Ex Parte Kusic

Board of Patent Appeals and Interferences

Aug 29, 2011

11442404 (B.P.A.I. Aug. 29, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/442,404 05/30/2006 Tom Kusic 1478
7590 08/30/2011
TOM KUSIC
PO BOX 932
MELBOURNE, VIC, 3001
AUSTRALIA
EXAMINER
DINH, TIEN QUANG
ART UNIT PAPER NUMBER
3644
MAIL DATE DELIVERY MODE
08/30/2011 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 TOM KUSIC
____________

Appeal 2009-013841
Application 11/442,404
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and BIBHU
R. MOHANTY, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-013841
Application 11/442,404
2
STATEMENT OF THE CASE
The Appellants seek our review under 35 U.S.C. § 134 (2002) of the
final rejection of claims 1-4 which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF THE DECISION
We AFFIRM.

THE INVENTION
The Appellant’s claimed invention is directed to a vertical take-off
aircraft (Spec. 1-2). Claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A vertical take-off aircraft, comprising a main rotor
assembly at the top of the aircraft, which said main rotor
assembly comprises an assembly of blades and a rotor, and
such that the said main rotor assembly is above a main body
of the aircraft, with vertical lift being achieved by means of
at least one power plant rotating the main rotor assembly
thereby forcing air in a downward direction by way of the
blades in the main rotor assembly, and which said blades are
above the at least one power plant, and which said at least
one power plant is connected to the main body of the aircraft
by a tilt enabling joint, such that the main rotor assembly
and the at least one power plant can be tilted together as a
unity in a plurality of directions and angles relative to the
main body of the aircraft, in a controlled manner, such that
the direction of travel of the aircraft can be altered by
altering the direction of tilt of the at least one power plant
relative to the main body of the aircraft, and which said tilt
enabling joint is connected to the main body of the aircraft
with a secondary rotor assembly, comprising of an assembly
of blades and a rotor, connected to the aircraft, which said
secondary rotor assembly is used to force air to travel in a
Appeal 2009-013841
Application 11/442,404
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horizontal direction, for which said secondary rotor
assembly rotation is achieved by means of at least one
additional power plant, such that by forcing air to travel in a
horizontal direction, relative to the main body of the aircraft,
a rotational force exerted on the main body of the aircraft by
the rotation of the main rotor assembly can be countered.

DISPOSITION OF THE APPEAL
The Examiner entered a new ground of rejection in the Examiner’s
Answer against claims 1-4 which were provisionally rejected on the grounds
of nonstatutory obviousness-type double patenting as being unpatentable
over claims 1-6 and 13-18 of then co-pending Application No. 10/651,948.
(Supp. Ans. 4). A review of the record indicates that Application No.
10/651,948 was abandoned on October 31, 2008. As the previously co-
pending Application 10/651,948 is now abandoned the basis for this
rejection is no longer applicable and the rejection is therefore dismissed.
Given that this rejection has been dismissed, the rejections before us for
review are reduced to those listed in the following section.

THE REJECTION
The Examiner relies upon the following as evidence in support of the
rejection:
Burke US 2,378,617 Jun. 19, 1945
Sudrow US 3,135,481 Jun. 2, 1964

The following rejection is before us for review:
1. Claim 1-4 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Sudrow in view of Burke.

Appeal 2009-013841
Application 11/442,404
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THE ISSUE
This issue turns on whether the cited prior art of Sudrow and Burke
discloses the claim limitations which have been argued and if the
combination of references would have been obvious to meet the claimed
invention.

FINDINGS OF FACT
We find the following enumerated findings of fact (FF) are supported
at least by a preponderance of the evidence:1 We adopt the Examiners
finding of facts at pages 5-6 of the Supplemental Examiner Answer mailed
July 24, 2009. Additional facts may appear in the Analysis section below.

PRINCIPLES OF LAW
Section 103(a) forbids issuance of a patent when “the
differences between the subject matter sought to be patented
and the “prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains.”
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations
including (1) the scope and content of the prior art, (2) any differences
between the claimed subject matter and the prior art, (3) the level of skill in
the art, and (4) where in evidence, so-called secondary considerations.
Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 550

1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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Application 11/442,404
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U.S. at 407 (“While the sequence of these questions might be reordered in
any particular case, the [Graham] factors continue to define the inquiry that
controls.”)
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art” id. at 415-16, and discussed circumstances in which a patent might be
determined to be obvious. In particular, the Supreme Court emphasized that
“the principles laid down in Graham reaffirmed the ‘functional approach’ of
Hotchkiss, 11 How. 248.” KSR, 550 U.S. at 415, (citing Graham, 383 U.S.
at 12), and reaffirmed principles based on its precedent that “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 416.
The Court also stated “[i]f a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability.” Id. at 417. The
operative question in this “functional approach” is thus “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” Id.
The Court noted that “[t]o facilitate review, this analysis should be
made explicit.” Id. at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness”). However, “the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id.
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ANALYSIS
The Appellant argues that the rejection of claim 1 is improper because
the Sudrow reference “does not state that the engine performs any function
other than provide power” and that the claim recites that the “blades are
above the power plant” (Br. 3). The Appellant also argues that adding a
secondary rotor to Sudrow's device as shown in Burke would not result in
the aircraft as stated (Br. 4). The Appellant makes similar arguments in the
Reply Brief and Amended Reply Brief.
In contrast, the Examiner has determined that rejection of record is
proper (Supp. Ans. 5-6).
We agree with the Examiner’s rationale for the rejection as set forth in
in the Supplemental Answer at pages 5-6 and affirm the rejection of claim 1
and for claims 3-4 which were not separately argued by the Appellant. We
begin by noting that Sudrow discloses an aircraft with rotor blades 12, 14
placed above a driving engine 22 as well as a rotating joint 80 for the blades.
Claim 1 recites in part that the “blades are above the at least one power
plant” and Sudrow’s driving engine 22 is placed in such a position relative to
the blades 12, 14. Claim 1 makes reference to a limitation for the “one
power plant” but not for any further “drive assembly.” Burke shows a
secondary rotor set 7 on a helicopter with a separate motor 8. The
modification of the rotor aircraft of Sudrow to include an additional rotor set
in the vertical direction as taught by Burke is considered to be an obvious,
predictable modification of known elements for the advantage of more stable
flight as taught by Burke. For these above reasons the rejection of record is
sustained.

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CONCLUSIONS OF LAW
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 1-4 under 35 U.S.C. § 103(a) as unpatentable over Sudrow
in view of Burke.

DECISION
The Examiner’s rejection of claims 1-4 is sustained.
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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