Jan Vana et al.

Patent Trials and Appeals Board

Nov 30, 2021

2021004359 (P.T.A.B. Nov. 30, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/669,428 11/05/2012 Jan Vana 12203.US 8024
22991 7590 11/30/2021
BOREALIS TECHNICAL LIMITED
23545 NW SKYLINE BLVD
NORTH PLAINS, OR 97133-9204
EXAMINER
BAHL, SANGEETA
ART UNIT PAPER NUMBER
3629
MAIL DATE DELIVERY MODE
11/30/2021 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex Parte JAN VANA, ISAIAH W. COX,
AARON BIANCO, and RODNEY T. COX
____________

Appeal 2021-004359
Application1 13/669,428
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, BRADLEY B. BAYAT and
AMEE A. SHAH, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 22 and 40–46. We have jurisdiction under 35
U.S.C. § 6(b). A video hearing was held on Nov. 2, 2021.
SUMMARY OF DECISION
We affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies “Borealis Technical Limited” as the real party in interest. Appeal
Br. 3.

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THE INVENTION
Appellant states, “[t]e present invention relates generally to
calculating airport slots, the number of flights an airport can handle in a
given time period, and, specifically, to a method for increasing an airline’s
slots at an airport.” Spec. 1.
Claim 40 reproduced below, is representative of the subject matter on
appeal.
40. A method that increases takeoff and landing slots for
an airline at airports with both slot controls that limit the
airline's numbers of aircraft takeoffs and landings and a curfew
period that limits airport operating hours, without extending
airport hours of operation, reducing the airport curfew period,
or adding airport infrastructure, comprising:
a. at an airport with both airline slot controls limiting
numbers of the airline’s aircraft takeoffs and landings and a
curfew period prohibiting aircraft takeoff, taxi, and landing
from an evening start time to a morning expiration time during
the curfew period, equipping the airline’s aircraft departing
from and arriving at the airport with nose or main landing gear
wheel-mounted electric drive motors for ground movement
without reliance on aircraft engines and external tow vehicles;
b. driving the airline’s equipped departing aircraft during
the curfew period with the electric drive motors from gate and
parking locations to arrive and line up in takeoff positions on a
number of takeoff runways ready for immediate takeoff before
the curfew morning expiration time;
c. starting the engines of the airline’s equipped departing
aircraft immediately at the curfew morning expiration time and
causing the airline's equipped departing aircraft to take off from
the number of takeoff runways; and
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d. landing the airline’s equipped aircraft arriving
immediately after the curfew morning expiration time and
driving the airline’s equipped arriving aircraft with the electric
drive motors to the gates and parking locations vacated by the
airline's equipped departing aircraft driven during the curfew
period by the electric drive motors to the takeoff runway
positions.

Appeal Br. 25–26 (Claims Appendix).

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Name Reference Date
Baiada US 6,789,011 B2 Sept. 7, 2004
Günther US 7,340,405 B1 Mar. 4, 2008
McCoskey US 7,445,178 B2 Nov. 4, 2008
Tiao US 8,504,402 B1 Aug. 6, 2013

The following rejections are before us for review.
Claims 22, 40–42, 44, and 45 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over McCoskey in view of Gunther.
Claim 46 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over McCoskey in view of Baiada further in view of Gunther.
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Claim 43 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over McCoskey in view of Gunther as applied to claim 41, further in view of
Baiada and Tiao.
FINDINGS OF FACT
1. McCoskey discloses:
In another embodiment, the power for the motor wheel
may be supplied by any one or several means of ground power
supply known within the industry. The ground power
distribution and pick up further reduces the noise, air, and water
pollution produced at the airports.

Col. 4, ll. 51–56.
2. McCoskey discloses:
Of course, although not shown, wheel motors may be
incorporated in landing gear other than in the nose landing gear.
Examples of an auxiliary power unit, electric wheel motors, and
nose wheel hubs are shown in FIGS. 2-6. Incorporating means
to maneuver the aircraft 12 on the ground with only auxiliary
power enables the main engines 37 to be OFF. This enables a
fully automated gate.

Col. 4, ll. 42–49
3. McCoskey discloses:
The wheel motor assemblies may be used instead of
aircraft primary engines, when taxiing on the tarmac, which
reduces fuel consumption. The use of the wheel motor
assemblies also eliminates the need for ground personnel to
guide the aircraft 12.
Col. 6, ll. 55–59.
4. Gunther discloses:
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Referring to FIG. 6C, a curfew time 110 is added to the arrival
hub 102, meaning that aircraft arrival is prohibited during this
time period. Consequently, two of the three additional legs (i.e.,
108d and 108e) generated in FIG. 6B are suppressed by the
curfew time 110.
Col. 6, ll. 14–18.

5. The Specification states:
Many of the world’s major airports have curfews or use
restrictions, however, which can drastically reduce airport
capacity. Limitations and restrictions on airport operation can
also reduce the value of additional airport infrastructure. Most
airports currently do not operate at night or during other selected
hours because of curfews. A curfew demands that all takeoffs
and landings occur only within a specific time period and
prohibits all takeoffs and landings outside this time period. The
majority of airports in Europe, for example, are curfew-
controlled, and this is not likely to change. The basis for most
curfews is the noise produced by incoming and outgoing aircraft.
The reduction of engine missions is an additional reason for
limiting airport operating hours. Aircraft noise becomes an issue
when aircraft are required to use engine thrust for ground travel
prior to take off and after landing. Even when a tug or tow
vehicle is used to push the aircraft back from a gate, the aircraft’s
engines are still presently required for aircraft ground movement
between pushback and takeoff, and this generates significant
noise and other pollution.
Spec. 5:2–21
6. The Specification states:
At some airports, the demand for runway and gate access exceeds
the supply, which has resulted in the allocation of both takeoff
and landing slots and gates. The number of flights an airport can
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handle in a given time period is fixed, and these resources are
allocated to airlines to ensure that runway and gate access is
maximized and delays are minimized. The allocation of takeoff
and landing slots and gate access to airlines was instituted to
control air traffic into and out of busy airports, in an effort to
eliminate or at least control and reduce time delays, which had
been described as excessive, quite costly, and to expand an
airport's limited capacity. Some less busy airports have instituted
takeoff slot and landing slot controls only during peak usage
times.
Spec. 1:15–25, 2:1–2.

7. The Specification states:
To schedule departures and/or arrivals out of takeoff or landing
slot-controlled airports, airlines must acquire the necessary gates
and takeoff and landing slots before they can use these airports.
Spec. 2:18–22
ANALYSIS
35 U.S.C. § 103 REJECTION

Appellant’s arguments against the rejection of independent claims 40
and 44 are based on perceived deficiencies of McCoskey in view of Gunther.
Inasmuch as Appellant raises the same issues with respect to each of these
rejections in its Appeal Brief, we discuss the two references together,
addressing each of Appellant’s arguments in turn.
Appellant argues:
Neither the quoted language nor the other disclosures of Gunther
et al. expressly or implicitly teach the claim limitations of claim
40 relating to the curfew period. The Final Office Action asserts,
without explanation or support for the combination, that one
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skilled in the art would combine disclosure from Gunther et al.
that clearly fails to teach the claim limitations relating to the
curfew period with McCoskey et al., which admittedly is silent
regarding all of the claim limitations to moving an aircraft during
curfew and an airport curfew period.

(Appeal Br. 18–19).
Appellant further argues,
The only disclosure in McCoskey et al. that has any relevance to
Appellant’s claimed method that increases takeoff and landing
slots at an airport where these airline assets might not otherwise
be easily increased is McCoskey et al.’s description of electric
wheel motors used for taxiing. Combining this teaching of
McCoskey et al. with Gunther et al.’s acknowledgement that
some airports have ‘curfew times ... representing times that
aircraft arrival or departure is not permitted at a specified airport’
that must be taken into account during scheduling (Col. 4, lines
53-64) may, at best, be read to disclose that aircraft may be
moved on the ground with electric wheel motors with the main
engines off to and from a terminal gate and that aircraft may not
be permitted to arrive at or take off from airports during curfew
times.

(Appeal Br. 19).
Preliminarily, we note the problem with Appellant’s argument is that
it treats airport rules governing curfews and gate allocations as statutory
subject matter when in reality these items are simply the manifestation of
public policy which is not protectable under the patent laws. See 35 U.S.C.
§ 101.2 Therefore, we decline to distinguish the claims from the prior art

2 “Whoever invents or discovers any new and useful process, machine,
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based on public policy considerations noting, however, that McCoskey
discloses no time restrictions on using aircraft electrically powered wheel
motors to taxi between the gate and tarmac. (FF. 1–3).
Notwithstanding this observation, we find no error with the
Examiner’s determination (which considers curfew rules) that it would be
obvious to combine McCoskey and Gunther to use the aircraft’s electrically
powered wheels to taxi between the gate and tarmac during curfew times.
(Final Act. 5). That is:
Appellant admits that the combination, “may, at best, be read to
disclose that aircraft may be moved on the ground with electric wheel
motors with the main engines off to and from a terminal gate and that
aircraft may not be permitted to arrive at or take off from airports during
curfew times.” (Appeal Br. 19).
McCoskey discloses, “[t]he ground power distribution and pick up
further reduces the noise, air, and water pollution produced at the airports.”
(FF. 1).
It is our understanding that curfew times are mandated to reduce noise
pollution during given times of day. (See FF. 5)
McCoskey also discloses “[t]he wheel motor assemblies may be used
instead of aircraft primary engines, when taxiing on the tarmac.” (FF. 3).

manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.”

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Both Gunther and the Specification describe challenges aircraft face
with curfews restrictions on using turbine engines to move aircraft on the
ground. (FF. 4, 5).
We thus find as a matter of common sense that one of ordinary skill in
the art would know to use the aircraft’s electric motor powered wheel drive
to move the aircraft from the tarmac to the gate, and vice versa, during
curfew times to avoid causing noise (FF. 1) restricted by curfew. The
application of common sense may control the combining of references.
Common sense teaches, however, that familiar
items may have obvious uses beyond their primary
purposes, and in many cases a person of ordinary
skill will be able to fit the teachings of multiple
patents together like pieces of a puzzle.
See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, at 420 (2007) (finding that
during an obviousness determination, the person of ordinary skill’s attempt
to solve a problem is not limited to only those elements of the prior art
designed to solve the same problem).
Independent claim 46 recites, in pertinent part, “adding an airline
departure slot at the airport for each of the airline’s equipped departing
aircraft driven during the curfew period to runway departure locations and
adding an airline arrival slot at the airport for each of the airline’s equipped
arriving aircraft driven during the curfew period to airport parking
locations.”
The Specification describes how airports allocate arrival and departing
slots. (FF. 6, 7). The Specification describes that, “[t]he number of flights
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an airport can handle in a given time period is fixed, and these resources are
allocated to airlines to ensure that runway and gate access is maximized and
delays are minimized.” (FF. 6). It is our understanding that airlines are free
to manage these slots themselves as the slots become available to more
efficiently release and accept flight at their gates. (FF. 6). It is further our
understanding that the number of fights an airport can handle in a given time
period is fixed. (FF. 6).
Thus, we find a person with ordinary skill in the art would know to
use all available means to maximize slot availability for outgoing and
incoming aircraft, which means would include using the electric powered
wheel drives in aircraft to move them to and from the gates during curfew.
Appellant’s scheme is a solution to a problem where there are only a finite
number of identified, predictable solutions exist, i.e., “the number of fights
an airport can handle in a given time period is fixed.” (FF. 6).

When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this leads
to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.
KSR, 550 U.S. at 421.
With regard to Appellant’s submission of the Hild and Schonland
Declarations, we find that these declarations are insufficient to overcome the
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prima facie case of obviousness made by the examiner.
Among the myriad of reasons for this deficiency, each declaration, for
example, fails to provide factual support for the offered conclusions, fails to
pick the single closest prior art reference to compare with the claim
limitations, merely restates what the prior art references state themselves,
and/or fail to establish a nexus between the claim language and any
proffered evidence.
More specifically, the Hild Declaration fails to cite to specific
limitations in each of the independent claims 40 and 44 which are listed in
the Declaration. Each of these independent claims has a different scope, yet
Appellant groups them together as a single matter for analysis. The
Declaration does not cite to explicit language in each of the independent
claims 40 and 44 in its analysis of the prior art. Independent claim 46 is not
even addressed. The Hild Declaration fails to compare the claimed subject
matter with the closest prior art as required by MPEP § 716.02(e). Any
noted deviation in McCoskey from the claim limitations is not explained
why this deviation is significant. Paragraph 9 of the Hild Declaration states
that, “I do not believe that the patents to McCoskey, Gunther and Tiao refer
to or discuss slots, nor do they referred to moving an aircraft on the ground
during curfew periods.” This assertion fails because Declarant does not
acknowledge that the Specification describes the known use of slots,
allocation and management by airlines (FF. 5–7), and how this information
would weigh on the prior art.
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The Schonland Declaration is likewise deficient. The last paragraph 8
is a conclusory statement stating that:
I do not believe that a skilled developer of the systems for
allocating slots at airports would, or could, develop a method that
increases airline takeoff and landing slots after reading Gunther’s
reference to airport curfew times in the context of scheduling in
McCoskey’s references to moving aircraft on the ground with the
described powered nose craft wheel system and precision
guidance system.

An affidavit/declaration fails in its purpose if it recites conclusions and few
facts to buttress those conclusions. In re Brandstadter, 484 F.2d 1395, 1406
(CCPA 1973). Here also, the Declaration fails to compare the claimed
subject matter with the closest prior art, but instead discusses together the
disclosures of the McCoskey, Gunther and Tiao references. Even so, the
analysis fails to determine the number of claim limitations common with
each reference. And again, the discussion of these prior art references fails
to acknowledge that the Specification describes the known use of slots,
allocation and management by airlines (FF. 5–7), and how this information
would weigh on the prior art.
Neither declaration shows evidence of unexpected results or
commercial success.
Therefore, we find the Hild and Schonland Declarations to be
insufficient to overcome the prima facie case of obviousness made by the
Examiner.
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Thus, the rejections are affirmed as to independent claims 40, 44, and
46. The Appellant does not provide a substantive argument as to the
separate patentability of dependent claims 22, 41, 42, 43, and 45 that depend
from one of independent claims 40 and 44, and hence we sustain the
rejection of the dependent claims as well.

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 20 and
40–46 under 35 U.S.C. § 103.

Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
22, 40–42, 44,
45
103 McCoskey,
Gunther
22, 40–42, 44,
45

46 103 McCoskey,
Baiada, Gunther
46
43 McCoskey,
Gunther, Baiada,
Tiao
43
Overall
Outcome
22, 40–46

DECISION
The decision of the Examiner to reject claims 22 and 40–46 is
affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED