Ex Parte Zank et al

Board of Patent Appeals and Interferences

Sep 15, 2009

10917793 (B.P.A.I. Sep. 15, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PAUL A. ZANK,
ELDON M. SUTPHIN, and
DAVID W. BUCHANAN
__________

Appeal 2009-002572
Application 10/917,793
Technology Center 2800
____________

Decided: September 15, 2009
____________

Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1-10. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellants disclose a method of measuring electrical fields to detect
the launching of ballistic missles, other rockets, or muzzle blasts and to
determine the bearing of such launch or muzzle blast (Spec. 1).
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Claims 1, 2, 3, and 7 are illustrative:
1. A method of detecting a rocket launch or muzzle blast occurring in
an electrical field comprised of a plurality of isopotential lines which are
spaced from one another above a ground surface, said method comprising
the steps of:

providing a plurality of spaced electrical field sensors; and

measuring distortions of the electrical field by detecting changes in
the isopotential lines at each of said sensors.

2. The method of detecting a rocket launch or muzzle blast of claim 1
wherein dE/dt is measured.

3. The method of detecting a rocket launch or muzzle blast of claim 2
wherein a scatter plot of dE/dt from the rocket launch or muzzle blast is
produced, and a bearing to the rocket launch or muzzle blast is ascertained
from said scatter plot.

7. The method of claim 3 wherein a bearing to a muzzle blast is
ascertained.

The Examiner relies on the following prior art references as evidence
of unpatentability:

Hill 3,928,801 Dec. 23, 1975
Hassanzadeh 4,931,740 Jun. 5, 1990

Appellants appeal the following rejection:
Claims 1-10 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hassanzadeh in view of Hill.
Appellants argue claims 1, 5, 7, and 10. Claims 5, 7, and 10 are
argued as a group of which we select claim 7 as representative.

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Claim 1
ISSUE
Have Appellants shown that the Examiner reversibly erred in
determining that Hassanzadeh does not teach away and that it would have
been obvious to use Hill’s detection of isopotential line disturbances in an
electric field in Hassanzadeh’s method of detecting disturbances in an
electric field? We decide this issue in the negative.

PRINCIPLES OF LAW
The applicant bears the procedural burden of showing error in the
Examiner’s rejections. See, e.g., In re Kahn, 441 F.3d 977, 985-86 (Fed.
Cir. 2006) (“On appeal to the Board, an applicant can overcome a rejection
[under § 103] by showing insufficient evidence of prima facie
obviousness”) (citation and internal quote omitted).
The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art. In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
When assessing whether a claimed invention would have been
obvious, a court must ask whether the improvement is more than the
predictable use of prior art elements according to their established functions.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)
The obviousness “analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR, 550 U.S. at 418.
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A reference that teaches away cannot serve to create a prima facie
case of obviousness. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). A
reference may be said to teach away “when a person of ordinary skill, upon
reading the reference, would be discouraged 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.” Id. “The degree of teaching away will of
course depend on the particular facts; in general, a reference will teach away
if it suggests that the line of development flowing from the reference's
disclosure is unlikely to be productive of the result sought by the applicant.”
Id.

FACTUAL FINDINGS (FF)
1. Hassanzadeh discloses using a plurality of sensors to detect
disturbances in the ambient electrostatic field caused by the
intrusion of a charged body or charge bearing body (col. 4, ll. 1-22;
54-60).
2. Hassanzadeh discloses that the probes 12 used in the sensor
contain radioactive material encapsulated in beads to enhance the
signal detection of the sensor (col. 4, ll. 23-39).
3. Hassanzadeh discloses that a multitude of probes may be used to
provide “detection, identification, location, and course
information” (col. 5, ll. 20-44).
4. Hill discloses using the earth’s static potential gradient (i.e.,
electric field) as a reference for generating an information-bearing
electrical signal (col. 3, ll. 9-11). Hill discloses using sensing
probes 12 containing a radioactive metal salt or metal to respond to
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changes in the static voltage encountered in the atmosphere (col. 3,
ll. 42-52). The “effective combination of two differential static
voltmeters can be used to define an equipotential plane within the
earth’s static potential gradient” (Hill, col. 3, ll. 22-24).
5. While Hill discloses using the sensors to determine angular
displacement of an aircraft (col. 33-68), Hill further discloses that
the sensors may be used to detect “local variations in the static
potential gradient which can be indicative of radioactive material
on or below the surface of the earth, pollution sources, etc.” (col.
7, ll. 25-29). Hill discloses that radioactive sources ionize the air
surrounding the sources (col. 3, ll. 42-48) and that ionization
sources distort the vertical electric field gradient (col. 1, ll. 52-55).
In other words, Hill discloses that radioactive sources (ionization
sources) disturb the static potential gradient to permit detection by
the sensors.
6. Appellants concede that a muzzle blast would produce charged
particles and “offer no comments” regarding the Examiner’s
finding that a rocket launch would produce sufficient charged
particle exhaust for detection by disturbance of the electric field as
disclosed by Hassanzadeh (Reply Br. 2).

ANALYSIS
Appellants argue that Hassanzadeh teaches away from the claimed
invention because Hassanzadeh is concerned with sensing a horizontally
situated aircraft which is different than detecting a rocket launch or muzzle
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blast which usually has a significant vertical distance component associated
with it (App. Br. 3).
Contrary to Appellants’ argument, Hassanzadeh does not discourage a
person skilled in the art from detecting the presence of an object with a
significant vertical distance component. Rather, like the Examiner (Ans. 6),
we note that a particular trajectory has not been claimed and there is no
teaching in Hassanzadeh that discourages using the detecting method to
detect aircraft during take-off, landing, and ascent or descent during flight
(i.e., flight positions with a significant vertical component). In other words,
we find no teaching in Hassanadeh that would have led a person skilled in
the art in a direction divergent from the path that was taken by Appellants.
Accordingly, we do not find that Hassanzadeh teaches away from the
claimed invention.
Appellants further argue that there would have been no reason to
combine Hill’s teaching to control angular displacement of an aircraft using
the electrostatic field with Hassanzadeh’s method of detecting the presence
of a horizontally situated aircraft (App. Br. 4-5).
However, the Examiner determines that there would have been a
reason to combine Hill and Hassanzadeh based on their disclosure of
detecting disturbances in the electrostatic fields (Ans. 6). We agree.
Contrary to Appellants’ arguments, Hill and Hassanzadeh disclose
that ionized materials disturb the electrostatic potential gradient to permit
detection (FF 1 & 5). Moreover, both Hill and Hassanzadeh disclose that
charged or ionizing material may be detected by their disturbance of the
electric field (FF 1 & 5). Accordingly, there is a reason for combining Hill’s
sensor arrangement for detecting disturbance of the isopotential lines of the
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electric field with Hassanzadeh’s detection method: to detect charged
material by the disturbances in the isopotential lines of the electric field.
Moreover, substituting one known method for another known method
of detecting disturbances in the electric field would have been obvious
because such a substitution is nothing more than the predictable use of a
prior art element (i.e., electrostatic field detectors to detect isopotential lines
of the electric field) according to its established function (i.e., detecting
disturbances or changes in the isopotential lines of the electrostatic field).
KSR, 550 U.S. at 417.
Regarding claim 7, Appellants argue their invention can detect the
presence of objects without a large amount of charged particle exhaust, such
as with an artillery shell from a muzzle blast (App. Br. 4). The argument is
unpersuasive because Appellants concede that a muzzle blast does produce
charged particle exhaust (FF 6).
Further regarding claim 7, Appellants argue that there is nothing in
Hill that teaches ascertaining the overall position or bearing of the aircraft
(App. Br. 4). However, the Examiner relies on Hassanzadeh’s teaching that
the electrostatic detecting method is used to detect, identify, locate, and
provide course information about the sensed object (Ans. 4). Appellants
never address and thus have not shown error with the Examiner’s finding
that the disputed feature is taught by Hassanzadeh (See generally App. Br.
and Reply Br.). Furthermore, Appellants’ argument improperly attacks the
references individually instead of addressing why the combined teachings of
the prior art would not have taught or suggested the disputed feature of the
claimed subject matter. Keller, 642 F.2d at 425. Accordingly, we are
unpersuaded by Appellants’ argument.
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Application 10/917,793

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For the above reasons, we affirm the Examiner’s § 103 rejection of
claims 1-10 over Hassanzadeh in view of Hill.

ORDER
The Examiner’s decision 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

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