Ex Parte MacDougall

Patent Trial and Appeal Board

Nov 23, 2016

10794471 (P.T.A.B. Nov. 23, 2016)

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.
10/794,471 03/05/2004 James MacDougall H0006613 (002.4028) 9241
89955 7590 11/28/2016
HONEYWELL/LKGlobal
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
DINH, TIEN QUANG
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
11/28/2016 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
DL-ACS-SM-IP@Honeywell.com
docketing @LKGlobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES MacDOUGALL
Appeal 2014-007881
Application 10/794,471
Technology Center 3600
Before LINDA E. HORNER, JOHN C. KERINS, and
PHILLIP J. KAUFFMAN, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James MacDougall (Appellant)1 seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision, as set forth in the Final Office Action,
dated September 25, 2013 (“Final Act.”), rejecting claims 1, 2, 21-29, 31,
32, and 34^10. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellant identifies the real party in interest as Honeywell International,
Inc. Appeal Br. 1.
Appeal 2014-007881
Application 10/794,471
CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to “aircraft engine controls
that consider ground proximity.” Spec., para. 1. Claims 1,21, and 29 are
independent. Claim 1 is reproduced below.
1. A system for controlling the power setting of an
aircraft engine, comprising:
a ground proximity unit (GPU) for measuring current
aircraft height-above-terrain (HAT) values He;
one or more sensors coupled to the engine for detecting an
out-of-range operating condition of the engine;
an engine control unit (ECU) coupled to the GPU, the one
or more sensors and the engine for controlling operation of the
engine in response to He and engine operating values determined
by the one or more sensors; and
wherein, when the one or more sensors detects an out-of­
range operating condition of the engine, which out-of-range
operating condition of the engine is normally curable by reducing
the engine power setting in order to prevent harm to the engine,
the ECU, does not automatically reduce the power setting of the
engine if He < H(min) wherein H(min) is a minimum cruising
HAT value for the aircraft.
EVIDENCE
The Examiner relied upon the following evidence:
Zagranski
Sherry
Greene
US 4,500,966
US 5,337,982
US 6,450,456 B1
Feb. 19, 1985
Aug. 16, 1994
Sept. 17, 2002
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Application 10/794,471
REJECTIONS
The Final Action included the following grounds of rejection:
1. Claims 1, 2, 21-29, 31, 32, and 34^10 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description
requirement.
2. Claims 1, 2, 21-29, 31, 32, and 34 under 35 U.S.C. § 103(a) as
unpatentable over Greene and Zagranski.
3. Claims 1, 21, 29, and 35-40 under 35 U.S.C. § 103(a) as
unpatentable over Sherry, Greene, and Zagranski.
PRIOR APPEAL
The present application was the subject of a prior appeal in which the
Board affirmed a rejection of then-pending claims 1-7 and 21 under
35 U.S.C. § 103(a) as unpatentable over Greene and Zagranski. Appeal
2009-006088 (BPAI, May 13, 2010). The claims have been amended since
the issuance of the decision in this prior appeal.
ANALYSIS
Written Description
Independent Claims 1 and 29
The Examiner rejected independent claims 1 and 29 for lack of
adequate written description because the claim limitations that the system
operate “wherein H(min) is a minimum cruising HAT value for the aircraft”
and “wherein the predetermined threshold comprises a cruising altitude for
the aircraft,” as recited in independent claims 1 and 29, respectively, are not
supported adequately in the Specification. Final Act. 3. The Examiner
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Application 10/794,471
explained that the word “cruising” is not used in Appellant’s Specification
and that:
[The] term “cruising” can deal with extremely high altitude such
as long haul aircraft that can reach past 30,000 feet and cruise at
that altitude. Furthermore, it is quite clear (especially with the
disclosure and the drawings) that the current invention deals
primarily with low altitude or landing (see paragraph 0023 of the
specification) and not with ‘cruising’ such as those higher
altitude. Therefore, the inclusion of the word “cruising” expands
the scope of the invention and is thus new matter.
Id. (defining “cruising” according to its plain meaning as “travel at a
moderate and efficient speed”).
We disagree with the Examiner that the addition of “cruising” to
claims 1 and 29 expands the scope of the invention. Paragraph 23 of the
Specification, on which the Examiner relies for this determination, describes
that during flight, the invention prevents the ECU “from independently and
without pilot input, reducing the engine thrust under conditions where the
aircraft is below a predetermined HAT threshold.” This paragraph further
describes that, for other or different scenarios such as landing, the ECU
responds appropriately to power settings of the engines requested by the
pilot or other flight crew. Id. In other words, the automated system is
overridden when a pilot or other flight crew requests a power setting of the
engines, such as might be requested during landing. Id. Thus, contrary to
the Examiner’s position that the invention deals primarily with low altitude
or landing; rather, the Specification describes that the automated operation
of the ECU may not operate during landing if overridden by pilot inputs.
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Application 10/794,471
For these reasons, we do not sustain the Examiner’s rejection of independent
claims 1 and 29, and their dependent claims 2, 22-25, 31, 32, 34, 35, 37, 38,
and 40, under 35 U.S.C. § 112, first paragraph for lack of adequate written
description.
Independent claim 21
Independent claim 21 recites, in relevant part:
an engine control unit coupled to receive the proximity signal
and the one or more engine parameter signals and operable, in
response thereto, to reduce the power of the engine if (i) one or
more of the engine parameter signals indicates an out-of-range
operating condition of the engine, which out-of-range operating
condition of the engine is normally curable by reducing the
engine power setting in order to prevent harm to the engine in
order to prevent harm to the engine, and (ii) the proximity of the
aircraft to the ground surface is at or above a predetermined
proximity value, reducing downward drift of the aircraft.
Appeal Br. 24 (Claims App.). With respect to independent claim 21, the
Examiner explained that “applicant use of the terms ‘downward drift’ is also
considered new matter since applicant has stated on the record that this can
mean ‘cruising.’” Final Act. 3. The Examiner further stated “applicant has
claimed that ECU reduces the power to the engine when ‘(ii) the proximity
of the aircraft to the ground surface is at or above a predetermined proximity
value, reducing downward drift. ’ However, this seems to be a contradiction
since a reduction in power does not appear to ‘reduce downward drift.’” Id.
We agree with the Examiner that the written description fails to provide
adequate support for a system in which reducing power to the engine causes
a reduction in downward drift. To the contrary, the Specification describes
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Application 10/794,471
maintaining the thrust being provided by the engine to avoid having the
aircraft drift lower. Spec., para. 23. For this reason, we sustain the rejection
of independent claim 21, and its dependent claims 26-28, 36, and 39, under
35 U.S.C. § 112, first paragraph, for lack of adequate written description.
Obviousness
Claims 1 and 29
Both grounds of rejection based on obviousness of claims 1 and 29 are
based on the Examiner’s interpretation of “cruising” as encompassing
landing. In particular, the Examiner found that “Greene discloses an
airborne power control system for automatically controlling power during
the landing of an aircraft.” Final Act. 4 (citing Greene, col. 1,11. 5-8). The
Examiner explained that “[bjroadly interpreted, landing an aircraft is
considered ‘cruising’ since it is done with a ‘moderate and efficient speed.’”
Id. (quoting dictionary definition of “cruising” found in dictionary.com).
Further, the Examiner determined it would have been obvious “to have made
the ECU of Sherry not reduce power if the current altitude is below that of
the minimum current altitude as taught by Greene so that the aircraft can still
fly quickly.” Id. at 12 (finding that “Sherry’s aircraft is ‘cruising’ since it is
flying at a moderate and efficient speed for landing”). For the reasons that
follow, the Examiner’s definition of “cruising” is unreasonably broad in
light of the understanding of one having ordinary skill in the avionics field.
The Examiner relies improperly on a general dictionary definition of
“cruising” even though this term has a narrower meaning in the art, as
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Application 10/794,471
evidenced by the prior art of record. For example, Sherry distinguishes
between different engagement scenarios including takeoff, climb, cruise, and
descent. Sherry, Fig. 6. The Examiner’s definition of “cruising” is also
contradicted by evidence submitted by Appellant. For example, Exhibit B
attached to the Declaration Under 37 C.F.R. § 1.132 of James MacDougall,
dated July 19, 2013, provides that the cruise phase is understood to begin at
the point where the aircraft reaches the top of climb. Ex. B, p. 2. This
evidence supports Appellant’s position that the Examiner’s interpretation of
“cruising” to encompass all phases of a flight is unreasonably broad. Reply
Br. 2 (arguing that the Examiner is failing to use the well-known aviation
definition of ‘cruise’”). For these reasons, both of the grounds of rejection
of independent claims 1 and 29, and their dependent claims 2, 22-25, 31, 32,
34, 35, 37, 38, and 40, are based on an unreasonably broad interpretation of
the claims. Accordingly, we do not sustain the rejections under 35 U.S.C.
§ 103(a) of these claims.
Claims 21, 26-28, 36, and 39
Having determined that claims 21, 26-28, 36, and 39 are unpatentable
under 35 U.S.C. § 112, first paragraph, for lack of adequate written
description, and because we agree with the Examiner that the claim language
is inconsistent with the written description and requires clarification, we
reverse the rejections of these claims under 35 U.S.C. § 103(a), because a
determination of obviousness would require speculation as to the scope of
the claims. See In re Steele, 305 F.2d 859, 862-63 (CCPA 1962) (holding
that the Board erred in affirming a rejection of indefinite claims under
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Application 10/794,471
35 U.S.C. § 103(a), because the rejection was based on speculative
assumptions as to the meaning of the claims).
DECISION
We sustain the rejection of claims 21, 26-28, 36, and 39 under
35 U.S.C. § 112, first paragraph.
We do not sustain the rejection of claims 1, 2, 22-25, 29, 31, 32, 34,
35, 37, 38, and 40 under 35 U.S.C. § 112, first paragraph
We also do not sustain the rejections under 35 U.S.C. § 103(a) of
claims 1, 2, 21-29, 31, 32, and 34 as unpatentable over Greene and
Zagranski and of claims 1, 21, 29, and 35^40 as unpatentable over Sherry,
Greene, and Zagranski.
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)(l)(iv).
AFFIRMED-IN-PART
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