Othman Ahmad

Patent Trials and Appeals Board

May 12, 2021

2020000276 (P.T.A.B. May. 12, 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.
14/833,144 08/24/2015 Othman Bin Ahmad aerodynamic 5515
121868 7590 05/12/2021
Othman Bin Ahmad
Lot 12, LRG Kingland
Taman Kingland
Fasa 1, Petagas
Kota Kinabalu, Sabah, 88200
MALAYSIA
EXAMINER
GILBERT, WILLIAM V
ART UNIT PAPER NUMBER
3649
NOTIFICATION DATE DELIVERY MODE
05/12/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
irhjothman@yahoo.com
othmana@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OTHMAN BIN AHMAD
Appeal 2020-000276
Application 14/833,144
Technology Center 3600
Before JENNIFER D. BAHR, JOHN C. KERINS, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
STATEMENT OF THE CASE
On April 15, 2021, Appellant1 filed a Request for Rehearing
(hereinafter “Request” or “Req. Reh’g”) under 37 C.F.R. § 41.52 of the
Decision on Appeal (hereinafter “Decision” or “Dec.”) dated
February 26, 2021. In the Decision, the Board affirmed the rejection of
claims 1–4 and 6–9 under 35 U.S.C. § 112(b), but reversed the rejections of
claims 1–4 and 6–9 under 35 U.S.C. § 103 because, due to the indefiniteness

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as the
inventor, Othman bin Ahmad. Req. Reh’g 3.
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of the claims, the rejections were based on speculative assumptions as to the
meaning of the claims. See Dec. 20.
REQUIREMENTS FOR REQUEST FOR REHEARING
A Request for Rehearing must comply with the following
requirements:
The request for rehearing must state with particularity the
points believed to have been misapprehended or overlooked by
the Board. Arguments not raised, and Evidence not previously
relied upon, pursuant to §§ 41.37, 41.41, or 41.47 are not
permitted in the request for rehearing except as permitted by
paragraphs (a)(2) through (a)(4) of this section.
37 C.F.R. § 41.52(a)(1). For example, “Appellant may present a new
argument based upon a recent relevant decision of either the Board or a
Federal Court.” 37 C.F.R. § 41.52(a)(2). However, a Request for Rehearing
is not an opportunity to rehash arguments raised in the Appeal Brief or in the
Reply Brief. Neither is it an opportunity to merely express disagreement
with a decision without setting forth points believed to have been
misapprehended or overlooked.
OPINION
Preliminary Matters
In the Request, Appellant remarks that the “USPTO had already
downgraded the rejection of most of the claims to objection but without any
information of the objection.” Req. Reh’g 17. This remark appears to be
directed to the listing of claims 1–4 and 6–9 on the line for “Claim(s)
objected to:” on the Notice of Panel Decision from Pre-Appeal Brief Review
issued March 12, 2019 (hereinafter “Notice”). The box for “Proceed to
Board of Patent Appeals and Interferences” was also checked on the
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Notice, which would only make sense if there were pending rejections for
the Board to review. Further, the Examiner’s Answer states that “[e]very
ground of rejection set forth in the Office action dated 17 July 2018 . . . is
being maintained by the [E]xaminer except for the grounds of rejection (if
any) listed under the subheading ‘WITHDRAWN REJECTIONS.’” Ans. 3
(emphasis added). The only ground of rejection listed under the subheading
“WITHDRAWN REJECTIONS” was the rejection of claim 6 under
35 U.S.C. § 112(b) with respect to “said vehicles” (language that was
amended to “said vehicle” to overcome the rejection). Id. Thus, it is clear
that, with the exception of the particular rejection of claim 6 expressly
withdrawn by the Examiner on page 3 of the Answer, all rejections of claims
1–4 and 6–9 set forth in the Final Action (dated July 17, 2018) were pending
and before the Board for review.
Appellant presents arguments directed to a purported rejection of
claim 5. Req. Reh’g 42–45.2 However, claim 5 is not rejected. Rather, as
explained in the Decision, “[t]he Examiner objects to claim 5 as being in
improper multiple dependent form pursuant to 37 C.F.R. § 1.75(c) and
MPEP § 608.01(n) and does not treat claim 5 further on the merits. Final
Act. 3; id. at 2 (stating that ‘[c]laim 5 is withdrawn from consideration’).”
Dec. 1 n.2. Having withdrawn claim 5 from consideration, thus not treating
it further on its merits, it is clear that the Examiner’s inclusion of claim 5 in
the indefiniteness rejection on page 3 of the Final Action was an inadvertent
error. See id. at 3 n.3. Thus, the Decision treats only claims 1–4 and 6–9,

2 These arguments appear to merely repeat the argument made on pages
33–36 of the Appeal Brief.
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and not claim 5, as being rejected and involved in this appeal. See id. at 1, 3,
20.
The Examiner’s objection to and withdrawal of claim 5 is a matter
that is reviewable by a petition under 37 C.F.R. § 1.81, and not by appeal to
the Board. See MPEP §§ 1002, 1201 (9th ed. Rev. 10.2019, rev. June 2020).
(the Board will not ordinarily hear a question that is reviewable by petition);
In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (stating that there are many
kinds of decisions made by examiners that are not appealable to the Board
when they are not directly connected with the merits of issues involving
rejections of claims) (citing In re Hengehold, 440 F.2d 1395, 1403 (CCPA
1971)). Thus, we do not address Appellant’s additional arguments
contesting the objection to claim 5 on page 26 of the Request.
The Request addresses the Examiner’s objection to the drawings as
not complying with 37 C.F.R. § 1.81. See Req. Reh’g 26; Final Act. 2.
Objections to drawings are also a matter that is reviewable by petition under
37 C.F.R. § 1.181, and not by appeal to the Board. See MPEP §§ 1002,
1201; In re Berger, 279 F.3d at 984. Accordingly, the objections to the
drawings were not addressed in the Decision and are not addressed herein.
Throughout the Request, Appellant repeats a sentence quoted from
MPEP § 2173.05(e) (citing In re Hammack, 427 F.2d 1384, 1388 n.5 (CCPA
1970)) to the effect that indefiniteness in claim language of semantic origin
“is not rendered unobjectionable simply because it could have been
corrected.” See, e.g., Req. Reh’g 17, 19. The quoted sentence merely points
out that an indefinite claim is still indefinite, even if the indefiniteness is of
semantic origin that could be corrected because the intended meaning is
readily apparent, unless such correction is made. See Hammock, 427 F.2d
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at 1388 n.5. This statement in no way supports Appellant’s position that any
of the indefiniteness rejections, or the Board’s affirmance thereof, was
improper, nor does it state a point that was misapprehended or overlooked
by the Board.
Appellant appears to propose amendments to the claims in the
Request. See, e.g., Req. Reh’g 52, 54–56. Amendments are not permitted in
a Request for Rehearing. Accordingly, we do not address these proposals
further herein.
Pages 59–106 of the Request present arguments contesting the
Examiner’s findings and reasoning in rejecting claims 1–4 and 6–9 under
35 U.S.C. § 103. The Decision reversed the obviousness rejections under
35 U.S.C. § 103 because, due to the indefiniteness of the claims, sustaining
the rejections “would require speculation as to the scope of the claims.”
Dec. 19 (citing In re Steele, 305 F.2d 859, 862–63 (CCPA 1962)). As the
Decision explains, our decision not to sustain the obviousness rejections “is
based solely on the indefiniteness of the claimed subject matter, and does not
reflect on the adequacy of the prior art evidence applied in support of the
rejections.” Id. at 20. Accordingly, Appellant’s arguments on pages 59–106
are not directed to any aspect of the Decision and, thus, fail to state a point
that was misapprehended or overlooked by the Board. We do not address
these arguments against the Examiner’s obviousness rejections further
herein.
Arguments Directed to Indefiniteness
Claim 2:
The Request characterizes the Examiner’s determination that it is
unclear to which nozzles (the intake nozzles, the exhaust nozzles, or both)
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“the nozzles” in claim 2 refer, as well as any attempt to amend claim 2 to
correct this ambiguity, as “ridiculous” and “frivolous and not suitable for a
person of ordinary skill.” Req. Reh’g 21. This comment does not state a
point that was misapprehended or overlooked by the Board. Further, the fact
that one might look to the drawings and Specification (see id.) to understand
what Appellant has disclosed as the invention does not discharge
Appellant’s burden to clearly define the invention in the claims, which set
forth the metes and bounds of the patent rights sought by Appellant.
Claim 3:
The arguments on page 22 of the Request regarding claim 3
essentially rehash the arguments on page 30 of the Appeal Brief, and still
miss the mark. As the Decision explains,
The basis of the Examiner’s indefiniteness rejection is not that
one of ordinary skill in the art would not understand how
Appellant’s disclosed invention works. The definiteness
requirement is directed to whether the metes and bounds of the
claims are clear. Claim 3 recites a “vehicle” having the
elements positively recited in claims 1 and 2, but does not
positively recite that the vehicle comprises a turbo jet or a turbo
fan engine. Thus, in reciting that the air compressor and turbo
charger use turbines and hot exhaust gases to provide additional
propulsion of turbo jet and turbo fan engines, it is not clear
whether claim 3 intends to claim that the air compressor and
turbo charger are part of a turbo jet or fan engine or that the air
compressor and turbo charger can be used with a vehicle having
a turbo jet and turbo jet engine. As such, the metes and bounds
of claim 3 are not clear.
Dec. 8–9.
Claim 4:
Appellant argues that the use of “the said” does not render the scope
of the claims indefinite. Req. Reh’g 41. This argument does not state a
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point that was misapprehended or overlooked by the Board. Indeed, the
Board agrees with Appellant on this point, as explained in the Decision.
Dec. 6 n.4. Thus, the Decision did not sustain the rejection of claim 1, 3, 4,
or 6 (or any other claim) on this particular basis.
Claim 6:
Appellant’s arguments on page 22 of the Request regarding claim 6
do not address the basis of the Board’s decision to sustain this rejection, and
thus do not state a point that was overlooked or misapprehended by the
Board. See Dec. 9 (explaining the ambiguity in “a plurality of said air intake
nozzles” in claim 6). Appellant’s inference on page 22 of the Request that
the basis of the rejection, or of the Board’s affirmance of this rejection, was
that it is unclear what is meant by “do not cover” is incorrect. Further,
neither the Examiner nor the Board construed claim 1 as requiring that the
intake nozzles cover the whole frontal surface area, as Appellant’s
arguments imply. See Req. Reh’g 22.
On page 46 of the Request, Appellant addresses two additional issues
with claim 6. The first is directed to the use of “the said” in claim 6. Req.
Reh’g 46. As already discussed above, the Board agrees with Appellant on
this point, and the Decision did not sustain the rejection of claim 6 (or any
other claim) on this particular basis. Dec. 6 n.4. The second, directed to the
use of “vehicles” in claim 6, addresses a rejection that was expressly
withdrawn by the Examiner on page 3 of the Answer and, thus, rendered
moot.
Claim 7:
Appellant’s arguments on page 23 of the Request regarding the term
“transmissions” evince Appellant’s misunderstanding of the basis of the
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rejection. As the Decision explains, the basis of the Examiner’s rejection
was not that a person having ordinary skill in the art would be unfamiliar
with transmissions. Dec. 10–11. Rather, the problem identified by the
Examiner is that claim 7 “does not positively recite transmissions as an
element of the claimed vehicle,” and, thus, the reference “to electric
motor/generators being able to turn a plurality of turbines ‘via a plurality of
shafts to the transmissions’ does not make sense within the context of claim
7.” Id. at 11. As the Decision explains, “[a] claim that refers back to an
element must first clearly and positively recite that element before referring
back to it.” Id.
Appellant further expresses a desire not to amend claim 7 to positively
recite the transmissions because, according to Appellant, this “will reduce
the protection accorded to the invention.” Req. Reh’g 47; see also Appeal
Br. 38 (expressing the same desire). This suggests that Appellant
appreciates that claim 7 does not positively recite the transmissions, thereby
supporting the Board’s position that reference to “the transmissions” in
claim 7 causes confusion. See Dec. 11 (stating that “[i]t is not clear how a
motor/generator can turn a plurality of turbines via a plurality of shafts to
transmissions that are not present in the vehicle of claim 7”).
Claim 8:
Appellant characterizes the Board’s statement that it was not apprised
of error in the Examiner’s determination “that claim 8 is indefinite for the
additional reason that it is not clear to which of the previously recited
plurality of ‘drive shafts,’ ‘differential gears,’ and ‘wheels’ the language
‘said drive shaft. . . , differential gear . . . and wheel’ in claim 8 refers”
(Dec. 11) as “without any reason whatsoever, just a personal judgment.”
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Req. Reh’g 23. This remark fails to state a point overlooked or
misapprehended by the Board. Appellant’s inaccurate and misleading
statement that “[t]he [C]onstitution clearly states that a person skilled in the
art know how to choose which apparatus or quantity for or a particular
problem to be solved” (Req. Reh’g 23) is similarly unavailing.
Appellant’s observation that the term “such as” does not necessarily
render a claim indefinite (Req. Reh’g 24) essentially rehashes arguments set
forth on page 28 of the Appeal Brief. The Examiner’s position is that it is
unclear whether the limitations following “such as” in claim 8 are part of the
claimed invention (i.e., whether claim 8 is limited to underwater vehicles).
Final Act. 6 (referencing the discussion of similar language in claim 2 at
Final Act. 5). Notably, Appellant does not expressly state whether claim 8 is
or is not limited to underwater vehicles so as to refute the Examiner’s
reasoning in this regard.
Claim 9:
Appellant argues that there is no ambiguity in the term “full frontal
surface” for a person having ordinary skill in the art because one “cannot
just take any plane to measure the area”; rather, “[i]t should be in the
direction of travel, deemed as the front.” Req. Reh’g 20. This explanation
does not address the rationale for the rejection articulated by the Examiner
on page 15 of the Answer. See Dec. 14–15. As explained in the Decision,
the Board “agree[s] with Appellant that a person having ordinary skill in the
art would understand ‘full frontal surface’ to be the full front surface or part
of the vehicle when viewed directly from the front of the vehicle.” Id. at 15.
However, as the Decision goes on to explain:
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Figures 1A and 1B appear to show the upper and lower air
intake nozzles (which appear, in fact, to be upper and lower
portions of a single intake nozzle, rather than distinct upper and
lower nozzles) extending to the upper, lower, and side
peripheral edges of the front of the vehicle. However, whether
they encompass the “full frontal surface” depends on how “full
frontal surface” is interpreted. In other words, if the “full
frontal surface” is interpreted as a surface in a vertical plane
taken along the front-most section of the vehicle, the upper and
lower air intake nozzles do not appear to encompass such “full
frontal surface.” Rather, because they are inclined away from
the front of the vehicle, only their upper, lower, and side edges
intersect with this surface. For this reason, and because of the
ambiguity as to what actually constitutes an air intake nozzle
(i.e., whether the upper and lower structures (2, 3) shown) in
fact constitute a single nozzle with upper and lower portions or
two distinct nozzles, there is merit to the Examiner’s position
that it is unclear what constitutes the “full frontal surface area
of the vehicle” in claim 9.
Id. at 15–16.
Appellant also contends there is no ambiguity as to which nozzles are
recited in claim 9 as being “of such sizes that they are large enough to cover
the full frontal surface area” because “front refers to the intake nozzles
only.” Req. Reh’g 20. This contention does not address the ambiguity
discussed on pages 13–14 of the Decision. The problem is not that it is not
clear whether it is the intake nozzles or the exhaust nozzles that are large
enough to cover the full frontal surface area. Rather, as the Decision
explains, the limitations in claim 9 directed to providing a plurality of intake
nozzles “of such sizes that they are large enough to cover the full frontal
surface area of the vehicle” and providing a plurality of exhaust nozzles “of
such sizes that they are large enough to cover the full frontal surface area of
the vehicle”
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raise an ambiguity as to whether each of the plurality of intake
nozzles and each of the exhaust nozzles is sized to cover the
full frontal surface of the vehicle, or all of the plurality of
intake nozzles in the aggregate (and all of the plurality of
exhaust nozzles in the aggregate) have a combined size large
enough to cover the full frontal surface area of the vehicle.
Dec. 13–14.
The Request includes comments directed to the use of “good
visibility” in claim 9. Req. Reh’g 21; see id. at 52. Appellant’s comments
do not state a point that the Board has overlooked or misapprehended.
Indeed, the Board found persuasive Appellant’s argument on page 24 of the
Reply Brief that one having ordinary skill in the art would understand what
is meant by “good visibility” and did not sustain the rejection of claim 9 on
this particular basis. Dec. 17–18. As the Decision explains, “[a] person
having ordinary skill in the art would understand from the discussion in
Appellant’s Specification that ‘good visibility’ means that movement of the
upper intake nozzle does not affect visibility to a degree that would prevent
proper operation of the vehicle.” Id.
Appellant submits that “[c]laim 9 is a method claim and the method
applies to different embodiments of the inventions” and contends that there
is no need to put these different methods in separate claims. Req. Reh’g 25.
According to Appellant, “[i]t is a single method in designing all the
embodiments of the invention.” Id. Appellant’s arguments do not state a
point that the Board misapprehended or overlooked. The Board, and the
Examiner, understood full well that the last four “providing” steps recited in
claim 9 recite different embodiments of the invention. Dec. 18 (citing Final
Act. 7). As the Decision explains, the problem with these limitations is that
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they recite “four mutually exclusive embodiments of the invention in
combination” in a single method of designing a vehicle. Id. at 18–19.
Although one could design a first vehicle according to one of these
embodiments, a second vehicle according to a second of these embodiments,
a third vehicle according to a third of these embodiments, and a fourth
vehicle according to a fourth of these embodiments, this is not what claim 9
recites. Claim 9 recites a single method of designing a vehicle. As the
Decision explains:
[C]laim 9 recites providing a plurality of intake nozzles and a
plurality of exhaust nozzles (Appeal Br. 92 (Claims App.)), and
then recites providing a direct path from the air intake to the
exhaust outlet without any thermal engine and providing a path
from the air intake to the exhaust outlet through a turbo charger
(id. at 93). These are two mutually exclusive
alternatives. Either there is a thermal engine (e.g., turbo
charger) between the intake and exhaust nozzles or there is no
thermal engine between the intake and exhaust nozzles; both
are not possible together. Further, after reciting providing a
plurality of intake nozzles and a plurality of exhaust nozzles,
claim 9 goes on to recite providing a plurality of air collectors
instead of air intake nozzles with high dynamic pressure and
providing a plurality of exhaust diffusers instead of exhaust
nozzles with low dynamic pressure. The claimed invention
either includes intake nozzles or it includes air collectors
instead of air intake nozzles; it cannot both include intake
nozzles and include air collectors instead of air intake nozzles.
Likewise, the claimed invention either includes exhaust nozzles
or it includes exhaust diffusers instead of exhaust nozzles; it
cannot both include exhaust nozzles and include exhaust
diffusers instead of exhaust nozzles.
Dec. 18–19.
Appellant’s position, expressed on page 24 of the Request, that the
statement on pages 12–13 of the Decision that “[a]side from the nozzles,
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however, the method steps of claim 9 do not mention the elements of the
vehicle recited in claim 1” is inaccurate is well taken, and we hereby
withdraw the statement. More specifically, we modify the paragraph
bridging pages 12–13 of the Decision by deleting “The preamble of claim 9
recites ‘[a] method of designing vehicles as in claim 1’ and, thus, appears to
incorporate the elements of the vehicle recited in claim 1. Aside from the
nozzles, however, the method steps of claim 9 do not mention the elements
of the vehicle recited in claim 1.” Otherwise, the paragraph bridging pages
12–13 of the Decision remains unchanged. Our modification of this
paragraph of the Decision does not affect our agreement with the Examiner’s
determination that claim 9 does not recite sufficient relationships between
the list of items provided to make clear how the method steps of claim 9
comprise a method of designing a vehicle, much less the vehicle of claim 1.
Conclusion
For the above reasons, aside from the aforementioned sentences in the
paragraph bridging pages 12–13 of the Decision, which we hereby delete in
view of arguments in Appellant’s Request, we are unpersuaded that the
Board misapprehended or overlooked any point in the record or otherwise
erred in sustaining the rejections of claims 1–4 and 6–9 under 35 U.S.C.
§ 112(b). Accordingly, Appellant’s Request has been granted to the extent
that we have reconsidered our Decision in light of the arguments in
Appellant’s Request, but is denied with respect to our making any
modification to the dispositions in the Decision.
DECISION SUMMARY
Outcome of Decision on Rehearing:
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Claims 35 U.S.C. § Reference(s)/Basis Denied Granted
1–4, 6–9 112(b) Indefiniteness 1–4, 6–9
1–4, 6–8 103 Kardos,3 Khadiya4 1–4, 6–8
9 103 Kardos, Karl5 9
Overall
Outcome
1–4, 6–9
Final Outcome of Appeal after Rehearing:
Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 6–9 112(b) Indefiniteness 1–4, 6–9
1–4, 6–8 103 Kardos, Khadiya 1–4, 6–8
9 103 Kardos, Karl 9
Overall
Outcome
1–4, 6–9

TIME PERIOD FOR RESPONSE
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).
DENIED

3 Kardos, US 8,015,954 B2, iss. Sept. 13, 2011.
4 Khadiya, US 2010/0181138 A1, pub. July 22, 2010.
5 Karl, US 2011/0139525 A1, pub. June 16, 2011.