Ex Parte Turung

Board of Patent Appeals and Interferences

Mar 11, 2009

10799980 (B.P.A.I. Mar. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRIAN E. TURUNG
____________

Appeal 2008-6105
Application 10/799,980
Technology Center 3600
____________

Decided: 1 March 11, 2009
____________

Before LINDA E. HORNER, JOHN C. KERINS and,
STEFAN STAICOVICI Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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STATEMENT OF THE CASE
Brian Turung (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s decision rejecting claims 23-27, 31, 32, 34-36, 39, 40, 44-48,
52, 53, 55-57, 60, and 61. Claims 1-22 were cancelled. The Examiner has
indicated claims 28-30, 33, 37, 38, 41-43, 49-51, 54, 58, 59, and 62-64
would be allowable if rewritten in independent form2. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We REVERSE.

THE INVENTION
The Appellant’s claimed invention is an emergency navigational
system for aircraft that takes partial or full navigational control when one or
more actual or perceived emergency situations is detected in an attempt to
overcome that situation. Spec. 2:7-8, 20-23. Claim 23, reproduced below, is
representative of the subject matter on appeal.
23. An emergency navigational system that at
least partially controls the navigation of an aircraft
comprising
a comparator device that compares actual
flight parameter data at a particular time, at a
particular location, or combinations thereof to
predefined flight parameter data for said particular

2The Final Rejection correctly states claim 59 would be allowable if
rewritten in independent form (Office Action dated April 13, 2006), while
Appellant’s Status of Claims incorrectly lists claim 49 twice, and
presumably the second listing of claim 49 was intended to be claim 59 (App.
Br. 2).
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time, said particular location, or combinations
thereof, and
a navigational controller that takes control of
at least one navigational control of said aircraft
after said data compared by said comparator
deviates beyond a predefined value.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Schänzer US 3,945,593 Mar. 23, 1976
Bice US 4,924,401 May 8, 1990
Appellant seeks our review of the following rejections:
1. The Examiner rejected claims 23-26, 34-36, 39, and 40 under
35 U.S.C. § 102(b) as being anticipated by Schänzer.
2. The Examiner rejected claims 44-48, 52, 53, 55, 56, 60, and 61
under 35 U.S.C. § 102(b) as being anticipated by Bice.
3. The Examiner rejected claims 27, 31 and 32 under 35 U.S.C.
§ 103(a) over Schänzer in view of Bice.
4. The Examiner rejected claim 57 under 35 U.S.C. § 103(a) as
unpatentable over Bice.

ISSUES
The Examiner found that claims 23-26, 34-36, 39, and 40 are
anticipated by Schänzer. Appellant contends that Schänzer does not disclose
comparing actual flight parameter data at a particular time and/or particular
location to predefined flight parameter data for that particular time and/or
particular location.
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The first issue before us is:
Has Appellant shown that Schänzer does not anticipate the claimed
subject matter because Schänzer does not disclose comparing actual flight
parameter data at a particular time and/or particular location to predefined
flight parameter data for that particular time and/or particular location?
The Examiner found that claims 44-48, 52, 53, 55, 56, 60, and 61 are
anticipated by Bice, and claim 57 is unpatentable over Bice. Appellant
contends that Bice does not compare a predefined flight parameter
associated with a particular time, location, or combination of the two, to a
corresponding monitored flight parameter.
The second issue before us is:
Has Appellant shown that claims 44-48, 52, 53, 55, 56, 60, and 61 are
not anticipated by Bice, and claim 57 is not unpatentable over Bice because
Bice does not compare a predefined flight parameter corresponding to a
particular time, location, or combination of the two, to a corresponding
monitored flight parameter?
The Examiner found that the subject matter of claims 27, 31 and 32 is
obvious over Schänzer and Bice. Appellant contends that the combination
of Schänzer and Bice would not result in a system that compares actual
flight parameter data at a particular time and/or particular location to
predefined flight parameter data for that particular time and/or particular
location.
The third issue before us is:
Has Appellant shown the Examiner erred in the rejection of claims 27,
31 and 32 because the combination of Schänzer and Bice would not result in
comparing actual flight parameter data at a particular time and/or particular
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location to predefined flight parameter data for that particular time and/or
particular location?

FINDINGS OF FACT
We find that the following enumerated facts are supported by at least
a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422,
1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Schänzer discloses a flight control apparatus for an airplane.
Schänzer, col. 1, ll. 15-29.
2. Schänzer discloses using devices to produce twelve state variable
signals that include signals corresponding to both actual and
commanded aircraft position (e.g. altitude) and actual and
commanded aerodynamic condition of flow (e.g. angle of attack).
Schänzer col. 4, ll. 50-62; col. 9, ll. 1-2.
3. Schänzer discloses using a comparator means (deviation detectors
18, 24) to compare the actual altitude 16 and actual angle of attack
10 to the corresponding commanded signals (commanded altitude
22, and commanded angle of attack 20) to produce deviation
signals (elevation deviation signal Δh, and angle of attack
deviation signal Δα). Schänzer, col. 4, ll. 62-67; col. 6, ll. 30-39;
col. 8, ll. 18-22; Fig. 1.
4. Schänzer does not disclose any of the following actual flight
parameter data as being associated with a location or a time: actual
altitude, commanded altitude, actual angle of attack, and
commanded angle of attack. Schänzer, passim; Fig. 1; description
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of twelve state variables at col. 7, l. 4 to col. 8, l. 32.
5. Schänzer discloses that in response to deviation signals, the twelve
state variables, when properly filtered and connected, can be
applied in linear combinations to both the thrust and aerodynamic
condition of flow actuators to provide accurate control of trajectory
and aerodynamic condition of flow, and reduce the deviations.
Schänzer, col. 4, l. 67 to col. 5, l. 31; col. 1, ll. 15-29.
6. Schänzer compares actual altitude and angle of attack, to
commanded altitude and angle of attack, none of which are
associated with a time or location, and does not compare an actual
flight parameter associated with a time, location (or combination of
both) to a predefined flight parameter. Schänzer, passim.
7. Bice discloses a method and an apparatus for preventing
inadvertent aircraft ground collisions with a computer operated
auto recovery system. Bice, col. 1, ll. 11-15.
8. Bice discloses the pilot preselects a floor altitude that is “constant,”
and represents the lowest point of recovery, and does not disclose
any association of the preset floor altitude with a time or location.
Bice, col. 4, ll. 10-13; col. 8, ll. 58-60; Fig. 4.
9. Flight computer 40 monitors flight states (e.g. true airspeed,
altitude, flightpath angle) and uses an algorithm to calculate ΔZ,
the amount of altitude required for the recovery maneuver (“fly
up”). Bice, col. 8, l. 51 to col. 9, l. 27; Fig. 3; col. 13, ll. 26-28.
10. Flight computer 40 adds ΔZ to the floor altitude to determine
aircraft “flyup” altitude, in other words, aircraft flyup altitude is
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the sum of the pilot’s preset floor altitude and the amount of
altitude required for the recovery maneuver (ΔZ) based on aircraft
flight state (air speed, etc). Bice, Fig. 1; Fig. 4.
11. Flight computer 40 monitors actual altitude, and compares it to
flyup altitude, and initiates an automatic aircraft flyup when
current altitude is less than or equal to the flyup altitude. Bice, col.
2, ll. 58 to col. 3, l. 1; Fig. 4.
12. Bice discloses any source may be used for actual altitude,
including Above Ground Level (AGL) altitude from a radar
altimeter, terrain altitude from a digital terrain database, or Mean
Sea Level (MSL) altitude from a source such as barometric
altitude. Bice, col. 13, ll. 40-56; col. 14, ll. 43-47.
13. Bice discloses the altitude data sources of Fact 12 above are only
used for calculation of actual altitude, and does not disclose any of
these sources being used as a predefined flight parameter.
14. Bice discloses only one predetermined flight parameter, floor
altitude, and it is not associated with a time or location; therefore,
Bice does not compare a predefined flight parameter corresponding
to a particular time, location, or combination of the two, to a
corresponding monitored flight parameter.

PRINCIPLES OF LAW
Appellant’s Burden
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
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2006) (“On appeal to the Board, an applicant can overcome a rejection
[under § 103] by showing insufficient evidence of prima facie obviousness
or by rebutting the prima facie case with evidence of secondary indicia of
nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir.
1998)).

ANALYSIS
Rejection of claims 23-26, 34-36, 39, and 40 under 35 U.S.C. 102(b) as
being anticipated by Schänzer
Claim 23 includes the requirement that actual flight parameter data “at
a particular time, at a particular location, or combinations thereof” be
compared “to predefined flight parameter data for said particular time, said
particular location, or combinations thereof.” A person of ordinary skill in
the art would understand these terms to mean the flight parameter data must
be associated with a specified time, a specified location, or a combination of
the two.
Schänzer discloses a flight control apparatus for an airplane that
senses when the actual aircraft trajectory or aerodynamic condition of flow
differs from the commanded trajectory or condition of flow, and when a
deviation is detected, attempts to reduce that deviation (Facts 1-3, 5). In
Schänzer’s process, two actual values are compared to commanded values:
altitude and angle of attack (Fact 3). Schänzer does not disclose either
altitude or angle of attack as associated with a specific location or time (Fact
4). Similarly, the Examiner’s finding that Schänzer’s control of elevation
(altitude) discloses a particular location as recited in claim 23 is incorrect.
Altitude provides no information associated with a time, and provides
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positioning information in only one dimension (height), so that an aircraft at
a given altitude could be located anywhere above the earth at that height.
Altitude alone does not specify flight parameter data “at a particular
location” as required by the claim.
Schänzer does not compare an actual flight parameter “at a particular
time, at a particular location, or combination thereof” to a predefined flight
parameter (Fact 6). Because Schänzer does not meet each element of the
claim, Schänzer does not anticipate claim 23. Likewise, Schänzer does not
anticipate dependent claims 24-26, 34-36, 39, and 40 by virtue of their
dependence on claim 23.

Rejection of claims 44-48, 52, 53, 55, 56, 60, and 61 under 35 U.S.C. 102(b)
as being anticipated by Bice
Similar to claim 23, claim 44 requires comparing a predefined flight
parameter corresponding to a particular time, location, or combination of the
two, to a corresponding monitored flight parameter.
Bice discloses a method and an apparatus for preventing inadvertent
aircraft ground collisions by computer operated auto recovery (Fact 7). The
flight computer calculates aircraft “flyup” altitude and initiates the automatic
recovery when the aircraft is at or below flyup altitude (Facts 7-11). Bice
teaches that flyup altitude is based on a summation of the altitude required to
perform the flyup maneuver and a floor altitude (as determined by the pilot)
(Facts 9, 11).
Bice discloses only one actual flight parameter that is compared to a
predefined flight parameter: floor altitude (Fact 14). The floor altitude
preset by the pilot (predefined) is not associated with a time or location (Fact
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9). Based on this, Bice does not compare a predefined flight parameter
associated with a particular time, location, or combination of the two, to a
monitored flight parameter (Fact 14).
We question the Examiner’s assertion that a digital terrain database
provides a flight parameter associated with a particular location; however,
we need not decide this issue. Assuming, arguendo, that a digital terrain
database provides altitude information at a particular location, Bice discloses
the digital terrain database is used only for determining actual altitude, not as
a predefined flight parameter (Fact 12, 13). As discussed above, Bice only
discloses one predefined flight parameter, floor altitude, and it is not
associated with a time or location (Fact 8, 14). Based on this, Bice does not
compare a predefined flight parameter corresponding to a particular time,
location, or combination of the two, to a corresponding monitored flight
parameter as required by the claim (Fact 14).
Because Bice does not meet each element of the claim, Bice does not
anticipate claim 44. Likewise, Bice does not anticipate dependent claims
45-48, 52, 53, 55, 56, 60, and 61 by virtue of their dependence on claim 44.

Rejection of claims 27, 31 and 32 under 35 U.S.C. 103(a) over Schänzer in
view of Bice
Claims 27, 31, and 32 depend from claim 23 and also contain the
limitation that the predefined flight parameter data be associated with at a
particular location, particular time, or combination of the two. As we
determined in the analysis of claims 23, supra, Schänzer does not disclose a
predefined flight parameter corresponding to a particular location, time or
combination of the two. Similarly, as we determined in the analysis of claim
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44, supra, Bice does not disclose a predefined flight parameter
corresponding to a particular location, time or combination of the two.
Because neither reference teaches use of a predefined flight parameter
corresponding to a particular location, time or combination of the two, and
the rejection does not specify how a person of ordinary skill in the art would
have modified the combination of Schänzer and Bice to meet this limitation;
the rejection does not meet this aspect of the claims. The rejection of claims
27, 31, and 32 must be reversed.

Rejection of claim 57 under 35 U.S.C. 103(a) as unpatentable over Bice
Claim 57 depends from claim 44. We reversed the rejection of claim
44 because it was not anticipated by Bice, and, with respect to dependent
claim 57, Bice suffers from the same shortcoming. Because the rejection
does not recite a modification of Bice to address the limitation found
missing from claim 44, as discussed supra, we must also reverse the
rejection of claim 57.

CONCLUSION
Appellant has shown that Schänzer does not anticipate the subject
matter of claims 23-26, 34-36, 39, and 40, because Schänzer does not
disclose comparing actual flight parameter data at a particular time and/or
particular location to predefined flight parameter data for that particular time
and/or particular location.
Appellant has shown that claims 44-48, 52, 53, 55, 56, 60, and 61 are
not anticipated by Bice, and claim 57 is not unpatentable over Bice because
Bice does not compare a predefined flight parameter associated with a
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particular time, location, or combination of the two, to a corresponding
monitored flight parameter.
Appellant has shown the Examiner erred in the rejection of claims 27,
31 and 32 because the combination of Schänzer and Bice would not result in
a system that compares actual flight parameter data at a particular time
and/or particular location to predefined flight parameter data for that
particular time and/or particular location.

DECISION
We reverse the decision rejecting claims 23-27, 31, 32, 34-36, 39, 40,
44-48, 52, 53, 55-57, 60, and 61.

REVERSED

vsh

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