Ex Parte Krogh

Patent Trial and Appeal Board

May 18, 2017

13078086 (P.T.A.B. May. 18, 2017)

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.
13/078,086 04/01/2011 Steven Barry Krogh 10-1042-US-NP 6754
63759 7590 05/22/2017
DTTKFW YFF
EXAMINER
YEE & ASSOCIATES, P.C. BONZELL, PHILIP J
P.O. BOX 802333
DALLAS, TX 75380 ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
05/22/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN BARRY KROGH
Appeal 2014-002135
Application 13/078,0861
Technology Center 3600
Before BART A. GERSTENBLITH, ROBERT L. KINDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
GERSTENBLITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Steven Barry Krogh (“Appellant”) appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 1—19. We have jurisdiction
under 35 U.S.C. § 6(b).
1 Appellant identifies “The Boeing Company of Chicago, Illinois” as the real
party in interest. Appeal Br. 2.
Appeal 2014-002135
Application 13/078,086
Claimed Subject Matter
Claims 1,10, and 19 are the independent claims on appeal. Claim 1 is
illustrative of the claimed subject matter and is reproduced below.
1. A method for controlling a flight of an aircraft, the
method comprising:
identifying an undesired change in an airspeed for the
aircraft; and
identifying a number of commands for a flight control
system associated with a wing of the aircraft in response to the
undesired change in the airspeed, wherein the number of
commands is configured to cause the flight control system to
maintain a lift of the aircraft for a desired trajectory while
minimizing change in pitch attitude.
Appeal Br. 19, Claims App.
Rejections
Appellant seeks review of the following rejections:
I. Claims 1—5, 8—16, 18, and 19 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Walton (US 2009/0157239 Al, pub. June 18,
2009);
II. Claims 6 and 7 as unpatentable under 35 U.S.C. § 103(a) over
Walton and Pollack (US 3,269,675, iss. Aug. 30, 1966); and
III. Claim 17 as unpatentable under 35 U.S.C. § 103(a) over
Walton.
SUMMARY OF DECISION
We AFFIRM-IN-PART.
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Application 13/078,086
ANALYSIS
Rejection I
The Examiner finds that each and every element of claims 1—5, 8—16,
18, and 19 is disclosed by Walton. Final Act. 2—6 (mailed May 2, 2013);
Ans. 2—6.
Claims 1 and 10
With respect to independent claim 1, the Examiner finds that Walton’s
Abstract and Figures 2 and 3 disclose
a method for controlling a flight of an aircraft, the method
comprising: identifying an undesired change in an airspeed for
the aircraft (302); identifying a number of commands for flight
control system associated with a wing of the aircraft (330 and
334) in response to the undesired change in the airspeed, wherein
the number of commands is configured to cause the flight control
system to maintain a lift of the aircraft for a desired trajectory
while minimizing change in pitch attitude.
Final Act. 2. The Examiner further finds that Walton
discloses that the sensors (302) use airspeed to create a number
of commands from the command mixer (330) to control the
flaperons (104A and 104b) and the elevator (106) in order to
control the pitch attitude of the aircraft in order to maintain a
smooth flight profile. A smooth profile is maintained when the
aircraft maintains its flight course.
Ans. 8 (citing Walton 117, Fig. 3).
Appellant argues that Walton teaches to move the elevators and/or
canards of an aircraft in order to control the pitch of an aircraft in response
to turbulence in order to maintain a smooth flight pattern. Appeal Br. 7—8;
Reply Br. 6. Appellant contends that the use of elevators and/or canards to
control a pitching movement is in contraction with claims 1 and 10 because
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Application 13/078,086
they recite methods to minimize a change in pitch attitude. Appeal Br. 8;
Reply Br. 6.
Appellant’s argument is unpersuasive. Walton relates to “methods
and systems for vertical gust suppression.” Walton 116. Specifically,
paragraph 17 of Walton states:
a command[2] may be generated and sent to the aircrafts controls
to actuate the flaperons to modify the aircraft lift in response to
the vertical gust data. Furthermore, an additional signal may be
sent to the elevator of the aircraft to cancel out any additional
pitching response that may be induced by the flaperons.
Id. 117 (emphases added). Notably, modifying the aircraft lift in response
to vertical gust data, maintains lift; further, canceling out any additional
pitching response, minimizes change in pitch attitude. Thus, the Examiner
has shown by a preponderance of the evidence that Walton’s method
maintains lift of the aircraft while minimizing change in pitch attitude, as
recited in claims 1 and 10.
Accordingly, we sustain the rejection of claims 1 and 10.
Claims 2, 4 9, 12, and 14—18
Claims 2 and 4—9 depend from claim 1, and claims 12 and 14—18
depend from claim 10. See Appeal Br. 19—23, Claims App. Appellant relies
upon the argument raised with respect to claims 1 and 10, and does not raise
an additional argument directed to any of claims 2, 4—9, 12, and 14—18.
Id. at 14. Accordingly, claims 2, 4—9, 12, and 14—18 fall with claims 1 and
10, and we sustain the Examiner’s rejection of those claims. See 37 C.F.R.
2 This command is generated through the combination of a number of
variables, including vertical speed and true airspeed, to detect turbulence and
then correct for it for a smooth ride. Walton || 17, 24, Fig. 3.
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Application 13/078,086
§ 41.37(c)(l)(iv) (“the failure of appellant to separately argue claims which
appellant has grouped together shall constitute a waiver of any argument that
the Board must consider the patentability of any grouped claim separately”).
Claim 3
Claim 3 depends from claim 1 and further recites two identifying
steps as part of the “identifying a number of commands” step of claim 1.
The Examiner identifies where Walton discloses the additional steps of
claim 3. Final Act. 2—3.
Appellant contends that because Walton fails to disclose the
identifying a number of commands step of claim 1, “[i]t naturally follows
. . . that Walton fails to disclose the features which further define the . . .
step,” as recited in claim 3. Appeal Br. 10. In the Reply Brief, Appellant
raises the same argument as raised in response to the rejection of claim 1—
that Walton does not minimize change in pitch attitude. Reply Br. 7.
In the Answer, the Examiner reiterates that “[t]he command
mixing (330).. . identifies and sends out the number of commands for the
flight control system so as to maintain the flight of the aircraft which
includes pitch attitude.” Ans. 9.
We find that the Examiner has shown by a preponderance of the
evidence that Walton discloses the additional steps recited in claim 3.
Further, for the reasons discussed in the context of claim 1, Appellant’s
arguments directed to the step of claim 1, which is further defined by the
steps of claim 3, are not persuasive.
Accordingly, we sustain the rejection of claim 3.
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Claims 11, 12, and 19
Claims 11 and 12 depend from claim 10. Claim 11 further recites, “an
airspeed change monitor configured to identify the undesired change in the
airspeed using a current airspeed and a previous airspeed for the aircraft.”
Appeal Br. 21, Claims App. (emphasis added). Claim 12 further recites,
“wherein the airspeed change monitor is configured to identify the undesired
change in the airspeed using the current airspeed, the previous airspeed, and
the expected change in the airspeed for the aircraft.” Id. at 22 (emphasis
added). Independent claim 19 is directed to a lift control module comprising
“an airspeed change monitor configured to identify an undesired change in
the airspeed for the aircraft using a current airspeed for the aircraft and a
previous airspeed identified for the aircraft.” Id. at 23 (emphasis added).
Claim 6, which depends from claim 1, recites “identifying the undesired
change in the airspeed using a current airspeed for the aircraft and a
previous airspeed for the aircraft.” Id. at 20 (emphasis added).
In addressing claim 6, discussed further below, the Examiner finds
that “Walton ... is silent about identifying the undesired change in the
airspeed using a current airspeed for the aircraft and previous airspeed for
the aircraft.” Final Act. 6; see also Ans. 7. For this reason, in addressing
claims 6 and 7, the Examiner relies upon a second reference, Pollack. Final
Act. 6; Ans. 7.
The rejections of these claims are not written as though they are based
upon alternative theories. Accordingly, if we accept the Examiner’s finding
regarding claims 6 and 7, we must reject the Examiner’s finding regarding
claims 11, 12, and 19. From our review of Walton, and specifically the
Examiner’s identification of how Walton’s system teaches the elements of
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Application 13/078,086
claim 10, from which claims 11 and 12 depend, we do not discern where
Walton expressly discloses using a previous speed of the aircraft to identify
an undesired change in airspeed.3 In other words, the Examiner’s finding
regarding Walton in the context of claim 6 is supported by a preponderance
of the evidence, but the Examiner’s finding regarding Walton in the context
of claims 11, 12, and 19 is not supported similarly.
Accordingly, we do not sustain the Examiner’s rejection of claims 11,
12, and 19.
Claim 13
Claim 13 depends from claim 10, and further recites “wherein the
flight control system is configured to change a configuration of a number of
control surfaces on the aircraft using the number of commands to maintain
the lift of the aircraft for the desired trajectory while minimizing change in
pitch attitude.” Appeal Br. 22, Claims App. The Examiner relies upon
Walton’s Figure 2 and paragraphs 17, 43, and 44. Final Act. 4—5; see also
Ans. 10 (reiterating that “the command mixing (330) is configured to change
a configuration of a number of control surfaces (104a, 104b, and 106) to
maintain lift while minimizing change in pitch attitude”). Appellant raises
essentially the same argument as raised with respect to claim 10, discussed
3 To the extent the Examiner relies upon inherency, although not expressly
stated in the Final Rejection or Answer, the Examiner has not shown that
Walton necessarily uses a previous speed of the aircraft to identify an
undesired change in airspeed. See In re Robertson, 169 F.3d 743, 745
(Fed. Cir. 1999) (“To establish inherency, the extrinsic evidence ‘must make
clear that the missing descriptive matter is necessarily present in the thing
described in the reference, and that it would be so recognized by persons of
ordinary skill.’” (quoting Conti Can Co. v. Monsanto Co., 948, F.2d 1264,
1268 (Fed. Cir. 1991))).
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Application 13/078,086
above with claim 1. Appeal Br. 13; see also Reply 9—10 (relying on
arguments raised with respect to claims 1 and 10).
For the reasons discussed in the context of claim 10, Appellant’s
arguments are not persuasive. Accordingly, we sustain the Examiner’s
rejection of claim 13.
Rejection II
The Examiner determines that the combination of Walton and Pollack
would have rendered the subject matter of claims 6 and 7 obvious to one of
ordinary skill in the art at the time of the invention. Final Act. 6—7. As
discussed above in the context of addressing claim 11, the Examiner finds
that Walton “is silent about identifying the undesired change in the airspeed
using a current airspeed for the aircraft and previous airspeed for the
aircraft,” and, instead, relies upon Pollack as disclosing those elements of
the claim. Final Act. 6—7. Additionally, with respect to claim 7, the
Examiner takes official notice that “it is well known in the art to have
feedback loops that feedback various types of information the system [sic]
including using past data or expected data.” Id. at 7. The Examiner
determines that it would have been obvious to one of ordinary skill in the art
“to modify Walton . . . with the ability to identify airspeed as taught in
Pollack ... in order to have a more accurate system,” and “to modify
Walton . . . with using expected data in a calculation device” in light of the
Examiner’s official notice regarding feedback loops. Id. at 6—7.
Appellant argues that Pollack fails to disclose the limitations of the
“identifying” step of claim 1, minimizing change in pitch attitude. Appeal
Br. 15—16. Therefore, Appellant contends that Pollack fails to remedy the
deficiencies of Walton. Id. at 15.
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Application 13/078,086
We agree with the Examiner’s response, stated in the Answer, that
Appellant “has not argued that. . . Polla[c]k . . . does not teach [the]
language of claims 6 and 7.” Ans. 10. Additionally, Appellant does not
contest the Examiner’s taking of official notice or the reasons provided by
the Examiner as to why one of ordinary skill in the art would have been
prompted to combine the teachings of Pollack with Walton. See Appeal
Br. 14—16; Reply Br. 10—13.
As discussed above, the Examiner relies upon Walton as teaching the
limitations Appellant contends are missing from Pollack. Additionally, for
the reasons discussed above, the Examiner’s findings regarding Walton and
claim 1 are supported by a preponderance of the evidence. Further, the
Examiner has provided reasons with rational underpinnings as to why one of
ordinary skill in the art would have been prompted to modify Walton, and
Appellant has not contested those findings.
Accordingly, we sustain the rejection of claims 6 and 7.
Rejection III
The Examiner determines that Walton would have rendered the
subject matter of claim 17 obvious to one of ordinary skill in the art at the
time of the invention. Final Act. 7. Claim 17 depends from claim 11.
Appeal Br. 23, Claims App. The Examiner’s findings with respect to
claim 17 do not address the “using a . . . previous airspeed” limitation of
claim 11, discussed above. Accordingly, for the reasons discussed in the
context of addressing claim 11, we do not sustain the rejection of claim 17.
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Application 13/078,086
DECISION
We affirm the Examiner’s decision rejecting claims 1—10, 13—16, and
18. We reverse the Examiner’s decision rejecting claims 11, 12, 17, and 19.
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)(l)(iv).
AFFIRMED-IN-PART
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