Ex Parte KusicDownload PDFBoard of Patent Appeals and InterferencesAug 29, 201111442404 (B.P.A.I. Aug. 29, 2011) Copy Citation 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 3 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 4 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). Appeal 2009-013841 Application 11/442,404 5 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. Appeal 2009-013841 Application 11/442,404 6 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. Appeal 2009-013841 Application 11/442,404 7 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 hh Copy with citationCopy as parenthetical citation