2007).
Appeal 2010-002492
Application 10/112,815
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Rejection of claim 34 over AAPA, Black, and Rosenberg
Appellant merely repeats the arguments related to Rosenberg used
against the rejection of claim 1 as obvious over AAPA and Rosenberg to
argue for patentability of claim 34 over the combination of AAPA, Black,
and Rosenberg. App. Br. 15; Reply Br. 4-6. Claim 34 depends from
independent claim 20. As explained supra, independent claim 20, similar to
claim 1, is directed to an aircraft control surface controller that includes a
variable resistance damper that provides a greater rate of physical resistance
after the control surface interface exceeds a predetermined rate of
movement. Given this, the analysis of claim 1 as obvious in view of AAPA
and Rosenberg, supra, applies equally well to the rejection of claim 34.
Thus, we sustain the rejection of claim 34.

CONCLUSIONS
Gregory does not disclose a variable resistance damper that provides
physical resistance as called for in independent claims 1 and 20.
Rosenberg is analogous art.
The Examiner articulated adequate reasoning based on a rational
underpinning to explain why a person of ordinary skill in the art would have
been led to modify AAPA to include a variable resistance damper, as taught
by Rosenberg, to reach the subject matter of independent claim 1.

DECISION
We reverse the Examiner’s decision to reject claims 1, 3-5, 8, 9, 19-
22, 24-27, and 39 under 35 U.S.C. § 103(a) as being unpatentable over
Appellant’s Admitted Prior Art (AAPA) and Gregory.
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Application 10/112,815
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We affirm the Examiner’s decision to reject claims 1, 3-5, 8, 9, 19-22,
24-27, and 39 under 35 U.S.C. § 103(a) as being unpatentable over
Appellant’s Admitted Prior Art (AAPA) and Rosenberg.
We reverse the Examiner’s decision to reject claim 34 under 35
U.S.C. § 103(a) as being unpatentable over AAPA, Black, and Gregory.
We affirm the Examiner’s decision to reject claim 34 under 35 U.S.C.
§ 103(a) as being unpatentable over AAPA, Black, and Rosenberg.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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