Ex Parte AGAM et al

Patent Trial and Appeal Board

Jun 26, 2018

12331454 (P.T.A.B. Jun. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/331,454 12/10/2008
44696 7590
Dr. Mark M. Friedman
Moshe Aviv Tower, 54th floor
7 Jabotinsky St.
Ramat Gan, 5252007
ISRAEL
06/28/2018
FIRST NAMED INVENTOR
Leedor AGAM
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.
4200/l 2634
EXAMINER
NGUYEN, THUY-VI THI
ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
06/28/2018 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):
patents@friedpat.com
friedpat.uspto@gmail.com
rivka_f@friedpat.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEEDOR AGAM and DAVID AGAM 1
Appeal2017-009060
Application 12/331,454
Technology Center 3600
Before ST. JOHN COURTENAY III, THU A. DANG, and
JAMES R. HUGHES, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 15-25 and 28--40, which are all the claims pending in this
application. Claims 1-14, 26, and 27 are cancelled. We have jurisdiction
over the pending claims under 35 U.S.C. § 6(b ).
We affirm.
STATEMENT OF THE CASE
Introduction
Appellants' invention "relates to the field of aviation, and more
particularly, to a system for producing a flight plan." Spec. 1.
1 Appellants identify Leedor Agam and David Agam as the real party in
interest. Br. 3.
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Application 12/331,454
Representative Claim
Claim 15 is representative of the invention and reads as follows:
15. A method of producing a flight plan for a
flight of an aircraft comprising:
(a) providing, to an avionic flight management
system, said avionic flight management system
including a flight management computer, dynamic
information related to the flight; and,
(b) computing a flight plan by said flight
management computer, based at least in part on:
a) said dynamic information; and, b) static
information stored within said avionic flight
management system.
Rejections
A. Claims 15, 17, 29, and 36-38 are rejected under pre-AIA 35 U.S.C.
§ 102(e) as being anticipated by Rathinam (US 7,437,225 Bl, issued
Oct. 14, 2008) (hereinafter "Rathinam").
B. Claim 28 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over Rathinam.
C. Claim 16 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over Rathinam and Stabile et al. (US RE 41,3 81 E, issued
June 22, 2010) (hereinafter "Stabile").
D. Claims 18 and 19 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being obvious over Rathinam and Myers et al. (US 2010/0036547,
published Feb. 11, 2010) (hereinafter "Myers").
E. Claims 20, 21, 23, 24, 30-35, 39, and 40 are rejected under pre-AIA
35 U.S.C. § 103(a) as being obvious over Rathinam and Mezger et al.
(US 5, 781,871, issued Jul. 14, 1998) (hereinafter "Mezger").
F. Claims 22 and 25 are rejected under pre-AIA 35 U.S.C. § 103(a) as
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being obvious over Rathinam, Mezger, and Official Notice
(hereinafter "Official Notice").
Issues on Appeal
Did the Examiner err in rejecting claims 15, 17, 29, and 36-38 under
pre-AIA 35 U.S.C. § 102(e) as being anticipated over Rathinam?
Did the Examiner err in rejecting claims 16, 18-25, 28, 30-35, 39,
and 40 under pre-AIA 35 U.S.C. § 103(a), as being obvious over the cited
combinations of references?
Grouping of Claims
Based upon Appellants' arguments:
We address § 102( e) rejection A of independent claim 15, and
dependent claims 17, 29, 36, 37, and 38 separately, as argued by Appellants.
We address§ 103(a) rejection B of dependent claim 28, infra.
We address§ 103(a) rejection C of dependent claim 16, infra.
We decide the appeal of§ 103(a) rejection D of dependent claims 18
and 19 on the basis of representative dependent claim 18.
We decide the appeal of§ 103(a) rejection E of claims 20, 21, 23, 24,
30-35, 39, and 40 on the basis of representative independent claim 20.
We decide the appeal of§ 103(a) rejection F of dependent claims 22
and 25 on the basis of representative dependent claim 22.
See 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented. To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(l)(iv).
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Based upon a preponderance of the evidence, we find Appellants'
arguments unpersuasive. We agree with and adopt the Examiner's
underlying factual findings and legal conclusions. Specifically, we agree
with and adopt the reasons, rationales, and explanations articulated by the
Examiner: (1) in the Final Action (2-21) from which this appeal is taken,
and, (2) as set forth in the Examiner's responsive explanations in the Answer
(20-31 ). We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection A of Independent Claim 15 under§ 102(e)
Issue: Under pre-AIA 35 U.S.C. § 102(e), did the Examiner err in
finding the cited Rathinam reference expressly or inherently discloses
contested limitation (b):
(b) computing a flight plan by said flight management
computer, based at least in part on: a) said dynamic
information; and, b) static information stored within said
avionic flight management system[,]
within the meaning of independent claim 15? 2
Appellants contend, inter alia, that "the skilled artisan, with Rathinam
'225 before them ... would know that any reference of the term 'flight
plan' is made at best, only in the context of managing, displaying and
updating an already existing flight plan, that was pre computed externally
and inputted into the PMS prior to the flight." App. Br. 18-19, (emphasis
added).
2 We give the contested claim limitation the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997).
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Appellants contend Rathinam does not disclose:
computing a flight plan for a flight of an aircraft in accordance
with the "flight plan" as recited in claim 15. The claimed flight
plan, as described in the Application Specification at Paragraph
[0003] is "a paper document or a file of electronic data
prepared for purposes of flight planning, flight control, and
navigation." Rathinam '225 is totally silent about preparing or
creating an electronic data file, for the purpose of the flight
planning, flight control, and navigation of the aircraft.
App. Br. 19.
In response, the Examiner further explains the basis for the rejection:
the flight management system (PMS) as shown in Rathinam is
the computer system for calculating the modification flight plan
using the static and dynamic information, thus the flight plan in
Rathinam has to be in electronic data prepare[ d] for purpose of
flight planning which is read over the definition of flight plan as
indicated in Appellant[ s '] specification. As indicated in the
rejection above, Rathinam at least figure 6, col. 6, lines 17-35
disclose the remote flight management system (PMS) create[ s]
additional flight plans legs for the one or multiple aircraft, and
Rathinam at least figure 9, col. 7, lines 13-17 discloses the
remote PMS calculate the rate of change of pressure
altitude (Vspeed) 925 from pre-stored Vspeed tables (static
information). Vspeed, which may be calculated within remote
PMS FMC for takeoff and approach may be transferred to the
aircraft primary flight display 930. Therefore, Rathinam clearly
shows "computing a flight plan by said flight management
computer, based at least in part on a) dynamic information; and
b) static information stored with said avionic flight
management system" as recited in claim 15.
Ans. 23.
At the outset, we conclude there is no language in claim 15 that
requires "said avionic flight management system including a flight
management computer" to be located onboard the aircraft. See n.2, supra.
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\Ve particularly note claim 28 depends directly from independent
claim 15. Claim 28 further limits claim 15 by requiring that "said avionic
flight management system is on board an aircrafi." Ernphasis added. Under
the doctrine of claim differentiation, "dependent claims are presumed to be
of narrower scope than the independent claims from which they depend."
l-!mvmedica Osteonics Corp. v. Zimmer, Inc., 822 F.3d 1312, 1323 (Fed. Cir.
2016); see also Phillips v. AWH Corp., 415 F.3d 1303, 1314-15 (Fed. Cir.
2005) (en bane) ("Differences among claims can also be a useful guide in
understanding the meaning of particular claim terms. For example, the
presence of a dependent claim that adds a particular limitation gives rise to a
presumption that the limitation in question is not present in the independent
claim.") (citations omitted), emphasis added.
We agree with the Examiner (Ans. 21-24) that Appellants' proffered
definition for "flight plan" (Spec. i-f 3, i.e., "a paper document or a file of
electronic data prepared for purposes of flight planning, flight control, and
navigation") broadly covers "computing a flight plan" by a remote "flight
management computer" in which the (new) flight plan can be a modification
of an existing flight plan, as described by Rathinam, for example, at column
6, lines 22-24: "Remote PMS may receive waypoint information 605
entered into a flight plan or create additional flight plan legs for one or
multiple aircraft." (Emphasis added).
Therefore, we find a preponderance of the evidence (e.g., Rathinam's
columns 6 and 7, and Figures 6 and 9, as cited by the Examiner (Ans. 23-
24)) supports the Examiner's finding that Rathinam discloses computing a
flight plan by a flight management computer based at least in part on
dynamic information (calculated V speed), and static information (V speed
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tables), within the meaning of claim 15. See also the Examiner's additional
citations in the Final Action to column 3 of Rathinam. Final Act. 3.
We further note Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (20-28). Because Appellants have
not persuaded us the Examiner erred, we sustain anticipation rejection A of
independent claim 15.
Rejection A of Dependent Claim 17 under§ 102(e)
Claim 17 recites: "The method of claim 15, further comprising one of:
(a) displaying said computed flight plan; and, (b) outputting said computed
flight plan."
Appellants note:
The Examiner's rejections from the Final Office action were
based on the Rathinam '225 disclosures of Fig. 2, element 216,
Fig 3 col 2, lines 39-40, Col. 5 lines 11-29. While Rathinam '225
discloses a display unit for remote PMS' s, Appellants do not see
the relevancy to anticipate the recitations of claim 1 7.
App. Br. 26.
Appellants contend: "Claim 17 also recites "'outputting said
computed flight plan." Again, Rathinam '225 is totally silent about any
outputting of any computed flight plan." Id.
We are not persuaded by Appellants' arguments because Appellants
fail to substantively traverse the Examiner's specific findings regarding
claim 17. 3 See Final Act. 4. See also Ans. 25: "Rathinam actually shows
3 See 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
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computing/calculating the flight plan at least in figure 6, col. 6, lines 17-35
and figure 9, col. 7, lines 13-17." We note Figure 9 ofRathinam, step 925
calculates V speed, and step 930 outputs it. See, e.g., col. 7, 11. 13-17:
"remote PMS may calculate the rate of change of pressure altitude (V speed)
925 from pre-stored V speed tables. V speed, which may be calculated
within remote PMS FMC for takeoff and approach, may be transferred to
the aircraft primary flight display 930." (Emphasis added).
Mere attorney argument without supporting evidence is conclusory,
and, therefore, unpersuasive. See In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997) (attorney argument is not the kind of factual evidence required to
rebut a prima facie case of obviousness); In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974) ("Attorney's argument in a brief cannot take the place of
evidence").
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (28-29). Therefore, on this record,
Appellants have not persuaded us the Examiner erred. Accordingly, we
sustain anticipation rejection A of dependent claim 17.
Rejection A of Dependent Claim 29 under§ 102(e)
Claim 29 recites: "The method of claim 17, wherein flight plan is
outputted in a format suitable for submission to an aviation authority."
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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Appellants contend:
Rathinam '225, as discussed above, at best, manages a flight
plan, but does not produce, a flight plan whatsoever. Raithnam
[sic.] '225, by not computing or producing any flight plan, is
totally silent about any outputting of any flight plan in any
format, and certainly not in a format suitable for submission to
an aviation authority (relating to obtaining ATC clearance).
Rathinam [sic.] '225 also completely fails to mention that any of
the "outputting" is of the flight plan that was produced or
computed by the flight management computer of the flight
management system as recited in claim 15.
App. Br. 26.
For the reasons discussed above regarding claims 15 and 17, we
disagree with Appellants' premise that Rathinam does not produce a flight
plan or outputting of a flight plan. We find Appellants fail to substantively
traverse the Examiner's specific findings regarding the rejection of claim 29.
Therefore, on this record, we are not persuaded the Examiner erred in
finding that Rathinam, at least at column 6, lines 23-35, "discloses wherein
the flight plan is output in a format suitable for submission to an aviation
authority." Final Act. 4. See, e.g., Rathinam column 6, lines 31-34:
"Additionally, frequently traveled routes may be stored in pilot or remote
user-defined route databases, accessible to the pilot, remote user, or a like
authorized party."
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (29). Accordingly, on this record,
and based upon a preponderance of the evidence, we sustain anticipation
r~jection A of dependent claim 29.
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Rejection A of Dependent Claim 36 under§ 102(e)
Claim 36 recites: "The method of claim 15, wherein said static
information includes at least one of: a) aircraft specific performance
information; and, b) aircraft specific model."
Appellants contend:
The Examiner's rejection from the Final Office Action is based
on the Rathinam '225 disclosures of Col 7, lines 12-17. This
passage is directed to "calculating the rate of change of pressure
altitude Vspeeds from pre-stored tables (static information) for
takeoff and approaches" and "V speed, which may be calculated
within remote PMS FMC for takeoff and approach." These
V speed calculations are not equivalent or analogous to
computing or producing a flight plan by the flight management
computer of the flight management system as recited in claim 15.
App. Br. 27.
In urging the patentability of claim 36, Appellants' essentially restate
arguments previously advanced regarding the flight plan of claim 15, which
we have addressed above, and found unpersuasive. In reviewing the record,
we find no error regarding the Examiner's finding that Rathinam's pre-
stored V speed (col. 7, 11. 12-17) discloses at least static information
including aircraft specific performance information, which is all the "at least
one of' language of claim 36 requires. Final Act. 4.
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (29). Therefore, on this record, and
based upon a preponderance of the evidence, we sustain anticipation
rejection A of dependent claim 36.
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Re} ection A of Dependent Cl aim 3 7 under § 10 2 ( e)
Claim 37 recites: "The method of claim 15, wherein a flight plan
manager is used at least in part to produce the flight plan."
Appellants urge: "First, the term 'flight manager,' disclosed in
Rathinam '225, refers to a human operator and not to a computer
component. Second, Rathinam '225 does not disclos[e] any 'flight plan
manager' or a similar system component as disclosed by [A ]ppellants."
App. Br. 27, (emphasis added).
In response, the Examiner further explains the basis for the rejection
in the Answer:
Assuming "a flight manger" in Rathinam refers to human
operator, Rathinam {col. 4, lines 60-67, figure 2} also discloses
remote[] PMS comprises one or more flight management
computers (which can also be interpreted as flight manager) that
is embedded into the flight management system, wherein the
PMS is calculating a flight plan as indicated above.
Ans. 29.
Regarding the Examiner's broader claim interpretation (Final .Act 5;
.Ans. 29), because ''applicants may amend claims to nanow their scope, a
broad construction during prosecution creates no unfain1ess to the applicant
or patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007) (citation omitted).
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (29). Therefore, on this record, we
are not persuaded of error regarding the Examiner's finding that "at least col.
9, 35-48; col. 9, lines 60- col. 10, lines 1-5 discloses the remote PMS
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include[ s] the flight manger, wherein the flight manager calculate[ s] the
flight plan e.g. waypoint heading." Final. Act. 5. See also Ans. 29.
Accordingly, based upon a preponderance of the evidence, we sustain
anticipation rejection A of dependent claim 37.
Rejection A of Dependent Claim 38 under§ 102(e)
Claim 38 recites: "The method of claim 37, wherein said flight plan
manager is embedded within said avionic flight management system."
We note the Examiner rejects claim 38 over Rathinam based upon the
same sections of Rathinam cited above, as relied upon for rejecting claim 3 7.
Final Act. 4--5.
For the same reasons discussed above regarding claim 37, we find
unpersuasive Appellants' argument that "Rathinam '225 fails to disclose that
a flight manager (a human operator) is embedded within any avionic flight
management system." App. Br. 28. See the Examiner's response, Ans. 29.
Therefore, we find unpersuasive Appellants' additional contention
"there is absolutely no rnention or suggestion that server 120 is embedded
within the remote Fl\1S (105)." App. Br. 28.
Although claim 28 (which depends from claim 15) requires "said
avionic flight management system is on board an aircraft" claim 38 does
not depend from claim 28. \Ve note claim 38 depends from claim 37 which
depends directly from independent claim 15. Therefore, nothing in the
claims from which claim 38 depends preclude the flight plan manager from
being implemented in software (i.e., embedded) within "said avionic flight
management system" which could be located on the aircraJt or remote j1~om
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the aircraft (e.g., on the ground), within the scope of claim 38, under a broad
but reasonable interpretation. See n.2, supra.
Our interpretation is consistent with the Specification, e.g.,
"instructions and/or input data for producing a flight plan may be provided
to FMS-FP system 10 by removable data storage means, such as a USB
drive (a portable storage device connects to a system by USB interface), CD-
ROM, and so on." Spec. 26, 11. 5-8. See also Spec. 26, 11. 18-23: "The
major difference between FMS-FP system 10 that is intended to be installed
in an aircraft and FMS-FP system 20 that is intended to be installed in a
Ground station is that FMS-FP system 20 is to be provided with the FMC of
all relevant aircraft operated through that specific ground installation."
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (29). For at least these reasons, and
based upon a preponderance of the evidence, we sustain anticipation
rejection A of dependent claim 38.
Re} ection B of Dependent Claim 2 8 under § 103 (a) over Retina
Claim 28 recites: "The method of claim 15, wherein said avionic
flight management system is on board an aircraft."
Appellants "do not dispute the fact that Flight Management Systems
(FMSs) are present on-board the aircraft. After all, FMS's are designed as
avionic equipment." App. Br. 30. However, Appellants contend "Retina
'225 does not provide any disclosure for using any PMS to produce a flight
plan on board an aircraft as is recited in claim 28." Id.
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We have fully addressed this argument and Appellants' remaining
arguments (id.) above regarding the Examiner's anticipation rejection of
claim 15 over Rathinam. See also our discussion of rejection A of claim 38,
supra. Moreover, "anticipation is the epitome of obviousness." In re
McDaniel, 293 F.3d 1379, 1385 (Fed. Cir. 2002).
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (29-30). Because we find
Appellants' arguments regarding dependent claim 28 unavailing for the
reasons discussed above, we sustain the Examiner's §103 rejection B of
dependent claim 28.
Rejection C of Dependent Claim 16 under§ 103(a)
Claim 16 recites: "The method of claim 37, wherein said computed
flight plan includes information selected from the group including at least
one of: a) a point of no return, b) a point of equa 1 time, c) an extended twin-
engine operations requirement, and, d) a long range operations requirement.
The Examiner relies on Stabile for teaching at least one of the claimed
options, i.e., "b) a point of equal time." Final Act. 6; claim 16. We note
Stabile expressly teaches "[t]he ETP [("Equal Time Point")] can usually be
derived from a computerized flight plan." Col. 2, 11. 51-52. Stabile provides
a formula for calculating the EPT (col. 2, 1. 4 7), and further describes: "the
Equal Time Point (ETP) [is] the point at which the Estimated Time Enroute
(ETE) returning to the nearest diversion airport or continuing to the nearest
diversion airport is the same." Col. 2, 11. 39--42.
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Appellants admit "Equal Time Point formulas are well known in the
art and relate to aviation regulations." App. Br. 32.4 Therefore, we find
unavailing Appellants subsequent contention that "Stabile '3 81 does not cure
the deficiencies of Rathinam '225," because we find no deficiencies with
Rathinam, for the reasons discussed above regarding at least claim 15.
Accordingly, on this record, and based upon a preponderance of the
evidence, we sustain Examiner's § 103 rejection C of dependent claim 16.
Rejection D of Dependent Claims 18 and 19 under§ 103 (a)
Representative claim 18 recites: "The method of claim 17, wherein
said computed flight plan includes at least one of: a) detailed flight plan; b)
an Air Traffic Control (ATC) compliant flight plan suitable for obtaining
flight clearance from the relevant aviation authority prior to the flight; and,
c) dispatch release.
The Examiner finds: "MYERS discloses the known technique of the
flight plan include the dispatch release, and transmitting the flight plan to the
4 A statement by an applicant in the Specification or made during
prosecution identifying the work of another as "prior art" is an admission
which can be relied upon for both anticipation and obviousness
determinations, regardless of whether the admitted prior art would otherwise
qualify as prior art under the statutory categories of 35 U.S.C. 102.
Riverwood Int'! Corp. v. R.A. Jones & Co., 324 F.3d 1346, 1354 (Fed. Cir.
2003); Constant v. Advanced Micro-Devices Inc., 848 F.2d 1560, 1570 (Fed.
Cir. 1988). See also 37 C.F.R. § 1.104(c)(3)("In rejecting claims the
examiner may rely upon admissions by the applicant, or the patent owner in
a reexamination proceeding, as to any matter affecting patentability and,
insofar as rejections in applications are concerned, may also rely upon facts
within his or her knowledge pursuant to paragraph (d)(2) of this section.").
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FAA facility for the planned flight in order to properly inform the ATC of
the scheduled flight {see MYERS at least figure 3, par. 0021-0022}." Final
Act. 7.
Appellants contend, inter alia, "Myers '6547 fails to disclose
producing any flight plan using both dynamic and static information stored
within the avionic flight management system (PMS), as recited in claim 15."
App. Br. 34. Appellants restate similar arguments regarding features recited
in independent claim 15, which we have previously addressed above.
However, the Examiner relied on Rathinam for teaching the disputed
limitations. Appellants are arguing the references separately. 5 Therefore,
Appellants have not addressed the Examiner's specific findings and legal
conclusion of obviousness, which is based on the combined teachings and
suggestions of Rathinam and Myers.
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (30). Because we find Appellants'
arguments regarding dependent claims 18 and 19 unavailing for the same
reasons discussed above, we sustain the Examiner's§ 103 rejection D of
representative dependent claim 18. Claim 19 (not argued separately) falls
with claim 18. See Grouping of Claims, supra.
5 See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (One
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references).
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Rejection E of Claims 20, 21, 23, 24, 30--35, 39, and 40 under§ 103(a)
Based upon Appellants' arguments, we decide the appeal of§ 103(a)
rejection E of claims 20, 21, 23, 24, 30-35, 39, and 40 on the basis of
representative independent claim 20. See Grouping of Claims, supra.
Appellants contend, inter alia: "As discussed above for claim 15,
Rathinam '225 fails to disclose, teach, or suggest producing a flight plan
whatsoever, and certainly not any production of a flight plan by the flight
management computer (FMC) of a flight management system (PMS)
using both dynamic information, and static information stored within the
flight management system." App. Br. 35.
We have fully addressed these arguments (id.) regarding the
Examiner's anticipation rejection of claim 15 over Rathinam. Therefore, we
find these arguments unpersuasive for the same reasons previously discussed
above.
Appellants additionally contest the combinability of Rathinam and
Mezger: "as Mezger '871 is directed to electronic vehicle computing units
for handling diagnostic data in automobiles, the [A ]ppellants fail to see how
this reference has any relevance to the claimed invention - aircraft flight
plans." Id. at 36.
We note the Examiner finds: "MEZGER discloses the known concept
of the central computer system having plurality of databases, wherein each
of the database being for a different respective device/vehicle set {see at
least figure 1, col. 2, lines 65-67; col. 3, lines 1- 26 disclose different of
vehicle/device types are stored in each different/separate database system}."
Final. Act. 11.
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We find Appellants fail to persuasively address the Examiner
proffered rationale for the combination, in finding that an artisan would have
been motivated to modify Rathinam's flight management system having
plurality of flight management computers (which store the data related to the
flight plan for the plurality of aircraft) to include:
the teachings of the central computer system having
plurality of databases, wherein each of the database[ s] being for
a different respective device/vehicle set as taught by MEZGER
for easier accessing and retrieving e.g. each particular flight
management computer stores data for each particular aircraft
type would be easier for the system to locate the data.
Final Act. 11.
We find the Examiner (id.) set forth sufficient "articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), and has thus
met the notice requirement for a prima facie case, pursuant to 35 U.S.C.
§ 132(a). We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (30-31 ).
Because we find Appellants' arguments unpersuasive regarding
independent claim 20, we sustain the Examiner's § 103 rejection E of
representative claim 20, and also rejection E of claims 21, 23, 24, 30-35, 39,
and 40 (not argued separately) which fall with claim 20. See 37 C.F.R.
§ 41.37(c)(l)(iv).
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Appeal2017-009060
Application 12/331,454
Rejection F of Dependent Claims 22 and 25 under§ 103(a)
Representative claim 22 recites: "The method of claim 21, wherein
said identifier includes an aircraft registration of the aircraft."
We note the Examiner finds that Rathinam and Mezger do not
explicitly disclose an aircraft registration identifier. Final Act. 20.
However, the Examiner takes "Official Notice" that an aircraft registration
number is well known in the art. Id. The Examiner provides extrinsic
evidence in support: "see TOGNAZZINI col. 1, lines 20-37." Id.
Appellants urge that "Tognazzini '591 does not disclose, teach, or
suggest anything remotely similar to the 'flight plan manager' or a 'flight
planning system,"' or "any relevant selecting at all." App. Br. 39, i-fi-f l-3.
However, the Examiner did not rely on Tognazzini '591 for teaching
or suggesting these argued features. Appellants have not substantively
addressed the Examiner's specific findings, which are based on the
combined teachings and suggestions of Rathinam, Mezger, and "Official
Notice." See Final Act. 19-20.
We again note that Appellants have not filed a Reply Brief and,
therefore, have not rebutted the Examiner's additional findings and
explanations, as set forth in the Answer (31 ). Because we find Appellants'
arguments regarding dependent claim 22 are unavailing, we sustain the
Examiner's § 103 rejection F of representative dependent claim 22. Grouped
claim 25 (not argued separately) falls with representative claim 22. See 37
C.F.R. § 41.37(c)(l)(iv).
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Appeal2017-009060
Application 12/331,454
CONCLUSIONS
The Examiner did not err in rejecting claims 15, 17, 29, and 36-38,
under pre-AIA 35 U.S.C. § 102(e), as being anticipated by Rathinam.
The Examiner did not err in rejecting claims 16, 18-25, 28, 30-35, 39,
and 40 under pre-AIA 35 U.S.C. § 103(a), as being obvious over the
combined teachings and suggestions of the cited references.
DECISION
We affirm the Examiner's decision rejecting claims 15, 17, 29, and
36-38 under pre-AIA 35 U.S.C. § 102(e).
We affirm the Examiner's decision rejecting claims 16, 18-25, 28,
30-35, 39, and 40 under pre-AIA 35 U.S.C. § 103(a).
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). See 37
C.F.R. § 41.50(±).
AFFIRMED
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