Ex Parte Bray

Board of Patent Appeals and Interferences

Sep 24, 2010

10476257 (B.P.A.I. Sep. 24, 2010)

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.
10/476,257 10/30/2003 Robert M Bray 540-473 9605
23117 7590 09/24/2010
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
LEE, BENJAMIN P
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
09/24/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROBERT M. BRAY
____________________

Appeal 2009-014733
Application 10/476,257
Technology Center 3600
____________________

Before JENNIFER D. BAHR, STEFAN STAICOVICI, and KEN B.
BARRETT, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-014733
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STATEMENT OF THE CASE
Robert M. Bray (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 1-18, 20, 21, and 23-27. An oral
hearing was held on September 14, 2010. We have jurisdiction under
35 U.S.C. § 6(b).
The application before us was the subject of a previous decision of the
Board (Ex parte Bray, Appeal No. 2006-1669 (BPAI Jul. 26, 2006))
(hereinafter “Previous Decision”), and a decision on rehearing (Nov. 14,
2006) (hereinafter “Decision on Rehearing”).
We AFFIRM-IN-PART and ENTER NEW GROUNDS OF
REJECTION PURSUANT TO OUR AUTHORITY UNDER 37 C.F.R.
§ 41.50(b).

THE INVENTION
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A winglet for reducing loads on an aircraft flying surface
during an aircraft manoeuvre, the winglet comprises a fixed
structure, said winglet having an air flow control means for
varying lift generated by the winglet.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Lavelle US 2,557,829 Jun. 19, 1951
Gleine US 5,875,998 Mar. 2, 1999
Allen US 5,988,563 Nov. 23, 1999
Chatrenet US 6,643,568 B2 Nov. 4, 2003
Nelson US 6,938,854 B2 Sept. 6, 2005
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The following Examiner’s rejections are before us for review:
1. Claims 1-7, 11-15, 20, 21, 23, 25, 26, and 272 are rejected
under 35 U.S.C. § 102(b) as being anticipated by Allen;
2. Claims 8-10 and 16-18 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Allen and Lavelle; and
3. Claim 24 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Allen.

OPINION
As an initial matter, we address Appellant’s contention that the
Examiner committed reversible error by failing to consider and ignoring the
Rule 132 declaration testimony of Dr. Norman Wood. App. Br. 10, 13. The
Examiner entered the Declaration into the record and did consider it. See
Final Rej. 1, 3. The Examiner specifically addressed Dr. Wood’s assessment
of a previous Board decision regarding the present application. See Final
Rej. 3; Wood Decl. ¶ 5. The Examiner then states that the Declaration
“merely provides an expert opinion and fails to present factually supported
evidence.” Final Rej. 3. We understand the Examiner to have found
the Declaration to contain conclusory and unsupported assertions and,
accordingly, gave little or no weight to the testimony. We find that the
Examiner did not ignore the Declaration but rather did not give it as much
weight as Appellant desires. We address the pertinent portions of the

2 Claim 27 is not listed in the heading of the ground of rejection, but is listed
in the body of the rejection. See Final Rej. 4, 5-6; Ans. 3, 5. Appellant
recognizes that claim 27 is subject to the § 102 rejection. App. Br. 2, 7.
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Declaration below and weigh that testimony against the other evidence in the
record.3
The rejection of claims 1-7, 11-15, 20, 21, 23, 25, 26, and 27 35 U.S.C.
§ 102(b) as being anticipated by Allen
Appellant argues the claims subject to the anticipation rejection as a
group, but presents additional arguments directed to claims 25 and 26. App.
Br. 17, 18-21. We select claim 1 as the representative claim for which to
decide the rejection as to claims 1-7, 11-15, 20, 21, 23, and 27. 37 C.F.R.
§ 41.37(c)(1)(vii). We separately address claims 25 and 26.
For the reasons set forth below, we affirm the rejection of claims 1-7,
11-15, 20, 21, 23, and 27 as anticipated by Allen. However, we designate
our decision as a new rejection. On the record before us, we cannot sustain
the rejection of claims 25 and 26.
Allen discloses devices numbered 12 and 14, and repeatedly refers to
those devices as “winglets.” See, e.g., Allen, col. 2, ll. 57-67. The Examiner
found Allen’s winglets 12 and 14 to be “winglets” within the meaning of
Appellant’s claimed invention. Ans. 4. We are not persuaded by
Appellant’s argument (App. Br. 12) that “those of ordinary skill in the
pertinent art would not describe the Allen wing-tip as a ‘winglet’ ….” We
note that this same argument was fully addressed and found unpersuasive by
the previous panel. See Previous Decision at 5-6; Decision on Rehearing at

3 Our rules require appellants to include in the appeal brief an appendix
containing a copy of any evidence submitted pursuant to 37 C.F.R. § 1.132
(such as Dr. Wood’s Rule 132 Declaration) and which is relied upon in the
appeal, as well as a statement as to where in the record that evidence was
entered. 37 C.F.R. § 41.37(c)(1)(ix) (2008). Appellant’s Evidence
Appendix simply states “None.” Nonetheless, we found the Declaration in
the record, and we, like the Examiner, have considered it.
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2-4. Appellant’s subsequently submitted evidence in the form of the Wood
Declaration does not convince us that the Examiner is incorrect now or that
the previous panel was incorrect. Dr. Wood’s conclusion is premised on an
erroneous interpretation of the claim.
Dr. Wood opines that one of ordinary skill in the art would
understand, in view of the “definition” in the Specification on page 1, lines
4-7, that a winglet is an “upturned tip structure used on aircraft wings during
normal flight to increase the efficiency of the wing.” Wood Decl. ¶ 6; see
also id., ¶ 7. Dr. Wood also asserts that the decision of the previous Board
panel correctly noted that one of ordinary skill would understand that the
“claimed ‘winglets’ are fixed structures.” Id., ¶ 5 (apparently referring to
page 3, paragraph 3, of the original decision rather than the cited rehearing
decision).
First, Dr. Wood’s assessment of the previous panel’s decision is
incorrect. The panel was discussing claims which apparently contained the
word “fixed” and concluded that the Examiner had not shown that the
original Specification lacked adequate disclosure under § 112, first
paragraph, of a “fixed winglet.” The panel did not hold that the claimed
winglet is always limited to a fixed structure. To the contrary, the panel
made it abundantly clear that one of ordinary skill would not understand the
term “winglet” to require fixed mounting. See Decision on Reconsideration
at 2; see also Decision on Appeal (the original decision) at 3, 5. We agree
with the previous panel’s conclusion that a “winglet” is not limited to a
structure fixed relative to the wing, and further conclude that Appellant’s
Specification does not define it as so.
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Second, Dr. Wood’s implied opinion that the Specification at page 1,
lines 4-7, defines the winglet as limited to an upturned structure during
normal flight is incorrect. While the Specification describes winglets in
the form of upturned wing tips, it also describes winglets in the form of
endplates that extend both above and below the wing. Spec. 1, ll. 4-7.
Further, the Specification describes the upturned tip configuration as merely
the form that “[a] winglet generally takes.” Id. Thus, the Specification’s
description of a winglet does not exclude other configurations, as Appellant
and Dr. Wood suggest. Additionally, the portion of the Specification upon
which Dr. Wood relies does not characterize a winglet in terms of its
configuration during “normal flight,” and Dr. Wood does not explain why
the proposed construction includes that phrase. Accordingly, we decline to
read into the claim a limitation that the winglet be an “upturned tip … during
normal flight.” Cf. Phillips v. AWH Corp., 415 F.3d 1303, 1318 (Fed. Cir.
2005) (en banc) (“[C]onclusory, unsupported assertions by experts as to the
definition of a claim term are not useful to a court. Similarly, a court should
discount any expert testimony ‘that is clearly at odds with the claim
construction mandated by the claims themselves [and] the written
description ….’”) Lastly, claim 27 depends from claim 1 and further limits
the winglet to an upturned structure during level flight. Thus, it seems that
Dr. Wood’s “winglet” construction would render the limitation of claim 27
redundant.
We conclude that the Examiner correctly found that Allen’s winglet
14 is a “winglet” within the meaning of Appellant’s claimed invention.
We now turn to Appellant’s argument that Allen does not disclose a
“fixed winglet.” See, e.g., App. Br. 12, 13. Appellant incorrectly asserts
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that “each of Applicant’s independent claims specifies a ‘fixed winglet.’”
See id. at 13; see also id. (claim chart identifying “A ‘fixed winglet’” as a
limitation in claims 1, 24, 25, and 26); Reply Br. 7. Claim 1 does not recite
a “fixed winglet” but rather recites that “the winglet comprises a fixed
structure.” To the extent that Appellant contends and Dr. Wood opines (see
Woods Decl. ¶ 6) that the scope of the phrase in claim 1 is coextensive
with a “fixed winglet,” we disagree. A winglet that comprises a fixed
structure is broader in scope than a “fixed winglet.” The transition phrase
“comprising” is a term of art in patent claim drafting, not in the art of
aerospace engineering, and as used in claim 1 indicates that the winglet
limitation is open-ended such that it requires a winglet that includes at least
a fixed structure. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501
(Fed. Cir. 1997).
Contrary to Dr. Wood’s implied opinion (Wood Decl. ¶ 6), the
Specification does not set forth an explicit definition of the claim phrase
“winglet [that] comprises a fixed structure” or expressly identify the
structure relative to which the recited “fixed structure” is fixed. However,
the Specification does indicate that a winglet includes a structure that is
moveable, namely the control arrangement. See Spec. 2-3. Claim 1 defines
the winglet as comprising at least two components – a “fixed structure” and
a moveable structure, the “air flow control means” (a control arrangement).
Thus, giving the claim its broadest reasonable interpretation in light of the
Specification as well as the overall language of the claim, we construe claim
1 as requiring a winglet that includes, but is not limited to, a structure that is
fixed relative to the other portions of the winglet, such as the air flow control
means.
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We acknowledge Appellant’s argument that a “fixed winglet” (which,
again, is not the language used in claim 1) refers to a winglet that is fixed
relative to a wing. App. Br. 19-20; see also Wood Decl. ¶ 8. However,
claim 1 does not affirmatively recite a wing (or, in terms of claim 1, the
broader “aircraft flying surface”) as a structural limitation. Claim 1
affirmatively recites only the structure of the winglet itself. That is,
Appellant’s claim 1 encompasses the recited winglet alone, e.g., sitting on a
shelf and not attached to a wing. Appellant’s Specification does not indicate
what structure would then distinguish a “fixed winglet” from a non-fixed
one. We conclude that it is more appropriate (and consistent with giving the
claim its broadest reasonable construction) to construe “fixed” relative to
structures comprising the claimed winglet rather than the unclaimed wing.
Allen’s Figure 1 discloses fixed portions of winglets 12 and 14,
including those from which the lead lines for the numbers 12 and 14
originate and to which the ailerons are attached. Thus, Allen discloses a
“winglet [that] comprises a fixed structure,” as recited in claim 1.
Appellant also argues that Allen does not disclose “an air flow control
means for varying lift generated by the winglet.” App. Br. 20. Appellant
contends that this language recites a means-plus-function element
encompassing such structures as flaps, spoilers, trips devices, doors, and
louvers, and equivalents. Id. at 15. The Examiner found that Allen, in
Figure 1, discloses unnumbered but illustrated control surfaces, namely flaps
and ailerons, and that those components correspond to Appellant’s claimed
air flow control means. See Ans. 4-5, 9-11; see also Previous Decision at 6
(“While Allen does not specifically discuss ailerons on the wing or winglet
of the inventive aircraft, the depiction on the rear of the winglet 12 in Figure
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1 has the appearance and location of a classical aileron … and would have
been recognized by one of ordinary skill in the aircraft art at the time of
appellant’s invention as such.”) The Examiner further found that “the
inherent function of these elements (flaps and ailerons), at least while the
winglets are in the extended position, is to influence the airflow and hence
vary the lift generated (as is normal on almost all fixed wing aircraft).” Ans.
10-11. We agree with and adopt these findings of the Examiner. Because
we agree with the finding that the function of flaps and ailerons is to vary
lift, we need not reach the merits of Appellant’s argument alleging error in
the Examiner’s findings pertaining to an autopilot. See Ans. 4-5; App. Br.
12-13 (citing Wood Decl. ¶ 15).
Appellant contends that Allen does not disclose that the identified
structure performs the recited function when the wing tip is folded upwards.
See App. Br. 13, 15, 20. Appellant’s arguments and Dr. Wood’s
carefully qualified testimony on this point appear to be premised on the
misunderstanding that “winglets” are limited to upturned structures fixed
relative to the wing, and that Allen’s winglets cease being winglets when not
in the retracted (vertical or near vertical) position. See, e.g., App. Br. 16;
Wood Decl. ¶¶ 10-12, 15 (opinions limited to wingtips in the retracted
position). As discussed above, the claimed winglet is not so limited, and
therefore the arguments and testimony are not commensurate with the scope
of claim 1.
Appellant further argues that Allen’s left and right ailerons must move
in a certain way “to alleviate the lift on the wingtips in the vertical position,”
and there is no such teaching in Allen. App. Br. 16; see also id. (arguing
that “there is nothing in Allen which has been identified as teaching any sort
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of means for ‘reducing lift of a winglet’ (emphasis added [by Appellant]).”)
This argument is also not commensurate with the recited function of claim 1,
which is merely for varying – not alleviating or reducing – lift. As is
implicitly conceded in Appellant’s argument, movement of an aileron varies
lift. See id. (Appellant arguing that “if the right aileron moves upwardly (to
decrease lift on that wingtip) the left aileron moves downwardly (to increase
lift on that wingtip).”)
Lastly, we recognize that Dr. Wood testified that Allen fails to
disclose the recited “air flow control means.” Wood Decl. ¶ 14. However,
this testimony is, again, conclusory, without even a statement as to how
Dr. Wood interprets the recited “air flow control means.” Without knowing
Dr. Wood’s interpretation, we cannot determine whether he applied a proper
construction to the reference. It may be that Dr. Wood understands that
phrase as encompassing only the “active load alleviation system” to which
he refers in the immediately preceding paragraph. However, Appellant
contends that the manoeuvre load alleviation system 22 is merely one of
several structures corresponding to this means plus function element. See
App. Br. 4.
We affirm the Examiner’s rejection of representative claim 1, and
claims 2-7, 11-15, 20, 21, 23, and 27, which fall therewith, as anticipated by
Allen. Because our interpretation of claim 1 regarding the winglet
comprising a fixed structure does not appear to have previously been
discussed on the record and because we have applied Allen in a manner
different from the Examiner, our affirmance is designated as a new rejection.
37 C.F.R. § 41.50(b).
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We reverse the rejection of claims 25 and 26 because, on the record
before us, we cannot find by a preponderance of the evidence that the
structure in Allen identified by the Examiner is a “fixed winglet” within the
meaning of Appellant’s claims 25 and 26.

The rejection of claims 8-10 and 16-18 under 35 U.S.C. § 103(a) as being
unpatentable over Allen and Lavelle
Appellant argues the claims subject to this rejection as a group. App.
Br. 23. We select claim 8 as the representative claim, and claims 9, 10, and
16-18 stand or fall with claim 8. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 8 depends from independent claim 1 and recites:
8. A winglet according to claim 1 in which the control
arrangement comprises at least one passage formed in the
winglet which extends from a lower surface thereof to an upper
surface thereof and which can be opened to allow high pressure
air at the lower surface to flow upwardly therethrough to the
upper surface to reduce lift.
We note that the previous panel also addressed the § 103 rejection of
claims 8-10 and 16-18 over Allen and Lavelle, although the previous panel
had before it independent claim 1 prior to the most recent amendments.
Appellant agrees that Lavelle discloses a “slot [that] is located in the
mid portion of the Lavelle wing” and that “Lavelle teaches that the wing slot
is opened to control the descent angle during landing.” App. Br. 13-14. The
Examiner reasons that “[i]t would have been obvious at the time of the
invention to one having ordinary skill in the art to include the teachings of
Lavelle into the device of Allen for decreasing the distance required for
landing.” Ans. 7.
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For the reasons set forth in the Previous Decision, which are quoted
in the Examiner’s Answer and which were reiterated in the Decision on
Rehearing, we find that a motivation to combine the references is found in
Lavelle’s teaching that it was well known in the art to replace or supplement
ailerons with controlled wing slots. Previous Decision at 7; Decision on
Rehearing at 6-7; Ans. 12. As such, we are not persuaded by Appellant’s
argument that there is no basis for combining the references because
Lavelle’s teachings pertain to a wing rather than a winglet or the implied
argument that the Examiner has engaged in impermissible hindsight. App.
Br. 16, 24; id. at 24 (asserting that the Examiner merely made “a conclusory
statement as to obviousness in terms of picking and choosing elements from
a plurality of references and then combining them in the manner disclosed
only in Appellant’s claims.”)
Appellant argues that Lavelle does not cure the alleged defects in the
anticipation rejection of claim 1 based on Allen. App. Br. 23 (referring to
Section F of the brief). This argument is not persuasive for the reasons
discussed above in the context of the anticipation rejection. Similarly, we
are not persuaded by Appellant’s argument – which is not commensurate
with the language of claim 8 or of its parent claim 1 – that Allen lacks a
“fixed winglet” and therefore teaches away from the claimed invention. Id.
at 24-25.
Appellant appears to argue that Allen’s disclosure of winglets that
retract during severe loads teaches away from the use of any other air flow
control arrangement. See App. Br. 13-14 (“Allen teaches away from the
aileron providing any flow control or load alleviation since the folding of the
wing tip provides the load alleviation[.]”); see also id. at 20-21, 24-25.
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However, we do not find that Allen teaches away from the claimed invention
because Appellant fails to point to any portion of Allen that criticizes,
discredits or otherwise discourages Appellant’s claimed solution. See In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
We affirm the rejection of claims 8-10 and 16-18 under § 103 as being
unpatentable over Allen and Lavelle. Because our interpretation of claim 1,
the limitations of which are incorporated into dependent claims 8-10 and
16-18, regarding the winglet comprising a fixed structure does not appear to
have previously been discussed on the record and because we have applied
Allen in a manner different from the Examiner, our affirmance is designated
as a new rejection. 37 C.F.R. § 41.50(b).

The rejection of claim 24 under 35 U.S.C. § 103(a) as being unpatentable
over Allen
We reverse the rejection of claim 24 because, on the record before us,
we cannot find by a preponderance of the evidence that the structure in Allen
identified by the Examiner is “[a]n aircraft wing including a fixed winglet”
within the meaning of Appellant’s claim 24.

New rejection of claim 24 under 35 U.S.C. § 112, second paragraph, as
being indefinite
Claim 24 recites “means for sensing loads on said aircraft.” Appellant
argues that this feature distinguishes the claimed invention over the prior art.
See App. Br. 18, 22. This limitation is a means-plus-function limitation that
invokes 35 U.S.C. § 112, sixth paragraph. Our rules require Appellant to
identify the structure in the Specification corresponding to the function for
such a limitation. 37 C.F.R. § 41.37(c)(1)(v). Appellant did not identify any
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corresponding structure for the recited sensing means of claim 24 (App. Br.
5) and we are unable to find any structure linked to the claimed function in
the Specification. As such, Appellant has failed to particularly and distinctly
claim the invention recited in claim 24. See In re Donaldson Co., 16 F.3d
1189, 1195 (Fed. Cir. 1994) (en banc) (“[I]f one employs means-plus-
function language in a claim, one must set forth in the specification an
adequate disclosure showing what is meant by that language. If an applicant
fails to set forth an adequate disclosure, the applicant has in effect failed to
particularly point out and distinctly claim the invention as required by the
second paragraph of section 112.”) Accordingly, claim 24 is indefinite and
we enter a new rejection of that claim under 35 U.S.C. § 112, second
paragraph.

CONCLUSIONS
We affirm the rejection of claims 1-7, 11-15, 20, 21, 23, and 27 under
§ 102(b) as anticipated by Allen, but designate our decision as a new
rejection pursuant to 37 C.F.R. § 41.50(b).
We reverse the rejection of claims 25 and 26 under § 102(b) as
anticipated by Allen.
We affirm the rejection of claims 8-10 and 16-18 under 35 U.S.C.
§ 103(a) as being unpatentable over Allen and Lavelle, but designate our
decision as a new rejection pursuant to 37 C.F.R. § 41.50(b).
We reverse the rejection of claim 24 under 35 U.S.C. § 103(a) as
being unpatentable over Allen.
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We enter a new ground of rejection of claim 24 under 35 U.S.C.
§ 112, second paragraph, for failing to particularly point out and distinctly
claim the invention.

DECISION
The decision of the Examiner to reject claims 24-26 is reversed. The
decision of the Examiner to reject claims 1-18, 20, 21, 23, and 27 is
affirmed. The affirmance of 1-7, 11-15, 20, 21, 23, and 27 under § 102 and
of claims 8-10 and 16-18 under § 103 are designated as new grounds of
rejection. We enter a new ground of rejection of claim 24 under 35 U.S.C.
§ 112, second paragraph.

FINALITY OF THE DECISION
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the Examiner, in which event the proceeding
will be remanded to the Examiner. …

(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. ….
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)

JRG

NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
17