Ex Parte McCollough et al

Patent Trial and Appeal Board

Feb 28, 2017

13932407 (P.T.A.B. Feb. 28, 2017)

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.
13/932,407 07/01/2013 James M. McCollough 12-130.01 (IP1203406) 5390
106104 7590 03/02/2017
Bell Helicopter Textron Inc.
Legal Department, Mail Stop HQ04415
P.O. Box 482
Fort Worth, TX 76101
EXAMINER
WOLDEMARYAM, ASSRES H
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
ipdepartment @ bh. com
sjmyers@bh.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES M. MCCOLLOUGH and CARLOS A. FENNY
Appeal 2017-002199
Application 13/932,407
Technology Center 3600
Before JENNIFER D. BAHR, JAMES P. CALVE, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James M. McCollough and Carlos A. Fenny (“Appellants”)1 appeal
under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2,
and 4—10. See Appeal Br. 3, 8. Claims 11—20 have been withdrawn. See
Final Act. 1 (Office Action Summary). We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Bell Helicopter
Textron Inc. Appeal Br. 1.
Appeal 2017-002199
Application 13/932,407
CLAIMED SUBJECT MATTER
Appellants’ disclosed invention “relates generally to rotorcraft anti­
torque systems, and more particularly, to an independent hydraulic control
system for a rotorcraft secondary rotor.” Spec., p. 1,11. 5—7. Claim 1,
reproduced below, is the sole independent claim appealed and is
representative of the subject matter on appeal.
1. A rotorcraft, comprising:
a body comprising a fuselage and an empennage;
a power train coupled to the body and comprising a
power source;
a main rotor system in mechanical communication with
the power train and located proximate to the fuselage, the main
rotor system comprising a main rotor gear box and at least one
main rotor blade in mechanical communication with the main
rotor gear box;
a secondary rotor system in mechanical communication
with the power train and located proximate to the empennage,
the secondary rotor system comprising a secondary rotor gear
box and at least one secondary rotor blade in mechanical
communication with the secondary rotor gear box;
a main rotor control system located proximate to the
fuselage and comprising:
at least one hydraulic pump located proximate to
the fuselage; and
at least one hydraulic actuator located proximate to
the fuselage and configured to adjust at least one
operating characteristic of the at least one main rotor
blade; and
a secondary rotor control system located proximate to the
empennage and comprising:
at least one hydraulic pump located proximate to
the empennage; and
2
Appeal 2017-002199
Application 13/932,407
at least one hydraulic actuator located proximate to
the empennage and configured to adjust at least one
operating characteristic of the at least one secondary
rotor blade.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Carlock US 4,243,358 Jan. 6, 1981
Westinghouse GB 698,031 Oct. 7, 1953
REJECTION
The following rejection is before us for review: Claims 1, 2, and 4—10
stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Westinghouse and Carlock. Final Act. 2—5.
ANALYSIS
Appellants present argument against the rejection of claims 1, 2, and
4—10 together (see Appeal Br. 3—6), and present additional argument against
the rejection of claim 7 (see id. at 7). We select claim 1 as representative of
the issues that Appellants present together, with claims 2, 4—6, and 8—10
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). We
address the additional arguments directed to claim 7 infra.
Claims 1, 2, 4—6. and 8—10
The Examiner determined that a combination of teachings from
Westinghouse and Carlock renders obvious the subject matter of claim 1.
3
Appeal 2017-002199
Application 13/932,407
Final Act. 2-4. In particular, the Examiner found that Westinghouse
discloses most of the structural elements of a rotorcraft as claimed,
specifically a body with a fuselage and an empennage, a power train, main
and secondary rotor systems, and main and secondary rotor control systems,
where only the secondary rotor control system is expressly disclosed as
being a hydraulic system. Id. at 2—3. Put another way, the Examiner found
that Westinghouse discloses “all claimed parts except for” the details of the
main rotor control system being a separate hydraulic system that would
include a hydraulic pump and a hydraulic actuator. Id. at 3.
These findings are supported by a preponderance of the evidence, and
our review of Westinghouse indicates that the lack of detailed disclosure
regarding the main rotor control system likely stems from the focus of this
reference being directed to control of the secondary rotor system, where the
main rotor control system is described only as including “the usual pitch
changing mechanism.” Westinghouse, p. 3,11. 108-09. However, the
Examiner also found that Carlock teaches details of a main rotor control
system that is a hydraulic system including a hydraulic pump and a
hydraulic actuator. Final Act. 3. The Examiner concluded that, given the
teachings of the prior art, it would have been obvious to one of ordinary skill
in the art at the time of the invention to incorporate “the hydraulic pump and
actuators taught in Carlock into Westinghouse” as a hydraulic system for the
main rotor control system separate from the secondary rotor control system
“to create independent, redundant[,] and fault-tolerant hydraulic system[s].”
Id. at 3^4.
Appellants argue that neither Westinghouse nor Carlock addresses a
hydraulically separate main rotor control system and secondary rotor control
4
Appeal 2017-002199
Application 13/932,407
system, essentially asserting that neither reference teaches both hydraulic
control systems, where the systems are separate from one another. See
Appeal Br. 4—5. These assertions regarding hydraulically separate control
systems—admittedly not required by claim 1, but only by dependent claim 4
(see Ans. 2; Reply Br. 2)—do not apprise us of error in the Examiner’s
reasoned determination that incorporating Carlock’s hydraulic main control
system to create “independent” and “redundant” systems (i.e., separate
systems) would be obvious for the reasons given by the Examiner. See Final
Act. 3^4; Ans. 4. Nonobviousness cannot be established by attacking
references individually when the rejection is predicated upon a combination
of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)).
Appellants posit that “[presumably, if Westinghouse were to be
modified so that the lifting rotor [(main rotor)] and steering propeller
[(secondary rotor)] were both controlled using hydraulics, this hydraulic
system would share a pump and other hydraulics as would be expected in a
conventional system.” Appeal Br. 5. However, Appellants do not present
any factual evidence or persuasive technical reasoning to support why such
an arrangement (shared hydraulics rather than separate hydraulics) would be
the usual case; attorney argument cannot take the place of factual evidence
in the record. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Although we appreciate Appellants’ observation that multiple
hydraulic pumps and actuators for hydraulically separate systems “may
appear to increase the weight of the rotorcraft” (Appeal Br. 5) relative to a
shared system—despite the lack of any factual evidence in the record that
two, each presumably smaller, separate hydraulic systems would outweigh
5
Appeal 2017-002199
Application 13/932,407
one, presumably larger, shared hydraulic system—such a possible increase
in weight does not necessarily detract from an otherwise advantageous
system that provides for redundancy and fault-tolerance. Our reviewing
court has recognized that a given course of action often has simultaneous
advantages and disadvantages, and this does not necessarily obviate any or
all reasons to combine teachings. See Medichem, S.A. v. Rolabo, S.L., 437
F.3d 1157, 1165 (Fed. Cir. 2006) (if there are trade-offs involved regarding
features, such things do not necessarily prevent the proposed combination);
Winner Int 7 Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir.
2000) (“The fact that the motivating benefit comes at the expense of another
benefit, however, should not nullify its use as a basis to modify the
disclosure of one reference with the teachings of another. Instead, the
benefits, both lost and gained, should be weighed against one another.”).
Here, Appellants merely assert a potential disadvantage regarding possible
increased weight, without contesting the logical advantages of independent,
redundant, and fault-tolerant hydraulic systems provided by the Examiner’s
proposed combination, and do not persuasively explain why any alleged
disadvantages of the proposed combination would outweigh the Examiner’s
stated advantages. See Final Act. 2—\\ Ans. 4.
The Examiner’s proposed combination to create separate hydraulic
systems is reasonably based on rational underpinnings of logical safety
concerns in a rotorcraft, particularly in consideration of the area of rotorcraft
or other aircraft design, where one of ordinary skill in the art would readily
appreciate the exceptional need for heightened safety and the corresponding
desire for increased redundancies in systems. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a person
6
Appeal 2017-002199
Application 13/932,407
of ordinary creativity, not an automaton.”). Thus, Appellants’ arguments do
not apprise us of error in this articulated obviousness determination.
Appellants also argue that the rejection relies on impermissible
hindsight, suggesting that, because neither Westinghouse nor Carlock
discloses separate hydraulic systems, the proposed combination somehow
must “have been improperly gleaned from [Appellants’] own specification.”
Appeal Br. 6. However, Appellants do not identify, nor do we discern, any
knowledge that the Examiner relied upon that was gleaned only from
Appellants’ disclosure and that was not otherwise within the level of
ordinary skill at the time of the invention. Thus, the Examiner is correct to
note that, so long as a conclusion of obviousness is based on a reconstruction
that “takes into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made, and does not
include knowledge gleaned only from [Appellant’s] disclosure, such a
reconstruction is proper.” Ans. 5 (citing In re McLaughlin, 443 F.2d 1392
(CCPA 1971)). In this case, as discussed supra, the Examiner established
that Westinghouse teaches separate control systems for the main and
secondary rotors. See Final Act. 3; Ans. 3^4.
After careful consideration of all the evidence, Appellants’ arguments
do not apprise us of error in the Examiner’s findings or reasoning in support
of the conclusion of obviousness with respect to claim 1. Therefore, we
sustain the rejection of claim 1, and of claims 2, 4—6, and 8—10 falling
therewith, under 35 U.S.C. § 103(a) as being unpatentable over
Westinghouse and Carlock.
7
Appeal 2017-002199
Application 13/932,407
Claim 7
Regarding claim 7, this claim depends from claim 1 and adds the
limitation that “the secondary rotor control system is in fluid communication
with the secondary rotor [gear box] such that the secondary rotor gear box
provides hydraulic fluid to the secondary rotor control system.” Appeal
Br. 10, Claims App. (emphasis added). Appellants assert that Westinghouse,
as relied on in the rejection, does not disclose such an arrangement of
hydraulic fluid communication between the secondary rotor control system
and the secondary rotor gear box, which drives at least one secondary rotor
blade. See Appeal Br. 7 (including an annotated portion of Figure 5 of
Westinghouse); Reply Br. 6—7.
For the rejection of claim 7, the Examiner relied on Figure 5 of
Westinghouse as disclosing a fluid communication arrangement as claimed.
Final Act. 5 (citing Westinghouse, Fig. 5). In responding to Appellants’
assertion, the Examiner acknowledges that claim 7 “requires a [hydraulic]
fluid to pass through the secondary rotor gear box” (Ans. 6), but maintains
the position that Figure 5 of Westinghouse “appear[s] to show” that
hydraulic fluid or fluid pressure “goes through the gear box” {id. at 5—6;
Final Act. 5 (both citing Westinghouse, Fig. 5)).
From our review of Westinghouse, we observe that Figure 5 depicts
an unnumbered dotted line representing a hydraulic fluid line passing
through a similarly unnumbered rectangle representing a gear box, but there
is no clear disclosure as to whether hydraulic fluid from the line actually
goes through the gear box so as to be in fluid communication therewith, as
required by the claim. See Westinghouse, Fig. 5. Although we appreciate
that the hydraulic fluid lines might go through the gear box so as to be in
8
Appeal 2017-002199
Application 13/932,407
fluid communication therewith (the Examiner’s position), we also note that
the hydraulic fluid lines might just as likely go around or behind the gear
box so as not to be in fluid communication therewith (Appellants’ position).
Thus, the Examiner’s finding regarding the claimed arrangement is not
supported by a preponderance of the evidence.
Rejections based on obviousness must rest on a factual basis; in
making such a rejection, the Examiner has the initial burden of supplying the
requisite factual basis and may not, because of doubts that the invention is
patentable, resort to speculation, unfounded assumptions, or hindsight
reconstruction to supply deficiencies in the factual basis. See In re Warner,
379 F.2d 1011, 1017 (CCPA 1967). In view of the lack of sufficient
evidentiary support regarding any hydraulic fluid communication between
the secondary rotor control system and the secondary rotor gear box, we
agree with Appellants that the generally schematic view of Figure 5 of
Westinghouse does not sufficiently show that fluid goes through the gear
box, as required by the claim. See Reply Br. 6.
Accordingly, based on the record before us, the Examiner has not met
the burden of establishing a proper case that claim 7 is unpatentable based
on the cited references. On this basis, we do not sustain the rejection of
claim 7 under 35 U.S.C. § 103(a) as being unpatentable over Westinghouse
and Carlock.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1, 2, 4—6, and
8—10 under 35 U.S.C. § 103(a) as being unpatentable over Westinghouse
and Carlock.
9
Appeal 2017-002199
Application 13/932,407
We REVERSE the Examiner’s decision rejecting claim 7 under
35 U.S.C. § 103(a) as being unpatentable over Westinghouse and Carlock.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CE.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
10