Ex Parte Kirk et al

Patent Trial and Appeal Board

Jan 30, 2018

14281627 (P.T.A.B. Jan. 30, 2018)

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.
14/281,627 05/19/2014 James C. Kirk H0041121-5447/1121-571US1 4879
89941 7590 02/01/2018
HONEYWELL/S&S
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
BADII, BEHRANG
ART UNIT PAPER NUMBER
3667
NOTIFICATION DATE DELIVERY MODE
02/01/2018 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):
patentservices-us @ honey well, com
pairdocketing @ ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES C. KIRK, MATEJ DUSIK,
ONDREJ POKORNY, and ANDREW F. LAMKIN
Appeal 2017-003486
Application 14/281,627
Technology Center 3600
Before JOSEPH L. DIXON, LARRY J. HUME, and
AARON W. MOORE, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appeal 2017-003486
Application 14/281,627
STATEMENT OF THE CASE
Appellants1 request rehearing under 37 C.F.R. § 41.52 of our Decision
mailed October 30, 2017. In our Decision, we affirmed the Examiner’s
rejections of claims 1—20 under 35 U.S.C. §§ 101, 102, and 103.
We reconsider our Decision in light of Appellants’ arguments in the
Request, but decline to change the Decision. We are not persuaded we
misapprehended or overlooked the points argued by Appellants in rendering
our Decision. Additionally, we do not find that our Decision was an
undesignated new ground of rejection.
We deny Appellants’ Request for Rehearing.
The claims are directed to an aircraft strike zone display. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method comprising:
detecting, by a processor, an object in an image captured
by a camera on an aircraft;
determining, by the processor, a distance range of the
object relative to a portion of the aircraft;
generating, by the processor, a graphical user interface
comprising a strike zone indication based on the determined
distance range of the object, wherein the strike zone indication is
scaled to indicate a strike zone of the aircraft if the aircraft was
at the distance range of the detected object, the strike zone being
a volume of space that at least a part of the aircraft would occupy
if the at least the part of the aircraft was at the distance range of
the detected object; and
1 Appellants indicate that the real party in interest in this appeal is
Honeywell International Inc., the assignee. (App. Br. 3).
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displaying, via a display device, the graphical user
interface.
ANALYSIS
35U.S.C.§ 101
With respect to the rejection under 35 U.S.C. § 101, Appellants
contend the Examiner relied upon Thales Visionix, Inc. (TVI) v. The United
States, 122 Fed. Cl. 245 (2015), which was overturned by the Federal
Circuit. (Request 3). Appellants further contend that the Board’s Decision
incorporating and adopting the specific findings and reasons set forth by the
Examiner unnecessarily adopted the Examiner’s reliance upon the TVI case.
(Request 4). We disagree with Appellants’ contention and identify that we
specifically address Electric Power in the Decision as having similar claims
and analysis. (Decision 8).
Appellants contend the Federal Circuit’s holding in TVI applies to the
instant case. (Request 5). Appellants further contend “the Board’s assertion
that ‘claim 1 is directed to an abstract idea of mathematical
relationships/formulas for determining the relative position of an
object/target to a moving reference frame’ is inconsistent with the Federal
Circuit’s holding in TVI, and thus is an erroneous basis for upholding the
Examiner’s rejection of claim 1 under 35 U.S.C. § 101.” Id. Additionally,
Appellants argue “the Board appears to have misapprehended the
applicability of the relevant case law to the instant case.” Id.
We disagree with Appellants and find both the claims and invention in
the TVI case were more specifically drafted to remedy a particular problem,
and we do not find the same specificity in the present claims and prosecution
history. We found in the Decision, “[cjontrary to Appellants’ arguments
(App. Br. 8—14; Reply Br. 3—6), the claims are similar to the claims of
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Application 14/281,627
Electric Power. ” (Decision 8). Consequently, Appellants’ reliance upon the
TVI case does not show we misapprehended or overlooked the points argued
by Appellants in rendering our Decision.
Appellants further contend “the Federal Circuit ‘look[ed] to whether
the claims in these patents focus on a specific means or method that
improves the relevant technology, ’ and held ‘ [a] claim [that] uses [] limited
rules in a process specifically designed to achieve an improved technological
result in conventional industry practice.’” (Request 6; citingMcRO, Inc. dba
Planet Blue v. Bandai Namco Games America Inc., 837 F.3d 1299, 1314
(Fed. Cir. 2016) (footnotes omitted). We disagree with Appellants and find
Appellants have not presented evidence pointing to specific means or
methods that improve the relevant technology or identified limited rules in a
process specifically designed to achieve an improved technological result in
a conventional industry practice.
Consequently, Appellants do not show we misapprehended or
overlooked the points argued by Appellants in rendering our Decision.
Appellants contend that, unlike the claims in Electric Power, which
were found to be directed to abstract ideas,
Appellant’s claim 1 provides a particular solution to the problem
of strike zone displays that include objects not actually within a
strike zone of an aircraft which may arise from strike zones that
are unmodified by distance, and identifies a particular tool for
presenting that solution or outcome by reciting a display device
by which the graphical user interface comprising the strike zone
is displayed.
(Request 8). Appellants further contend the Board misapprehended the case
law applicable to the instant case. (Request 8). We disagree with
Appellants and do not find that we misapprehended the case law, and we do
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not find Appellants’ claim language provides a particular solution to the
problem of strike zone displays. We note the language of independent
claim 1 recites four steps of detecting, determining, generating, and
displaying, and we find a majority of the claim is directed to the content of
the information in the graphical user interface and does not present a
“particular solution” or a “particular tool.”
Appellants contend independent claim 1 recites meaningful
limitations placed upon the application of mathematical relationships/
formulas, thereby indicating claim 1 is not directed to performing
mathematical operations on a computer alone. (Request 8—9). Specifically,
Appellants contend “the processor recited in claim 1 acts in concert with a
camera on an aircraft to enable the processor to generate a graphical user
interface comprising a strike zone indication that is scaled to indicate a strike
zone of the aircraft if the aircraft was at the distance range of a detected
object.” (Request 9). We disagree with Appellants’ contention and find that
the detecting step with the camera is not specifically tied to the determining
step, and therefore does not act in “concert.” Additionally, Appellants
contend claim 1 is applied “to improve the technology of obstacle detection
for aircraft.” (Request 9). While we agree with Appellants, we further find
Appellants’ Specification more specifically identifies the improvement in
technology to lie in the “determining the distance range allows a strike zone
indication to be normalized in height over a distance range, which may help
processor 14 generate a strike zone indication display that is more
meaningful and more accurately reflects the real world relationship between
the vertical strike zone of aircraft 10 and a detected object. ” (Spec. 144)
(emphases added). We find the improvement in technology is in the
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mathematical processing of the data which is generically recited in the
language of independent claim 1.
Appellants contend the Board misapprehended Appellants’ remarks
regarding claim 1 as applied to improve the technology of obstacle detection
for aircraft. (Request 9). Appellants repeat the language of the claim with
emphases.
We find the language of independent claim 1 is directed to a generic
“method” recited in the preamble. (Request 9). Appellants generally
contend the claimed invention is far from being implemented solely on a
“generic computer or network.” (Request 9). Appellants further argue “the
method of claim 1 is implemented on a system that includes an aircraft in
proximity to an object and a camera capable of detecting the object and
interacting with a processor to generate a graphical user interface comprising
a strike zone of the aircraft.” (Request 9). We find Appellants’ argument is
not commensurate in scope with the express language of independent
claim 1. Consequently, we find Appellants’ arguments do not identify
points misapprehended or overlooked by the Board in rendering our
Decision.
Finally, Appellants contend the Board misapprehended or overlooked
Appellants’ arguments because Appellants did not discuss or cite the
Electric Power Group case. (Request 10). We merely clarify that we found
the claims in the Electric Power Group case to be more similar to
Appellants’ claims than the cases discussed by Appellants throughout the
Appeal Brief and Reply Brief. As a result, we find Appellants’ arguments
do not identify points misapprehended or overlooked by the Board in
rendering our Decision.
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Prior Art Rejections
Appellants contend the Board misapprehended Appellants’ remarks
pertaining to the failure of Durand to disclose the “generating” and
“displaying” steps recited in independent claim 1, and Appellants further
contend the Board introduced a new ground of rejection by additionally
asserting the claims recite non-functional descriptive material. (Request 10).
Appellants request that the Board designate the affirmation of the rejection
of claim 1 on the basis of the alleged recitation of non-functional descriptive
material as a new ground of rejection. (Request 10).
We decline to designate our affirmance of the rejection of independent
claim 1 as a new ground of rejection. The Decision affirmed the Examiner’s
rejection based upon the disclosure of the Durand reference, and found
Appellants’ arguments to be unpersuasive of error in the Examiner’s finding.
(Decision 15, 17). The Decision stated “[additionally, we find the graphical
user interface merely recites nonfunctional descriptive material which does
not change the steps performed by the processor in the claimed ‘method” of
independent claim 1.” (Decision 15). Consequently, our affirmance of the
anticipation rejection of independent claim 1 did not rely upon an
interpretation of non-functional descriptive material, but merely was an
additional identification of the breath of independent claim 1.
Appellants further contend the Board’s new basis of rejection of
independent claim 1 creates an inconsistency with the rejection of
independent claims 9 and 17. (Request 10—11). To clarity, we find the
similar language of independent claims 9 and 17 to have a similar
interpretation as independent claim 1, but find Appellants did not set forth
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any specific arguments for patentability different than those advanced with
respect to independent claim 1.
Designation of a New Ground of Rejection of Claim 1
Appellants generally contend the Board’s discussion of non-functional
descriptive material in the “Decision on Appeal relied on a different
articulated reasoning and different factual underpinnings in addition to those
set forth by the Examiner.” (Request 11). Appellants further contend:
[T]the rejection to which Appellant’s Appeal Brief and Reply
Brief were directed is different than the rejection that appears in
the Decision on Appeal. As these changes are not simply a
further explanation of the Examiner’s ground of rejection and
rely upon new findings of fact and law, the rejection by the Board
on the basis of allegedly non-functional descriptive material
includes a new ground of rejection.
(Request 12). We disagree with Appellants and find that the Decision did
not rely upon non-functional descriptive material in the rejection, but merely
identified it as an additional claim interpretation.2 We note Appellants
merely reiterate “new findings of fact and law,” but did not specifically
identify any new findings of fact or new (intervening) law.
Appellants further contend that In re DiStefano, as set forth in MPEP
§ 2111.05, requires that, in order to determine a claim recites non-functional
descriptive material that is not entitled to patentable weight, two findings
2 We also note our finding the presence of non-functional descriptive
material in the claim recitations merely buttresses the Examiner’s findings of
unpatentability over the cited prior art. Claim construction at the Patent
Trial and Appeals Board is a question of law, which is reviewed de novo. In
re Donaldson Co., 16 F.3d 1189, 1192 (Fed. Cir. 1994) (en banc).
Accordingly, even assuming our claim construction findings and conclusions
and Decision based thereon were the sole reasons we affirmed the Examiner,
they do not amount to a new ground of rejection.
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Application 14/281,627
must be made and the Board failed to make either finding in the Decision on
Appeal with respect to claim 1. (Request 13). As we stated, we did not rely
upon a mere assertion of non-functional descriptive material for the
disclosure of the Durand reference to anticipate independent claim 1 (and
independent claims 9 and 17). Rather, we found that the Durand reference
discloses the invention as broadly recited in the language of independent
claim 1.
Additionally, we noted the material displayed on the graphical user
interface does not change the method recited in the four steps of the
“method” of independent claim 1. Consequently, the material that is
displayed is printed and visible and there is no functional or structural
relationship to the display screen. The information as claimed in the
graphical user interface is merely information to be consumed by a user.
Appellants contend the language of independent claim 1 does not
claim the content of the information but “subject matter is recited as types of
information used by the processor within the context of how the graphical
user interface comprising a strike zone indication is generated.” (Request
14) (emphases deleted). We disagree with Appellants and do not find that
the “wherein” clause provides context of how the graphical user interface is
generated because it does not specifically recite steps in the four step
method, but merely provides information about the data that may be
displayed.
Appellants further contend “any information recited in the
‘generating’ step of claim 1 bears a functional relationship to how the
processor generates the graphical user interface.” (Request 15). Appellants
further contend “the alleged descriptive material of claim 1 bears a
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functional relationship to the processing undertaken by the processor in
order to generate the graphical user interface comprising a strike zone
indication.” (Request 15). We find Appellants’ argument is not
commensurate in scope with the language of the four step “method” of
independent claim 1.
Here, Appellants attempt to read limitations from the Specification
into the claim regarding the descriptive material to be active steps in the
generic “method” which are not present. As a result, Appellants have not
identified any points misapprehended or overlooked in the Decision. Nor
have Appellants identified that the affirmance of the rejection in this
Decision should be designated as a new ground of rejection. As a result, we
find Appellants’ arguments do not identify points misapprehended or
overlooked by the Board in rendering our Decision.
Appellants sequentially provide summaries of each of the cases cited
with respect to non-functional descriptive material and generally contend
that “subject matter recited in the ‘generating’ step of the method of claim 1
is not non-functional descriptive material, but instead directly relates to the
function of the processor used in the method” (Request 15); “Appellant’s
claim recites how the processor manages information (e.g., the determined
distance range) to generate the graphical user interface comprising the strike
zone indication of claim 1” (Request 16); “even if any portion of the
‘generating’ step of claim 1 properly could be characterized as claiming the
content of information (i.e., as reciting printed matter), which Appellants do
not concede, any such information has a functional relationship to the
graphical user interface” (Request 16); “the subject matter recited in the
‘generating’ paragraph of Appellants’ claim 1 does functionally affect the
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process of generating, by the processor, the strike zone indication recited in
claim 1(Request 17). We are not persuaded of the presence of the
required functional relationship in the claim and, as a result, we find
Appellants’ arguments do not identify points misapprehended or overlooked
by the Board in rendering our Decision.
35 U.S.C.§ 102
Claim 1
With respect to claim 1, Appellants contend the statement in the
Decision that Appellants’ arguments were deemed to be a general denial
overlooks or misapprehends Appellants’ arguments, and Appellants reiterate
the arguments advanced differentiating the disclosure of the Durand
reference. (Request 18—22). We disagree with Appellants and find our
Decision adequately addresses Appellants’ arguments. (Decision 13—17).
We find Appellants’ disagreement does not identify points misapprehended
or overlooked by the Board in rendering our Decision regarding the
anticipation rejection independent claim 1.
Claims 9 and 17
Appellants disagree with the separate addressing and phrasing of our
discussion in the Decision regarding independent claim 9. (Decision 18—
19). We note Appellants do not identify any points misapprehended or
overlooked in rendering our Decision, but merely contend that the cited
paragraphs 23—28 of the Durand reference do not disclose the “processing
and scaling of objects to determine probable collisions and issuing alarms or
warnings.” (Decision 19).
We disagree with Appellants and specifically note the Durand
reference discloses:
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In one embodiment, the GCAU 420 may include a screen
or display 422 for providing a visual image to the crew. The
visual image may include a representative image of an obstacle
in relation to a part of the aircraft such as a wingtip. The display
422 may also show other data relevant to a distance between the
aircraft and the obstacle and/or to an action for avoiding or
preventing a collision.
(Durand 127). As a result, Appellants do not identify points
misapprehended or overlooked by the Board in rendering our Decision
regarding the anticipation rejection independent claim 9, and Appellants do
not set forth separate arguments or contentions with regard to independent
claim 17.
35 U.S.C.§ 103
Appellants contend the Board overlooked Appellants’ arguments in
the Appeal Brief that establish the Examiner did not set forth a rational line
of reasoning for combining the imaging described by Lin with the RF-based
measurements described by Durand. (Request 26).
Appellants repeat the arguments from the Appeal Brief regarding the
combination and generally aver that the problem was solved by the Durand
reference and Lin was unnecessary because the problem was solved in the
primary reference. (Request 26).
We find Appellants’ arguments do not address the Examiner’s
proffered line of reasoning. (Final Act. 16—17). In closing, Appellants
contend that the Lin reference fails to overcome the deficiencies of Durand
discussed with respect to the anticipation rejection. (Request 26).
Appellants do not identify points misapprehended or overlooked by the
Board in rendering our Decision regarding the obviousness rejection
independent claim 1.
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DECISION
We grant Appellants’ Request for Rehearing to the extent we have
reconsidered our Decision, but we deny the Request with respect to making
any changes thereto.
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). See 37
C.F.R. §41.50(f).
REQUEST FOR REHEARING - DENIED
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