Ex Parte Testrake et al

Patent Trial and Appeal Board

Nov 25, 2013

11376628 (P.T.A.B. Nov. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte STEVEN G. TESTRAKE, KEITH SHEAN,
ROBERT JEFFREY HERBERT and GORDON RITCHIE
____________________

Appeal 2012-001081
Application 11/376,628
Technology Center 3700
____________________

Before: BIBHU R. MOHANTY, JOHN W. MORRISON, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

MORRISON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2012-001081
Application 11/376,628

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

CLAIMED INVENTION
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A flight training system, comprising:
an in-flight component comprising:
(a) a first processor; and
(b) a first computer readable medium in communication
with the first processor and comprising a first set of instructions
executable by the first processor, the first set of instructions
comprising:
(i) instructions to collect a set of flight data about an
aircraft during an in-flight training flight, wherein an in-flight
training flight is a training flight that occurs in the air; and
(ii) instructions to store the set of flight data on the first
computer readable medium; and
a ground component comprising:
(a) a set of controls to provide control of a simulated
aircraft;
(b) a second processor in communication with the set of
controls;
(c) a second computer readable medium in
communication with the second processor and comprising and a
second set of instructions executable by the second processor,
the second set of instructions comprising:
(i) instructions to receive, from the in-flight component,
the set of flight data collected during the in-flight training
flight;
(ii) instructions to provide a simulation of the in-flight
training flight, based on the set of flight data collected during
the in-flight training flight;
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(iii) instructions to receive a set of control data from the
set of controls, to allow a student to participate in the
simulation of the in-flight training flight;
(iv) instructions to receive a set of modified flight data
and;
(v) instructions to modify the simulation of the in-flight
training flight, based on the received set of modified flight data.

REFERENCE
Tzidon
Geipe
Bateman
Diesel
Fountain
US 5,807,109
US 6,077,077
US 6,092,008
US 6,094,607
US 6,790,041 B2
Sep. 15, 1998
Jun. 20, 2000
Jul. 18, 2000
Jul. 25, 2000
Sep. 14, 2004

REJECTIONS
Claims 19 and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fountain and Bateman.
Claims 1 and 15-18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Geipe, Fountain, and Bateman.
Claims 2-12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Geipe, Fountain, Bateman, and Diesel.
Claims 13-14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Geipe, Fountain, Bateman, Diesel, and Tzidon.

ANALYSIS
Obviousness over Geipe, Fountain, and Bateman1
Appellants argue independent claim 1 and 15-18 as a group. See Br.
7-11. We select independent claim 1 as the representative claim to decide

1 We address the rejections in the order of the arguments presented in
Appellants’ Appeal Brief. Br. 7-13.
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the appeal and claims 15-18 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
The Examiner finds Geipe discloses substantially all of the recited
limitations of claim 1, but fails to disclose
the first set of instructions comprising instructions to collect a
set of flight data about an aircraft during an in-flight training
flight, the second set of instructions comprising instructions to
receive, from the in-flight component, the set of flight data
collected during the in-flight training flight, instructions to
provide a simulation of the in-flight training flight, based on the
set of flight data collected during the in-flight training flight,
instructions to receive a set of modified flight data and
instructions to modify the simulation of the in-flight training
flight, based on the received set of modified flight data.
Ans. 8.
The Examiner finds each of these limitations to be taught by Fountain. Id.
However, the Examiner further finds that the combination of Geipe and
Fountain fails to disclose “the feature of an in-flight training flight is a
training flight that occurs in the air.” Ans. 9. The Examiner finds that
Bateman “teaches an in-flight training flight is a training flight that occurs in
the air.” Id. (citing Bateman col. 4, ll. 46-58). In response to Appellants’
arguments, the Examiner further finds “[t]he flight simulation of Geipe and
Fountain are not based upon flight data received from an actual flight or
collected during the in-flight training flight. However, both Geipe and
Fountain's simulator are capable of configuring the flight simulation based
on any stored in-flight data.” Ans. 17 (emphasis added). The Examiner
then concludes “[s]ince Bateman teaches collecting and storing an aircraft
in-flight data . . . , it would have been obvious . . . to modify Geipe and
Fountain's setting of flight data used by substituting the stored in-flight data
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of Bateman as a selected setting of the flight data for a flight simulation in
order to allow trainee to gain same flight experience from using either an
aircraft simulator or an actual aircraft.” Id.
First, Appellants argue that the combination of Geipe, Fountain, and
Bateman does not teach or suggest “[i]nstructions to provide a simulation of
the in-flight training flight, based on the set of flight data collected during
the in-flight training flight.” Br. 8. In particular, Appellants argue “[t]he
simulation of Fountain is not based upon flight data received from an actual
flight.” Id. at 9. Appellants further argue “Bateman does not consider the
possibility of a simulation being created based on a training flight flown by a
student.” Id. Appellants’ arguments fail to address the combined teachings
of the references upon which the Examiner’s rejection was based.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
For this rejection, the Examiner relies on Bateman, not Fountain, for the
teaching of flight data collected during the in-flight training flight. Ans. 9.
Moreover, the Examiner relies on Fountain, not Bateman, for providing the
flight simulation. Ans. 8. Accordingly, we are not apprised of Examiner
error by Appellants’ first argument.
Second, Appellants argue that the combination of Geipe, Fountain,
and Bateman does not teach or suggest "[i]nstructions to modify the
simulation of the in-flight training flight, based on the received set of
modified flight data.” Br. 10. In particular, Appellants argue “the instructor
of Fountain does not modify flight data received from an actual training
flight. Instead, the instructor of Fountain is conventionally modifying a
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ground based simulation using the controller and control station.” Br. 11.
Additionally, Appellants argue “[w]hile permitting ‘monitoring,’ Bateman
does not consider any sort of modification of a simulation of an in-flight
training flight.” Id. Once Again, Appellants’ arguments fail to address the
combined teachings of the references upon which the Examiner’s rejection
was based. Nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. Merck 800 F.2d at 1097. For this rejection, the
Examiner relies on Bateman, not Fountain, for the teaching of flight data
received from an actual training flight. Ans. 9. Moreover, the Examiner
relies on Fountain, not Bateman, for the teaching to modify the flight
simulation. Ans. 8. Accordingly, we are not apprised of Examiner error by
Appellants’ second argument.
For the above reasons, we sustain the rejection of claim 1, and claims
15-18 which fall therewith, as unpatentable over Geipe, Fountain, and
Bateman.

Obviousness over Fountain, and Bateman
Claims 19 and 20 are rejected as unpatentable over Fountain and
Bateman. The Examiner makes similar findings and conclusions to those
made supra for the rejection of claims 1, and 15-18. Ans. 5-7. Appellants
present no new argument for this rejection, and merely “request[] reversal of
the § 103 rejections of independent claims 19 and 20 for at the same
reasons.” Br. 11. For the reasons as discussed supra, we are not persuaded
of Examiner error. Accordingly, we sustain the rejection of claims 19 and
20 as unpatentable over Fountain and Bateman.
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Obviousness over Fountain, Bateman, and Diesel
Claims 2-12 depend from claim 1. Br., Clms. App’x. Appellants
argue “claims 2-12 are believed to be allowable over the cited references for
at least the reasons discussed in relation to claim 1.” Br. 11-12. No further
arguments are presented for claims 2 and 8-12. Id. at 11-13. For the reasons
as discussed supra, we are not persuaded of Examiner error. Accordingly,
we sustain the rejection of claims 2 and 8-12 as unpatentable over Fountain,
Bateman, and Diesel.
Claim 3, and claims 4-7 which depend therefrom, recite a system
which “receive[s] altitude data from a global positioning system ("GPS")
receiver, and calculate[s], from the known runway elevation and the
received altitude data, an actual altitude of the aircraft about ground level.”
Br., Clms. App’x. The Examiner finds “Diesel further disclose instructions
to correct the altitude data using a filter routine that is configured to identify
a known runway elevation, receive altitude data from a global positioning
system ("GPS") receiver, and calculate, from the known runway elevation
and the received altitude data, an actual altitude of the aircraft about ground
level.” Ans. 18 (citing Diesel col. 5, ll. 24-25 and fig. 2). Appellants argue,
and we agree, that “claim 3 [requires] a known elevation of a runway to
calculate an altitude [about the ground] of the aircraft.” Br. 12. The cited
portions of Diesel teach “the measured altitude hM(t) is obtained as the sum
of the terrain altitude h[g](t) and the radar-measured altitude above terrain
hT(t).” Diesel col. 5, ll. 24-25. This disclosure teaches directly measuring
the altitude above the ground, hT(t), with radar, but does not teach
calculating altitude above the ground from GPS data and the known runway
elevation. Thus, the Examiner has failed to show by a preponderance of the
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evidence that the altitude above ground is determined from GPS data and the
known runway elevation. Accordingly, we do not sustain the rejection of
claim 3, and claims 4-7 which depend therefrom, as obvious over Fountain,
Bateman and Diesel.

Obviousness over Geipe, Fountain, Bateman, Diesel and Tzidon
Claims 13 and 14 depend from claim 1. Br., Clms. App’x. The
Examiner makes similar findings and conclusions to those made supra for
the rejection of claims 1 and 15-18. Ans. 16. Appellants argue “claims 13-
14 are believed to be allowable over the cited references for at least the
reasons discussed in relation to claim 1.” Br. 12. No further arguments are
presented for claims 13 and 14. Id. For the reasons as discussed supra, we
are not persuaded of Examiner error. Accordingly, we sustain the rejection
of claims 13 and 14 as unpatentable over Fountain, Bateman, and Diesel.

DECISION
For the above reasons, the Examiner’s decision to reject claims 1, 2,
and 8-20 is affirmed, and the Examiner’s decision to reject claims 3-7 is
reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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