11338027 (B.P.A.I. Aug. 20, 2012)

Ex Parte Hawkins

Board of Patent Appeals and InterferencesAug 20, 2012

11338027 (B.P.A.I. Aug. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte THOMAS HAWKINS ____________ Appeal 2010-006680 Application 11/338,027 Technology Center 3600 ____________ Before EDWARD A. BROWN, MICHAEL C. ASTORINO, and JAMES P. CALVE, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006680 Application 11/338,027 2 STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-3, 5-9, 11-16, and 18-20. Claims 4, 10, and 17 have been cancelled. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. REJECTIONS Claims 1-3, 5, 8, 9, 11, 13-16, and 18 are rejected under 35 U.S.C. § 102(b) as anticipated by Kirsch (US 4,505,441, iss. Mar. 19, 1985). Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over Kirsch and Meekins (US 6,592, 073 B1, iss. Jul. 15, 2003). Claims 6, 12, 19, and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Kirsch and Konicke (US 6,669,357, iss. Dec. 30, 2003). CLAIMED SUBJECT MATTER Claims 1, 8, and 14 are independent, and claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A safety device for a fixed wing aircraft, comprising: a strip positioned around propeller blades, wherein the strip is coupled to a fixed wing of the aircraft such that the strip is located underneath the fixed wing. OPINION The Appellant argues claims 1, 8, and 14 as a group. App. Br. 3-8. We select independent claim 1 as the representative claim, and claims 2, 3, 5, 8, 9, 11, 13-16, and 18 stand or fall with claim 1. See 37 C.F.R. § 41.37 Appeal 2010-006680 Application 11/338,027 3 (c)(1)(vii) (2011). The Appellant provides separate subheadings for dependent claim 7 and dependent claims 6, 12, 19, and 20 (App. Br. 8, 9), but not separate arguments since the Appellant merely relies on their dependency from independent claims 1, 8, and 14. As such, claims 6, 7, 12, 19, and 20 also stand or fall with claim 1. Kirsch discloses a combination aircraft and terrain-following transient surface contact vehicle having a “flight power unit [that] comprises a propeller 19 rotatably mounted in a shroud 20 on the beam 6 at the tail end 8.” Col. 5, ll. 10, 11, 41-43, fig. 4. The Examiner finds that the shroud 20 corresponds to the strip as called for in claim 1. Ans. 3; see also Kirsch, col. 5, ll. 41-43, figs. 2, 4, and 5. The Appellant contends Kirsch’s shroud “20 is clearly a cylinder or a duct” (App. Br. 6), and the “plain meaning of the term ‘strip’ does not coincide with the meaning presumptively ascribed to it be the Examiner under Kirsch . . . , i.e., a cylinder or duct” (App. Br. 7); see also App. Br. 3-8 The Appellant’s contention is not persuasive. At the outset, it is notable that the Appellant’s Specification lacks a definition for the term “strip.” As such, we determine the scope of the claims in patent applications not solely on the basis of the claim language, but upon giving claims “their broadest reasonable interpretation consistent with the specification” and “in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). For the purpose of this appeal only, we accept the Appellant’s dictionary definition of “strip” as “a long, narrow piece of material” (App. Br. 7) as evidence of an ordinary and customary meaning of the term “strip” consistent with how one of ordinary skill in the art would understand the term when read in light Appeal 2010-006680 Application 11/338,027 4 of the Specification. See also App. Br. 7 (The Appellant asserts “strip 102 of [Appellant’s] Figures 1 and 2 is a long, narrow element that is curved in an arc.”) Further, the term “strip” is directed to the relative dimensions of a piece of material; the relative dimensions of a strip are “long” and “narrow.” The manipulation of the long and narrow piece of material into different shapes does not change the dimensions of the piece of material, assuming no deformation of the material. In other words, if a strip of material lies flat such that it forms the shape of a rectangle and the shorter-width ends are rotated around so that they are directly connected, the dimensions of the strip do not change, only the shape the strip forms changes. Indeed, the shape of the strip changes from a rectangle to a cylinder, i.e., a circular strip. Similarly, the Specification at paragraph [0028] states, “the propeller guard 102 comprises a circular strip or a complete ring that is positioned outside the circular arc traveled by outer tips of the blades of the propeller 108 when rotating.” Emphasis added. See also Spec. 12, (original claim 2 recites “[t]he safety device of claim 1, wherein the strip has a circular shape.”1). In light of the Appellant’s Specification, the claim term “strip” does not preclude the Examiner from finding correspondence of the claimed “strip” to Kirsch’s shroud 20. Further, the Appellant does not cogently explain why Kirsch’s shroud 20 is not “a long, narrow piece of material.” Thus, the Examiner’s rejections of: claims 1-3, 5, 8, 9, 11, 13-16, and 18 as anticipated by Kirsch; claim 7 as unpatentable over Kirsch and 1 Original claim 1 recites, “[a] safety device for a fixed wing aircraft, comprising: a strip positioned around propeller blades.” Spec. 12. Appeal 2010-006680 Application 11/338,027 5 Meekins; and, claims 6, 12, 19, and 20 as unpatentable over Kirsch and Konicke are sustained. DECISION We AFFIRM the rejections of claims 1-3, 5-9, 11-16, and 18-20. 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). AFFIRMED Klh