Ex Parte Mccall et al

Board of Patent Appeals and Interferences

Dec 19, 2002

09382381 (B.P.A.I. Dec. 19, 2002)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DARYL L. MCCALL and DONALD A. STRATTON
____________
Appeal No. 2002-0767
Application No. 09/382,381
____________
ON BRIEF
____________
Before COHEN, FRANKFORT, and NASE, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 8 and 10 through 20, all of the
claims remaining in the application. Claim 9 has been canceled.
Appellants' invention relates to a high precision global
landing system (GLS) wherein precise computation of glideslope
and localizer deviation signals are performed within the GLS, and
to a method of utilizing such a system. A broad understanding of
Appeal No. 2002-0767
Application No. 09/382,381
2
the invention is more particularly set forth in the following
passages from pages 4 and 5 of the specification:
[i]t is another feature to utilize a method of
simultaneously measuring, with GPS receivers, the
displacement of ILS receiver antennas from installed
GPS antenna locations on the aircraft.
It is another advantage of the present invention to
provide a quick and cost-effective method for
establishing the guidance control points and the
necessary corrections resulting from the frequent
separation of GPS antennas, which are often midship and
on the top of the aircraft, from ILS antenna locations,
which are often in the nose or tail sections.
The present invention is an apparatus and method for
retrofitting GLSs on aircraft previously fitted with
ILSs and A/Ps or FCCs, which is designed to satisfy the
aforementioned needs, provide the previously stated
objects, include the above-listed features and achieve
the already articulated advantages. The present
invention is carried out in an "antenna separation
error-less" manner in a sense that the errors
introduced by the physical separation of GPS antennas
from glideslope and localizer antennas have been
greatly reduced.
Accordingly, the present invention is a GLS which uses
guidance control points and the separation of these
points from installed GPS antennas, to generate and
utilize precise glideslope and localizer deviation
signals.
Independent claims 1, 14 and 18 are representative of the
subject matter on appeal. A copy of those claims may be found in
the Appendix to appellants' brief.
Appeal No. 2002-0767
Application No. 09/382,381
1 As pointed out by the examiner on page 13 of the answer,
the rejection of claims 14 through 17 under 35 U.S.C. § 112,
first paragraph, in the final rejection has now been withdrawn.
3
The sole reference of record relied upon by the examiner in
rejecting the appealed claims is:
Denninger 5,952,961 Sep. 14, 1999
(filed Jan. 30, 1998)
Claims 1 through 8, 10 through 13, 19 and 20 stand rejected
under 35 U.S.C. § 112, first paragraph, as containing subject
matter which was not described in the specification in such a way
as to enable one skilled in the art to which it pertains, or with
which it is most nearly connected, to make and/or use the
invention.1
Claims 1 through 8 and 10 through 20 stand rejected under
35 U.S.C. § 102(e) as being anticipated by Denninger.
Rather than reiterate the examiner's full commentary with
regard to the above-noted rejections and the conflicting
viewpoints advanced by the examiner and appellants regarding
those rejections, we make reference to the examiner's answer
(Paper No. 12, mailed November 21, 2001) for the examiner's
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Application No. 09/382,381
4
reasoning in support of the rejections, and to appellants' brief
(Paper No. 11, filed October 16, 2001) for the arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellants' specification and claims, to
the applied prior art reference, and to the respective positions
articulated by appellants and the examiner. As a consequence of
our review, we have made the determinations which follow.
We turn first to the examiner's rejection of claims 1
through 8, 10 through 13, 19 and 20 under 35 U.S.C. § 112, first
paragraph, wherein the examiner has urged that the specification
fails to provide an enabling disclosure. It is by now well-
established law that the test for compliance with the enablement
requirement in the first paragraph of 35 U.S.C. § 112 is whether
the disclosure, as filed, is sufficiently complete to enable one
of ordinary skill in the art to make and use the claimed
invention without undue experimentation. In re Moore, 439 F.2d
1232, 1235, 169 USPQ 236, 238-39 (CCPA 1971). See also In re
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Application No. 09/382,381
5
Scarborough, 500 F.2d 560, 566, 182 USPQ 298, 302-03 (CCPA 1974).
Moreover, in rejecting a claim for lack of enablement, it is also
well settled that the examiner has the initial burden of
advancing acceptable reasoning inconsistent with enablement in
order to substantiate the rejection. See In re Strahilevitz,
668 F.2d 1229, 1232, 212 USPQ 561, 563 (CCPA 1982); In re
Marzocchi, 439 F.2d 220, 223, 169 USPQ 367, 369 (CCPA 1971).
Once this is done, the burden shifts to appellants to rebut this
conclusion by presenting evidence to prove that the disclosure in
the specification is enabling. See In re Doyle, 482 F.2d 1385,
1392, 179 USPQ 227, 232 (CCPA 1973); In re Eynde, 480 F.2d 1364,
1370, 178 USPQ 470, 474 (CCPA 1973).
In the present case, after reviewing the disclosure as set
forth in the specification and the invention as seen in the
drawings of the application from the perspective of one of
ordinary skill in the art, and having considered the examiner's
position as set forth on pages 4 and 5 of the answer, we are of
the opinion that the examiner has not met the burden of advancing
acceptable reasoning inconsistent with enablement. The
examiner's mere assertion that certain limitations of the claims
on appeal (e.g., the last clause of claim 1) are not expressly
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6
set forth in the specification and drawings of the application,
and are therefore purportedly not enabled, overlooks the
examiner's responsibility to explain why one of ordinary skill in
the art would have been unable to understand and implement the
invention claimed in the present application when the disclosure
of the application is considered as a whole. In that regard, we
note that we see no discussion by the examiner as to exactly why
the rather straight-forward invention disclosed and claimed in
the present application would be beyond the capability of one of
ordinary skill in the art (i.e., would require undue
experimentation to implement) given a full consideration of
appellants' disclosure.
Appellants' contribution to the art recognizes the need for
a correction factor to be used in the determination of glideslope
and localizer deviation signals used by instrument landing
systems (ILSs) and/or autopilots (A/Ps), particularly during the
critical final stages of approach and landing, wherein the
correction factor represents the separation distance of the GPS
antennas, which are often located midship and on top of the
aircraft, from ILS antenna locations, which are usually in the
nose or tail section of the aircraft. On page 9 of the
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specification, appellants emphasize that instead of changing the
A/P software to handle the above-noted antenna separation error
(which would require recertification), the present invention uses
the concepts of vertical guidance point (102) and vertical lever
arm correction vectors (110, 130) to address the error introduced
by the physical separation of the GPS and ILS antennas. As noted
on page 10, this calibration or measurement is done once at the
time the aircraft is being retrofit with the present GLS system,
and then (as noted on page 12) the lever arm correction vector
data is programmed in the aircraft personality module (APM) and
made available to the GLS precision approach navigator (PAN), or
programmed directly into the PAN. Thus, in our view, it would
have been clear to one skilled in the art that the "means for
generating enhanced position signals" of claim 1 and the "means
for generating a deviation signal" of claim 18 are both computer
processors (e.g., in the PAN) executing predetermined computer
software including a correction for the antenna location
separation distance error noted by appellants.
As an alternative to the foregoing, appellants note
(specification, page 12) that the APM programming and computation
of the enhanced deviation/position signals can be done within the
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GPS receiver itself, which typically includes a computer
processor designed to support such flight control computations.
As indicated on page 2 of the specification, the GPS receiver
would typically be integrated with the A/Ps or flight control
computers (FCCs) of the aircraft, which systems, along with the
control surfaces and engines of the aircraft, constitute means
for controlling the aircraft in response to the deviation
signals.
With regard to the other make and/or use issues raised by
the examiner in the answer, we share appellants' views as
expressed on pages 7 through 10 of the brief, noting that the
application need not teach, and preferably omits, what is well
known in the art.
Thus, after a careful consideration of appellants'
disclosure and of the arguments on both sides, it is our opinion
that the level of skill in this art is sufficiently high that the
ordinarily skilled artisan would have been able to make and use
appellants' claimed invention as set forth in the claims before
us on appeal, based on appellants' disclosure, without the
exercise of undue experimentation.
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Application No. 09/382,381
9
For the above reasons, we will not sustain the examiner's
rejection of claims 1 through 8, 10 through 13, 19 and 20 under
35 U.S.C. § 112, first paragraph, as being based on a non-
enabling disclosure.
We next look to the examiner's rejection of claims 1 through
8 and 10 through 20 under 35 U.S.C. § 102(e) as being anticipated
by Denninger. In this instance, we are in full agreement with
appellants' arguments as set forth on pages 11 through 14 of the
brief. While it is true that Denninger is concerned with
providing a radar altimeter augmented GPS aircraft navigation
system that uses the AGL (above ground level) altitude
information from the radar altimeter to provide more accurate
navigation information to the pilot during the approach and
landing phases, and thus provides an added degree of redundancy
and an additional source of navigational information for use in
conjunction with other pre-existing aircraft navigation
instruments (e.g., inertial, ILS, TACAN, etc.) which permits the
aircraft to execute precision approaches and landings, we find
nothing in Denninger which recognizes or addresses the specific
antenna spacing problem confronted and solved by appellants.
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In that regard, even if the aircraft in Denninger includes a
first positioning system antenna and receiver (i.e., GPS) and a
landing system antenna and receiver (i.e., ILS) that work
together to provide more accurate positioning information for use
in precision approaches and landings, there is no teaching or
suggestion in the Denninger patent of a "means" like that set
forth in the last clause of claim 1 on appeal, wherein the
enhanced position signal generated by that means includes a
correction factor based on "a vector representative of a
separation characteristic between said first positioning system
antenna and said first landing system antenna location." At
best, it would appear that Denninger discloses integrated multi-
mode receivers of the type mentioned by appellants on page 2 of
the specification, with an added radar altimeter input (AGL) to
provide more precise aircraft position information.
The examiner's theory that the attitude solution computer
(402) of Denninger corresponds to the means clause of claim 1 on
appeal is in error. As is made clear in the portion of Denninger
beginning at column 6, line 24 and continuing to column 7, line
17, the computer (402) of the attitude sensor (201) determines
the attitude of the aircraft in an earth-centered, earth-fixed
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11
coordinate system based on the relative phase differences of the
GPS signals received at the various antennas (407-410), and does
not, as the examiner urges, appear to perform any calculations or
determination with respect to a predetermined landing system
vector. Moreover, as we noted above, there is no indication in
Denninger that the attitude solution computer utilizes "a vector
representative of a separation characteristic between said first
positioning system antenna and said first landing system antenna
location," as in claim 1 on appeal, to provide precise
computation of glideslope and localizer deviation signals.
As for the remaining claims subject to this ground of
rejection, the examiner has simply not made out a prima facie
case of anticipation by clearly setting forth facts and an
explanation of exactly how the system of Denninger performs or
teaches a method as set forth in appellants' claim 14 on appeal,
or that Denninger's system includes an apparatus like that
defined in claim 18 on appeal. The examiner's mere assertion
(answer, pages 8 and 9) that the attitude sensor (201) of
Denninger performs the method of appellants' claim 14 and that
this sensor also corresponds to the apparatus of claim 18 on
appeal does not come close to meeting the examiner's burden of
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Application No. 09/382,381
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establishing a prima facie case. To the extent that the examiner
may be relying on inherency to establish anticipation, we note
that it is well settled that inherency may not be established by
probabilities or possibilities, but must instead be "the natural
result flowing from the operation as taught." See In re Oelrich,
666 F.2d 578, 581-82, 212 USPQ 323, 326 (CCPA 1981). In the
present case, the disclosure of Denninger does not appear to
provide an adequate factual basis to clearly establish that the
natural result flowing from following the teachings of that
reference would be a method as in appellants' claim 14 on appeal,
or an apparatus like that of appellants' claim 18 including
"means for determining a location separation distance between
said first location and said second location" and "means for
generating a deviation signal of said second location with
respect to a predetermined aircraft flight path vector, wherein
said deviation signal is a function of said first signal and said
location separation distance."
It follows from the foregoing that we will not sustain the
examiner’s rejection of claims 1 through 8 and 10 through 20 on
appeal under 35 U.S.C. § 102(e) based on Denninger.
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To summarize our decision, we note that a) the examiner's
rejection of claims 1 through 8, 10 through 13, 19 and 20 under
35 U.S.C. § 112, first paragraph, on the basis of lack of
enablement has not been sustained and b) the examiner's rejection
of claims 1 through 8 and 10 through 20 on appeal under 35 U.S.C.
§ 102(e) based on Denninger has likewise not been sustained.
In light of the foregoing, the decision of the examiner is
REVERSED.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
CEF/lbg
Appeal No. 2002-0767
Application No. 09/382,381
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KYLE EPPELE
ROCKWELL COLLINS INC.
INTELLECTUAL PROPERTY DEPARTMENT
400 COLLINS ROAD NE MS 124 323
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