Ex Parte Berard

Patent Trial and Appeal Board

Mar 28, 2013

10967127 (P.T.A.B. Mar. 28, 2013)

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.
10/967,127 10/19/2004 Jeremy Berard 073070-04149 8573
24257 7590 03/28/2013
Dickinson Wright PLLC
James E. Ledbetter, Esq.
International Square
1875 Eye Street, NW., Suite 1200
WASHINGTON, DC 20006
EXAMINER
DINH, TIEN QUANG
ART UNIT PAPER NUMBER
3644
MAIL DATE DELIVERY MODE
03/28/2013 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 JEREMY BERARD
____________

Appeal 2011-004302
Application 10/967,127
Technology Center 3600
____________

Before EDWARD A. BROWN, ANNETTE R. REIMERS and
RICHARD E. RICE, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

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Application 10/967,127

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STATEMENT OF THE CASE
Jeremy Berard (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision to reject under 35 U.S.C. § 103(a) claims 1, 4-11, 15,
18-21, 24-27, 29, 30 and 32-34 as unpatentable over Crabere (US 5,499,784;
issued Mar. 19, 1996), Nakhla (US 5,398,186; issued Mar. 14, 1995) and
either Smith (US 5,606,505; issued Feb. 25, 1997) or Shenk (US 6,553,333
B1; issued Apr. 22, 2003). 1 Claims 12-14 and 31 have been withdrawn
from consideration. Claims 2, 3, 16, 17, 22, 23 and 28 have been canceled.
We have jurisdiction over this appeal under 35 U.S.C. § 6(b). An oral
hearing was conducted on February 11, 2013.
We AFFIRM-IN-PART.

THE INVENTION
Appellant’s invention relates to procedures for optimizing the quantity
of fuel transferred on an aircraft during at least one in-flight transfer of fuel
between the aircraft and an auxiliary aircraft. Spec. 1, ll. 1-5; figs. 2-3.
Claim 1 is illustrative of the claimed invention and reads as follows:
1. A procedure to optimize a quantity of fuel
transferred on an aircraft during at least one in-flight
transfer of fuel between said aircraft and an auxiliary
aircraft, at at least a first flight point of a flight plan of
said aircraft, wherein, during the flight of the aircraft
according to said flight plan, said procedure comprises:
a) making a prediction to determine a first quantity
corresponding to the quantity of fuel remaining on board
the aircraft at said first flight point taking into account:

1 The rejection of claims 1, 4-11, 15, 18-21, 24-27, 29, 30 and 32-34 under
35 U.S.C. § 112, first paragraph, as failing to comply with the enablement
requirement, has been withdrawn by the Examiner. Ans. 3, 9.
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(1) the current status of the aircraft, (2) the current flying
conditions, (3) the geometry of said flight plan of said
aircraft, and (4) performance models of said aircraft;
b) making an estimation to determine a second
quantity corresponding to the quantity of fuel enabling
the aircraft to fly from said first flight point to a second
flight point later in said flight plan;
c) determining from said first and second
quantities, a third quantity, corresponding to the
quantity of fuel to be transferred at said first flight point;
and
d) presenting, by a display screen, said third
quantity determined in step c), to at least one
pilot of the aircraft, wherein:
said sequence of successive steps a) to d) is
performed repetitively during the flight of the aircraft,
each time taking into account the current status of the
aircraft and the current flying conditions in step a),
the current status comprises said current speed,
current mass, and current altitude of said aircraft,
the current flying conditions comprise the wind
and temperature, and
to make said estimation of said second quantity in
step b), an auxiliary prediction is made using a quantity
Q1 corresponding to an estimate of the quantity of fuel
available on board the aircraft at said first flight point and
a quantity Q2 corresponding to an estimate of the
quantity of fuel remaining on board the aircraft at said
second flight point, wherein:
the quantity Q1 is iteratively modified until the
quantity Q2 equals a predetermined reserve quantity, and
for each iteration, the quantity Q1 is modified by:
(1) reducing a value of the quantity Q1 by a
predetermined value when the quantity Q2 is more than
the predetermined reserve quantity and (2) increasing the
value of the quantity Q1 by the predetermined value
when the quantity Q2 is less than the predetermined
reserve quantity.

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ANALYSIS
Claims 1, 4-7, 9-11, 15, 18-21, 24-27 and 29
Appellant does not present additional arguments regarding the
patentability of dependent claims 4-7, 9-11, 15, 18-21, 24-27 and 29 that
differ from those directed against the rejection of independent claim 1. See
App. Br. 14-18. Therefore, Appellant has argued claims 1, 4-7, 9-11, 15, 18-
21, 24-27 and 29 as a group for purposes of the rejection of those claims
under § 103(a). Claim 1 is representative of the group. See 37 C.F.R.
§ 41.37(c)(1)(vii)(2011).
Appellant argues that the references fail to teach or suggest “for each
iteration, the quantity Q1 is modified by: (1) reducing a value of the quantity
Q1 by a predetermined value when the quantity Q2 is more than the
predetermined reserve quantity,” as recited by claim 1. Reply Br. 2.
Appellant takes the position that “assuming arguendo that iterations and
calculations are performed by Crabere, these iterations and calculations are
not the specific iterations and calculations required by the instant claimed
invention.” Id. Appellant further argues that (1) “Crabere does not use two
predictions for determining the available fuel for refueling” (App. Br. 17,
citing Crabere, col. 5, l. 40); and (2) “Nakhla does not disclose determining
an amount of fuel for a transfer” (id.).
Appellant also argues that neither Smith nor Nakhla disclose the
iterative process of claim 1. App. Br. 15. Specifically, Appellant argues
that (1) “[t]he vague disclosure of computing ‘parameters such as total fuel
burned for a given flightplan with minimum iterations’ [as disclosed in
Smith] does not teach or suggest an iterative process [as recited in claim 1]”
(id., citing Smith col. 2, ll. 35-38); (2) “Nakhla discloses calculating and
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displaying the amount of fuel remaining only in response to a pilot’s
command . . . Thus, the calculation is made only after a command entry by
the pilot and not repetitively [iteratively].” (id.; Nakhla, col. 4, l. 59-col. 5, l.
15; fig. 5, characters 117, 122, 123, 126; see also Reply Br. 3); and (3)
“Nakhla does not disclose accounting for the current status and the current
flying conditions in each iteration of fuel calculation,” as required by claim 1
(App. Br. 17).
Appellant further argues that Nakhla fails to teach or suggest (1) the
current status of the aircraft; (2) the current flying conditions; (3) the
geometry of the flight plan of the aircraft; (4) performance models of the
aircraft; (5) the current status including the current speed, current mass, and
current altitude of the aircraft; and (6) the current flying conditions include
the wind and temperature, as required by claim 1. App. Br. 16; Reply
Br. 3-4.
We are not persuaded by Appellant’s arguments because Appellant
appears to attack the teachings of Crabere, Nakhla and Smith individually,
rather than address the combination of Crabere, Nakhla and Smith.
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).
The Examiner found that Crabere discloses a method of optimizing
the refueling process of an aircraft that uses a refueling aircraft (auxiliary
aircraft) to refuel the aircraft during an in-flight transfer and displays the
amount of fuel left (remaining) and the amount of fuel for refueling. Ans. 5,
9; see also Crabere, col. 5, ll. 39-57. In addition, the Examiner reasoned that
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a person of ordinary skill in the aeronautical art
[would know] that aircrafts do not operate in a
static environment in which the weather does not
change, and the aircrafts themselves have varying
flight profiles during missions. The refueling
aircrafts can speed up or slow down, experience
turbulence, and its engines can operate in various
capacities in order to allow the aircraft to fly as
desired. Hence, iterations or constant updating of
calculations are needed in order to known how the
aircraft is operating. Although Crabere et al
doesn’t mention the term ‘iteration’, it seems quite
clear that Crabere et al’s computer system uses
iterations to determine the performance of the
aircraft and the amount of fuel it can use to refuel
other aircrafts and land safely . . . Of course, in
order to known [sic] how much fuel it needs to
land safely, predictions/estimations are made and
these predictions/estimations are part of the
iterative process performed by the onboard
computer.
Ans. 9-10; see also Crabere, col. 5, ll. 5-9, col. 7, ll. 27-30; figs. 2, 4, 8.
The Examiner cited Nakhla to show that computer systems used to take into
account the flying conditions (wind and weather/temperature), the geometry
of flight, and the aircraft operating conditions (such as the current status of
the aircraft (mass, speed and altitude of the aircraft)) to compute the fuel
level of the aircraft are well known. Ans. 5, 6, 10; see also Nakhla, col. 10,
l. 45-col. 11, l. 4; col. 12, ll. 1-9; col. 12, l. 57-col. 13, l. 3; figs. 4-6, 8, 10.
The Examiner found that Nakhla discloses using performance models2
to compare data. Ans. 6 (citing Nakhla, col. 13, ll. 4-26). We note that

2 Appellant’s Specification discloses that “[performance] models are stored
in the form of performance tables, specific to each type of aircraft.” Spec. 8,
ll. 2-4.
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Nakhla discloses that
the distance, time and fuel required to descend to
the runway from 1500 feet AGL is computed using
constants for the distance, time and fuel for the
type of aircraft being flown. Typically, these
constants are stored within the flight management
system computer 10 and can be determined by
using computer predictions or accumulating test
data for the particular type of aircraft.
Nakhla, col. 13, ll. 6-13; see also Ans. 6. As such, we agree with the
Examiner that Nakhla “shows that the ‘the type of aircraft being flow[n]’
and ‘accumulating test data for the particular type of aircraft’ are taken into
account” and that these constitute “performance models.” Ans. 11. We
further agree with the Examiner that “[s]ince it is well known what type of
refueling aircraft is being used in missions, the computer system would take
into account the model of the refueling aircraft in order to accurately
compute the fuel level on the aircraft used in the refueling.” Id.
The Examiner also found that “Nakhla’s system uses iterative
calculation[s] to update its prediction based on the performance of the
aircrafts so that a better prediction/estimation can be performed.” Ans. 8;
see also Nakhla, col. 10, l. 54-col. 11, l. 4. Nahkla discloses that (1) “[t]o
calculate the estimated time of arrival and fuel remaining the FMC [flight
management computer] makes an estimate of where in the cruise segment
the top of descent point is and an estimate of [sic] much fuel will remain
upon landing at the alternate destination” (col. 10, ll. 54-59); and (2) “[i]f the
estimates are off, the initial estimates are revised and the calculations
recomputed until the position to the top of descent is within a predetermined
value” (col. 10, l. 66-col. 11, l. 2). Based on this disclosure of Nakhla, a
person of ordinary skill in the art would readily recognize that recomputing
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the calculations until the position to the top of descent is within a
predetermined value would involve a repetitive (iterative) process by the
flight management computer (FMC) of Nakhla. As such, we agree with the
Examiner that Nakhla’s disclosure of the calculations being recomputed
“shows iteration steps needed to update the result so that the pilot can see the
amount of fuel needed to reach a destination and thus the amount of fuel
left.” Ans. 8. The Examiner further cited Smith for disclosure of “the use of
flying conditions such as the temperature T and wind to estimate/predict the
performance of the aircraft.” Ans 6; see also Smith, fig. 1.
In addition, the Examiner reasoned that “[w]hen the refueled aircraft
has just enough amount of fuel left to make it [to its destination], then the
refueled aircraft is maximized for optimum flying duration.” Ans. 7. The
Examiner further reasoned
[t]he . . . calculation of fuels needed to reach [the
aircraft’s] destination without crashing is a step
that one skilled in the art would have taken or
would have tried so that the refueled or the
refueling aircraft can hold the optimal amount of
fuel so that the refueled/refueling aircraft can reach
the desired destination and not carry large amount
of excess fuel to save fuel by carrying less fuel at
the end of the flight.
Id. Regarding the Q1 and Q2 quantities, the Examiner reasoned that
[the] Q1 and Q2 quantities are being computed
since these auxiliary predictions allow for
optimizations. The Q2 is the amount of fuel left at
the second point (which is the destination or
landing area). The Q2 is desired to be at or near
zero since this determines the maximum amount of
fuel that can be used for refueling. The zero or
near zero quantity is the amount of fuel left when
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the refueling aircraft has just enough amount of
[sic] fuel left to make it [to its destination] safe.
Id. The Examiner concluded that
[i]t would have been obvious to one skilled in the
art at the time the invention was made to have used
a computer system that analyzes the performance
of the refueling aircraft and predicts/estimates the
operation/range of the aircraft once it refuels or if
it can refuel other aircrafts in Crabere et al’s
system as taught by Nakhla and Smith et al so that
the refueling aircraft can fly without running out of
fuel and crashing.
Ans. 6. Accordingly, we find the Examiner provided articulated reasoning
with rational underpinnings to support the conclusions of obviousness.
Appellant’s individual arguments have not apprised us of error regarding the
Examiner’s stated reasoning or conclusions of obviousness. In conclusion,
for the foregoing reasons, the rejection of independent claim 1 and of claims
4-7, 9-11, 15, 18-21, 24-27 and 29, which fall with claim 1, as unpatentable
over Crabere, Nakhla and either Smith or Shenk is sustained.3
Claim 8
Dependent claim 8 recites “in a plurality of fuel transfers . . . for each
flight point at which a transfer is made, the minimum quantity of fuel that
the aircraft must receive to reach the next flight point at which a transfer is
also made or, where appropriate, the destination.” App. Br., Claims
Appendix.
The Examiner took the position that “the predictions/estimation of the

3 The Examiner includes all of the claims (i.e., 1, 4-11, 15, 18-21, 24-27, 29,
30, and 32-34) in the stated grounds of rejection. Ans. 5. The Examiner
cited Shenk in the rejection of dependent claim 34. Ans. 8. Claim 34 is
addressed below.
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amount of fuel needed in order to land safely is done by the aircraft’s
computer.” Ans. 11. Although we appreciate that Crabere discloses an in-
flight transfer of fuel between at least one aircraft and an auxiliary aircraft
(Crabere, Abstract; fig. 2), we could not find any portion of Crabere, and the
Examiner has not pointed to any portion of Crabere, that discloses “a
plurality of fuel transfers,” wherein “for each flight point at which a transfer
is made, the minimum quantity of fuel that the aircraft must receive to reach
the next flight point at which a transfer is also made or, where appropriate,
the destination,” as required by claim 8. Accordingly, we are constrained to
reverse the Examiner’s rejection of claim 8 as unpatentable over Crabere,
Nakhla and either Smith or Shenk.
Claims 30, 32 and 33
Appellant argues that the Examiner has “[identified] no findings of
fact (i.e. provides no evidentiary support) to support its conclusion that using
the claimed optimization criteria would be obvious.” App. Br. 18.
We are not persuaded by Appellant’s argument, because such an
argument appears to be holding the Examiner to the old TSM standard; such
a standard is not required. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415
(2007) (“We begin by rejecting [TSM]”). The Examiner reasoned that
the estimation to make an optimization to response
[sic] a ratio between the fuel consumption and the
aircraft’s flight time is an optimization step that
one skilled in the art would have used since this
allows the correct amount of fuel to supply to an
aircraft so that it [sic] the refueling aircraft can
make it [to its destination] without crashing.

Ans. 8. Appellant’s argument does not apprise us of error regarding the
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Examiner’s stated reasoning. Accordingly, the rejection of claims 30, 32
and 33 as unpatentable over Crabere, Nakhla and either Smith or Shenk is
sustained.
Claim 34
Claim 34 recites “the performance models used for the predictions are
generated from wind-tunnel models and are corrected after in-flight tests.”
App. Br., Claims Appendix. Although we agree with the Examiner that
Shenk discloses the use of wind-tunnel performance models (Ans. 8, 11; see
also Shenk, col. 2, ll. 61-67; col. 5, ll. 5-28), we could not find any portion
of Shenk, and the Examiner has not pointed to any portion of Shenk, that
discloses that the performance models are corrected after in-flight tests, as
required by claim 34. Hence, we agree with Appellant that Shenk fails to
teach or suggest all of the limitations of claim 34. App. Br. 20.
Accordingly, the rejection of claim 34 as unpatentable over Crabere, Nakhla
and either Smith or Shenk cannot be sustained.

DECISION
The decision of the Examiner is affirmed as to claims 1, 4-7, 9-11, 15,
18-21, 24-27, 29, 30, 32 and 33 and reversed as to claims 8 and 34.
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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