Ex Parte Polizzotto et al

Patent Trial and Appeal Board

Jul 11, 2017

13573131 (P.T.A.B. Jul. 11, 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.
13/573,131 08/25/2012 Joseph Polizzotto 104.11a 8923
66381 7590 07/11/2017
GORDON E. GRAY, III
4401 N. ATLANTIC AVE.
SUITE 233
LONG BEACH, CA 90807
EXAMINER
EDWARDS, ANTHONY Q
ART UNIT PAPER NUMBER
2835
MAIL DATE DELIVERY MODE
07/11/2017 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOSEPH POLIZZOTTO, MARC POLIZZOTTO, and
LAWRENCE E. ELBERT
____________

Appeal 2016-005045
Application 13/573,1311
Technology Center 2800
____________

Before JAMES C. HOUSEL, DONNA M. PRAISS, and
JANE E. INGLESE, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner’s decision rejecting claims 1–6 under 35 U.S.C. § 103(a) as
unpatentable over Bethel2 in view of Hotelling.3 We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We AFFIRM. 4

1 According to Appellants, the real party in interest is J.P. Instruments, Inc.
Appeal Br. 1.
2 US 2008/0094255 A1, published April 24, 2008 (“Bethel”).
3 US 2008/0278899 A1, published November 13, 2008 (“Hotelling”).
4 Our decision refers to the Specification (Spec.) filed August 25, 2012, the
Examiner’s Final Office Action (Final Act.) dated December 8, 2014,
Appeal 2016-005045
Application 13/573,131

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STATEMENT OF THE CASE
Appellants disclose that after-market avionics instruments are often
made to fit pre-cut holes in standard instrument panels, but are limited in
how they can be positioned in the panels. Spec. 1, Background Art.
Appellants’ invention, therefore, relates to an avionics instrument display
that can be mounted in a variety of positions on an instrument panel. Spec.
2, Summary of the Invention.
Sole independent claim 1, reproduced below from the Claims
Appendix to the Appeal Brief, is illustrative of the subject matter on appeal.
1. An avionics instrument comprising:
a cylindrical electronics housing with a primary
dimension attached to a display panel with a primary dimension
where the primary dimension of the display panel exceeds the
primary dimension of the cylindrical electronics housing;
where the display panel has at least two positional modes
of display and an interface for switching between the at least
two positional modes of display.

ANALYSIS
The Examiner finds Bethel discloses avionics instrument 305
comprising cylindrical electronics housing 50 having a primary dimension
and attached to a display panel 46 whose primary dimension exceeds the
housing’s primary dimension. Final Act. 2. The Examiner further finds

Appellants’ Appeal Brief (Appeal Br.) filed August 17, 2015, the
Examiner’s Answer (Ans.) dated February 5, 2016, and Appellants’ Reply
Brief (Reply Br.) filed April 5, 2016.
5 Throughout this Opinion, for clarity, we present labels to elements in
figures in bold font, regardless of their presentation in the original document.
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Application 13/573,131

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Bethel’s display panel has at least two positional modes of display, i.e.,
portrait and landscape, as well as interface 70, which is used to manipulate
the data presented on the display panel, such as toggling between various
views, e.g., portrait and landscape views. Id. Notwithstanding this latter
finding, the Examiner finds Hotelling discloses a portable electronic device
that may be manually or automatically switched between multiple
orientations, e.g., portrait and landscape modes. Id. at 3. The Examiner
concludes it would have been obvious “to apply the known technique of
switching the viewing mode of the display of Bethel between at least [two]
positional modes (e.g., portrait and landscape modes), as taught by
Hotelling.” Id.
Appellants argue that Bethel and Hotelling do not disclose each and
every element of the claims. Appeal Br. 5 and 8–9. In particular,
Appellants contend that Bethel fails to teach an interface for switching
between at least two positional modes of display (id. at 8–9) and an
instrument having at least two positional modes of display (id. at 5).
Appellants urge that Bethel discloses two different instruments rather than a
single instrument for the portrait and landscape displays. Id. Moreover,
Appellants assert that Bethel’s interface 70 is not used to switch between
positional modes of display on the instrument, but for toggling between
views of the various instruments that Bethel’s device is used to replace. Id.
at 9.
In response, the Examiner directs attention to Bethel, paragraph 96, as
teaching a single embodiment for instrument 30 having at least two
positional modes of display. Ans. 2–3. In this regard, we note Bethel refers
to the first positioning of a pair of instruments in left/right (portrait)
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arrangement as “[i]n this particular embodiment.” Bethel ¶ 96, ll. 4–5.
Bethel further refers to the second positioning of a pair of instruments in
top/bottom (landscape) arrangement as “[a]lternatively for this particular
embodiment.” Id., ll. 9–10. Bethel’s reference in this paragraph to “this
particular embodiment” when referring to both positioning arrangements
supports the Examiner’s finding that Bethel does in fact teach a single
embodiment providing at least two positional modes of display. Although
Appellants assert that the Examiner fails to refute Appellants’ argument that
Bethel discloses separate embodiments for portrait and landscape displays
(Reply Br. 1–2), Appellants do not address the Examiner’s interpretation of
Bethel, paragraph 96. Nonetheless, as the Examiner finds, Hotelling teaches
a display device configured for at least two positional modes, which is the
basis for the Examiner’s proposed modification to Bethel.
Appellants further argue that Bethel and Hotelling teach away from
each other. Appeal Br. 6–7. In this regard, Appellants assert that Hotelling
is not an avionics instrument and uses an accelerometer as one way to switch
between portrait and landscape modes. Id. Appellants urge that “an
accelerometer-controlled display for an avionics instrument could render the
display unreadable in flight just when a pilot needs to read it most urgently.”
Id. at 7. Appellants assert, on the other hand, that Bethel expressly cautions
against such a situation. Id. As such, Appellants contend that Bethel and
Hotelling teach directly away from each other when considered in the
context of aircraft avionics. Id.
Appellants’ argument that Bethel and Hotelling teach away from each
other is not persuasive. “A reference may be said to teach away when a
person of ordinary skill, upon reading the reference, would be discouraged
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from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant.” In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Further, references in a
combination may be said to teach away where their combined teachings
would produce a “seemingly inoperative device.” See In re Sponnoble, 405
F.2d 578, 587 (CCPA 1969). Teaching an alternative or equivalent method,
however, does not teach away from the use of a claimed method. See In re
Dunn, 349 F.2d 433, 438 (CCPA 1965).
Initially, we note that Hotelling’s use of an accelerometer for
switching between positional modes is merely one way Hotelling teaches for
switching between positional modes. Hotelling ¶ 50 (“The function of
adjusting the orientation and mode of the content being displayed may be
performed manually as part of a user selection or automatically as the user
orients the device.”) It is reasonable to expect that the ordinary artisan
would select the manner for switching a device between positional modes
appropriate for the circumstances. KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 421 (2007) (“A person of ordinary skill in the art is also a person of
ordinary creativity, not an automaton.”) In addition, though Appellants
assert that Bethel expressly cautions against unreadable displays during
flight, we note that Bethel actually teaches that the electronic display
instrument provides dramatically improved situational awareness over its
mechanical counterparts. Bethel ¶ 74. This teaching is not a teaching away
from Hotelling’s teaching of a multi-positional mode electronic display,
generally, because Hotelling teaches multiple ways to switch between
positional modes, including manually. Dunn, supra. Moreover, Appellants
do not direct our attention to any disclosure in either reference that would
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have discouraged the Examiner’s proposed modification to Bethel based on
Hotelling.
Finally, Appellants argue that Bethel and Hotelling are non-analogous
prior art. Appeal Br. 6–8. As above, Appellants assert that, because
Hotelling is not an avionics instrument such as Bethel, these references are
in different fields of endeavor. Id. at 7. In addition, Appellants contend that
the Examiner fails to show how Hotelling is pertinent to the particular
problem in avionics in which Appellants were involved. Id. Appellants
urge that Hotelling’s docking system requires an induction system which
would not be appropriate for use in an aircraft cockpit because it is “far too
loose for in-flight usage.” Id. at 8. In contrast, Appellants note that the
inventive instrument is preferably held in place in the aircraft panel by a
mounting bracket and connected to probes. Id. Therefore, Appellants argue
one would not have combined Hotelling with Bethel because Hotelling’s
docking method would not be used in avionics. Id.
Appellants’ argument fails to persuade us that the Bethel and
Hotelling references are non-analogous prior art that would not have been
combined by one of ordinary skill in the art. Our reviewing court has stated
that
[t]wo separate tests define the scope of analogous prior art: (1)
whether the art is from the same field of endeavor, regardless of
the problem addressed and, (2) if the reference is not within the
field of the inventor's endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the
inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citations and internal
quotes omitted). The Examiner finds Hotelling is reasonably pertinent to the
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particular problem with which the inventor is involved because Hotelling
discloses means for viewing multiple orientations of a display device while
docked in a docking system. Ans. 5. Although Appellants contend that the
Examiner fails to acknowledge the unique issues that are present in an
airplane cockpit (Reply Br. 4), Appellants do not address the Examiner’s
finding that Bethel teaches at least two positional modes of display discussed
above. We further note that the manner of Hotelling’s docking or mounting
is not relevant because Bethel teaches an avionics instrument and mounting,
the rejection does not rely on Hotelling for its mounting, and claim 1 does
not recite nor require any particular mounting.
Appellants do not argue dependent claims 4 and 5 separately from
claim 1. Accordingly, we sustain the Examiner’s rejection of claims 1, 4,
and 5.
Appellants argue claims 2 and 3 as a group. Claim 2 depends from
claim 1 and further recites that the display panel has four positional modes
of display. Claim 3 depends from claim 1 and further recites that the display
panel has landscape and portrait positional modes of display. With regard to
claim 2, Appellants argue that Bethel fails to disclose an instrument with
four positional modes of display. Appeal Br. 9. With regard to claim 3,
Appellants argue that Bethel fails to disclose an instrument that has both
landscape and portrait positional modes of display. Id. at 10. Appellants
assert that Bethel’s instrument merely has a single positional mode of
display, either landscape or portrait. Id. at 9–10. Appellants further assert
that Bethel does not disclose rotation of the instrument between landscape
and portrait modes. Id. at 10. Appellants urge that such rotation in Bethel is
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in fact impossible because Bethel requires two holes in the avionics panel
for installation due to the presence of fan 68. Id.
Appellants’ arguments are not persuasive of reversible error in the
Examiner’s rejections of claims 2 and 3. We first note that Appellants’
argument that Bethel has only a single positional mode has been addressed
above with regard to claim 1. Nevertheless, we note Appellants fail to
address the Examiner’s finding that the device of Bethel in view of Hotelling
would have a display with four positional modes of display with both
landscape and portrait modes. Final Act. 3, citing Hotelling, Figs. 2A and
2B, and ¶¶ 48–50. Appellants do not address Hotelling in this regard.
Indeed, Hotelling teaches that the display may be in horizontal or landscape
positional modes at 0o and at 180o (two positions) and in vertical or portrait
positional modes at 90o and at 270o (two positions), thereby providing the
display with four positional modes of display. Hotelling ¶ 48. Thus, the
Examiner’s finding is supported by the record.
In addition, Appellants repeat their argument that Hotelling is non-
analogous prior art. Appeal Br. 10. For the same reasons given above with
regard to claim 1, this argument is not persuasive of reversible error.
Accordingly, we are satisfied that a preponderance of the evidence supports
the Examiner’s rejection of claims 2 and 3.
Appellants separately argue claim 6. Appeal Br. 10–11. Claim 6
depends from claim 1 and further requires a CPU connected to at least two
sensors that detects input from the sensors, where the CPU configures the at
least two positional modes of display based on the input. The Examiner
finds that the combination of Bethel and Hotelling did not expressly teach
the CPU as recited in claim 6. Final Act. 4. However, the Examiner finds it
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was “notoriously old and well-known in the art of panel displays to utilize
sensors to detect the positional modes of display.” Id. As such, the
Examiner concludes it would have been obvious to modify Bethel to provide
a CPU connected at least to sensors in the display panel to automatically
adjust the display based on the position of the device. Id.
Appellants argue that the claimed sensors do not detect the positional
modes of display, but instead detect information regarding, inter alia, the
aircraft engine. Appeal Br. 10–11. Appellants assert the CPU uses sensor
input to determine what information is shown in the various positional
modes of display modes available, such as oil pressure, fuel pressure,
tachometer, map, oil temperature, etc. Id. at 11. Appellants further argue
that Bethel merely discloses the display of different information from
various sensors in a single positional mode and Hotelling makes no mention
of using aircraft sensor data. Id.
Appellants’ arguments are not persuasive of reversible error. We
begin, appropriately, with the claim’s words. See Amazon.com, Inc. v.
Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001) (“Only
when a claim is properly understood can a determination be made . . .
whether the prior art anticipates and/or renders obvious the claimed
invention.”). During examination, claim terms are given their broadest
reasonable construction consistent with the specification. In re Bigio, 381
F.3d 1320, 1324 (Fed. Cir. 2004). “Therefore, we look to the specification to
see if it provides a definition for claim terms, but otherwise apply a broad
construction.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007).
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Here, claim 6 does not recite what input the sensors provide. Nor do
Appellants direct our attention to any disclosure that limits via definition
what input the sensors provide. Therefore, we determine that the broadest
reasonable construction of claim 6 does not limit its scope to a CPU
configuring the positional modes of display based on aircraft engine data,
but is broad enough to cover CPU use of sensors to detect positional modes
of display so as to configure the display of information based on detected
mode in accord with the Examiner’s finding.
Moreover, we note Appellants do not challenge the Examiner’s
finding, tantamount to Official Notice, that it was “notoriously old and well-
known in the art of panel displays to utilize sensors to detect the positional
modes of display.” Final Act. 4. According to MPEP § 2144.03(C) (8th ed.,
Rev. 9, Aug. 2012), “[t]o adequately traverse such a finding, an applicant
must specifically point out the supposed errors in the examiner’s action,
which would include stating why the noticed fact is not considered to be
common knowledge or well-known in the art” (emphasis added).
Accordingly, we are not persuaded that the Examiner’s finding nor
obviousness conclusion with regard to claim 6 is harmful error.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Final Office Action and the Answer, the decision of the Examiner
rejecting claims 1–6 under 35 U.S.C. § 103(a) as unpatentable over Bethel in
view of Hotelling is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED