Hoyt Fleming

Patent Trials and Appeals Board

Sep 28, 2021

IPR2020-00762 (P.T.A.B. Sep. 28, 2021)

Trials@uspto.gov Paper 31
Tel: 571-272-7822 Date: September 28, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

CIRRUS DESIGN CORPORATION,
Petitioner,
v.
HOYT AUGUSTUS FLEMING,
Patent Owner.

IPR2020-00762
Patent RE47,474 E

Before JOSIAH C. COCKS, SCOTT C. MOORE, and
STEPHEN E. BELISLE, Administrative Patent Judges.

COCKS, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining All Challenged Claims Unpatentable
35 U.S.C. § 318(a)

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I. INTRODUCTION
A. Background
Cirrus Design Corporation (“Petitioner” or “Cirrus”) filed a Petition
(Paper 2, “Pet.”) to institute an inter partes review of claims 95–131 (“the
challenged claims”) of U.S. Patent No. RE47,474 E (Ex. 1001, “the
’474 patent”).1 See 35 U.S.C. § 311. We instituted trial to determine
whether the challenged claims were unpatentable as follows:
Claims Challenged 35 U.S.C. § References/Basis
95–131 1032 POH,3 James,4 Hoffmann5
Paper 19 (“Dec. on Inst.”).
Hoyt Augustus Fleming (“Patent Owner”) timely filed a Patent Owner
Response (Paper 21, “PO Resp.”).6 Petitioner filed a Reply to Patent Owner

1 The ’474 patent is a reissue of U.S. Patent No. 8,100,365 B2. See
Ex. 1001, code (64).
2 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29,
125 Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103, effective
March 16, 2013. Because the application from which the ’474 patent issued
was filed before this date, the pre-AIA version of § 103 applies.
3 Cirrus Design, Pilot’s Operation Handbook, SR22, Revision A7 dated
Oct. 10, 2003 (Ex. 1007, “POH”).
4 U.S. Patent No. 6,460,810 B2 issued Oct. 8, 2002 (Ex. 1005, “James”).
5 U.S. Patent No. 7,584,928 B2 issued Sep. 8, 2009 (Ex. 1006, “Hoffmann”).
6 In its Patent Owner Response, Patent Owner states that “Patent Owner
recently filed a Disclaimer with the Patent Office that disclaims claim 125.
Ex. 2005.” PO Resp. 2. We discern that Exhibit 2005 is a “Disclaimer in
Patent Under 37 CFR 1.321(a)” and indicates that claim 125 has been
disclaimed. Accordingly, that claim is no longer regarded as part of the
’474 patent and is no longer involved in this proceeding. See 35 U.S.C.
§ 253 (2018) (disclaimer of claims considered effective as if part of original
patent); 37 C.F.R. § 42.107(e) (“No inter partes review will be instituted on
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Response (Paper 24, “Pet. Reply”). Patent Owner filed a Sur-Reply
(Paper 26, “PO Sur-Reply”). Oral argument was conducted on June 29,
2021. A transcript of the oral argument appears in the record. Paper 30.
For the reasons set forth below, we determine that Petitioner has
shown, by a preponderance of the evidence, that all of the remaining
challenged claims are unpatentable. See 35 U.S.C. § 316(e).
B. Related Matter
The parties identify Cirrus Design Corporation v. Fleming, No. 0:19-
cv-01286 (D. Minn.) as a related matter under 37 C.F.R. § 42.8(b)(2).
Pet. 1; Paper 5, 2. The parties also reference IPR2019-01566 (“the ’1566
IPR”), in which Petitioner challenged claims 2, 3, 8, 10, 15, 132 and 135–
139 of the ’474 patent, and U.S. Patent Application Nos. 16/422,357 and
16/422,440, which are said to be continuations of the ’474 patent. Pet. 1;
Paper 5, 2.7
C. The ’474 Patent
The ’474 patent is titled “Intelligent Ballistic Parachute System that
Performs Pre-Activation and/or Post-Activation Actions.” Ex. 1001,
code (54). The ’474 patent characterizes its disclosure as relating generally
“to whole aircraft parachute systems.” Id. at 1:22. The Abstract of the
’474 patent is reproduced below:

disclaimed claims.”). Thus, claims 95–124 and 126–131 are the remaining
challenged claims.
7 In a Final Written Decision in the ’1566 IPR, we determined that Petitioner
had shown by a preponderance of the evidence that claims 137–139 of the
’474 patent were unpatentable based on the combined teachings of POH and
James. See Ex. 1054.
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An aircraft, the aircraft including a whole-aircraft ballistic
parachute that is coupled to the aircraft. The aircraft determines
if a pre-activation action needs to be performed before activation
of the whole-aircraft ballistic parachute. The aircraft also
receives a whole-aircraft ballistic parachute activation request.
The aircraft then issues a command to perform the pre-activation
action and then activates the deployment of the whole-aircraft
ballistic parachute. The aircraft then issues a command to
perform a post-activation action.
Id. at code (57).
Figure 14 of the ’474 patent is reproduced below:

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Figure 14 above is characterized as a flowchart of a method
performed by “a system for increasing the safety of aircraft occupants.” Id.
at 2:14–15.
D. Illustrative Claim
Of the challenged claims, claims 95, 101, 107, 113, 119, 125–128,
130, and 131 are independent claims. Claims 96–100, 102–106, 108–112,
114–118, 120–124, and 129 ultimately depend from one of those dependent
claims.
Claim 95 is illustrative and is reproduced below.
95. An aircraft, the aircraft including:
a fuselage,
a whole-aircraft ballistic parachute, which includes a
rocket, that is coupled to the fuselage of the aircraft,
an activation interface,
an airspeed sensor,
an altitude sensor,
a roll sensor,
an autopilot,
an aircraft engine,
one or more memories having machine-readable
instructions stored thereon, and
one or more processors, each of the one or more processors
configured to read and execute a portion of the machine-readable
instructions;
wherein at least one of the one or more processors is
coupled to the activation interface, at least one of the one or more
processors is coupled to the airspeed sensor, at least one or the
one or more processors is coupled to the altitude sensor, at least
one of the one or more processors is coupled to the roll sensor, at
least one of the one or more processors is coupled to the
autopilot, at least one or the one or more processors is coupled to
the aircraft engine, at least one of the one or more processors is
coupled to the rocket, at least one of the one or more processors
is coupled to the one or more memories;
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the aircraft configured to perform a method comprising:
receiving, by the activation interface, a whole-aircraft
ballistic parachute deployment request from an occupant of the
aircraft; then
based upon the receipt of the whole-aircraft ballistic
parachute deployment request by the activation interface, both
performing an action and also deploying the whole-aircraft
ballistic parachute;
wherein the machine readable-instructions include the
actions comprising:
(a) performing a first evaluation that produces a first
output;
(b) based at least upon the first output being in a first state,
then commanding deployment of the whole-aircraft ballistic
parachute;
(c) based at least upon the first output being in a second
state, then:
(i) commanding a reduction in engine power;
(ii) commanding a climb; and
(iii) commanding a decrease in aircraft roll;
(d) after commanding the reduction in engine power, then
performing a second evaluation that produces a second output;
(e) based at least upon the second output being in a first
state, then, commanding deployment of the whole-aircraft
ballistic parachute.
Id. at 41:10–62.
II. ANALYSIS
A. Claim Construction
In an inter partes review proceeding for a petition filed on or after
November 13, 2018, a patent claim “shall be construed using the same claim
construction standard that would be used to construe the claim in a civil
action under 35 U.S.C. [§] 282(b).” 37 C.F.R. § 42.100(b) (2019).8 Under

8 The Petition in this proceeding was filed on March 27, 2020.
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this standard, claim terms are given their ordinary and customary meaning as
would have been understood by a person of ordinary skill in the art at the
time of the invention and in the context of the entire patent disclosure. In re
Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). If the
specification “reveal[s] a special definition given to a claim term by the
patentee that differs from the meaning it would otherwise possess[,] . . . the
inventor’s lexicography governs.” Phillips v. AWH Corp., 415 F.3d 1303,
1316 (Fed. Cir. 2005) (en banc) (citing CCS Fitness, Inc. v. Brunswick
Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).
According to Petitioner, “[t]he bases for Petitioner’s invalidity ground
do not turn on a specific construction of any of the Challenged Claims, as
the prior art discloses and renders obvious the Challenged Claims even
under the most narrow application of the ordinary and customary meaning.”
Pet. 6. Patent Owner “respectfully submits that no claim terms need to be
specially construed, as each should be accorded its ordinary and customary
meaning, and none of the parties’ disputes turn on a disputed construction of
any claim term.” PO Resp. 10.
We agree that no claim terms require express construction and that
any differences raised by the parties as to claim scope can be resolved in the
context of the analysis of the parties’ arguments as set forth below. See
Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013,
1017 (Fed. Cir. 2017) (noting that “we need only construe terms ‘that are in
controversy, and only to the extent necessary to resolve the controversy’”
(quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
(Fed. Cir. 1999))).
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B. Principles of Law
A claim is unpatentable under 35 U.S.C. § 103 if the differences
between the claimed subject matter and the prior art are “such that the
subject matter as a whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art to which such subject
matter pertains.” 35 U.S.C. § 103(a). The question of obviousness under
35 U.S.C. § 103 is resolved on the basis of underlying factual
determinations, including: (1) the scope and content of the prior art; (2) any
differences between the claimed subject matter and the prior art; (3) the level
of skill in the art; and (4) objective evidence of nonobviousness,
i.e., secondary considerations. See Graham v. John Deere Co., 383 U.S. 1,
17–18 (1966).
C. Level of Ordinary Skill in the Art
Petitioner offers the following in assessing the level of ordinary skill
in the art: “[a] person of ordinary skill in the art (“POSA”) would have had
(1) a degree in Aerospace Engineering or equivalent technical background
and (2) familiarity with parachute systems, related sensing systems, and
automated flight control.” Pet. 5 (citing the Hoffmann Declaration, Ex. 1003
¶¶ 29–32). Patent Owner contends the following:
[A] person of ordinary skill would have had a degree in
aerospace engineering, or an engineering degree coupled with
experience evaluating and/or designing aircraft and/or avionics,
on February 10, 2009, which is the date [Patent Owner] filed
continuation-in-part Application No. 12/368,911. Ex. 1001 at
6:28–15:9 and bibliographical information. The person of
ordinary skill also would be familiar with whole-aircraft ballistic
parachute systems.
PO Resp. 9.
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The parties are in apparent substantive agreement as to the level of
ordinary skill in the art. We do not discern any material differences in the
respective assessments of that level by the parties. For purposes of this
Decision, we accept and adopt both assessments of the level of ordinary skill
in the art and view them as equivalent to one another. We further find that
the cited prior art references reflect the appropriate level of skill at the time
of the claimed invention and that the level of appropriate skill reflected in
these references is consistent with the definitions of a person of ordinary
skill in the art proposed by the parties. See Okajima v. Bourdeau, 261 F.3d
1350, 1355 (Fed. Cir. 2001).
D. Scope and Content of the Prior Art
1. Overview of POH
POH is titled “Pilot’s Operating Handbook and FAA[9] Approved
Airplane Flight Manual for the Cirrus Design SR22.” Ex. 1007, 1.10 POH
describes itself as a handbook “to familiarize operators with the Cirrus
Design SR22 airplane.” Id. at 7. The following are portions of POH
describing operation of the Cirrus Airframe Parachute System (“CAPS”):

9 Federal Aviation Administration.
10 The identified pagination for POH refers to the page numbering added by
Petitioner at the bottom right of each page.
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Id. at 279.

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Id. at 72–73. The exerpted portions of POH reproduced above describe
operation of CAPS, including safety considerations for CAPS deployment
such as “high deployment speed, low altitude, rough terrain or high wind
conditions.” Id. POH also states that “the chances of successful deployment
increase with altitude.” Id. at 468. POH, thus, expresses a recommendation
in connection with CAPS deployment pertaining to the desirability of higher
altitudes of the aircraft to provide “enhanced safety margins for parachute
recoveries,” and a warning that deployment at “low altitude . . . may result in
severe injury or death to the occupants.” Id. at 72–73. POH also discloses
in deploying CAPS, “[r]educing airpseed allows minimum parachute loads
and prevents structural overload and possible parachute failure.” Id. at 74.
POH further discloses that “to minimize the chances of parachute
entaglement and reduce aircraft oscillations under the parachute, the CAPS
should be activated from a wings-level, upright attitude if at all possible.”
Id. at 468.
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2. Overview of James
James is titled “Semiautonomous Flight Director.” Ex. 1005,
code (54). James’s Abstract is reproduced below:
A device for programming industry standard autopilots by
unskilled pilots. The effect of the invention is such that when the
invention is employed in a flying body comprising an industry
standard autopilot with a digital flight control system, the
invention provides for the safe operation of any aircraft by an
unskilled pilot. The device additionally affords skilled pilots a
more rapid and simplified means of programming autopilots
while in flight thus reducing a skilled pilot's cockpit workload
for all aircraft flight and directional steering, way points, and
aircraft flight functions reducing the possibility of pilot error so
as to effect safer flight operations of an aircraft by affording a
skilled pilot to direct aircraft steering and function while under
continuous autopilot control.
Id. at code (57).
James presents use of various switches as a part of its device including
a “sixth switch (77)” that is described as “being a non return to null, manual,
single poll, single throw, secured safety, type switch to provide an
‘emergency shutdown/deploy parachute/activate visual, audible and radio
frequency beacons’ command function logic signal (62) and interrupt signal
(67).” Id. at 10:14–19. James also explains the following with respect to the
operation of its disclosed “Semiautonomous Flight Director” (“SFD”):
If for some reason the SFD receives a flight status back
from the aircraft's autopilot that the aircraft has encountered a
negative flight maneuver or some other in-flight incident or
status not conducive to safe operation; either the pilot or
optionally a preprogrammed SFD action may automatically
initiate an emergency shut down procedure; in the case of a low
Reynolds class UAV applications; to accomplish such tasks as
shutting off all engines, terminating all flight functions,
deploying an emergency recovery parachute and activating any
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locating beacons such as; visual light beacons, audio sound
beacons, and/or a radio frequency locator beacon, to aid ground
crews in locating and recovering the aircraft after the mishap.
Id. at 18:28–41.
James further sets forth the following:
It is the object of the invention to improve overall flight
safety by providing a means capable of significantly reducing a
skilled pilot’s work load and/or eliminating or supplanting the
piloting skills normally required to fly any manned or unmanned
helicopter or aircraft equipped with an autopilot employing a
digital flight control system.
Ex. 1005, 6:23–28.
3. Overview of Hoffmann
Hoffmann is titled “Drogue Parachute Drag Force Actuated
Programmable Controller to Generate an Event Trigger Signal.” Ex. 1006
code (54). Hoffmann’s Abstract is reproduced below:
A parachute control system is actuated primarily by drogue
parachute drag force. Drag force is used as a proxy for vehicle
airspeed. The control system uses altitude and force sensors
combined with a chronograph to determine the state of a
deployed drogue parachute. It then compares the sensed
condition with a condition defined by a preset altitude force, and
time values. Once both altitude and drogue parachuting drag
force are below certain maximum values and within
predetermined time windows, an event trigger signal is
generated.
Id. at code (57).
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Hoffmann’s Figure 1 is reproduced below:

Figure 1 above “is a block diagram showing the components of a
parachute system that includes a parachute control system.” Id. at 2:19–20.
Parachute system 10 includes drogue parachute 12, main parachute 14,
drogue parachute deployment mechanism 16, drogue parachute release
mechanism 18, main parachute deployment mechanism 20, and control
system 22. Id. at 2:30–34. Control system 22 includes force sensor 24,
chronograph 26, altitude sensor 28, and event trigger signal generator 30.
Id. at 2:34–36. Hoffmann describes that based on sensed outputs from the
disclosed sensors of control system 22, “the event trigger signal generator
can generate the event trigger signal at a desired airspeed without actually
measuring airspeed.” Id. at 4:26–29. Hoffmann also sets forth the
following:
Once the drogue parachute deployment mechanism 16 has
been activated by an outside event, parachute system 10 is
capable of functioning autonomously, requiring no information
input or control from the host vehicle. Furthermore, system 10
enables main parachute 14 deployment, drogue parachute 12
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release, or both at a specified airspeed without requiring actual
measurement of airspeed.
Id. at 2:66–3:5.
E. Summary of Petitioner’s Contentions
Petitioner contends that the challenged claims of the ’474 patent are
unpatentable and lays out in detail where it believes all the features of those
claims reside in the prior art. Pet. 25–71. For example, in conjunction with
claim 95, Petitioner cites to each of POH, James, and Hoffmann as
disclosing the preamble recitation of an “aircraft.” Pet. 25. Petitioner also
points to where the prior art discloses each of: (1) a “fuselage” (id.);
(2) “a whole-aircraft parachute” including a “rocket” coupled to the fuselage
(id.); (3) “an activation interface” (id. at 26); (4) various required sensors (id.
at 26–28); (5) “an autopilot” (id. at 28); (6) “an aircraft engine” (id. at 29);
(7) “one or more memories having machine-readable instructions, and one or
more processors” that are configured to read and execute portion of those
instructions (id. at 29–30); (8) the requirements of the processors being
coupled to various claimed components (id. at 31–42); (9) requirements that
the aircraft be configured to “perform[] an action” and deploy the whole-
aircraft ballistic parachute based on a request (id. at 43–44); and (10) and
performance of the actions required based on the machine-readable
instructions (id. at 44–55). Petitioner makes similar assessments as those
noted above for each of the other challenged claims. See Pet. 55–71.
Petitioner also offers an explanation for why a person of ordinary skill
in the art would have had adequate reasons to combine the teachings of
POH, James, and Hoffmann to arrive at the claimed invention. Id. at 20–25.
Petitioner makes reference to James’s statement that its disclosure applies to
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“any manned or unmanned helicopter or aircraft equipped with an autopilot
employing a digital flight control system,” that the “SR22 aircraft described
in the POH is an aircraft equipped with a digital autopilot,” and that
“Hoffmann discloses that its system may be integrated into a parachute
system useful for aircraft rescue.” Pet. 20 (citing Ex. 1005, 6:23–28;
Ex. 1007, 263–273; Ex. 1006 1:10–16; 5:30–32). Petitioner reasons that
“[t]he SR22 aircraft discussed in the POH is therefore within the intended
application for the SFD taught by James and the system taught by
Hoffmann, and the combination of the POH with both James and Hoffmann
represents only a routine implementation of James and Hoffmann within
their intended applications.” Id. (citing Ex. 1003 (Hoffmann Declaration)
¶ 156).
Petitioner further reasons the following:
It would have been obvious to a POSA to combine the
POH’s aircraft, components, and instructions regarding manual
actions to be taken based on a decision to deploy a whole-aircraft
ballistic parachute, with James’ and Hoffmann’s processor-based
system for deploying a whole-aircraft parachute and
automatically performing such actions. Ex. 1003, ¶165. A POSA
would have been motivated to incorporate the teachings of the
POH regarding safe whole-aircraft ballistic parachute
deployment into the programmable “deploy parachute” function
of James, and to use James’ and Hoffmann’s processor-based
parachute deployment as part of the aircraft’s autopilot system.
Id., ¶¶166-168. A POSA would have been motivated to make this
combination to ensure that the desired pre-deployment and post-
deployment actions would be automatically performed, even if
the operator was unskilled or otherwise unable to perform them.
Id.
Id. at 23.
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Petitioner additionally explains that: (1) “combination of familiar
elements using known methods would yield predictable results”; (2) “a
POSA would have a reasonable expectation of success in making such a
combination”; and (3) “a POSA would expect that combining James’ and
Hoffmann’s programmable ‘deploy parachute’ functions with the POH’s
aircraft, autopilot, and pilot instructions for CAPS deployment would
successfully enable the aircraft and methods recited in the Challenged
Claims.” Id. at 23–24 (citing Ex. 1003 ¶¶ 169–170).
F. Summary of Patent Owner’s Contentions
Patent Owner challenges Petitioner’s position as to the unpatentability
of the remaining challenged claims (claims 95–124 and 126–131) based on
POH, James, and Hoffmann. PO Resp. 25–64. Patent Owner centers its
challenge on the features of independent claim 95 pertaining to machine
readable-instructions and the actions of limitations (a)–(e) expressed by
those instructions. Ex. 1001, 41:45–62. In that regard, Patent Owner takes
the position that Petitioner has not accounted adequately in the prior art for
certain aspects of those actions. Id. In taking that position, Patent Owner is
also of the view that Petitioner’s proposed combination of the prior art is
“vague, ambiguous, and indecipherable” (id. at 28) so as to lack the
necessary particularity in identifying required claim features in the prior art.
Id. at 28–36. Patent Owner also generally characterizes the proposed ground
as unclear in conveying how the prior art is being modified in accounting for
that required by the claims, specifically claim 95. Id. at 26–28.
Patent Owner’s contentions as to missing claim features in the prior
art focus on (1) the features of “element (c),” which Patent Owner submits
“requires three commanding actions based upon the output of the same
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evaluation” (PO Resp. 36–39), and (2) the requirement of “machine-readable
instructions” as a part of “elements (a) – (e)” (id. at 40–44). Also, in
conjunction with its challenges pertaining to alleged missing claim features,
Patent Owner characterizes the Petition as impermissibly relying on “gap-
filler” grounded in “common sense” rather than record evidence to account
for claim features. See id. at 44–64 (citing and discussing the Federal
Circuit’s analysis in Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1361
(2016) and DSS Tech. Management, Inc. v. Apple Inc., 885 F.3d 1367, 1374
(Fed. Cir. 2018)).
Patent Owner generally emphasizes, or elaborates on, the above-
summarized arguments as a part of its Patent Owner’s Sur-Reply. PO Sur-
Reply 2–29. As a part of that elaboration, Patent Owner expresses the view
that combining James’s teachings with those of POH changes POH’s
principle of operation, and that POH “teaches away” from the Petition’s
proposed combination of prior art. Id. at 8–13, 22–29.
G. Discussion—Ground of Unpatentability Based on POH, James, and
Hoffmann
1. Claim 95
The general thrust of Petitioner’s proposed ground of unpatentability
is premised on the theory that one of ordinary skill in the art would have
automated the deployment of the parachute of an aircraft, such as that of
POH, in view of the teachings of prior art techniques pertaining to
automated parachute deployment, such as those of James and Hoffmann.
Petitioner contends that a skilled artisan would have appreciated that the
teachings of James and Hoffmann convey “processor based approaches for
deploying a whole–aircraft parachute and automatically performing” various
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actions required by the claims. Id. at 22 (citing Ex. 1003 ¶¶ 158–164). Such
actions are said to include “decreasing the air speed of the aircraft,”
“increasing the altitude of the aircraft above the ground,” “changing the
attitude of the aircraft,” “activating an [emergency locator transmitter
“ELT”] to transmit a signal,” and “automatically trigger[ing] whole aircraft
parachute deployment based on either airspeed or a timeout feature using a
programmable electronic microprocessor.” Id. at 22–23 (citing various
portions of James and Hoffmann).
Patent Owner does not dispute that many of the features required by
claim 95, such as a fuselage, parachute, action interface, engine, sensors,
memories, and processors, are found in the prior art. Claim 95, however,
includes the recitation of “machine readable instructions” that pertain to
limitations (a)–(e), which are a focus of Patent Owner’s challenge to
Petitioner’s unpatentability ground. Those limitations are reproduced below:
wherein the machine readable-instructions include the
actions comprising:
(a) performing a first evaluation that produces a first
output;
(b) based at least upon the first output being in a first state,
then commanding deployment of the whole-aircraft ballistic
parachute;
(c) based at least upon the first output being in a second
state, then:
(i) commanding a reduction in engine power;
(ii) commanding a climb; and
(iii) commanding a decrease in aircraft roll;
(d) after commanding the reduction in engine power, then
performing a second evaluation that produces a second output;
(e) based at least upon the second output being in a first
state, then, commanding deployment of the whole-aircraft
ballistic parachute.
Ex. 1001, 41:45–62.
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Although claim 95 does not specify a particular “first output” or first
and second “state[s],” both parties contend that an example of such output
may be an aircraft’s “airspeed,” and the first and second states may be
“airspeed below a threshold” and “airspeed above a threshold.” See, e.g.,
PO Resp. 11; Pet. 44–47.11 With respect to actions (a) and (b), Petitioner
submits that “it would have been obvious to a POSA to incorporate the
teachings of the POH and Hoffmann of deploying the parachute only if the
airspeed, altitude, and/or attitude of an aircraft is in a condition for safe
parachute deployment, into the pre-programmed and user-defined ‘deploy
parachute’ function of James, to provide for safe and logical parachute
deployment.” Pet. 47 (citing Ex. 1003 ¶ 253); see id. at 44–47 (citing
Ex. 1003 ¶¶ 246–253). Petitioner takes a similar position with respect to
steps (c)–(e). See Pet. 48–55 (citing Ex. 1003 ¶¶ 254–283). Petitioner also
maintains that James’s switches and programmed software routines
associated with its automated parachute deployment are “customizable” and
that such customization would be implemented in the manner that accounts
for the claims of the ’474 patent, specifically the above-noted actions. See,
e.g., Pet. 15, 22, 36, 39, 46, 48, 49, 51, 57, and 68.
In effect, and stated generally, Petitioner and Mr. Hoffmann take the
position that the teachings of POH, James, and Hoffmann convey that an

11 We discern that none of the challenged claims expressly recites any
specific first outputs or first and second states. We also note that, as
discussed more thoroughly below, the parties dispute whether the claims,
specifically claim 95, require that a “first evaluation” be limited to the output
of a singular flight parameter, e.g., only airspeed, or whether the “first
evaluation” may result in an output that includes a combination of multiple
parameters, e.g., airspeed, altitude, and attitude.
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autopilot may act to, among other possible actions, evaluate whether various
flight parameters of an aircraft’s flight (e.g., air speed, altitude, or attitude)
are at threshold levels, and: (1) if so, deploy the parachute; (2) if not,
command other actions for the aircraft such as reduce engine power, climb,
and decrease aircraft roll; and (3) perform rechecking of the flight
parameters after reducing engine power to determine whether parachute
deployment is now appropriate.
a) Element “(c)”
Patent Owner presents arguments challenging the proposed ground
that centers on element “(c)” of claim 95. PO Resp. 36–39. Element (c)
recites:
(c) based at least upon the first output being in a second state, then:
(i) commanding a reduction in engine power;
(ii) commanding a climb; and
(iii) commanding a decrease in aircraft roll[.]
Ex. 1001, 41:52–56.
By way of context, the noted “first output” is determined as a
part of element (a) which requires the performance of a “first
evaluation that produces a first output.” Patent Owner asserts that
element (c) requires that the three command actions (i), (ii), and (iii)
be “based upon the output of the same evaluation” whereas, according
to Patent Owner, the Petition addresses claim 95 through prior art
teachings of performing the three actions “based upon the output of
three different evaluations.” PO Resp. 36. It is apparent from Patent
Owner’s briefing that Patent Owner is of the view that the recited
“evaluation” in element (a) produces an “output” that must be limited
to a single parameter, such as air speed.
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Petitioner does not agree with Patent Owner. In response to
Patent Owner’s above-noted contention, Petitioner contends that “the
‘evaluation’ of elements (a) and (b) in the POH/James/Hoffmann
combination would be of airspeed, altitude, attitude, or a combination
of these parameters” and that “an ‘evaluation that produces a first
output’ could include whether airspeed is too high, whether altitude is
too low, and/or whether wings are not level.” Pet. Reply 20, 22
(citing Petition, 45–47). Petitioner further expresses the following
Cirrus’s proposed combination of the POH, James, and
Hoffmann also includes element (c) “based at least upon the first
output being in a second state, then: (i) commanding a reduction
in engine power; (ii) commanding a climb; and (iii) commanding
a decrease in aircraft roll.” The parameter(s) evaluated to trigger
these maneuvers are the same as for elements (a) and (b). The
POH teaches conditions required for safe parachute deployment,
including: (1) airspeed below 133 KIAS (Ex. 1007, 467, 28, 41,
74; Ex. 1003, ¶¶133, 159, 167, 246, 254); (2) sufficient altitude
(Ex. 1007, 72-73; Ex. 1003, ¶¶133, 159, 167, 261); and (3) level
wings (Ex. 1007, 468, 281-282; Ex. 1003, ¶¶133, 159, 167, 270).
When combined with James’s instruction to customize its
parachute deployment software so that it can be safely
performed, these teachings result in machine-readable
instructions to reduce engine power and pitch up with level wings
if airspeed is too high, altitude is too low, and/or wings are not
level. (Petition 47-52; Ex. 1003, ¶¶39-46, 254-260.)
Pet. Reply 20–21; see Pet. 47–52 (assessing the teachings of POH, James,
and Hoffmann in accounting for the command action requirements of
element (c)).
Thus, Petitioner points to disclosure in POH, and the Declaration
testimony of Mr. Hoffmann, as to known conditions for safe parachute
deployment including threshold levels for flight parameters such as airspeed,
altitude, and wing level or attitude. As expressed in the quote above,
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Petitioner and Mr. Hoffmann explain that a skilled artisan would have
recognized that those parameters would have been parts of an evaluation to
determine that parachute deployment can occur safely. It follows reasonably
and logically that the necessary threshold levels for safe parachute
deployment would constitute the “output” of any “evaluation” for
deployment of a parachute.
Patent Owner argues that the claims should be read to limit a “first
evaluation” to producing a “first output” that is only a singular flight
parameter, to the exclusion of additional or all such parameters that are
considered in connection with safe parachute deployment. We find Patent
Owner’s argument unavailing. We do not discern that either the language of
the claims themselves or the disclosure of the ’474 patent conveys such a
restricted understanding of the recitations in the claims of “evaluation” and
“output.”12 Indeed, as noted by Petitioner (Pet. Reply 21–22), the
’474 patent suggests that pre-deployment assessment “could be
combinations” of determinations as to aircraft flight parameters, such as
aircraft altitude, airspeed, and heading. See Ex. 1001, 10:53–55. Patent
Owner does not identify any disclosure in the ’474 patent that supports its
view that the scope of claim 95 is limited to performance of the specified
command actions based on a single parameter, such as aircraft airspeed.

12 The written description of the ’474 patent does not use the term
“evaluation.” The ’474 patent does include a single use of the term “output”
in a different context than that used in claims, which provides little
illumination as to the meaning of the term “output” as it appears in the
claims. See Ex. 1001, 6:56–58 (“the processor 405 could output data, such
as a discrete signal, that causes the retractable landing gear to extend or
retract.”).
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Moreover, like Petitioner, we observe that claim 95 recites that the three
command actions are performed “based at least upon the first output being
in a second state.” See Pet. Reply 22–23 (emphasis added). That the
command actions expressly are performed based “at least” on the first output
undermines Patent Owner’s view that only a single parameter can constitute
the “output” that initiates the three command actions of element (c).
After careful consideration of Patent Owner’s contentions, we find
that they do not accurately reflect what is encompassed by the scope of
claim 95. Additionally, we find persuasive, and supported by record
evidence, Petitioner’s reasoning that a person of ordinary skill in the art
would have had adequate reason to combine the teachings of POH, James,
and Hoffmann to arrive at, among other limitations, element (c). See Pet.
20–25. In so doing, we reject Patent Owner’s assertion that POH teaches
away from a combination with either James or Hoffmann, or that such
combination changes the principle of operation of POH so as to render the
combination unviable. See, e.g., PO Sur-Reply 8–13, 22–29.
With respect to Patent Owner’s contention that Petitioner’s proposed
combination necessitates a change in the principle of operation of POH,
Patent Owner urges the following: “POH’s principal of operation is,
regardless of what the autopilot does, POH’s pilot has direct control of the
aircraft via a control yoke at all times.” PO Sur-reply 11. According to
Patent Owner, any combination of POH with James’s teachings pertaining to
its autopilot system necessitates a configuration that “prohibits” the “direct
control” of an aircraft. Id. at 11–12. In Patent Owner’s view, such is in
conflict with POH’s teachings, which Patent Owner contends mandates a
pilot “always directly control[s]” a “control yoke” based on disclosure in
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POH that an “autopilot can be over-ridden by use of the control yoke.” Id. at
9–11 (quoting Ex. 1007, 94).
At the outset, we note that Patent Owner’s view on what a skilled
artisan would have understood based on the combined teachings of POH and
James is merely a narrative argument of Patent Owner’s counsel. Such
attorney argument cannot take the place of evidence lacking in the record
(see, e.g., Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir.
1997)), and is contradicted by the Declaration of Mr. Hoffmann, in which he
testifies as to what a skilled artisan would have appreciated from the
combined teachings of the prior art, including POH and James. See, e.g.,
Ex. 1003 ¶¶ 172–283.
In any event, each of James and POH provides for activation of
parachute deployment for an aircraft as a safety measure in emergency
situations. See, e.g., Ex. 1007, 279; Ex. 1005, 10:14–19. POH discloses
autopilot control of the aircraft, but provides that there may be a scenario in
which the autopilot may be overridden through operation of a control yoke.
See, e.g., Ex. 1007, 94. James also describes that its SFD provides for
programming of autopilots by both skilled and unskilled pilots that
facilitates “more rapid and simplified means of programming autopilots” and
“safer flight operations” that permit a pilot “to direct aircraft steering and
function while under continuous autopilot control.” Ex. 1005, code (57). As
a part of its disclosure, James describes that “either the pilot or optionally a
preprogrammed SFD action may automatically initiate an emergency shut
down procedure” that includes parachute deployment. Id. at 18:31–37.
On this record, we are not persuaded that the combination of POH’s
teachings that includes a “control yoke” that can be employed to override an
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autopilot in an emergency situation, with James’s teachings of a more easily
programmed autopilot that permits flight control by a pilot, and which also
permits emergency procedures to be initiated either automatically or by a
pilot, requires a change in the principle of operation of any of those
teachings. We have considered Patent Owner’s differing view as to the
viability of the combination of POH and James and find it unavailing, in
light of the evidence before us.
Patent Owner’s “teaching away” arguments also are based on a theory
of the incompatibility of the teachings of James and POH. Patent Owner
premises that argument on a perceived dichotomy of activating a parachute
“at any time” versus activating the parachute “only in limited scenarios.”
PO Sup-Reply 22. As an initial observation, it is not clear why Patent
Owner regards teachings of the prior art, for instance James, as somehow
constituting disclosure of parachute deployment “only in limited scenarios.”
Indeed, James’s express disclosure, as is noted above, sets forth that
emergency shutdown procedures including parachute deployment may be
initiated either automatically or by a pilot. Why such disclosure constitutes
deployment “only in limited scenarios” is left unexplained.
Furthermore, a reference does not “teach away” if it merely expresses
a general preference for an alternative invention but does not “criticize,
discredit, or otherwise discourage” investigation into the applicant’s claimed
invention. DePuy Spine Inc. v. Medtronic Sofamor Danek, 567 F.3d 1314,
1327 (Fed. Cir. 2009) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed Cir.
2004)). Here, Patent Owner does not explain how POH’s disclosure, even if
it might contemplate overriding an autopilot in some emergency
circumstance, constitutes criticism, disparagement, or discouragement of a
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disclosure, as in James, in which emergency procedures for an aircraft may
be initiated automatically or by a pilot, even if such initiation may occur
while an autopilot remains engaged.
Accordingly, having considered the parties’ respective positions, we
conclude that Petitioner accounts adequately in the combined teachings of
POH, James, and Hoffmann for the requirements of element (c) of claim 95.
See Pet. 47–52.
b) “Machine Readable Instructions”
Claim 95 recites the feature of one or more memories having
“machine-readable instructions” stored thereon. Ex. 1001, 41:25–26. As
noted above, those machine-readable instructions describe elements (a)–(e)
to be performed. Petitioner contends that the combination of POH, James,
and Hoffmann accounts for the requirement of machine-readable
instructions that perform the noted elements (a)–(e). Pet. 29–30, 44–55.
Patent Owner asserts that none of POH, James, or Hoffmann discloses or
suggests the machine-readable instructions. PO Resp. 42–44; PO Sur-Reply
13–17. Patent Owner also contends that Petitioner has relied improperly on
a “gap-filler” based on “common sense” rather than record evidence to
account for the machine-readable instructions requirement. PO Resp. 44–
64; PO Sur-Reply 17–29.
We observe that Patent Owner’s argument that none of POH, James,
or Hoffmann individually discloses the machine-readable instructions
required by claim 95, even if true, does not end the obviousness evaluation.
“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 Young, 927
F.2d 588, 591 (Fed. Cir. 1991). Furthermore, a central tenet of the
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obviousness inquiry is that it is not necessary to find precise teachings in the
prior art directed to the specific subject matter claimed because inferences
and creative steps that a person of ordinary skill in the art would employ can
be taken into account. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Indeed, as observed by the Federal Circuit, “KSR expanded the
sources of information for a properly flexible obviousness inquiry to include
market forces; design incentives; the ‘interrelated teachings of multiple
patents’; ‘any need or problem known in the field of endeavor at the time of
invention and addressed by the patent’; and the background knowledge,
creativity, and common sense of the person of ordinary skill.” Perfect Web
Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (citations
omitted). Patent Owner’s limited focus on the individual teachings of the
above-noted references does not appropriately take into account the nature
of the obviousness inquiry that is contemplated by the law.
In this case, Petitioner relies on the combined teachings of POH,
James, and Hoffmann to account for all the features of claim 95, including
the machine-readable instructions aspects. With support from
Mr. Hoffmann’s testimony, Petitioner points to POH’s disclosure that it was
well known in the art that prior to deployment of a parachute, each of the
noted actions of reducing engine power, increasing altitude, and leveling the
aircraft’s wings were standard operations. Pet. 47–55 (citing Ex. 1003
¶¶ 39–44, 254–260, 270–277, 278–283; Ex. 1007, 72–73, 468). Petitioner
also points to James’s disclosure of a “deploy parachute” switch that is
stated to be “executed by the SFD and autopilot,” and which is
“customizable by the user to take into account safe or unsafe airspeeds and
limits, and ensure that the functions performed by the autopilot are safe and
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logical.” Pet. 48 (citing Ex. 1003 ¶¶ 163, 258 and referencing prior
discussion of James’s disclosure in the Petition (Ex. 1005, 7:25–55, 8:21–54,
13:6–12, 14:51–64, 15:27–40, 17:16–52)).
There is no dispute on the record that it was well known in the art that
an autopilot may function to perform flight maneuvers and also to deploy a
parachute. For instance, James clearly provides the following:
If for some reason the SFD receives a flight status back
from the aircraft’s autopilot that the aircraft has encountered a
negative flight maneuver or some other in-flight incident or
status not conducive to safe operation; either the pilot or
optionally a preprogrammed SFD action may automatically
initiate an emergency shut down procedure; in the case of a low
Reynolds class UAV applications; to accomplish such tasks as
shutting off all engines, terminating all flight functions,
deploying an emergency recovery parachute and activating any
locating beacons such as; visual light beacons, audio sound
beacons, and/or a radio frequency locator beacon, to aid ground
crews in locating and recovering the aircraft after the mishap.
Ex. 1005, 18:28–41.
We also note that Mr. Hoffmann testifies that “James also discloses
that the autopilot (54) includes one or more memories (computer memory)
that have machine-readable instructions (software and flight control laws)
stored thereon, and one or more processors (flight control computer)
configured to read and execute a portion of the machine-readable
instructions.” Ex. 1003 ¶ 203 (citing Ex. 1005, 7:25–55, 8:36–54, 12:49–
13:12, 17:38–18:27, 20:4–5, Figs. 1, 2)). Mr. Hoffmann further testifies the
following:
James discloses that the autopilot has Aircraft Directional and
Functional Control Software (ADFCS), which contains software
programs and the aircraft’s flight control laws. These software
programs and flight control laws are contained within memories
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of the autopilot’s computers, and the autopilot’s digital flight
control system computer (processor) reads and executes portions
of these software programs and flight control laws.
Id. at ¶ 204 (citing Ex. 1005, 8:36–44, 12:49–13:12 17:38–18:27).
We additionally are cognizant of James’s unambiguous disclosure that
the purpose of an autopilot is to reduce a pilot’s work load by eliminating or
supplanting the piloting skills normally required to fly an aircraft. Ex. 1005,
6:23–28. Indeed, the very nature of an “autopilot” is that it is a component
that automatically performs piloting actions in lieu of the performance of
those actions by a human pilot.
We further observe that there is no dispute that autopilot systems that
are programmable were known in the art.13 Although Patent Owner
characterizes the claimed machine-readable instructions limitations of claim
95 as “particularly challenging” (see, e.g., PO Resp., 48) and not “unusually
simple” or “particularly straightforward” (see, e.g., id. at 48, 49), it is
difficult to reconcile Patent Owner’s apparent view that any such
programming challenges would be beyond the skill of one of ordinary skill
in the art. The ’474 patent itself provides little, if any, discussion of any
particular complexities associated with programming an autopilot that would
suggest programming challenges beyond the skill of a skilled artisan.
Indeed, at oral argument in connection with the prior ’1566 IPR proceeding,
when questioned by the panel as to where the ’474 patent describes the
complex programming of the autopilot to achieve the claimed invention,

13 We note that in the prior ’1566 IPR proceeding involving the ’474 patent,
Patent Owner presented the testimony of Dr. Chris Gregory Bartone that
POH describes a programmable autopilot as a part of an SR22 aircraft. See,
e.g., Ex. 1056 ¶ 46 (“POH describes the SR22 as having a programmable
autopilot (Ex. 1007 at 266–269)”).
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Patent Owner’s counsel expressed such sentiments as “there’s not a lot of
programming in the patent I’ll grant you that.” Ex. 1058, 47:10–11; see id.
at 47–50. That the ’474 patent omits substantive description of autopilot
programming suggests that the details of such would have been known to
one of ordinary skill thereby rebutting Patent Owner’s present argument that
the recited machine readable instructions are not sufficiently straightforward
to be implemented by a skilled artisan. See PO Resp. 48–49.
Moreover, like Petitioner (Pet. Reply 15–16), we question the
significance of Patent Owner’s contentions in connection with purported
communications between Petitioner and the FAA in 1996. See PO Resp.
48–49. Even if Petitioner generally may have expressed in a certification
application to the FAA that certain “deployment dynamics are challenging,”
and the FAA commented that “there are challenging technical issues” with
such deployment, Patent Owner does not explain why such challenges
necessarily would have been insurmountable by one of ordinary skill in the
art. See id. (emphasis omitted). We also do not find particularly meaningful
Patent Owner’s representation that Petitioner sought to obtain patent
protection for software in connection with parachute deployment. See id. at
50–51. Patent Owner does not explain adequately why Petitioner’s own
pursuit of patent protection in some capacity for some aspects of aircraft
parachute deployment suggests the non-obviousness of claims of the ’474
patent. We also share Petitioner’s view that the prior art references cited by
Patent Owner pertaining to flight management systems (PO Resp. 51–52) do
not provide persuasive support for the premise that any programming
considerations or challenges concerning the machine-readable instructions of
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claim 95, or any remaining challenged claim, would have been beyond the
skill of one of ordinary skill in the art. See Pet. Reply 15–16.
Furthermore, we observe that the parties are in substantive agreement
as to the skill level of an ordinary skilled artisan, and that such person has
(1) “a degree in aerospace engineering, or would have had an engineering
degree coupled with experience evaluating and/or designing aircraft and/or
avionics,” and (2) familiarity with ballistic parachute systems. See PO Resp.
9; Pet. 5. We agree with Petitioner that the record reflects that a person of
ordinary skill in the art “would surely be familiar with how to program and
use an autopilot to prepare an aircraft for parachute deployment.” Pet. Reply
14 (citing Ex. 1003, ¶¶ 58–64). For instance, we credit Mr. Hoffmann’s
testimony that a skilled artisan would have well understood that “in
combining the teachings of the POH with James and Hoffmann, it would
have been obvious to add such machine-readable instructions to the
processors and memories disclosed in the POH, which would have required
only routine software programming.” See Ex. 1003, ¶ 207.
We are mindful of Patent Owner’s discussion of the requirements of
Arendi and DSS Tech. Mgmt. See PO Resp. 44–64. Although that
discussion is lengthy, it is generally rooted in the postulation that Petitioner
relied on a “gap filler” and “common sense” to account for the “machine
readable instructions” required by claim 95 rather than pointing to evidence
of record that gives rise to those machine readable instructions. For the
reasons discussed above, we are not persuaded that Patent Owner’s
postulation is correct and conclude that Petitioner does not improperly rely
on common sense, but instead adequately shows how the required “machine
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readable instructions” are accounted for by the prior art. See, e.g., Pet. 44–
54.
Accordingly, for the foregoing reasons, we conclude that the record
before us establishes adequately that Petitioner has accounted for the
machine-readable instructions that are included as a part of claim 95.
c) Adequacy and Particularity of the Proposed Obviousness
Grounds
Patent Owner generally takes issue with the Petition’s approach to
obviousness on theories that (1) Petitioner “fails to allege a prima facie case
of obviousness” (PO Resp. 26–28; PO Sur-reply 2–4), and (2) the Petition
“lacks the particularity required by 35 U.S.C. § 312(a)(3)” (PO Resp. 28–36;
PO Sur-reply 4–5). We do not find either theory persuasive.
With respect to theory (1), the basis for that theory is that, although
Petitioner identified elements (a) and (b) of claim 95 as arising from the
teachings of James, the Petition is deficient in not describing how “the base
reference POH, could be or would be modified to incorporate the machine-
readable instructions of elements (a) and (b).” PO Resp. 27 (emphasis in
original).14 Patent Owner’s argument appears conditioned on reasoning that
a ground of unpatentability must identify a “base reference” and demonstrate
how other teachings modify that “base reference.” See, e.g., id. at 27–28.
Patent Owner attempts to support its argument through citation to multiple
cases from the Federal Circuit expressing that the Board is not free to adopt
or raise arguments or grounds that were not set forth in the Petition. Id.

14 We do not discern that Patent Owner disputes that elements (a) and (b) are
present in James. We note that the Petitioner provides persuasive discussion
of how those elements (a) and (b) are found in the prior art. See Pet. 44–47.
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Patent Owner’s arguments are misplaced. In considering a proposed
ground of obviousness, there is no requirement that a prior art reference
must be designated as “base reference.” Rather, the “[t]he test for
obviousness is what the combined teachings of the references would have
suggested to one of ordinary skill in the art.” In re Young, 927 at 591.
Furthermore, what a reference teaches or suggests is taken “in the context of
the knowledge, skill and reasoning ability of a skilled artisan.” Syntex
(U.S.A) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005). We have
applied these principles in our analysis here and do not rely on arguments or
grounds not raised in the Petition
With respect to theory (2), Patent Owner first contends that
“Petitioner’s argument for claim element (c) lacks the particularity required
by 35 U.S.C. § 312(a)(3) because it is premised on vague, ambiguous, and
indecipherable allegations.” See, e.g., PO Resp. 28. The contention is
apparently based on language in the Petition pertaining to James’s disclosure
of its “sixth switch (77)” and SFD as a part of James’s parachute deployment
description. See, e.g., PO Resp. 28–36. That is, Patent Owner points to the
Petition’s use of different terminology such as “deploy parachute switch,”
“deploy parachute switch command,” “deploy parachute function, and
“processor-based parachute deployment switch” in assessing and applying
the teachings of the James’s disclosure. See PO Resp. 30–33. Petitioner, on
the other hand, contends that “the Petition is clear that these terms refer to
James’s parachute deployment switch and related software commands to the
autopilot.” Pet. Reply 5 (citing Pet. 12–15, 48; Ex. 1003 ¶¶ 144–146, 161–
169).
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In our review of the Petition, and the record as a whole, we are not
persuaded that Petitioner’s discussion of, and reliance on, James’s teachings
as to it parachute deployment switch structure and the software associated
with the autopilot is ambiguous or unclear so as to demonstrate failure to
comply with the particularity requirement governed by § 312(a)(3). In that
respect, we are satisfied that Petitioner, supported by the testimony of Mr.
Hoffmann, makes its case in a manner that is understandable.
As to theory (2), Patent Owner additionally connects its lack of
particularity positions to the postulation that the combined teachings of POH
and James “radically change the principle of operation of POH.” PO Resp.
33–35. For the reasons discussed above, we are not persuaded that Patent
Owner’s argument has merit.
Lastly, Patent Owner takes issue with statements in the Petition
referring to “airspeed, altitude, and/or attitude” of an aircraft. PO Resp. 35–
36 (citing Pet. 44–47). According to Patent Owner, the use of the phrase
“and/or” gives rise to “14 permutations of alleged teachings” and thus, fails,
to present argument of sufficient particularity. Id. Based on that style of
presentation, Patent Owner expresses that “institution should be denied”
because the Petition is “vague and ambiguous.” Id. (citing Adaptics Ltd. v.
Perfect Co., IPR2018-01596, Paper 20 at 21–23 (PTAB Mar. 6, 2019)
(informative)).
Initially, we note that the Adaptics authority cited by Patent Owner is
inapt to the circumstances here. In Adaptics, the term “and/or” was used in
connection with as many as ten prior art references, as well as in conjunction
with additional statements of “or” and “in further view of each other”
pertaining to the references. See Adaptics Ltd., Paper 20 at 9. The result
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was a voluminous and near indeterminable number of proposed grounds.
That is not the situation here. Although the use of “and/or” in connection
with more than one listed item does give rise to identifying more than one of
those items, there is no strict prohibition on the use of “and/or” as a part of a
Petition. Here, we conclude that the Petition’s reference, collectively
(“and”) or alternatively (“or”), to three flight characteristics, i.e., airspeed,
altitude, and attitude, is not vague and is consistent with how those flight
characteristics are referenced and discussed by Petitioner in accounting for
the command actions of claim 95’s element (c).
d) Conclusion—Claim 95
We have considered the respective positions of the parties as to
the patentability of claim 95 in light of the evidence of record. In
doing so, we have assessed the Petition, Petitioner’s subsequent
filings, and the underlying evidence supporting that Petition. We have
also assessed all of Patent Owner’s filings challenging the Petition,
and all the arguments made as a part of that challenge. For the
reasons set forth above, we conclude that Petitioner has met its burden
to show that claim 95 is unpatentable based on a preponderance of the
evidence.
2. Claims 96–124 and 126–131
The Petition provides a detailed assessment of claims 96–124 and
126–131, with references to the Petition’s analysis of claim 95, disclosures
in each of POH, James, and Hoffmann, and the declaration testimony of Mr.
Hoffmann. Pet. 55–71. Patent Owner does not present any separate
arguments that are distinct to claims 96–124 and 126–131. Rather, Patent
Owner generally is of the view its alleged deficiencies in the Petition with
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respect to claim 95 are also applicable to claims 96–124 and 126–131. See,
e.g., PO Resp. 28 (“As Cirrus relies on its claim 95 analysis for all of the
challenged claims, Cirrus’ Petition fails to allege a prima facie case for any
challenged claim.”). As discussed above, we are not persuaded that the
Petition is deficient in establishing by a preponderance of the evidence that
claim 95 is unpatentable. Having considered the record at hand, we are also
not persuaded that the Petition is deficient in that respect in connection with
claims 96–124 and 126–131. We conclude that Petitioner has also shown
that those claims are also unpatentable based on a preponderance of the
evidence.
III. CONCLUSION15
For the foregoing reasons, we conclude that Petitioner has met its
burden to show by a preponderance of the evidence that claims 95–124 and
126–131–– i.e., the claims remaining in this proceeding after Patent Owner’s

15 Should Patent Owner wish to pursue amendment of the challenged
claims in a reissue or reexamination proceeding subsequent to the
issuance of this decision, we draw Patent Owner’s attention to the April
2019 Notice Regarding Options for Amendments by Patent Owner
Through Reissue or Reexamination During a Pending AIA Trial
Proceeding. See 84 Fed. Reg. 16,654 (Apr. 22, 2019). If Patent Owner
chooses to file a reissue application or a request for reexamination of
the challenged patent, we remind Patent Owner of its continuing
obligation to notify the Board of any such related matters in updated
mandatory notices. See 37 C.F.R. § 42.8(a)(3), (b)(2).
IPR2020-00762
Patent RE47,474 E
38
statutory disclaimer of claim 125 (Ex. 2005) (see supra, fn.6)––are
unpatentable based on the teachings of POH, James, and Hoffmann.
In summary,
Claims
35
U.S.C. § References
Claims
Shown
Unpatentable
Claims Not
Shown
Unpatentable
95–124,
126–131 103
POH, James,
Hoffmann
95–124, 126–
131
Overall Outcome 95–124, 126–131

IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that Petitioner has shown by a preponderance of evidence
that claims 95–124 and 126–131 of the ’474 patent are unpatentable; and
FURTHER ORDERED because this is a final written decision, the
parties to this proceeding seeking judicial review of our Decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

IPR2020-00762
Patent RE47,474 E
39
For PETITIONER:

Victor Jonas
FAEGRE DRINKER BIDDLE & REATH LLP
victor.jonas@faegredrinker.com

For PATENT OWNER:

Greg Gardella
Natalie Grace
GARDELLA GRACE P.A.
ggardella@gardellagrace.com
ngrace@gardellagrace.com