Ex Parte Lee

Patent Trial and Appeal Board

Nov 13, 2013

11545887 (P.T.A.B. Nov. 13, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/545,887 10/11/2006 Hugh T. Lee 566.1002 3362
23280 7590 11/13/2013
Davidson, Davidson & Kappel, LLC
485 7th Avenue
14th Floor
New York, NY 10018
EXAMINER
TWEEL JR, JOHN ALEXANDER
ART UNIT PAPER NUMBER
2687
MAIL DATE DELIVERY MODE
11/13/2013 PAPERPAPER
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 HUGH T. LEE
____________________

Appeal 2011-005283
Application 11/545,887
Technology Center 2600
____________________

Before JOSEPH F. RUGGIERO, ELENI MANTIS MERCADER, and
LARRY J. HUME, Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

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STATEMENT OF THE CASE 1
The Invention
Appellant’s invention relates to a tactile device and method for
providing information to an aircraft, motor vehicle, or equipment operator.
Spec. ¶ [0001].
Exemplary Claims
Claims 1, 17, 19, and 20 are exemplary claims representing various
aspects of the invention which we reproduce below (emphasis added):
1. A tactile device for an aircraft operator
comprising:
a plurality of tactors connected to an aircraft operator, the
plurality of tactors including a first tactor and a second tactor
neighboring the first tactor; and
a control system controlling actuation of the tactors as a
function of a variable representing a characteristic of the
operation of the aircraft, the control system actuating the first
tactor and the second tactor sequentially when the variable
reaches a first predetermined value to provide an instruction to
the aircraft operator.
17. A method for actuating a plurality of tactors
connected to an aircraft operator, the plurality of tactors
including a first tactor and a second tactor neighboring the first
tactor, the method comprising:

1 Our decision refers to Appellant’s Appeal Brief (“App. Br.,” filed
Jun. 24, 2010); Reply Brief (“Reply Br.,” filed Nov. 22, 2010); Examiner’s
Answer (“Ans.,” mailed Sep. 15, 2010); Final Office Action (“FOA,” mailed
Jul. 28, 2009); and the original Specification (“Spec.,” filed Oct. 11, 2006).
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actuating a first tactor and a second tactor sequentially
when a variable reaches a first predetermined value to provide
an instruction to the aircraft operator.
19. The method as recited in claim 17 wherein the
instruction is a corrective action.
20. The method as recited in claim 17 wherein first
and second tactors move sequentially in a first direction, and
the instruction is to tum an aircraft in the direction of the first
direction.
Prior Art
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Gonzales US 6,326,901 B1 Dec. 4, 2001
Rejections on Appeal
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gonzales. Ans. 6.
ISSUES AND ANALYSIS
We only consider those arguments actually made by Appellant in
reaching this Decision. Arguments which Appellant could have made but
chose not to make in the Briefs have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
1. § 103(a) Rejection of Claims 1-16 and 18
We disagree with Appellant’s conclusions with respect to claims 1-16
and 18, and we adopt as our own (1) the findings and reasons set forth by the
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Examiner in the action from which this appeal is taken and (2) the reasons
and rebuttals set forth by the Examiner in the Examiner’s Answer in
response to Appellant’s Arguments. However, we highlight and address
specific findings and arguments regarding claim 1 for emphasis as follows.
Issue 1
Appellant argues (App. Br. 4-6; Reply Br. 2) the Examiner’s rejection
of claims 1 and 18 under 35 U.S.C. § 103(a) as being unpatentable over
Gonzales is in error. These contentions present us with the following issue:
Did the Examiner err in finding that Gonzales teaches or suggests the
limitation in dispute, i.e.,
a control system controlling actuation of the tactors as a function of a
variable representing a characteristic of the operation of the aircraft,
the control system actuating the first tactor and the second tactor
sequentially when the variable reaches a first predetermined value to
provide an instruction to the aircraft operator,
as recited in claim 1?
Analysis
Appellant contends, “Gonzales provides absolutely no teaching or
disclosure of actuating the first and second tactor sequentially when the
claimed variable reaches a first predetermined value, as claimed in claims 1
and 18.” App. Br. 4. Appellant further contends the Examiner has “simply
read[] out the word ‘predetermined.’” Id. Appellant concludes by stating,
“as admitted by the Examiner, the relied on section simply to do not [sic]
provide an instruction to the operator as claimed.” App. Br. 5.
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In response, the Examiner finds Gonzales teaches a wide variety of
applications using tactile communications devices, “such as [providing]
orienteering directions or navigational vectors,” (Ans. 10 (citing Gonzales
col. 9:22-26)) and “telling a pilot which direction to fly.” Id. (citing
Gonzales col. 10:3). We agree with the Examiner (Ans. 10-11) and find
Gonzales’ teaching of providing directional information via tactile
communication meets the limitation of “provid[ing] an instruction to the
aircraft operator,” as recited in claim 1.
The Examiner also finds the pilot in Gonzales may specify how often
“information such as spatial orientation, altitude, angle of attack, and air
speed” may be updated (Ans. 11 (citing Gonzales col. 10:33-34)), which we
find implies the existence of associated “predetermined value[s]” that trigger
the updates, and which may be changed or adjusted by the pilot.
In the Reply, Appellant argues, “the Examiner still avoids the actual
claim language and mixes and matches various teachings of Gonzales as if
they were one.” Reply Br. 2. Appellant further contends, “[n]one of these
[flight parameters cited by the Examiner, Ans. 10] are instructions to the
operator, but mere information, and there is simply no disclosure or teaching
in Gonzales of a ‘control system actuating the first tactor and second tactor
sequentially’ to provide an instruction when a heading, wind speed, altitude
or angle of attack predetermined value is reached.” Id.
We are not persuaded by Appellant’s arguments (App. Br. 4-5; Reply
Br. 2) that the various flight parameters taught by Gonzales cannot
reasonably be construed as having a “predetermined value,” much less that
such information, e.g., altitude information, may be used to trigger an
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“instruction to the aircraft operator,” as claimed. For example, we conclude
that it would be obvious to compare current altitude information with a
predetermined altitude in order to provide a warning, i.e., “instruction” to the
pilot to avoid impacting with the ground. Similarly, we find that it would be
obvious to use aircraft spatial orientation information, as taught by
Gonzales, to provide navigational instructions to the pilot.
We therefore agree with the Examiner’s interpretation that Gonzales
teaches or suggests a “control system [that] actuat[es] the first tactor and the
second tactor sequentially when the variable reaches a first predetermined
value to provide an instruction to the aircraft operator,” as recited in claim 1.
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s
characterization of the cited art and related claim construction. Therefore,
we sustain the Examiner’s obviousness rejection of independent claim 1. As
Appellant has not provided separate arguments with respect to independent
claim 18, we similarly sustain the Examiner’s rejection of this claim under
35 U.S.C. § 103(a). For the same reasons, we also sustain the rejections of
claims 2-16 that depend from claim 1.
2. § 103(a) Rejection of Claim 17
We disagree with Appellant’s conclusions with respect to claim 17,
and we adopt as our own (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and (2) the reasons
and rebuttals set forth by the Examiner in the Examiner’s Answer in
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response to Appellant’s Arguments. However, we highlight and address
specific findings and arguments regarding claim 17 for emphasis as follows.
Issue 2
Appellant argues (App. Br. 5) the Examiner’s rejection of claim 17
under 35 U.S.C. § 103(a) as being unpatentable over Gonzales is in error.
These contentions present us with the following issue:
Did the Examiner err in finding that Gonzales teaches or suggests the
limitation in dispute, i.e., “actuating a first tactor and a second tactor
sequentially when a variable reaches a first predetermined value to provide
an instruction to the aircraft operator,” as recited in claim 17?
Analysis
Appellant contends, “[c]laim 17 is a method claim, and Gonzales does
not show or teach actuating tactors sequentially when any variable reaches a
first ‘predetermined’ value . . . [and] there appears to be no predetermined
value in Gonzales at all . . . [n]or is any instruction provided as claimed.”
App. Br. 5.
Although Appellant’s argument may appear to be a separate argument
for patentability, we find that the patentability of independent of claim 17
turns on the same issue as presented with respect to independent claim 1.
We therefore incorporate the Examiner’s analysis of claim 1, cited supra, as
well as our findings associated therewith. With respect to Appellant’s
additional contention that Gonzales’ tactors are not “sequentially” activated,
we note Gonzales’ teaching that “[a] control circuit is electrically connected
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to the electrical power source and the tactile stimulator array for
independently and sequentially controlling each vibratory stimulator.”
Gonzales col. 10:53-56.
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s
characterization of the cited art and related claim construction. Therefore,
we sustain the Examiner’s obviousness rejection of independent claim 17.
3. § 103(a) Rejection of Claim 19
We disagree with Appellant’s conclusions with respect to claim 19,
and we adopt as our own (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and (2) the reasons
and rebuttals set forth by the Examiner in the Examiner’s Answer in
response to Appellant’s Arguments. However, we highlight and address
specific findings and arguments regarding claim 19 for emphasis as follows.
Issue 3
Appellant argues (App. Br. 5; Reply Br. 3) the Examiner’s rejection of
claim 19 under 35 U.S.C. § 103(a) as being unpatentable over Gonzales is in
error. These contentions present us with the following issue:
Did the Examiner err in finding that Gonzales teaches or suggests,
“the instruction is a corrective action,” as recited in dependent claim 19?
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Analysis
Appellant contends, “Gonzales does not teach corrective action and
the Office Action provides no reason or motivation or any discussion of why
one of skill in the art would so modify Gonzales.” App. Br. 5.
In response, the Examiner finds a corrective action is one example of
a number of instructions that Gonzales’ invention may convey. Ans. 10.
For example, we note Gonzales teaches actuating tactile communication
devices to represent spatial orientation information (col. 16:9-17, “artificial
horizon”), or to provide instructions in connection with an airplane’s
instrument landing system (ILS). See Gonzales col. 10:1-21 (the pilot flies
the airplane in accordance with the lines being “traced” across their skin by
the stimulators). We find a “corrective action” to be a form of instruction.
We therefore conclude that it would be obvious to sequentially activate
Gonzales’ vibromechanical stimulators to indicate a corrective action.
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s
characterization of the cited art and related claim construction. Therefore,
we sustain the Examiner’s obviousness rejection of dependent claim 19.
4. § 103(a) Rejection of Claim 20
We disagree with Appellant’s conclusions with respect to claim 20,
and we adopt as our own (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and (2) the reasons
and rebuttals set forth by the Examiner in the Examiner’s Answer in
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response to Appellant’s Arguments. However, we highlight and address
specific findings and arguments regarding claim 20 for emphasis as follows.
Issue 4
Appellant argues (App. Br. 6) that the Examiner’s rejection of claim
20 under 35 U.S.C. § 103(a) as being unpatentable over Gonzales is in error.
These contentions present us with the following issue:
Did the Examiner err in finding that Gonzales teaches or suggests the
limitation in dispute, i.e., “wherein first and second tactors move
sequentially in a first direction, and the instruction is to turn an aircraft in the
direction of the first direction,” as recited in claim 20?
Analysis
Appellant contends “[t]he Final Office Action does not discuss the
actual claim language or provide any reason why one skill[ed] in the art
would provide the claimed limitation . . . [and] Gonzales does not teach the
claimed language, and as per MPEP 2144, withdrawal of the rejection is
respectfully requested.” App. Br. 6.
In response, the Examiner finds Gonzales’ stimulators are sequentially
actuated to convey the instruction or information. Ans. 10 (citing Gonzales
col. 10:56). We further note Gonzales teaches or suggests navigational
information being conveyed by tactile communication. For example,
The tactile array could be programmed to receive data from the
ILS and graphically represent that data tactually across the
pilot’s skin in the form [of] a horizontal line to indicate the
airplane's relative position to the glide path, and a vertical line
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to represent the airplane’s relative position to the runway
centerline. The array would “trace” a horizontal line, to be
followed by a vertical line, and then repeat the process as
quickly or as slowly as desired, updating the information from
the ILS instrumentation as often as needed. In this fashion, the
pilot may then fly the airplane to the lines being “traced” across
their skin much as they would fly their airplane to the lines
visually displayed on their cockpit ILS instruments. The pilot
could feasibly land the plane without using, or relying on, any
other cockpit instruments, or without visual cues through the
cockpit windows.
Gonzales col. 10: 6-21. We conclude Gonzales’ teaching of tactually
“tracing” a line which the pilot attempts to “fly to” renders obvious the
limitation in dispute in claim 20, i.e., “wherein first and second tactors move
sequentially in a first direction, and the instruction is to turn an aircraft in the
direction of the first direction.”
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s
characterization of the cited art and related claim construction. Therefore,
we sustain the Examiner’s obviousness rejection of dependent claim 20.
CONCLUSION
The Examiner did not err with respect to the unpatentability rejection
of claims 1-20 under 35 U.S.C. § 103(a) over Gonzales, and the rejection is
sustained.
DECISION
The decision of the Examiner to reject claims 1-20 is affirmed.
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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)(1)(iv).
AFFIRMED

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