Ex Parte Morris

Board of Patent Appeals and Interferences

Dec 30, 2004

09328931 (B.P.A.I. Dec. 30, 2004)

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for publication and is not binding precedent of the Board.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. 42
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DAVID CURT MORRIS
____________
Appeal No. 2004-0529
Application No. 09/328,931
____________
HEARD: November 17, 2004
____________
Before COHEN, STAAB, and BAHR, Administrative Patent Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 4. These claims constitute all of the claims in the
application.
Appellant's invention pertains to a helicopter blade
assembly. A very basic understanding of the invention can be
derived from a reading of exemplary claim 1, a copy of which
Appeal No. 2004-0529
Application No. 09/328,931
1 A rejection of claim 4 under 35 U.S.C. § 112, second
paragraph (Paper No. 31), was withdrawn by the examiner on page 3
of the answer (Paper No. 33). The examiner also points out on
page 3 of the answer that an earlier anticipation rejection based
upon a reference to Kingsbury was withdrawn in the most recent
office action dated December 13, 2002 (Paper No. 31).
2
appears in the APPENDIX to the supplemental appeal brief (Paper
No. 32).
As evidence of anticipation, the examiner has applied the
documents listed below:
Wilford et al. 2,108,839 Feb. 22, 1938
(Wilford)
Bennie 3,558,082 Jan. 26, 1971
Wallace 4,195,800 Apr. 1, 1980
Hartt 4,301,981 Nov. 24, 1981
Black 4,913,376 Apr. 3, 1990
Kunz 5,240,204 Aug. 31, 1993
The following rejections are before us for review.1
Claims 1 and 4 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Wallace.
Claims 1 through 4 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Wilford.
Appeal No. 2004-0529
Application No. 09/328,931
3
Claim 1 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Hartt.
Claims 1 through 3 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Bennie.
Claim 1 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Black.
Claims 1 and 4 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Kunz.
The full text of the examiner's rejections and response to
the argument presented by appellant appears in the office action
dated December 13, 2002 and the answer (Paper Nos. 31 and 33),
while the complete statement of appellant's argument can be found
in the main and supplemental appeal briefs (Paper Nos. 30 and
32).
Appeal No. 2004-0529
Application No. 09/328,931
4
OPINION
In reaching our conclusion on the issues raised in this
appeal, this panel of the Board has carefully considered
appellant's specification and claims, and the respective
viewpoints of appellant and the examiner. As a consequence of
our review, we make the determinations which follow.
As explained, infra, in a new ground of rejection under
35 U.S.C. § 112, second paragraph, a review of appellant's claims
1 through 4 reveals to us language that renders the metes and
bounds of the claims indeterminate, and hence indefinite. Under
these circumstances, it would be inappropriate on our part to
speculate as the meaning and scope of the claimed subject matter
in an attempt to assess the rejections of these claims on appeal
relative to the applied prior art. It follows that we are
constrained to procedurally reverse all of the examiner's
rejections under 35 U.S.C. § 102(b). It should be well
understood, however, that this procedural reversal is not a
statement as to the relevancy of the references applied by the
examiner in the rejections on appeal. See In re Steele, 305 F.2d
859, 862-63, 134 USPQ 292, 295-96 (CCPA 1962).
Appeal No. 2004-0529
Application No. 09/328,931
2 It is not clear whether any set of rotatable blades that
has a degree of camber (downward turn) over any extent thereof
would effect a virtual disk shape having the properties of a
lifting body, as now claimed. Appellant indicates that the
present invention in Fig. 1b is in a flat configuration similar
to the shape of standard helicopter blades (shown in the figure
with slightly downwardly cambered ends). Are the downwardly
cambered ends in Fig. 1b the shape of the ends of the referenced
standard (prior art) helicopter blades? We note that in Fig.
13a, the blades turn down "slightly" near distal ends 116. If it
is clarified that rotatable blades that have any degree of camber
(downward turn) over any extent thereof would effect a virtual
disk shape having the properties of a lifting body, as now
claimed, the examiner should take this into account when
considering prior art applicable to appellant's claims during any
further prosecution. The examiner's attention is particularly
drawn to the following patents that disclose helicopter blades
having tip portions that droop downwardly, i.e., U.S. Patent No.
4,108,403, U.S. Patent No. 4,324,530, U.S. Patent No. 4,334,828,
U.S. Patent No.4,975,022, and U.S. Patent No. 5,320,494.
5
NEW GROUND OF REJECTION
Under the authority of 37 CFR § 41.50(b), this panel of the
Board introduces the following new ground of rejection.
Claims 1 through 4 are rejected under 35 U.S.C. § 112,
second paragraph. Independent claim 1 is indefinite in that it
is ambiguous as to the configuration of the set of rotatable
blades that is covered by the claimed subject matter.2 In other
words, the language, when read in light of the underlying
disclosure, leaves it uncertain as to what configuration for the
Appeal No. 2004-0529
Application No. 09/328,931
3 It is uncertain as to the scope of virtual disk shapes
(swept out by a set of rotatable blades) having the properties of
a lifting body now claimed. The specification offers symmetrical
and asymmetrical blade variations which are disclosed as
functioning to sweep out a (virtual) lifting body. For example,
Figs. 2 and 2a depict a blade symmetrically deformed downwardly
at distal ends that is indicated to sweep out a shape similar to
that of an inverted flying disk, with the similar aerodynamic
property of providing lift. Fig. 13a reveals symmetrical rigid
blades that turn down slightly near distal end 116 and are
disclosed as creating a lifting body that is "somewhat 'frisbee'
shaped" when spun rapidly. In Fig. 13c, the symmetrical rigid
blades (not distal ends) are disclosed as having a rigid downward
camber. On the other hand, appellant indicates that an
asymmetrical blade, such as in Fig.3b, imparts an asymmetrical
camber to the shape of a lifting body. The specification as a
whole, however, does not provide an adequate basis for
understanding the scope of the claimed disk shapes having the
properties of a lifting body, as indicated above.
6
set of rotatable blades would, in fact, be capable of sweeping
out a virtual disk shape having properties of a lifting body to
generate lift.3 Additionally, it is not clear whether the
recitation of the virtual disk being "pushed translationally" in
claim 1 references the earlier recited "forward impetus" or
"rapidly rotated." Being virtual, it is not clear that the
virtual disk shape can be "pushed translationally" through real
air to thereby generate real lift, as claimed; this recitation
being akin to the disclosure that the virtual disk "cuts rapidly"
through real, not virtual, air (specification, page 2). Claim 1
also appears to be inaccurate and incomplete in not setting forth
Appeal No. 2004-0529
Application No. 09/328,931
4 At odds with this recitation in the specification are the
statements in the respective papers titled as declarations under
§ 1.132 of Morris, Miller, and Schrage submitted by appellant.
The referenced statements clearly indicate that an angle of
attack for the virtual disk is needed to generate lift. We note
that each of the above declarations is not compliant with 37 CFR
§ 1.68 or Section 1746 of Title 28 of the United States Code; See
MPEP Section 602.03.
7
what appears to be an essential attribute of the assembly for
achieving lift, i.e., --horizontal-- translation. The
specification, in the amendment to page 2, line 12, specifically
sets forth that translational "horizontal" motion effects lift.4
In summary, this panel of the Board has procedurally
reversed all of the anticipation rejections on appeal, and has
introduced a new ground of rejection.
The decision of the examiner is reversed.
This decision contains a new ground of rejection pursuant to
37 CFR § 41.50(b) (effective September 13, 2004, 69 Fed. Reg.
49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September
7, 2004)). 37 CFR § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered
final for judicial review."
Appeal No. 2004-0529
Application No. 09/328,931
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37 CFR § 41.50(b) also provides that the appellant, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of
rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same
record. . . .
REVERSED; 37 CFR § 41.50(b)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
ICC/lbg
Appeal No. 2004-0529
Application No. 09/328,931
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TIMOTHY E. SIEGEL
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