Ex Parte Reynolds et al

Patent Trial and Appeal Board

Oct 18, 2016

13098333 (P.T.A.B. Oct. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/098,333 04/29/2011
7590 10/19/2016
Squire, Sanders & Dempsey (US) L.L.P.
27th Floor
1 East Washington Street
Phoenix, AZ 85004-2556
FIRST NAMED INVENTOR
Zachary R. Reynolds
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
050847.00362 8502
EXAMINER
SMALL, NAOMI J
ART UNIT PAPER NUMBER
2682
MAILDATE DELIVERY MODE
10/19/2016 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 ZACHARY R. REYNOLDS, CYRO A. STONE, and
CHRISTOPHER POL YNIN1
Appeal2015-005124
Application 13/098,333
Technology Center 2600
Before MICHAEL J. STRAUSS, AARON W. MOORE, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
Decision rejecting claims 1-20. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We AFFIRM.2
1 According to Appellants, the real party in interest is Aviation
Communication and Surveillance Systems, LLC. See Appeal Br. 3.
2 Throughout this Opinion, we refer to: (1) Appellants' Specification filed
Apr. 29, 2011 ("Spec."); (2) the Final Office Action ("Final Act.") mailed
Jan. 14, 2014; (3) the Appeal Brief ("Appeal Br.") filed Oct. 9, 2014; (4) the
Examiner's Answer ("Ans.") mailed Feb. 6, 2015; and (5) the Reply Brief
("Reply Br.") filed Apr. 6, 2015.
Appeal2015-005124
Application 13/098,333
BACKGROUND
Appellants' application relates to providing a swath-based
topographical display of a position of a host aircraft. Spec. 2. Claims 1, 10,
and 19 are independent claims.
Claim 1 is representative and is reproduced below with disputed
limitations emphasized:
1. A method comprising:
receiving data representing a position of a host aircraft;
based on the position of the host aircraft, receiving data extracted
from a database representing an elevation of at least one of a terrain and
an obstacle surrounding the host aircraft;
displaying, on a display, information comprising the position of
the host aircraft and the extracted data;
identifying a subset of the displayed information as relevant for
situational awareness; and
displaying, on the display, a number corresponding to a value of
a maximum elevation within the subset of the displayed information.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
Chen et al. ("Chen")
Feyereisen et al.
("Feyereisen")
Chen et al. ("Chen ' 121 ")
Johnson
Estabrook et al.
("Estabrook")
US 2003/0193410 Al
US 7 ,098,809 B2
US 7,363,121 Bl
US 7,676,112 B2
US 8, 180,503 B2
2
Oct. 16, 2003
Aug.29,2006
Apr. 22, 2008
Mar. 9, 2010
May 15, 2012 (filed
Aug. 8, 2006)
Appeal2015-005124
Application 13/098,333
REJECTIONS
Claims 1, 2, 6, 10, 11, and 19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Feyereisen and Chen. Final
Act. 2-6.
Claims 3 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Feyereisen, Chen, and Estabrook.
Final Act. 6-8.
Claims 4, 5, and 13-15 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Feyereisen, Chen, and Johnson.
Final Act. 8-11.
Claims 7-9 and 16-18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Feyereisen, Chen, and Chen
'121. Final Act. 11-14.
Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Feyereisen, Chen, Estabrook, and
Johnson. Final Act. 14--15.
Our review in this appeal is limited to the above rejections and issues
raised by Appellants. We have not considered other possible issues that
have not been raised by Appellants and which are, therefore, not before us.
See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
ISSUES
1. Did the Examiner err in finding that the combination of
Feyereisen and Chen teaches or suggests "displaying, on the display, a
number corresponding to a value of a maximum elevation within the subset
of the displayed information," as recited in claim 1?
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Application 13/098,333
2. Was the Examiner's rationale for modifying Feyereisen based
on Chen erroneous because Chen teaches away from displaying maximum
elevation information textually?
3. Did the Examiner err in finding that the combination of
Feyereisen and Chen teaches or suggests "wherein the identifying comprises
identifying the subset of the displayed information based on a flight plan for
the host aircraft," as recited in claim 2?
4. Did the Examiner err in finding that the combination of
Feyereisen, Chen, and Estabrook teaches or suggests "identifying the subset
of the displayed information based a projected track of the host aircraft, the
projected track being an extrapolation of a current track angle and a roll
angle of the host aircraft," as recited in claim 3?
5. Did the Examiner err in finding that the combination of
Feyereisen, Chen, and Johnson teaches or suggests "wherein the identifying
comprises identifying the subset of the displayed information based on a
sensor swath," as recited in claim 4?
DISCUSSION
After review of Appellants' arguments and the Examiner's findings
and reasoning, we determine that Appellants have not persuaded us of error
in the Examiner's rejection of claims 1-20. Accordingly, we sustain the
rejection for reasons set forth by the Examiner in the Final Office Action and
the Answer. See Final Act. 2-15; Ans. 2-18. We add the following for
emphasis and completeness.
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Appeal2015-005124
Application 13/098,333
35 U.S.C. § 103: Claims 1, 10, and 19
Issue 1
The Examiner relies on Chen to teach or suggest "displaying, on the
display, a number corresponding to a value of a maximum elevation," as
recited in claim 1. Final Act. 3. Specifically, the Examiner relies on Chen's
Figure 1, which depicts a view of the vertical terrain along the track of an
aircraft in which the y-axis includes numerical representations of various
maximum altitude values such as 4,000, 8,000, 12,000 etc. Final Act. 3;
Ans. 15 (citing Chen Fig. 1 and i-f 24). Appellants contend Chen's y-axis
labels do not suggest a number corresponding to a value of a maximum
elevation "since the maximum elevation does not necessarily correspond to
any of the labeled points on the axis in Chen." Reply Br. 2.
We are not persuaded by Appellants' contention. Under a broadest
reasonable interpretation, the words of the claim must be given their plain
" 1 t. 1 " " " " " " t. t. "-C: " T meanmg uniess tue p1am meamng is mcons1stent w1t11 tue spec111cat1on. 1n
re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989); Chef America, Inc. v. Lamb-
Weston, Inc., 358 F.3d 1371, 1372 (Fed. Cir. 2004). The plain meaning of a
term means the ordinary and customary meaning given to the term by those
of ordinary skill in the art at the time of the invention. In re Suitco Surface,
Inc., 603 F.3d 1255, 1259---60 (Fed. Cir. 2010). The presumption that a term
is given its ordinary and customary meaning may be rebutted by Appellants
clearly setting forth a different definition of the term in the specification. In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Here, Appellants fail to
demonstrate that "corresponding to" has been explicitly defined in
Appellants' Specification.
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Application 13/098,333
Accordingly, we determine that the Examiner's interpretation of the
term "corresponding to" is not inconsistent with Appellants' Specification
and is not shown to be unreasonably broad. For example, Appellants do not
dispute that Chen's Figure 1 includes numerical representations of elevation
values but essentially contend that Chen's elevation values do not equal the
maximum elevation. We agree with the Examiner, however, that under a
broadest reasonable interpretation of "corresponds to," the displayed number
need not be the maximum elevation but need only have a correspondence or
relationship with the maximum elevation. Looking at Chen's Figure 1, one
can see that the maximum elevation is less than, for example, 4000 feet; the
displayed "4000" thus "corresponds to" the maximum elevation in that it
shows the maximum elevation to be less than 4000 feet. The relationship
Appellants claim ("corresponding to") is broader than the relationship
described in the Specification ("a numerical representation ... that identifies
to the user of the system 200 the elevation of the terrain or the obstacle'}
Spec. i-f 26. Accordingly, we agree with the Examiner's finding that Chen
teaches or suggests displaying "a number corresponding to a value of a
maximum elevation," as recited in claim 1.
Moreover, we note in passing and without reliance in sustaining the
rejection, that Appellants' admitted prior art also suggests displaying "a
number corresponding to a value of a maximum elevation." App. Br. 2. In
describing Figure 1, the Background section of Appellants' Specification
discloses "[the] conventional TAWS [(terrain awareness and warning
system)] would indicate that the maximum elevation 140 of the high terrain
in the displayable area 120 is 5,000 feet (050)." Spec. i-f 8. Referring to
Figure 1, the maximum elevation 140 is displayed numerically. Spec. Fig. 1.
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Application 13/098,333
Accordingly, we agree with the Examiner's finding that Chen teaches
or suggests "displaying, on the display, a number corresponding to a value
of a maximum elevation," as recited in claim 1. Final Act. 3.
Issue 2
Appellants further argue that Chen teaches away from the claimed
invention. We disagree because, as we explain above, Chen actually teaches
what is claimed.
Moreover, even if a prior art reference discloses a different solution to
a similar problem, it does not teach away from the claimed subject matter
unless the prior art reference also criticizes, discredits, or otherwise
discourages the solution claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004). Here, it is undisputed Chen teaches displaying the maximum
elevation. See Appeal Br. 11. Appellants argue, rather, that "Chen suggests
to do so graphically ... not by providing a number corresponding to a value
of the maximum elevation." Id. They do not argue, however, that Chen
criticizes, discredits, or otherwise discourages the claimed solution. Thus,
even according to Appellants' view of Chen, Chen merely discloses a
different solution to a similar problem, in essence, displaying a maximum
elevation graphically, rather than numerically, to facilitate avoidance of an
obstacle. Teaching an alternative method does not teach away from the use
of a claimed method. In re Dunn, 349 F.2d 433, 438 (CCPA 1965); see also
Ex parte Shuping, No. 2008-00394, 2008 WL 336222, at *2 (BPAI 2008)
("[T]eaching a way is not teaching away.") (citation omitted).
Appellants also argue that "Chen explicitly teaches away from
displaying information 'textually' in order to provide a 'clear and intuitive
picture."' Appeal Br. 11 (citing Chen i-f 31 ). We note the portion of Chen
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Application 13/098,333
asserted by Appellants describes displaying range-to-target speed
symbolically instead of textually. Because the asserted portion of Chen
describes range-to-target speed rather than a maximum elevation, we
additionally find Chen does not criticize, discredit, or otherwise discourage
the claimed solution, and we likewise disagree with Appellants' argument
that Chen teaches away from the claimed invention. Accordingly, we
sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 1.
In arguing independent claims 10 and 19, Appellants repeat the
substance of the arguments made for claim 1 regarding the combination of
Feyereisen, Chen, and Johnson. Compare Appeal Br. 11 with Appeal Br.
12-14. As discussed supra, we find these arguments to be unpersuasive.
Therefore, we likewise sustain the rejections of claims 10 and 19 under 35
U.S.C. § 103(a).
35U.S.C.§103: Claims 2and11
Issue 3
The Examiner relies on Feyereisen to teach or suggest "identifying the
subset of the displayed information based on a flight plan for the host
aircraft," as recited in claim 2. Final Act. 4; Ans. 15-16. Appellants
contend Feyereisen does not describe that the flight path is used to identify a
subset of displayed information."
We find Appellants' arguments unpersuasive because we agree with
the Examiner's finding that Feyereisen's discussion of the host aircraft's
current position and altitude suggests the claimed flight plan and
Feyereisen's displaying relevant terrain elevations within a projected band or
zone suggests identifying the subset of displayed information. Ans. 11-12
(citing Feyereisen col. 9, 1. 64 to col. 10, 1. 8 and col. 14, 11. 46-53).
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Application 13/098,333
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 2 and of claim 11, for which Appellants provide similar arguments.
See Appeal Br. 13.
35 U.S.C. § 103: Claims 3and12
Issue 4
Appellants contend Estabrook does not "describe that the track angle
and roll angle are used to identify a subset of displayed information."
Appeal Br. 14--15.
We find Appellants' arguments unpersuasive because we agree with
the Examiner's finding that Estabrook teaches providing critical flight
information, including a track angle and a roll angle, to a passenger piloting
the aircraft due to the incapacitation of the pilot and displaying the track
angle and a roll angle as the identified subset of displayed information.
Final Act. 7; Ans. 16-17 (citing Estabrook col. 2, 11. 65---66 and col. 10, 11.
32-38, 51, and 60).
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 3 and of claim 12, for which Appellants provide similar arguments.
See Appeal Br. 15-16.
35U.S.C.§103: Claims 4and13
Issue 5
The Examiner relies upon the combination of Feyereisen, Chen, and
Johnson to suggest "identifying the subset of the displayed information
based on a sensor swath," as recited in claim 4. Final Act. 8. Appellants
argue that Johnson "does not describe that the sensor swaths are used to
identify a subset of displayed information." Appeal Br. 16-17.
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We find Appellants' argument unpersuasive because we agree with
the Examiner's finding that Feyereisen suggests the use of laser altimeters
for detecting terrain to be displayed and Johnson suggests detecting data
over a sensor swath. Final Act. 8; Ans. 17 (citing Feyereisen col. 9, 1. 64 to
col. 10, 1. 8 and Johnson col. 5, 1. 65 to col. 6, 1. 4). We also agree with the
Examiner's finding that "[i]t would have been obvious to one having
ordinary skill in the art at the time the invention was made to implement the
sensor swath of Johnson [in place of Feyereisen's laser altimeters], since it
was known in the art that both methods provide data with respect to the
Earth's terrain." Ans. 17.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 4 and of claim 13, for which Appellants provide similar arguments.
See Appeal Br. 18.
35 U.S.C. § 103: Claim 6
Appellants present additional arguments with respect to dependent
claim 6. Appeal Br. 12. These conclusory arguments, however, amounting
to little more than a paraphrasing of the claim language and a general denial,
are unpersuasive to rebut the prima facie case produced by the Examiner.
Cf 37 C.F.R. § 41.37(c)(iv) ("A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claim."); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
("[W]e hold that the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.").
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We, therefore, sustain the Examiner's 35 U.S.C. § 103(a) rejection of
claim 6.
35 U.S.C. § 103: Claims 5, 7-9, 14-18, and 20
Appellants present additional arguments with respect to the remaining
dependent claims. Appeal Br. 17-25.
We do not find these arguments persuasive. Rather, we find that the
Examiner has provided a complete response to Appellants' arguments
supported by a preponderance of evidence. Final Act. 9-15; Ans. 17-18.
As such, we adopt the Examiner's findings and explanations provided
therein (id.) and we sustain the Examiner's rejection of the remaining
dependent claims under 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's decision rejecting claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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