Ex Parte Kusic

Board of Patent Appeals and Interferences

Aug 29, 2011

11454309 (B.P.A.I. Aug. 29, 2011)

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
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Application 11/454,309
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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.

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Application 11/454,309
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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).
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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
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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.

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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

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