Delta Air Lines, Inc.

Patent Trials and Appeals Board

May 13, 2020

14966988 - (D) (P.T.A.B. May. 13, 2020)

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.
14/966,988 12/11/2015 William Henry Watts 004398/472741 1460
826 7590 05/13/2020
ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
EXAMINER
EVANS, GARRETT F
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
05/13/2020 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):
usptomail@alston.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WILLIAM HENRY WATTS

Appeal 2019-006262
Application 14/966,988
Technology Center 3600
____________

Before JAMES A. WORTH, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4 and 6–19. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

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 Delta Air
Lines, Inc. Appeal Br. 3.
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Application 14/966,988

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BACKGROUND
The Specification states that “[e]mbodiments of the present invention
described herein relate generally to the appraisal of various weather hazards,
including but not limited to such hazards as they affect air, ground, and
water travel.” Spec. ¶ 2.

CLAIMS
Claims 1, 14, and 17 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A computer-implemented method for facilitating the
execution of a path of air travel, said method comprising the steps
of:
receiving, via one or more processors, hazard data
indicative of a deterministic intensity of at least two hazards of
at least two hazard types, wherein the deterministic intensity of
each of the at least two hazards is determined based at least in
part on a forecast model;
converting, via the one or more processors, the
deterministic intensity of each of the at least two hazards
indicated by the hazard data to fit an atmospheric state intensity
scale, the atmospheric state intensity scale consisting of and
being defined by a plurality of deterministic intensity values that
are each common across each of a plurality of hazard types, such
that the hazard data is indicative of the deterministic intensity of
each of the at least two hazards along said atmospheric state
intensity scale, wherein a value of each of said plurality of
deterministic intensity values is indicative of the deterministic
intensity of each of said at least two hazards; and
generating, via a display device in communication with the
one or more processors, a graphical display indicative of: a path
of air travel and the deterministic intensity of said at least two
hazards along said atmospheric state intensity scale.
Appeal Br. 23.
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Application 14/966,988

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REJECTIONS
1. The Examiner rejects claims 1–4, 6–12, 14, 15, 17, and 18 under 35
U.S.C. § 103 as unpatentable over Feyereisen2 in view of King.3
2. The Examiner rejects claims 13, 16, and 19 under 35 U.S.C. § 103 as
unpatentable over Feyereisen in view of King and Wilson.4
DISCUSSION
Each of independent claims 1, 14, and 17 recites “an atmospheric
intensity scale, the atmospheric state intensity scale consisting of and being
defined by a plurality of deterministic intensity values that are each common
across each of a plurality of hazard types.” Appeal Br. 23, 25, 26. The use
of the transitional phrase “consisting of” in a claim clause provides an
“exceptionally strong presumption that a claim term set off with ‘consisting
of’ is closed to unrecited elements.” Multilayer Stretch Cling Film Holdings,
Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1359 (Fed. Cir. 2016). To
overcome this presumption, “the specification and prosecution history must
unmistakably manifest an alternative meaning.” Id. Here, we agree with
Appellant that the use of “consisting of” language in the clause quoted above
precludes the presence of additional deterministic intensity values in the
claimed atmospheric intensity scale that are not common across a plurality
of hazard types, as discussed below.
With respect to claim 1, for example, the Examiner finds, inter alia,
that Feyereisen does not specifically disclose an atmospheric state intensity
scale with a plurality of intensity values that are common across each of a

2 Feyereisen et al., US 6,289,277 B1, iss. Sept. 11, 2001.
3 King, US 2006/0129286 A1, pub. June 15, 2006.
4 Wilson, US 2008/0208474 A1, pub. Aug. 28, 2008.
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Application 14/966,988

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plurality of hazard types. Final Act. 3. However, the Examiner finds that
King teaches a scale that has a plurality of intensity values that are common
for a plurality of hazard types. Id. Further, in response to Appellant’s
argument regarding the use of “consisting of” in the claim, the Examiner
finds:
The transitional phrase “consisting of” found in the body
of the claim does not limit the open-ended “comprising”
language in the claims. See MPEP 2111.03 (II). For instance,
the claim recites “consisting of and being defined by a plurality
of ....” However, “a plurality” is not explicitly enumerated and
is therefore open-ended. Moreover, the specification as
originally filed does not support appellant’s argument that the
“consisting of” language should be interpreted as being
restrictive because an “atmospheric state intensity scale
consisting of” was not originally disclosed. The claims have
been given their broadest reasonable interpretation in light of the
specification.
Ans. 3.
Appellant argues:
In response, Appellant further notes that the pertinent
phrase in the claim language is “an atmospheric state intensity
scale consisting of and being defined by a plurality of
deterministic intensity values that are each common across each
of a plurality of hazard types.” In this context, Appellant
respectfully submits that it is quite evident that despite the limit
of the “plurality of deterministic intensity values” not being
closed-ended, however many values are present must all-due to
the closed-ended consisting of language-be common across each
of the provided hazard types.
Reply Br. 2.
We agree with Appellant. Given the strong presumption identified
above, we agree that the claim language would lead one of ordinary skill in
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the art to interpret the claim to require that the atmospheric intensity scale
consists of a plurality of intensity values and that each of the values on the
scale are common across a plurality of hazard types, without exception.
Thus, consistent with the “consisting of” language the intensity values on the
scale as they relate to multiple of hazard types must be common and without
any values that are not common, i.e., there must be at least two hazard types
for which there is a scale that includes only values that are common for
those two hazard types.
Further, the Examiner does not point us to any evidence, or provide
adequate reasoning, explaining why the presumption regarding the
“consisting of” language is overcome here. To the extent the Examiner finds
that the language “atmospheric state intensity scale consisting of” was not in
the application as originally filed, the Examiner does not explain adequately
why or how this affects the presumption regarding the language “consisting
of” discussed above. And, to the extent the Examiner finds that the language
referring to a “plurality” is open-ended, we are not persuaded that this
overcomes the presumption that the clause including the “consisting of”
language is closed to unrecited elements. Interpreting the claim in this
manner would effectively render the claim language “consisting of”
meaningless or read it out of the claim. See Texas Instruments, Inc. v. U.S.
Intern. Trade Com’n, 988 F.2d 1165, 1171 (Fed. Cir. 1993) (“[T]o construe
the claims in the manner suggested by TI would read an express limitation
out of the claims. This, we will not do”).
We also note that the claim preamble includes the open-ended
language “comprising.” This language does not affect our interpretation of
the “consisting of” language above. This language merely allows for the
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Application 14/966,988

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inclusion of other atmospheric intensity scales that have values that are not
common for a different plurality of hazard types. See Amgen Inc. v. Amneal
Pharmaceuticals LLC, 945 F.3d 1368, 1378–79 (Fed. Cir. 2020).
Based on the foregoing, we agree with Appellant that the claim
language at issue requires a scale such that “however many values are
present must all . . . be common across each of” a plurality of hazard types.
Reply Br. 2. Further, in the rejections before us, the Examiner relies on
King as disclosing an atmospheric intensity scale as claimed. Final Act. 3.
However, we agree with Appellant that King discloses a scale that includes
certain intensity values that are the same and others that are different for a
plurality of hazard types. See, e.g., King Fig. 5. Thus, we agree with
Appellant that King does not discloses an atmospheric intensity scale as
claimed, i.e., a scale that includes only intensity values that are common
across a plurality of hazard types.
Accordingly, we do not sustain the rejection of independent claims 1,
14, and 17 as obvious over Feyereisen in view of King. We also do not
sustain the rejections of any of the dependent claims for which the Examiner
relies on the same reasoning and does not provide further analysis or point to
evidence in the art of record that would cure this deficiency.

CONCLUSION
We REVERSE the rejections of claims 1–4 and 6–19.

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Application 14/966,988

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In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–4, 6–12,
14, 15, 17, 18
103 Feyereisen,
King
1–4, 6–12,
14, 15, 17,
18
13, 16, 19 103 Feyereisen,
King, Wilson
13, 16, 19
Overall
Outcome
1–4, 6–19

REVERSED