Ex Parte Johnson et al

Patent Trial and Appeal Board

Nov 30, 2018

14665007 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/665,007 03/23/2015
26096 7590 12/04/2018
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Paul Robert Johnson
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.
80730US01;
67036-800PUS 1
CONFIRMATION NO.
6822
EXAMINER
PATEL, HARSHAD R
ART UNIT PAPER NUMBER
2855
NOTIFICATION DATE DELIVERY MODE
12/04/2018 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL ROBERT JOHNSON, AARON A. CUSHER,
TIMOTHY THOMAS GOLLY, BRIAN DANIEL MATHEIS,
and GREG SEIDEL
Appeal2018-005446
Application 14/665,007
Technology Center 2800
Before ADRIENE LEPIANE HANLON, TERRY J. OWENS, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
August 21, 2017 decision finally rejecting claims 1, 3, 4, 16, and 17. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 The Appeal Brief identifies Hamilton Sundstrand Corporation, which is
owned by United Technologies Corporation, as the real party in interest
(Appeal Br. 1). We note that the records of the Patent and Trademark Office
show that the application was assigned from the inventors to Rosemount
Aerospace, Inc. (Reel/Frame No. 035227 / 0084) and also that Rosemount
Aerospace is the Applicant.
Appeal 2018-005446
Application 14/665,007
CLAIMED SUBJECT MATTER
Appellant's disclosure is directed to an air data probe with a pitot tube
with a tap at a forward end that defines an inner flow path (Abstract). The
inner flow path decreases in the cross-sectional area until reaching a throat
(id.). A plurality of bleed holes extend through a body of the air data probe.
Details of the claimed invention are set forth in claims 1 and 16, which are
reproduced below from the Claims Appendix of the Appeal Brief:
1. An air data probe comprising:
a pitot tube having a tap with a forward end, and defining
an inner flow path, the inner flow path decreasing in cross-
sectional area until reaching a throat;
said inner flow path having cross-sections which are
generally cylindrical in cross-sections; and
wherein said inner flow path includes at least one bleed
hole extending from an outer periphery of said pitot tube to
communicate air from said inner flow path to said outer
periphery, and outwardly of said pitot tube.
16. The air data probe as set forth in claim 1, wherein air
downstream of said throat moving into a passage, and to a
pressure tap, said pressure tap in communication with a control,
said control programmed to translate a tapped pressure into an
air speed of an associated aircraft body.
REJECTIONS
I. Claims 1, 3, 4, and 17 are rejected under 35 U.S.C. § I02(a)(l) as
anticipated by Ice. 2
2 Ice, US 2004/0177683 Al, published September 16, 2004.
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Application 14/665,007
II. Claims 1, 3, 4, 16, and 17 are rejected under 35 U.S.C. § 103 as
unpatentable over Admitted Prior Art (APA), as shown in Fig. IA of the
Specification, in view of Ice.
III. Claim 16 is rejected under 35 U.S.C. § I03(a) as unpatentable
over Ice in view of AP A.
DISCUSSION
Appellant states that reversal of the anticipation rejection is not sought
and that the arguments set forth are seeking reversal of the rejection of claim
16. (Reply Br. 1 ). Accordingly, only the rejections of claim 16 as obvious
over Ice in view of AP A and over AP A in view of Ice are at issue. 3
Rejection of claim 16 over Ice in view of APA. Because Appellant
does not contest the anticipation rejection of claim 1 over Ice, we start from
the premise that Ice discloses each of the limitations of claim 1. According
to the Examiner, "Ice teaches all the features of the invention as claimed
including a circuit that translates data from the sensors except for explicitly
teaching the pressure tap in communication with a control that is
programmed to translate a pressure tapped into an air speed of an associated
aircraft body" (Final Act. 5). The Examiner finds that AP A teaches a
control in communication with a pressure tap and programmed to translate
the tapped pressure into an air speed of an associated aircraft body (id.). The
Examiner concludes that it would have been obvious to provide a control
programmed to perform such measurements in Ice's device since it was
3 Because we affirm the anticipation rejection of the claims over Ice alone,
we need not address the combination of Ice and AP A with respect to claims
1, 3, 4, and 17. We note, however, that because Ice anticipates claims 1, 3,
4, and 17, they are necessarily obvious over the combination of Ice and AP A
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Application 14/665,007
known that such measurements would be necessary for flight information
related to elevation and speed (id.).
As noted above, Appellant does not challenge the anticipation
rejection of claim 1. Thus, there is no challenge that Ice discloses each of
the limitations of claim 1, arranged as in the claim. Therefore, the only
possible challenge to the obviousness rejection of claim 16 over Ice in view
of AP A, which depends from claim 1, is that either (1) the AP A does not
disclose the subject matter of claim 16, or (2) the Examiner has not
established an adequate reason to combine the disclosure of AP A with the
disclosure of Ice, as set forth in the Final Action. Appellant does not dispute
point (1) (see, Reply Br. 1-2).
Thus, Appellant's arguments are directed to whether the Examiner has
provided an adequate reason to modify the teachings of Ice with AP A. The
Examiner argues that it would have been obvious to modify Ice's device so
that in addition to ( or instead of) measuring temperature, it can be used to
measure air speed using a pressure tap because "such measurements would
be necessary for a [sic] flight information related to elevation and speed"
(Final Act. 5). However, as noted by Appellant (Appeal Br. 3), Ice
specifically discloses a secondary sensor which can be a pressure sensor (Ice
,r 17). The Examiner's rationale for modifying Ice with the teachings of
AP A is that having a pressure sensor to measure air speed would be
necessary for flight information (Final Act. 5). However, because Ice
discloses a temperature sensor in combination with a pressure sensor, the
Examiner has not adequately explained, outside the teachings of the
Specification, why a person of skill in the art would have combined the
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Application 14/665,007
bleed hole structure taught by Ice with the known pressure sensors of AP A.
Accordingly, we reverse the rejection of claim 16 over Ice in view of AP A.
Rejection of claim 16 over APA in view of Ice. The Examiner also
determines that it would have been obvious to modify the teachings of APA
with the bleed holes of Ice in order to arrive at claim 16 because "such an
arrangement would control the boundary layer air from the inner flow
passage" (Final Act. 5-6). Appellant argues that "pressure and temperature
sensors sense different qualities of the air, and have different challenges"
(Appeal Br. 3), and thus the structure of a temperature sensor might be
different from a pressure sensor. Appellant further argues that the function
of the bleed holes in Ice is to prevent heated air from reaching the
temperature probes (and hence providing distorted temperature information),
a function which is not needed for a pressure sensor (Appeal Br. 3--4).
The Examiner suggests that the reason a person of skill in the art
would have looked to modify the AP A with the bleed holes of Ice is because
it was known that air data probes were concerned with air circulation and
boundary layer separation at the opening or tap of the air data probe (Ans.
3). In support of this rationale, the Examiner cites to Appellant's
Specification (And. 3, citing Spec. ,r,r 4, 5). However, the section of the
Specification cited by the Examiner does not explicitly state, or even
suggest, that these problems were known prior to Appellant's invention:
"[W]hen an associated aircraft is operating at a pronounced angle of attack,
air recirculation and boundary layers separation may [occur] within an
opening or tap into the air data probe" (Spec. ,r 4). Likewise, the Examiner
does not establish that it was known prior to Appellant's invention that the
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Application 14/665,007
bleed holes in Ice's temperature sensor would be suitable for solving the
disclosed problems.
The Examiner bears the burden of providing a reason the art would
have been modified and/or combined to arrive the claimed invention. In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006); see, also, In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992) (the examiner bears the initial burden of
establishing a prima facie case of obviousness). "To draw on hindsight
knowledge of the patented invention, when the prior art does not contain or
suggest that knowledge, is to use the invention as a template for its own
reconstruction-an illogical and inappropriate process by which to
determine patentability." Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566,
1570 (Fed. Cir. 1996) (citing W.L. Gore &Assoc. v. Garlock, Inc., 721 F.2d
1540, 1553 (Fed. Cir. 1983)). In this instance, the preponderance of the
evidence does not support the finding that it was known, prior to Appellant's
invention, that air data probes were concerned with air circulation and
boundary layer separation at the opening or tap of the air data probe.
Moreover, a preponderance of the evidence does not support a finding that
one of ordinary skill in the art would have known that the bleed holes in
Ice's temperature sensor would be suitable for solving problems related to
such air circulation and boundary layer separation in a pressure sensor.
Thus, the Examiner's rationale for combining the teachings of AP A
with the bleed holes of Ice is not adequately supported by the record.
Accordingly, we cannot sustain the rejection of claim 16 over APA in
view of Ice.
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CONCLUSION
We AFFIRM the rejection of claims 1, 3, 4, and 17 under 35 U.S.C. §
102(a)(l) as anticipated by Ice.
We AFFIRM the rejection of claims 1, 3, 4, and 17 under 35 U.S.C. § 103 as
unpatentable over AP A in view of Ice.
We REVERSE the rejection of claim 16 under 35 U.S.C. § 103(a) as
unpatentable over Ice in view of AP A.
We REVERSE the rejection of claim 16 under 35 U.S.C. § 103(a) as
unpatentable over AP A in view of Ice.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED-IN-PART
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