Ex Parte Johnson

Patent Trial and Appeal Board

Jan 28, 2013

11459756 (P.T.A.B. Jan. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JAMES R. JOHNSON
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Appeal 2010-009984
Application 11/459,756
Technology Center 3600
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Before JOHN C. KERINS, STEFAN STAICOVICI, and
WILLIAM A. CAPP, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
James R. Johnson (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision finally rejecting under 35 U.S.C. § 103(a) claims 19-36
as unpatentable over Vos (US 6,171,055 B1, iss. Jan. 9, 2001), Page (US
5,315,819, iss. May 31, 1994), and Danielson (US 2007/0110577 A1, publ.
May 17, 2007)1. Claims 1-18 have been canceled. We have jurisdiction
over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellant’s invention relates to a method and system for controlling a
propeller aircraft engine during takeoff using as inputs aircraft airspeed and
ambient atmospheric conditions to maximize propeller thrust rather than
maximizing energy power or engine speed. Spec. 2, para. [0005].
Claims 19 and 30 are illustrative of the claimed invention and read as
follows:
19. A control system for controlling an engine of an aircraft
of the type piloted by a pilot and having at least one propeller
powered by the engine, the control system being operative to
control the engine during take-off and comprising:
an electronic controller operative for controlling the
engine while the aircraft is in take-off mode and, if so, the
electronic controller being operative to provide less than full
engine power at the initiation of take-off and gradually
increases engine power as air speed increases during take-off so
as to provide substantially maximum thrust for take-off despite
any pilot demands for maximum engine power during take-off,
thereby minimizing rollout distance for take-off, the electronic
controller providing substantially maximum thrust for take-off

1 The rejection of claims 19-36 under 35 U.S.C. § 103(a) as
unpatentable over Vos, Wikipedia reference, and Danielson has been
withdrawn by the Examiner. Ans. 2-3.
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and avoiding stalling of the propeller during take-off by
determining a maximum effective power to apply to the
propeller and comparing the power demanded from the pilot of
the aircraft with the maximum effective power, the electronic
controller applying the power demanded from the pilot when
the power demanded is less than the maximum effective power
and applying the maximum effective power when the power
demanded from the pilot exceeds the maximum effective
power.

30. A method of controlling an engine in an aircraft for take-
off, the aircraft being of the type having at least one propeller
powered by the engine, the method comprising:
monitoring air speed and an ambient condition during
take-off;
determining a maximum effective engine power level
that can be applied to the propeller at that moment without
stalling the propeller under the circumstances of the air speed
and the ambient condition; and
controlling the engine to deliver no more than the
maximum effective power to the propeller, thereby limiting the
power applied to the propeller to the maximum effective power
that can be applied without stalling the propeller, despite a
nominal pilot demand for substantially full power.

SUMMARY OF DECISION
We REVERSE.
ANALYSIS
Claims 19-29 and 34-36
The Examiner found that the combined teachings of Vos, Page, and
Danielson disclose a system and method for controlling an engine of a
propeller aircraft during takeoff by limiting power applied to the engine to
less than full power at the initiation of takeoff and gradually increasing the
engine power as air speed increases during take-off. Ans. 4-5. Specifically,
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the Examiner found that: (1) “the FADECs of Vos et al and Page et al
inherently teach providing less than full power at the initiation of takeoff and
full power during takeoff” (see id.) and (2) that “Danielson teaches in figure
5C that the engine is less than full power at the initiation at takeoff and full
power during takeoff” (see Ans. 5). Emphasis added. According to the
Examiner, “[w]hen the aircraft is taxiing (at the initiation of take off), the
throttle is at 20. As the aircraft is taking off (from the time of 41-55), the
throttle is at 65.” Ans. 8.
With respect to the Examiner’s first position, we note that the express,
implicit, and inherent disclosures of a prior art reference may be relied upon
in the rejection of claims under 35 U.S.C. §§ 102 or 103. “The inherent
teaching of a prior art reference, a question of fact, arises both in the context
of anticipation and obviousness.” In re Napier, 55 F.3d 610, 613 (Fed. Cir.
1995). However, “[i]n relying upon the theory of inherency, the examiner
must provide a basis in fact and/or technical reasoning to reasonably support
the determination that the allegedly inherent characteristic necessarily flows
from the teachings of the applied prior art.” Ex parte Levy, 17 USPQ2d
1461, 1464 (BPAI 1990).
Here, although the Examiner found that the FADECs of Vos and Page
are capable of providing less than full power at the initiation of takeoff and
full power during takeoff, the Examiner provides no other evidence or
reasoning that might be construed as support for the Examiner’s finding.
We agree with Appellant that while Vos discloses controlling an aircraft
engine to minimize fuel consumption, i.e., maximize thrust efficiency (see
App. Br. 6-7; Reply Br. 7) and Page discloses maximizing engine speed (see
App. Br. 9; Reply Br. 11), neither Vos nor Page necessarily discloses
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limiting power applied to the engine to less than full power at the initiation
of takeoff and gradually increasing the engine power as air speed increases
during take-off, as called for by each of independent claims 19 and 34.
Accordingly, without sufficient evidence or reasoning to support the
Examiner’s finding that the FADECs of Vos and Page necessarily provide
less than full power at the initiation of takeoff and full power during takeoff,
we find that neither Vos nor Page discloses limiting power applied to the
engine to less than full power at the initiation of takeoff and gradually
increasing the engine power as air speed increases during takeoff, as called
for by each of independent claims 19 and 34.
Regarding the Examiner’s second position, we first note that an
ordinary and customary meaning of the term “take-off” is “a rise or leap
from a surface in making a jump or flight or an ascent in an aircraft.”
MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th Ed. 1997). In contrast,
an ordinary and customary meaning of the term “taxi” is “to operate an
aircraft on the ground under its own power.” Id. Thus, we agree with
Appellant that, “the maneuver of taxi[i]ng is different than the maneuver of a
takeoff.” Reply Br. 5. As such, we agree with Appellant that in Figure 5C
of Danielson, the control system maintains the power level of the engine at a
constant level during takeoff (time 41-55). Id. Accordingly, Figure 5C of
Danielson does not disclose gradually increasing engine power during
takeoff, as required by each of independent claims 19 and 34.
In conclusion, for the foregoing reasons, the rejection of claims 19-29
and 34-36 under 35 U.S.C. § 103(a) as unpatentable over Vos, Page, and
Danielson is not sustained. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir.
1988).
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Claims 30-33
Independent claim 30 requires, inter alia, “limiting the power applied
to the propeller to the maximum effective power that can be applied without
stalling the propeller, despite a nominal pilot demand for substantially full
power.” App. Br., Claims App’x.
The Examiner found that the throttle level 65 in Danielson constitutes
the claimed “maximum effective power” to achieve takeoff. Ans. 9; see also
Danielson, fig. 5C.
Appellant argues that “[i]n Danielson, “the maximum power level
angle (throttle position) is the 65% value.” Reply Br. 5. Hence, according
to Appellant, “Danielson teaches the power level angle (i.e. throttle) is at full
power for takeoff.” Reply Br. 10.
The Examiner responds that, “Applicant’s conclusion that a throttle of
65 is the maximum engine power is not necessarily convincing since
Danielson does not seem to mention that 65 is the maximum.” Ans. 9.
Although we appreciate the Examiner’s position that Danielson does
not explicitly disclose that the power level angle (throttle position) of 65
corresponds to a level of full power, nonetheless, we note that the power
level angle (throttle position) of 65 appears to be the highest power level
achieved by Danielson’s engine between engine start at time 0 and landing
at time 70. See Danielson, fig. 5C. Moreover, we note that Danielson does
not disclose that the power level angle (throttle position) of 65 corresponds
to a level that is less than full power, as the Examiner proposes. As such, the
Examiner’s finding that the power level angle (throttle position) of 65
corresponds to the claimed “maximum effective power,” is mere speculation
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based on an unfounded assumption that the power level angle (throttle
position) of 65 corresponds to a level that is less than full power.
Accordingly, the Examiner has not made the initial factual findings required
to demonstrate a prima facie case of obviousness of independent claim 30.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (the examiner has the
initial duty of supplying the requisite factual basis and may not, because of
doubts that the invention is patentable, resort to speculation, unfounded
assumptions, or hindsight reconstruction to supply deficiencies in the factual
basis).
Thus, the rejection of independent claim 30 and dependent claim 31-
33 under 35 U.S.C. § 103(a) as unpatentable over Vos, Page, and Danielson
is not sustained.

SUMMARY
The decision of the Examiner to reject claims 19-36 is reversed.

REVERSED

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