Ex Parte Richards

Patent Trial and Appeal Board

Oct 31, 2014

11859276 (P.T.A.B. Oct. 31, 2014)

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.
11/859,276 09/21/2007 Robert E. Richards 4354
7590 10/31/2014
Robert E. Richards
310 Chase Lane
Marietta, GA 30068
EXAMINER
CHEN, SHELLEY
ART UNIT PAPER NUMBER
3663
MAIL DATE DELIVERY MODE
10/31/2014 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 ROBERT E. RICHARDS
____________________

Appeal 2012-002632
Application 11/859,276
Technology Center 3600
____________________

Before: STEFAN STAICOVICI, JILL D. HILL, AND
BEVERLY M. BUNTING, Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Robert E. Richards (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 40–481. Appeal Br. 2. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Claims 49–60 are pending but have been withdrawn.
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Application 11/859,276

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CLAIMED SUBJECT MATTER
Sole independent claim 40, reproduced below, represents the claimed
subject matter.
1. A method comprising:
determining an aircraft's coordinates on a runway by a
global positioning system ("GPS") receiver in the aircraft;
determining the aircraft's speed and acceleration;
determining a separation between the aircraft on the runway
and an end of the runway opposite the aircraft based on the
coordinates of the aircraft and the coordinates of the end of the
runway opposite the aircraft;
determining through the use of a computer based on the
determined separation, speed and acceleration whether the
aircraft will reach the end of the runway opposite the aircraft
before the aircraft achieves takeoff speed; and
providing a visual or audible warning in the aircraft if the
aircraft will reach the end of the runway opposite the aircraft
before the aircraft achieves takeoff speed.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Voisin US 2009/0125168 A1 May 14, 2009

REJECTIONS
Claims 40, 41, and 43–47 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Voisin. Ans. 3.
Claims 42 and 48 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Voisin.

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OPINION
Appellant argues claims 40, 41, and 43–47 as a group. Appeal Br. 12.
We select claim 40 as representative. See 37 C.F.R. § 41.37(c)(1)(vii)
(2011). Claims 41 and 43–47 stand or fall with claim 40.
Voisin is not Enabling
Appellant initially argues that “Voisin is not a proper prior art
reference for the present invention because Voisin does not provide a
disclosure in accordance with 35 U.S.C. § 112; i.e., either a sufficient
written description or an enabling disclosure of the subject matter claimed in
Claim 40.” Appeal Br. 6. According to Appellant, “even though the
coordinates of the ends of the runway and the length of the runway are
provided as inputs to the controller 12 of Voisin, there is no disclosure of
when, where, why and how the controller 12 processes this data,” and
similarly “even though position 13, velocity 14 and time 15 are shown as
inputs to the controller 12 of Voisin, there is no disclosure of when, where,
why and how to use this data.” Id. at 6–7. Appellant argues that it is
improper to conclude that the coordinates for the end of the runway are used
for any particular purpose in Voisin, because all of the functions described in
Voisin can be performed based upon the known length of a runway and the
distance traveled by the aircraft from its initial starting position. Id. at 7.
To this end, Appellant further argues that “[a]lthough Voisin discloses
three formulas used for computing the ‘takeoff point’, he does not disclose
when, where, why and how this information is used by the controller 12,”
and that Voisin “does not disclose how the end of the runway is
determined.” Appeal Br. 7-8. According to Appellant, Voisin contains only
a “vague description of results it would like to achieve,” but does not
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provide a sufficient written description of its invention or an enabling
disclosure. Id. at 8.
Establishing anticipation requires that the prior art disclosure is
enabling to one skilled in the art. See Bristol-Myers Squibb Co. v. Ben
Venue Labs, Inc., 246 F.3d 1368, 1379 (Fed. Cir. 2001).2 Appellant
essentially argues that the certain elements of the claimed invention include
nascent technology, which must be enabled with a “specific and useful
teaching,” because a person of ordinary skill in the art has little or no
knowledge independent from the patentee’s instruction. See Appeal Br. 5;
Reply Br. 6; Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1254 (Fed.
Cir. 2004) (citations omitted). In other words, Appellant argues that Voisin
must teach each limitation of the recited claims explicitly, because one
skilled in the art would have little or no ability to rely on basic known facts
to understand Voisin’s teachings. Appellant, however, never explicitly
identifies what elements of the claimed invention include nascent
technology, other than a general statement that “[t]he missing disclosure of
Voisin is the novel, or nascent, aspect of the subject matter claimed in Claim
40.” Further, Appellant fails to provide any explanation of why certain
elements of the recited claims include nascent technology.
We agree with the Examiner that the disclosure of Voisin is enabling
to one skilled in the art. Regarding Appellant’s argument that the Examiner
applied the wrong legal standard in “supplying information not contained in
Voisin and making assumptions about the disclosure of Voisin” (Reply Br.

2 There is no requirement that prior art satisfy the written description
requirement of 35 U.S.C. § 112.
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2), the pending rejection appropriately considers what Voisin would teach
one skilled in the art.
Further, we note that although the prior art must be enabling, there is
no legal support for the contention that the prior art must enable Appellant’s
claims.
Appellant then argues that (1) Voisin utilizes a predicted acceleration
in its distance-to-takeoff equations, while the present invention utilizes
actual acceleration, and (2) Voisin’s equations utilize a variable Vn that is
not defined in its specification. Appeal Br. 8.
Regarding Voisin’s use of predicted acceleration, the Examiner
responds that Voisin uses both actual and predicted acceleration “because
predicted acceleration is computed based on current actual velocity and
acceleration, as described in paragraphs 32 and 35,” and that actual
acceleration is also used as described in “paragraphs 3, 6, and 18.” Ans. 11.
The Examiner has the right of it. Voisin uses actual acceleration in
determining “whether the aircraft will reach the end of the runway opposite
the aircraft before the aircraft achieves takeoff speed” as recited in claim 40.
Further, claim 40 does not recite use of “actual acceleration,” but rather
simply “acceleration.”
Regarding a definition of Vn, the Examiner responds that Voisin’s
“[p]aragraph 26 describes Vn as the velocities between current velocity Vp
and takeoff velocity Vtakeoff.” Id. We agree.
In the Reply Brief, Appellant alleges that Voisin’s equations contain
errors. For example, Appellant argues that equation 1, which determines a
change in time dT, would not “give a time.” Reply Br. 3-4. Appellant is
incorrect. In equation 1, which reads dT = dV/aP, dT represents a change in
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time and aP represents predicted acceleration. See Voisin, para. 26-32. One
skilled in the art would understand that the measure of speed is in units of
distance/time and the measure of acceleration is in units of distance/time2,
and thus, if velocity is divided by acceleration, a unit of time results.
Appellant next argues that Voisin’s equation 2 includes no “present
position” variable, and therefore cannot be a function of the plane’s present
position as stated in Voisin’s paragraph 32. Reply Br. 4. Voisin’s paragraph
32 does not, however, allege that equation 2 is a function of the plane’s
present position, but rather states that “[e]quation 2 determines a distance to
the takeoff velocity from the present position.” One skilled in the art would
understand that the relevance of “present position” is that the velocity at that
position is input into equation 2, and that the equation determines, based on
the “present position” velocity and predicted acceleration, a distance until
takeoff occurs.
Regarding Voisin’s Figure 3, Appellant argues that the Examiner’s
findings regarding its teachings are in error because
[i]t is intuitive that it will take a longer distance to reach takeoff
velocity when an aircraft is traveling at 50 knot[s] than it will
when the aircraft is traveling at 80 knots[]. However, if one
examines Fig. 3, S(Vn) for 50 knots is 307 and S(Vn) for 80
knots is 756. It cannot take a longer distance to reach takeoff
speed at a current speed of 80 knot than it would at 50 knots.
Reply Br. 4. Appellant’s reasoning, however, is not convincing because it
fails to take into account that the acceleration associated with 50 knots is 6.5
and the acceleration associated with 80 knots is 4.79. See Voisin, Figure 3.
One skilled in the art would understand that a plane traveling at a lower
velocity but accelerating faster can reach takeoff speed faster than a plane
that starts at a higher velocity but accelerates at a slower rate.
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Appellant lastly argues that the Examiner erred in finding that Voisin
necessarily teaches determining separation prior to employing visual
indicators. Reply Br. 6. According to Appellant, “Voisin does not disclose
how it is done. And, there are other ways of performing this task other than
the two ways suggested by the Examiner.” However, one skilled in the art
would understand that takeoff data would be analyzed prior to employing
indicators intended to illustrate the result of the analysis. See, e.g., Voisin,
para. 21 (discussing informing the pilot regarding results of takeoff and
braking calculations). We are not persuaded by this argument.
Voisin Does Not Teach All of the Elements
Appellant argues that, because Voisin does not disclose a use for the
coordinates of the end of the runway or the aircraft’s velocity, and because
Voisin teaches using predicted acceleration rather than actual acceleration,
Voisin fails to teach: (1) “determining the aircraft’s speed and acceleration;”
(2) “determining a separation between the aircraft on the runway and an end
of the runway opposite the aircraft based on the coordinates of the aircraft
and the coordinates of the end of the runway opposite the aircraft;” and (3)
“determining through the use of a computer based on the determined
separation, speed and acceleration whether the aircraft will reach the end of
the runway opposite the aircraft before the aircraft achieves takeoff speed.”
Appeal Br. 12.
As set forth above, we are not persuaded that the Examiner’s findings
regarding the teaching of Voisin are in error due to Voisin being non-
enabling.
In response to the Examiner’s finding that Voisin’s drawings show
“determining a separation between the aircraft on the runway and an end of
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the runway opposite the aircraft based on the coordinates of the aircraft and
the coordinates of the end of the runway opposite the aircraft” (Final Rej. 4),
Appellant argues that Voisin’s drawings “show potential readouts of a
hypothetical display in an aircraft” rather than disclosing “how the functions
they are supposed to represent are determined.” Id. at 13. According to
Appellant, Voisin’s Specification deficiencies leave one “to conjecture and
speculation as to how the display inputs are determined and how the output
is generated. The drawings in Voisin are equivalent to a patent application
containing pictures of a spacecraft flying from Earth to Mars, but containing
an insufficient disclosure of how to do it.” Id.
The Examiner responds that Voisin teaches determining “the distance
from the aircraft to the end of the runway, based on the aircraft
coordinates/position and runway coordinates/location,” the distance being
“determined prior to display (either directly by calculation, or indirectly by
plotting the aircraft coordinates with respect to the coordinates for the end of
the runway P39).” Ans. 15–16. According to the Examiner, the distance (or
separation) must “be determined prior to indicating whether the takeoff point
is beyond the end of the runway . . . , because the calculated distance to
takeoff . . . must be directly compared to the separation to determine if the
takeoff point is beyond the end of the runway.” Id. at 16. Appellant argues
that these finding are “pure speculation” because “there are other ways of
performing this task,” and that “it is not the place of the Examiner to
speculate how Voisin intended to perform this step.” Reply Br. 6.
Considering the prior art in terms of what it teaches one skilled in the
art is not speculation. What a reference teaches a person of ordinary skill is
not limited to what a reference specifically “talks about” or what is
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specifically “mentioned” or “written” in the reference. Syntex (U.S.A.) LLC
v. Apotex, Inc. 407 F.3d 1371, 1380 (Fed. Cir. 2005). Appellant’s arguments
regarding speculation on the part of the Examiner do not persuade us that the
Examiner’s findings are in error. Appellant fails to explains the “other ways
of performing” Voisin’s tasks, or why those ways do not anticipate claim 40.
For the reasons set forth above, we sustain the rejection of claim 40 as
anticipated by Voisin. Claims 41 and 43–47 fall with claim 40.
Rejection under 35 U.S.C. § 103(a)
Although Appellant lists the rejection under Section 103(a) as a
ground of rejection to be reviewed on appeal, Appellant makes no argument
that claims 42 and 48 would be patentable over Voisin if claim 40 is
anticipated by Voisin. We therefore sustain the rejection of claims 42 and
48 as unpatentable over Voisin.

DECISION
We AFFIRM the rejection of claims 40, 41, and 43–47 under 35
U.S.C. § 102(e) as anticipated by Voisin.
We AFFIRM the rejection of claims 42 and 48 under 35 U.S.C. §
103(a) as unpatentable over Voisin.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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