Ex Parte Reynolds et alDownload PDFPatent Trial and Appeal BoardOct 18, 201613098333 (P.T.A.B. Oct. 18, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/098,333 04/29/2011 7590 10/19/2016 Squire, Sanders & Dempsey (US) L.L.P. 27th Floor 1 East Washington Street Phoenix, AZ 85004-2556 FIRST NAMED INVENTOR Zachary R. Reynolds 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 050847.00362 8502 EXAMINER SMALL, NAOMI J ART UNIT PAPER NUMBER 2682 MAILDATE DELIVERY MODE 10/19/2016 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 ZACHARY R. REYNOLDS, CYRO A. STONE, and CHRISTOPHER POL YNIN1 Appeal2015-005124 Application 13/098,333 Technology Center 2600 Before MICHAEL J. STRAUSS, AARON W. MOORE, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Decision rejecting claims 1-20. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM.2 1 According to Appellants, the real party in interest is Aviation Communication and Surveillance Systems, LLC. See Appeal Br. 3. 2 Throughout this Opinion, we refer to: (1) Appellants' Specification filed Apr. 29, 2011 ("Spec."); (2) the Final Office Action ("Final Act.") mailed Jan. 14, 2014; (3) the Appeal Brief ("Appeal Br.") filed Oct. 9, 2014; (4) the Examiner's Answer ("Ans.") mailed Feb. 6, 2015; and (5) the Reply Brief ("Reply Br.") filed Apr. 6, 2015. Appeal2015-005124 Application 13/098,333 BACKGROUND Appellants' application relates to providing a swath-based topographical display of a position of a host aircraft. Spec. 2. Claims 1, 10, and 19 are independent claims. Claim 1 is representative and is reproduced below with disputed limitations emphasized: 1. A method comprising: receiving data representing a position of a host aircraft; based on the position of the host aircraft, receiving data extracted from a database representing an elevation of at least one of a terrain and an obstacle surrounding the host aircraft; displaying, on a display, information comprising the position of the host aircraft and the extracted data; identifying a subset of the displayed information as relevant for situational awareness; and displaying, on the display, a number corresponding to a value of a maximum elevation within the subset of the displayed information. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal includes: Chen et al. ("Chen") Feyereisen et al. ("Feyereisen") Chen et al. ("Chen ' 121 ") Johnson Estabrook et al. ("Estabrook") US 2003/0193410 Al US 7 ,098,809 B2 US 7,363,121 Bl US 7,676,112 B2 US 8, 180,503 B2 2 Oct. 16, 2003 Aug.29,2006 Apr. 22, 2008 Mar. 9, 2010 May 15, 2012 (filed Aug. 8, 2006) Appeal2015-005124 Application 13/098,333 REJECTIONS Claims 1, 2, 6, 10, 11, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Feyereisen and Chen. Final Act. 2-6. Claims 3 and 12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Feyereisen, Chen, and Estabrook. Final Act. 6-8. Claims 4, 5, and 13-15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Feyereisen, Chen, and Johnson. Final Act. 8-11. Claims 7-9 and 16-18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Feyereisen, Chen, and Chen '121. Final Act. 11-14. Claim 20 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Feyereisen, Chen, Estabrook, and Johnson. Final Act. 14--15. Our review in this appeal is limited to the above rejections and issues raised by Appellants. We have not considered other possible issues that have not been raised by Appellants and which are, therefore, not before us. See 37 C.F.R. § 41.37(c)(l)(iv) (2014). ISSUES 1. Did the Examiner err in finding that the combination of Feyereisen and Chen teaches or suggests "displaying, on the display, a number corresponding to a value of a maximum elevation within the subset of the displayed information," as recited in claim 1? 3 Appeal2015-005124 Application 13/098,333 2. Was the Examiner's rationale for modifying Feyereisen based on Chen erroneous because Chen teaches away from displaying maximum elevation information textually? 3. Did the Examiner err in finding that the combination of Feyereisen and Chen teaches or suggests "wherein the identifying comprises identifying the subset of the displayed information based on a flight plan for the host aircraft," as recited in claim 2? 4. Did the Examiner err in finding that the combination of Feyereisen, Chen, and Estabrook teaches or suggests "identifying the subset of the displayed information based a projected track of the host aircraft, the projected track being an extrapolation of a current track angle and a roll angle of the host aircraft," as recited in claim 3? 5. Did the Examiner err in finding that the combination of Feyereisen, Chen, and Johnson teaches or suggests "wherein the identifying comprises identifying the subset of the displayed information based on a sensor swath," as recited in claim 4? DISCUSSION After review of Appellants' arguments and the Examiner's findings and reasoning, we determine that Appellants have not persuaded us of error in the Examiner's rejection of claims 1-20. Accordingly, we sustain the rejection for reasons set forth by the Examiner in the Final Office Action and the Answer. See Final Act. 2-15; Ans. 2-18. We add the following for emphasis and completeness. 4 Appeal2015-005124 Application 13/098,333 35 U.S.C. § 103: Claims 1, 10, and 19 Issue 1 The Examiner relies on Chen to teach or suggest "displaying, on the display, a number corresponding to a value of a maximum elevation," as recited in claim 1. Final Act. 3. Specifically, the Examiner relies on Chen's Figure 1, which depicts a view of the vertical terrain along the track of an aircraft in which the y-axis includes numerical representations of various maximum altitude values such as 4,000, 8,000, 12,000 etc. Final Act. 3; Ans. 15 (citing Chen Fig. 1 and i-f 24). Appellants contend Chen's y-axis labels do not suggest a number corresponding to a value of a maximum elevation "since the maximum elevation does not necessarily correspond to any of the labeled points on the axis in Chen." Reply Br. 2. We are not persuaded by Appellants' contention. Under a broadest reasonable interpretation, the words of the claim must be given their plain " 1 t. 1 " " " " " " t. t. "-C: " T meanmg uniess tue p1am meamng is mcons1stent w1t11 tue spec111cat1on. 1n re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989); Chef America, Inc. v. Lamb- Weston, Inc., 358 F.3d 1371, 1372 (Fed. Cir. 2004). The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the time of the invention. In re Suitco Surface, Inc., 603 F.3d 1255, 1259---60 (Fed. Cir. 2010). The presumption that a term is given its ordinary and customary meaning may be rebutted by Appellants clearly setting forth a different definition of the term in the specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Here, Appellants fail to demonstrate that "corresponding to" has been explicitly defined in Appellants' Specification. 5 Appeal2015-005124 Application 13/098,333 Accordingly, we determine that the Examiner's interpretation of the term "corresponding to" is not inconsistent with Appellants' Specification and is not shown to be unreasonably broad. For example, Appellants do not dispute that Chen's Figure 1 includes numerical representations of elevation values but essentially contend that Chen's elevation values do not equal the maximum elevation. We agree with the Examiner, however, that under a broadest reasonable interpretation of "corresponds to," the displayed number need not be the maximum elevation but need only have a correspondence or relationship with the maximum elevation. Looking at Chen's Figure 1, one can see that the maximum elevation is less than, for example, 4000 feet; the displayed "4000" thus "corresponds to" the maximum elevation in that it shows the maximum elevation to be less than 4000 feet. The relationship Appellants claim ("corresponding to") is broader than the relationship described in the Specification ("a numerical representation ... that identifies to the user of the system 200 the elevation of the terrain or the obstacle'} Spec. i-f 26. Accordingly, we agree with the Examiner's finding that Chen teaches or suggests displaying "a number corresponding to a value of a maximum elevation," as recited in claim 1. Moreover, we note in passing and without reliance in sustaining the rejection, that Appellants' admitted prior art also suggests displaying "a number corresponding to a value of a maximum elevation." App. Br. 2. In describing Figure 1, the Background section of Appellants' Specification discloses "[the] conventional TAWS [(terrain awareness and warning system)] would indicate that the maximum elevation 140 of the high terrain in the displayable area 120 is 5,000 feet (050)." Spec. i-f 8. Referring to Figure 1, the maximum elevation 140 is displayed numerically. Spec. Fig. 1. 6 Appeal2015-005124 Application 13/098,333 Accordingly, we agree with the Examiner's finding that Chen teaches or suggests "displaying, on the display, a number corresponding to a value of a maximum elevation," as recited in claim 1. Final Act. 3. Issue 2 Appellants further argue that Chen teaches away from the claimed invention. We disagree because, as we explain above, Chen actually teaches what is claimed. Moreover, even if a prior art reference discloses a different solution to a similar problem, it does not teach away from the claimed subject matter unless the prior art reference also criticizes, discredits, or otherwise discourages the solution claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, it is undisputed Chen teaches displaying the maximum elevation. See Appeal Br. 11. Appellants argue, rather, that "Chen suggests to do so graphically ... not by providing a number corresponding to a value of the maximum elevation." Id. They do not argue, however, that Chen criticizes, discredits, or otherwise discourages the claimed solution. Thus, even according to Appellants' view of Chen, Chen merely discloses a different solution to a similar problem, in essence, displaying a maximum elevation graphically, rather than numerically, to facilitate avoidance of an obstacle. Teaching an alternative method does not teach away from the use of a claimed method. In re Dunn, 349 F.2d 433, 438 (CCPA 1965); see also Ex parte Shuping, No. 2008-00394, 2008 WL 336222, at *2 (BPAI 2008) ("[T]eaching a way is not teaching away.") (citation omitted). Appellants also argue that "Chen explicitly teaches away from displaying information 'textually' in order to provide a 'clear and intuitive picture."' Appeal Br. 11 (citing Chen i-f 31 ). We note the portion of Chen 7 Appeal2015-005124 Application 13/098,333 asserted by Appellants describes displaying range-to-target speed symbolically instead of textually. Because the asserted portion of Chen describes range-to-target speed rather than a maximum elevation, we additionally find Chen does not criticize, discredit, or otherwise discourage the claimed solution, and we likewise disagree with Appellants' argument that Chen teaches away from the claimed invention. Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 1. In arguing independent claims 10 and 19, Appellants repeat the substance of the arguments made for claim 1 regarding the combination of Feyereisen, Chen, and Johnson. Compare Appeal Br. 11 with Appeal Br. 12-14. As discussed supra, we find these arguments to be unpersuasive. Therefore, we likewise sustain the rejections of claims 10 and 19 under 35 U.S.C. § 103(a). 35U.S.C.§103: Claims 2and11 Issue 3 The Examiner relies on Feyereisen to teach or suggest "identifying the subset of the displayed information based on a flight plan for the host aircraft," as recited in claim 2. Final Act. 4; Ans. 15-16. Appellants contend Feyereisen does not describe that the flight path is used to identify a subset of displayed information." We find Appellants' arguments unpersuasive because we agree with the Examiner's finding that Feyereisen's discussion of the host aircraft's current position and altitude suggests the claimed flight plan and Feyereisen's displaying relevant terrain elevations within a projected band or zone suggests identifying the subset of displayed information. Ans. 11-12 (citing Feyereisen col. 9, 1. 64 to col. 10, 1. 8 and col. 14, 11. 46-53). 8 Appeal2015-005124 Application 13/098,333 Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 2 and of claim 11, for which Appellants provide similar arguments. See Appeal Br. 13. 35 U.S.C. § 103: Claims 3and12 Issue 4 Appellants contend Estabrook does not "describe that the track angle and roll angle are used to identify a subset of displayed information." Appeal Br. 14--15. We find Appellants' arguments unpersuasive because we agree with the Examiner's finding that Estabrook teaches providing critical flight information, including a track angle and a roll angle, to a passenger piloting the aircraft due to the incapacitation of the pilot and displaying the track angle and a roll angle as the identified subset of displayed information. Final Act. 7; Ans. 16-17 (citing Estabrook col. 2, 11. 65---66 and col. 10, 11. 32-38, 51, and 60). Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 3 and of claim 12, for which Appellants provide similar arguments. See Appeal Br. 15-16. 35U.S.C.§103: Claims 4and13 Issue 5 The Examiner relies upon the combination of Feyereisen, Chen, and Johnson to suggest "identifying the subset of the displayed information based on a sensor swath," as recited in claim 4. Final Act. 8. Appellants argue that Johnson "does not describe that the sensor swaths are used to identify a subset of displayed information." Appeal Br. 16-17. 9 Appeal2015-005124 Application 13/098,333 We find Appellants' argument unpersuasive because we agree with the Examiner's finding that Feyereisen suggests the use of laser altimeters for detecting terrain to be displayed and Johnson suggests detecting data over a sensor swath. Final Act. 8; Ans. 17 (citing Feyereisen col. 9, 1. 64 to col. 10, 1. 8 and Johnson col. 5, 1. 65 to col. 6, 1. 4). We also agree with the Examiner's finding that "[i]t would have been obvious to one having ordinary skill in the art at the time the invention was made to implement the sensor swath of Johnson [in place of Feyereisen's laser altimeters], since it was known in the art that both methods provide data with respect to the Earth's terrain." Ans. 17. Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 4 and of claim 13, for which Appellants provide similar arguments. See Appeal Br. 18. 35 U.S.C. § 103: Claim 6 Appellants present additional arguments with respect to dependent claim 6. Appeal Br. 12. These conclusory arguments, however, amounting to little more than a paraphrasing of the claim language and a general denial, are unpersuasive to rebut the prima facie case produced by the Examiner. Cf 37 C.F.R. § 41.37(c)(iv) ("A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim."); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art."). 10 Appeal2015-005124 Application 13/098,333 We, therefore, sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 6. 35 U.S.C. § 103: Claims 5, 7-9, 14-18, and 20 Appellants present additional arguments with respect to the remaining dependent claims. Appeal Br. 17-25. We do not find these arguments persuasive. Rather, we find that the Examiner has provided a complete response to Appellants' arguments supported by a preponderance of evidence. Final Act. 9-15; Ans. 17-18. As such, we adopt the Examiner's findings and explanations provided therein (id.) and we sustain the Examiner's rejection of the remaining dependent claims under 35 U.S.C. § 103(a). DECISION We affirm the Examiner's decision rejecting claims 1-20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 11 Copy with citationCopy as parenthetical citation