Ex Parte Heinzerling

Patent Trial and Appeal Board

Apr 28, 2017

14172458 (P.T.A.B. Apr. 28, 2017)

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.
14/172,458 02/04/2014 Daryl W. Heinzerling B86918 1520US.CP1
(0064.5
7179
128836 7590 05/02/2017
Womble Carlyle Sandridge & Rice LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-0037
EXAMINER
HANN, JAY B
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
05/02/2017 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):
ipdocketing @ wcsr. com
patentadmin @ B oeing. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DARYL W. HEINZERLING
Appeal 2016-007329
Application 14/172,4581
Technology Center 2100
Before JOSEPH L. DIXON, JUSTIN BUSCH, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Non-Final
Rejection of claims 1—5, 8—12, and 15—19. Claims 6, 7, 13, 14, 20, and 21
have been objected to as being dependent upon a rejected base claim, but
would be allowable if rewritten in independent form. Non-Final Act. 29.
We have jurisdiction over the remaining pending claims under 35 U.S.C.
§ 6(b). See Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994)
(precedential).
We affirm.
1 Appellant identifies The Boeing Company as the real party in interest.
App. Br. 1.
Appeal 2016-007329
Application 14/172,458
STATEMENT OF THE CASE
Introduction
Appellant’s claimed invention is directed “to establishing availability
of a two-engine aircraft for an ETOPS [(Extended Operations)] flight, or an
ETOPS flight path for a two-engine aircraft, based on an analysis of the risk
of two independent engine failures during flight.” Spec. 12. According to
the Specification, an ETOPS flight may be divided into a plurality of phases,
including a climb phase, one or more cruise phases, and a descent phase.
Spec. 140. In a disclosed embodiment, the probability of a dual
independent engine shutdown sequence is calculated for each of the ETOPS
phases. Spec. 113. According to the Specification, by calculating the
availability of a two-engine aircraft for each phase of the flight, rather than
calculating the availability for the flight as a whole, a more accurate
indication of actual risk may be determined. Spec. 19.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics'.
1. A method of establishing availability of a two-engine aircraft for
a predefined Extended Operations (ETOPS) flight, the method
comprising:
calculating a probability of a dual independent engine shutdown
sequence for each of a climb phase, a plurality of cruise phases
including an ETOPS phase, and a descent phase into which the
predefined ETOPS flight is divisible, the dual independent engine
shutdown sequence being composed of a sequence of events that for
each phase includes events having respective, conditional probabilities
specific to a model of the two-engine aircraft, a product of the
conditional probabilities for a phase being the probability of the dual
independent engine shutdown sequence for the phase;
calculating a risk of the dual independent engine shutdown
sequence during the predefined ETOPS flight as a function of a sum of
the probabilities for the phases; and
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Application 14/172,458
establishing availability of the two-engine aircraft for the
predefined ETOPS flight based on the risk and a preexisting baseline,
the predefined ETOPS flight having a flight path that the two-engine
aircraft will follow in an instance in which the availability of the two-
engine aircraft for the predefined ETOPS flight is established.
The Examiner’s Rejections
1. Claims 1—5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robert W. Simpson & Raymond A. Ausrotas, A Review of
Extended-Range Operations By Transport Aircraft, FTL Report R87-9,
Flight Transportation Laboratory, Massachusetts Institute of Technology, 1—
48 (1987) (“Simpson”) and Daniel M. Byrd & C. Richard Cothem,
Introduction to Risk Analysis, 20-21 (Government Institutes 2000) (“Byrd”).
Non-Final Act. 7—14.
2. Claims 8—12 and 15—19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Simpson, Byrd, and Agam et al. (US
2009/0150012 Al; June 11, 2009) (“Agam”). Non-Final Act. 14—29.
Issues on Appeal
1. Did the Examiner err in finding the combination of Simpson
and Byrd teaches or suggests “calculating a probability of a dual
independent engine shutdown sequence for each of a climb phase, a plurality
of cruise phases including an ETOPS phase, and a descent phase into which
the predefined ETOPS flight is divisible,” as recited in claim 1?
2. Did the Examiner err in finding the combination of Simpson
and Byrd teaches or suggests “calculating the conditional probability of the
first event for each phase as a function of a product of an engine shutdown
rate for and a time duration of the phase,” as recited in claim 3?
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3. Did the Examiner err in finding the combination of Simpson
and Byrd teaches or suggests “calculating the conditional probability of the
second event for each phase as a function of a projected time duration to
touchdown at the destination airport or alternate airport,” as recited in claim
5?
ANALYSIS2
Claims 1, 2, 4, 8, 9, 11, 15, 16, and 18
Appellant contends the Examiner erred in finding Simpson teaches
calculating the probability of dual independent engine shutdown for each of
the claimed phases on an ETOPS flight. App. Br. 7—10; Reply Br. 2-4.
Although Appellant acknowledges Simpson recognizes “that certain types of
risk events may be associated with phases of flight,” Appellant asserts
Simpson appears to calculate the risk probability for the entire flight, or only
for the cruise phase. App. Br. 7 (referring to Simpson 9). In particular,
Appellant argues Simpson’s probability of dual-independent engine failure
relies on a probability of failure during the cruise phase. App. Br. 9.
Simpson describes “a probability model... to compute the risk
associated with the ‘dual-independent engine failure’ case on a ‘per-flight’
basis rather than a ‘per-hour’ basis.” Simpson 9. The probability model
may be presented by the following equation:
Pf = 2PiP2TY = (2PiT) * P2Y
2 Throughout this Decision, we have considered the Appeal Brief, filed
December 28, 2015 (“App. Br.”); the Reply Brief, filed July 19, 2016
(“Reply Br.”); the Examiner’s Answer, mailed June 8, 2016 (“Ans.”); and
the Non-Final Office Action, mailed December 4, 2015 (“Non-Final Act.”),
from which this Appeal is taken.
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Application 14/172,458
where PI represents the probability per hour of a single propulsion system
failure in normal cruise; P2 represents the probability per hour of another
single propulsion failure in cruise with one engine inoperative; T represents
“an appropriate duration of flight (such as the duration of the extended range
segment);” and Y represents a diversion time following the first failure.
Simpson 9—10. Simpson teaches the diversion time is the duration of the
flight to the nearest diversion airport after an engine failure occurs.
Simpson 5—6.
The Examiner finds Simpson teaches a higher risk in certain of the
ETOPS flight phases—particularly, in takeoff, landing, climb and descent
operations as compared to cruise operations. Non-Final Act. 7—8 (citing
Simpson 9, 17); Ans. 3. Additionally, Simpson teaches “[i]t is equally
plausible to create and use measures of risk based on cycles, or flights, or
departures, and to associate certain types of unsafe events with phases of
flight such as takeoff and climb, or descent and landing.” Simpson 9. The
Examiner relies on this teaching and finds Simpson’s description of T in the
probability model as an appropriate duration of flight, such as the duration
of an ETOPS segment to suggest the model applies to “the full set of phases
of flight disclosed by Simpson.” Ans. 4. Accordingly, the Examiner finds
Simpson teaches, or at least suggests, a similar equation for the probability
of dual-independent engine failure may be used for each phase of an ETOPS
flight. Ans. 5. In order to get the overall probability of dual-independent
engine failure over the course an ETOPS flight, the Examiner relies on Byrd
to teach the summation of probabilities. Ans. 5 (citing Byrd 20).
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Appellant asserts using the same probabilities Pi and P2 of Simpson
for each phase would be factually wrong because those probabilities are the
probabilities of engine failure during the cruise phase. Reply Br. 3.
The obviousness inquiry “not only permits, but requires,
consideration of common knowledge and common sense.” DyStar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
1356, 1367 (Fed. Cir. 2006); see also KSR Inti Co. v. Teleflex Inc., 550 U.S.
398, 421 (2007). Additionally, an obviousness analysis “may include
recourse to logic, judgment, and common sense available to the person of
ordinary skill that do not necessarily require explication in any reference or
expert opinion.” Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324,
1329 (Fed. Cir. 2009). Indeed, logic, judgment, and common sense may
supply a limitation missing from the cited art. See Perfect Web, 587 F.3d at
1328—33 (affirming a district court’s use of common sense to supply a
limitation missing from the prior art).
Here, we find it would have been within the common knowledge and
skill set of an ordinary-skilled artisan to use probabilities of failure rates
specific to the phase of operation as well as durations specific to the phase in
calculating a probability for failure. Further, contrary to Appellant’s
assertion, the Examiner does not indicate that the same probabilities are
applied at each phase, but rather using appropriate durations “and
probabilities (P1P2) of each flight segment.” Ans. 5. Accordingly, the
Examiner finds Simpson teaches, or at least suggests, the probability of dual­
independent engine failure for each phase of an ETOPS flight may be
represented by the product of a probability of failure of a single propulsion
system for a specific phase (e.g., Pip) times the duration of that phase (Tp)
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and the probability of another single propulsion system failure with one
engine inoperative during the specific phase (e.g., P2P) times a diversion time
for the particular phase (e.g., Yp). Ans. 5. In other words, the probability of
a dual-independent engine failure per phase may be represented as:
Pp = (2PipTp) * P2pYp
We find the Examiner’s findings are supported by a preponderance of
the evidence and are not persuasively rebutted by sufficient persuasive
evidence or reasoning by Appellant.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of independent
claim 1 and, for similar reasons, the rejection of independent claims 8 and
15, which recite similar limitations and were not argued separately. See
App. Br. 10. Additionally, we sustain the Examiner’s rejections of claims 2,
4, 9, 11, 16, and 18, which depend therefrom and were not argued
separately. See App. Br. 10.
Claims 3, 10, and 17
Claim 3 depends from claim 1 and recites, in relevant part,
“calculating the conditional probability of the first event for each phase as a
function of a product of an engine shutdown rate for and a time duration of
the phase.”
Appellant again asserts Simpson does not disclose calculating the
probability of a dual-independent engine failure for phases other than the
cruise phase. App. Br. 10-11; Reply Br. 4—5. Additionally, Appellant
argues the equation provided in Simpson is not “generalizable” to be applied
to other phases of an ETOPS flight. App. Br. 11. To this point, Appellant
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asserts “[i]t is just as if not more likely that a different algorithms [sic]
would be used for other phases, and with different unsafe events associated
with those other phases.” App. Br. 11.
As an initial matter, it is well settled that mere attorney arguments and
conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(attorney argument is not evidence). Additionally, we note, contrary to
Appellant’s assertion, Appellant’s Specification recites similar algorithms
for the different phases. See, e.g., Spec. Tfl[ 70, 86, 99, 113.
Further, as discussed supra, we agree with the Examiner that Simpson
teaches, or at least suggests, calculating the probability of dual-independent
engine failure for each phase of an ETOPS flight. Additionally, wherein the
first event of such a failure is the failure of a first engine, Simpson teaches
this is represented as a probability of failure of the first engine Pi for the
phase times a duration of the phase, T. See Simpson 9; Non-Final Act. 12;
Ans. 6—7.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claim 3 and, for
similar reasons, the rejection of claims 10 and 17, which recite similar
limitations and were not argued separately. See App. Br. 11.
Claims 5, 12, and 19
Claim 5 depends from claim 1 and recites, in relevant part,
“calculating the conditional probability of the second event for each phase as
a function of a projected time duration to touchdown at the destination
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airport or alternate airport.” The second event is the failure of a second
engine after the first engine has shut down. See claim 5.
Appellant presents similar arguments that Simpson, as relied on by the
Examiner, is restricted to the cruise phase and that the algorithm in Simpson
is not “generalizable.” App. Br. 11—12; Reply Br. 5—6.
For similar reasons discussed supra, we are unpersuaded of Examiner
error. Additionally, we note the second factor in Simpson’s algorithm, P2Y
(see Simpson 9), is a function of the probability of a second engine failing
after the first engine has already failed multiplied by a diversion time (Y)—
i.e., a duration to touchdown at a destination or alternate airport. See
Simpson 5—6, 9—10; see also Non-Final Act. 13—14; Ans. 7.
Accordingly, we sustain the Examiner’s rejection of claim 5 and, for
similar reasons, the rejection of claims 12 and 19, which recite similar
limitations and were not argued separately. See App. Br. 12.
DECISION
We affirm the Examiner’s decision rejecting claims 1—5, 8—12, and
15-19.
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.
§ 41.50(f).
AFFIRMED
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