Ex Parte Wyatt et alDownload PDFPatent Trial and Appeal BoardSep 22, 201613471213 (P.T.A.B. Sep. 22, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/471,213 05/14/2012 89955 7590 HONEYWELL/LKGlobal Patent Services 115 Tabor Road P.O.Box 377 MORRIS PLAINS, NJ 07950 09/26/2016 FIRST NAMED INVENTOR Ivan Sandy Wyatt 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. H0034428 (002.2677) 7143 EXAMINER BLACK-CHILDRESS, RAJSHEED 0 ART UNIT PAPER NUMBER 2684 NOTIFICATION DATE DELIVERY MODE 09/26/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): patentservices-us@honeywell.com DL-ACS-SM-IP@Honeywell.com docketing@LKGlobal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IVAN SANDY WYATT, THEA L. FEYEREISEN, and GANG HE Appeal2015-005398 Application 13/4 71,213 Technology Center 2600 Before KRISTEN L. DROESCH, JOHN P. PINKERTON, and JOHN D. HAMANN, Administrative Patent Judges. PINKERTON, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 file this appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-20, which constitute all of the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. 1 Appellants identify Honeywell Inc. as the real party in interest. App. Br. 2. Appeal2015-005398 Application 13/4 71,213 STATEMENT OF THE CASE Introduction Appellants' described and claimed invention generally relates to displaying images to an aircrew member of an aircraft during approach to a runway. Abstract. 2 Claim 1 is representative and reads as follows: 1. A system for displaying images to an aircrew member of an aircraft during approach to a runway, the system comprising: a database configured to store runway data, synthetic vision system data, and approach texture objects data for each of a plurality of runways; avionics equipment configured to determine coordinates, altitude, and speed of the aircraft; a display; and a processor coupled to the database and the av10mcs equipment; and configured to: identify a desired runway; select approach texture objects for the identified runway, the approach texture objects consisting of a three dimensional representation that change in size and shape with regard to a changing position of the aircraft with respect to the approach texture objects; process the current coordinates, altitude, and speed of the aircraft; 2 Our Decision refers to the Final Office Action mailed Aug. 28, 2014 ("Final Act."), Appellants' Appeal Brief filed Nov. 24, 2014 ("App. Br.") and Reply Brief filed Apr. 14, 2015 ("Reply Br."), the Examiner's Answer mailed Apr. 8, 2015 ("Ans."), and the original Specification filed May 14, 2012 ("Spec."). 2 Appeal2015-005398 Application 13/4 71,213 modify the selected approach texture objects for the determined coordinates, altitude, and speed; and display the modified approach texture objects and the runway on the display. Rejections on Appeal Claim 7 stands rejected under 35 U.S.C. § 112, second paragraph, as being indefinite for lack of antecedent basis for the limitations "the approach environment" and "the actual out-of-the-window scene." Claims 1-11 and 13-20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Little et al. (US 7,295,901 Bl; issued Nov. 13, 2007) ("Little"), He et al. (US 8,400,330 B2; issued Mar. 19, 2013) ("He"), and Nauman et al. (US 2013/0138275 Al; published May 30, 2013) ("Nauman"). Claim 12 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Little and Nauman. ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments in the Briefs (see App. Br. 12-22; Reply Br. 2-3) and are not persuaded that the Examiner has erred. Unless otherwise noted, we adopt as our own the findings and reasons set forth by the Examiner in the Office Action from which this appeal is taken (Final Act. 2-10) and in the Examiner's Answer (Ans. 2--4), and we concur with the conclusions reached by the Examiner. For emphasis, we consider and highlight specific arguments as presented in the Briefs. 3 Appeal2015-005398 Application 13/4 71,213 Rejection of Claim 7 under§ 112, second paragraph Regarding the Examiner's rejection of claim 7 under 35 U.S.C. § 112, second paragraph, Appellants suggest claim 7 be amended by replacing the introductory word "the" in the limitations "the approach environment" and "the actual out-of-the-window scene" with the word "an." App. Br. 12. The Examiner did not respond to Appellants' proposed amendment in the Answer, and, therefore, Appellants' proposed amendment has not been admitted. See 37 C.F.R. § 41.33. Appellants do not assert that the Examiner erred in rejecting claim 7 under 35 U.S.C. § 112, second paragraph (see App. Br. 12); thus, we proforma sustain the Examiner's rejection of claim 7 under 35 U.S.C. § 112, second paragraph, for indefiniteness. Rejection of Claims 1-20 under§ 103(a) Regarding claims 1-11 and 20, 3 Appellants argue the Examiner has not met his burden of establishing a prima facie case of obviousness "because the prior art does not objectively teach or suggest combining the references, nor are all of the recited claim elements obvious from the nature of the problem itself," and "the Examiner is unwittingly relying on impermissible hindsight reasoning." App. Br. 14. Regarding independent claims 1, 11, and 12, Appellants argue nowhere do the references, individually or in combination, teach or suggest "displaying approach texture objects consisting of a three dimensional representation that change in size and shape with regard to a changing position of the aircraft with 3 Although Appellants list claims 13-19 in the title of section II of the Appeal Brief, these claims are not otherwise mentioned or argued in this section. Accordingly, the arguments in section II of the Appeal Brief do not present separate arguments for patentability of claims 13-19. See 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal2015-005398 Application 13/4 71,213 respect to the approach texture objects." Id. at 14, 18, 21; Reply Br. 2. According to Appellants, the disclosures of the references "are not related to the present claims, and the display of approach texture objects modified for determined coordinates, altitude, and speed." App. Br. 14--15, 18, 21-22. Appellants further argue there is no suggestion or basis to combine the references, and to justify combining references, "it is necessary not only that it be physically possible to combine them, but the art should contain something to suggest the desirability of doing so." Id. at 18; Reply Br. 2. Appellants further argue the references "do not teach the purpose of the combination or recognize the problem." App. Br. 19. We are not persuaded by Appellants' arguments that the Examiner has erred. Regarding Appellants' argument the Examiner failed to establish a prima facie case of obviousness, we find the Examiner provided detailed and comprehensive findings, supported by citations to the references, with respect to all of the limitations of claims 1-11 and 20, as well as claims 12- 19. See Final Act. 3-10; Ans. 2--4. Thus, the Examiner has met the procedural burden of establishing a prima facie case of obviousness by stating reasons for the rejections, together with information and references as may be useful to the applicants in judging the propriety of continuing prosecution. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). We are not persuaded by Appellants' arguments that the references, individually and in combination, fail to teach or suggest the limitations "the approach texture objects consisting of a three dimensional representation that change in size and shape with regard to a changing position of the aircraft with respect to the approach texture objects" and "modify the selected approach texture objects for the determined coordinates, altitude, 5 Appeal2015-005398 Application 13/4 71,213 and speed," as recited in claim 1, and as similarly recited in claims 11 and 12. First, we agree with the Examiner's findings that the combined teachings of Little and Nauman teach or suggest these limitations. Ans. 2--4. In that regard, the Examiner finds, and we agree, Little teaches two dimensional texture objects (position indicators 108) that are parallel to the approach direction to the runway and change in size and shape based on the changing coordinates (position), altitude, and speed of the aircraft as it gets closer to the runway. Ans. 2-3 (citing Little col. 6, 1. 58---col. 7, 1. 33; Figs. 3-10). The Examiner also finds, and we agree, Nauman teaches the three dimensional depiction of displayed objects that change in size and shape with regard to a changing position of the aircraft. See Final Act. 4 (citing Nauman i-fi-138--42, Figs. 5A-5C); Ans. 2 (citing Nauman i-fi-138--42). For example, the display of Figure 5B shows a case in which the user selected maneuver is landing and the objects are shown in 3D orientation. See Nauman i140. Thus, we agree with the Examiner that it would have been obvious to a person of ordinary skill in the art to have used three dimensional texture objects, such as taught by Nauman, in a two dimensional system, such as taught by Little, in which the position indicators would change in size and shape in regard to the changing positon, altitude, and speed of the aircraft as it approaches the runway. Ans. 2-3. Second, Appellants' argument that the references are not related to the claims and the display of approach objects modified for determined coordinates, altitude, and speed (see App. Br. 14--15, 18, 21-22) is unpersuasive because the argument is conclusory and unsupported by an explanation of why the references are not related to the claims or the display of modified approach objects. Appellants' assertions amount to unsupported 6 Appeal2015-005398 Application 13/4 71,213 attorney argument and, therefore, we give them little weight. See Jn re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Huang, 100 F.3d 135, 139-140 (Fed. Cir. 1996). Third, we are not persuaded by Appellants' argument that Nauman "discloses displaying three dimensional visual symbols along/in a flight path," whereas the approach texture objects of claims 1, 11, and 12 "are associated with the runway and not the flight path." App. Br. 15; Reply Br. 2. As discussed supra, the Examiner relies on Little as teaching position indicators associated with the runway. See Ans. 2-3. Thus, Appellants argument that Nauman fails to teach this feature of the limitations at issue is unpersuasive because "[ n ]on-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of the references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). We also are not persuaded by Appellants' arguments that there is no suggestion to combine the references and that, to justify combining references, "it is necessary not only that it be physically possible to combine them, but the art should contain something to suggest the desirability of doing so." See App. Br. 18; Reply Br. 2. The Supreme Court has rejected the rigid requirement of demonstrating a teaching, suggestion, or motivation to combine references to show obviousness. KSR Int'! Co. v. Teleflex Co., 550 U.S. 398, 419 (2007). Instead, a rejection based on obviousness only needs to be supported by "some articulated reasoning with some rational 7 Appeal2015-005398 Application 13/4 71,213 underpinning" to combine known elements in the manner required by the claim. Id. at 418. Here, the Examiner determines it would have been obvious to a person of ordinary skill in the art to combine Nauman's three dimensional approach objects in Little's two dimensional system so that the position indicators 108 of Little would change in size and shape as the aircraft nears and passes over particular position indicators as the aircraft approaches the runway "in order to provide the user/pilot data relating to the topography ... and to significantly improve the spatial perception of the pilot and facilitates following the desired orientation on top of the desired location and speed (as suggested by Nauman's [0041])." Ans. 2-3. We agree with the Examiner's determination because it constitutes persuasive articulated reasoning with rational underpinning for a person of ordinary skill in the art to have combined the teachings of Little and Nauman in the manner required by the claims. See KSR, 550 U.S. at 418. Based on the Examiner's determination, we also are not persuaded by Appellants' argument that the references "do not teach the purpose of the combination or recognize the problem." Furthermore, "[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls." See KSR, 550 U.S. at 419. We also are not persuaded by Appellants' argument that, to justify combining references, it is necessary that it be physically possible to combine them. This argument is incorrect as a matter of law as "[i]t is well- established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements." In re Mouttet, 686 F. 3d 1322, 1332 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d at 425 ("The test for obviousness is not whether the features 8 Appeal2015-005398 Application 13/4 71,213 of a secondary reference may be bodily incorporated into the structure of the primary reference.")). In response to Appellants' assertion that "the Examiner is unwittingly relying on impermissible hindsight reasoning" (App. Br. 14), it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. However, so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the Appellant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Here, we conclude the Examiner did not use impermissible hindsight because, as discussed supra, the rejection is based on the references and what they would have taught or suggested to a person of ordinary skill in the art. Lastly, we note Appellants recite the limitations of claims 1, 11, and 12, and, after arguing claims 2-10, 20, and 13-19 are believed allowable because they depend from an allowable claim, recite the limitations of claims 2-10, 20, and 13-19. App. Br. 16-18, 20-21. This amounts to no more than reciting the claim language and alleging the cited prior art references are deficient, which do not constitute separate arguments for patentability of the claims. See 37 C.F.R. § 41.37(c)(l)(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."); cf In re 9 Appeal2015-005398 Application 13/4 71,213 Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for [patentable] distinctions over the prior art."). Thus, we are not persuaded the Examiner erred in ( 1) finding the combined teachings of Little and Nauman teach or suggest the limitations "the approach texture objects consisting of a three dimensional representation that change in size and shape with regard to a changing position of the aircraft with respect to the approach texture objects" and "modify the selected approach texture objects for the determined coordinates, altitude, and speed," (2) concluding that the combination of Little, Nauman, and He renders the subject matter of claims 1 and 11 obvious under 35 U.S.C. § 103(a), and (3) concluding the combination of Little and Nauman renders the subject matter of claim 12 obvious under 35 U.S.C. § 103(a). Accordingly, we sustain the Examiner's rejection of claims 1, 11, and 12, as well as dependent claims 2-10 and 13-20, which are not argued separately and substantively. DECISION We proforma sustain the Examiner's rejection of claim 7 under 35 U.S.C. § 112, second paragraph, for indefiniteness. We affirm the Examiner's decision rejecting claims 1-20 under 35 U.S.C. § 103(a). 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 10 Copy with citationCopy as parenthetical citation