Ex Parte KusicDownload PDFBoard of Patent Appeals and InterferencesAug 29, 201111454309 (B.P.A.I. Aug. 29, 2011) Copy Citation 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. 11/454,309 06/16/2006 Tom Kusic 6562 7590 08/29/2011 TOM KUSIC PO BOX 932 MELBOURNE, 3001 AUSTRALIA EXAMINER DINH, TIEN QUANG ART UNIT PAPER NUMBER 3644 MAIL DATE DELIVERY MODE 08/29/2011 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 2010-003523 Application 11/454,309 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 2010-003523 Application 11/454,309 2 STATEMENT OF THE CASE The Appellant seeks our review under 35 U.S.C. § 134 (2002) of the final rejection of claim 1 which is the only claim 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). 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 Appeal 2010-003523 Application 11/454,309 3 connected to the main body of the aircraft, with an additional rotor assembly, consisting of an assembly of blades and a rotor, connected to the aircraft, which said additional rotor assembly is used to force air to travel in a horizontal direction, for which said additional rotor assembly rotation is achieved by means of a 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 rotation of the main rotor assembly can be countered, and said aircraft comprises a means to grasp at least one tree that is growing in a forest such that the aircraft is able to gain support from the at least one tree by said means grasping the at least one tree. 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 McDonnell US 4,267,987 May 19, 1981 The following rejection is before us for review: 1. Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable over Sudrow, Burke, and McDonnell. THE ISSUE This issue turns on whether the cited prior art of Sudrow, Burke, and McDonnell disclose the claim limitations which have been argued and if the combination of references would have been obvious. Appeal 2010-003523 Application 11/454,309 4 FINDINGS OF FACT We find the following findings of fact are supported at least by a preponderance of the evidence:1 We adopt the Examiners finding of facts at page 3 of the Examiner’s Answer. 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 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 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 2010-003523 Application 11/454,309 5 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. ANALYSIS The Appellant argues that the rejection of claim 1 is improper because the Sudrow reference “does not state that the engine 22 performs any function other than provide power” and that the claim recites that the “blades are above the rotor driving assembly” (Br. 3). The Appellant also argues that adding a secondary rotor to Sudrow's device as shown in Burke would Appeal 2010-003523 Application 11/454,309 6 not result in the aircraft as stated (Br. 4). The Appellant also argues that McDonnell’s gripping member does not provide support when a tree is grasped (Br. 5). The Appellant makes similar arguments in the Reply Brief. In contrast, the Examiner has determined that rejection of record is proper (Ans. 3-5). We agree with the Examiner’s rationale for the rejection as set forth in the Answer at page 3 and affirm the rejection of claim 1. 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. McDonnell shows a helicopter with a probe 29 which can grip items. The modification of the rotor aircraft of Sudrow to include an additional rotor set in the vertical direction as taught by Burke, and to include a probe for gripping and hauling items as taught by McDonnell is considered to be an obvious, predictable modification of known elements for the advantage of more stable flight and the ability to haul items. For these above reasons the rejection of record is sustained. CONCLUSIONS OF LAW We conclude that Appellant has not shown that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) as unpatentable over Sudrow in view of Burke. Appeal 2010-003523 Application 11/454,309 7 DECISION The Examiner’s rejection of claim 1 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