Ex Parte Ribbe et al

Patent Trial and Appeal Board

Mar 31, 2017

12640540 (P.T.A.B. Mar. 31, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/640,540 12/17/2009 James A. Ribbe 08E343-US-NP 8960
18227 7590 04/04/2017
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EXAMINER
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES A. RIBBE, NASRIN AZORDEGAN, and
JOHN B. MORTON
Appeal 2015-005344
Application 12/640,540
Technology Center 3600
Before EDWARD A. BROWN, GEORGE R. HOSKINS, and
LEE L. STEPINA, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James A. Ribbe et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 1—27.1 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM and enter NEW GROUNDS OF REJECTION.
1 Thales-Raytheon Systems Company LLC, is identified as the real party in
interest. Appeal Br. 1.
Appeal 2015-005344
Application 12/640,540
INVENTION
Claims 1, 10, and 19 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter.
1. An airspace deconfliction system comprising:
a deconfliction tool comprising a computer-
readable medium storing code executable by a computer
processor of a computing system, the computing system
coupled to a data repository storing a plurality of records
that each describes an airspace object and a geographic
location associated with the airspace object, the
deconfliction tool operable to:
determine, for at least one record representing a
future route to be taken by at least two aircraft, a conflict
in the geographic location associated with the one record
and the geographic location associated with at least one of
the other records, the conflict determined in response to a
first buffer space having a predetermined shape that
surrounds a first airspace object and that traverses the
future route along with the first airspace object
intersecting a second buffer space having the
predetermined shape that surrounds a second airspace
object and that traverses the future route along with the
second airspace object, the first and second predetermined
shapes of the first and second buffer spaces remaining
constant as a position of first and second airspace objects
changes while traversing the future route.
Appeal Br. 13 (Claims App.).
REJECTIONS
1. Claims 1—27 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
2. Claims 1, 3, 6, 7, 10, 12, 15, 16, 19, 21, 24, and 25 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Wise (US 2010/0145599 Al,
published June 10, 2010) and Lai (US 6,564,149 B2, issued May 13, 2003).
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Application 12/640,540
3. Claims 2, 11, and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wise, Lai, and Erzberger (US 6,314,362 Bl, Nov. 6,
2001).
4. Claims 4, 13, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wise, Lai, and Harkness, “An Architecture for System-
Wide Information Management,” 25th Digital Avionics System Conference,
pp. 1—13 (Oct. 15, 2006) (hereinafter “Harkness”).
5. Claims 5, 14, and 23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wise, Lai, and Harrie et al., “Real-Time Data
Generalisation and Integration using JAVA,” National Land Survey of
Sweden, pp. 29-34 (2002).2
6. Claims 8, 9, 17, 18, 26, and 27 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wise, Lai, and Zobell (US 2003/0078719 Al,
Apr. 24, 2003).
ANALYSIS
Claims 1—27 as failing to comply with the written description requirement
Independent claims 1,10, and 19 each recite the limitation “the first
and second predetermined shapes of the first and second buffer spaces
remaining constant as a position of first and second airspace objects
changes while traversing the future route.” Appeal Br. 13—16 (Claims App.)
(emphasis added) (hereafter “buffer shape limitation”). The Examiner
determines that the original disclosure “does not describe the shape of the
buffers as remaining constant along the future route.” final Act. 3.
2 We refer to this reference as “Johansson” consistent with the Examiner’s
usage.
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Application 12/640,540
For the written description requirement of 35 U.S.C. § 112, first
paragraph, “the test for sufficiency is whether the disclosure of the
application relied upon reasonably conveys to those skilled in the art that the
inventor had possession of the claimed subject matter as of the filing date.”
See AriadPharm., Inc. v. EliLilly & Co., 598 F.3d 1336, 1351 (Fed. Cir.
2010) (en banc). In order to show “possession,” “the [Specification must
describe an invention understandable to that skilled artisan and show that the
inventor actually invented the invention claimed.'” Id. (emphasis added).
“[Ujnder proper circumstances, drawings alone may provide a ‘written
description’ of an invention as required by § 112.” Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1565 (Fed. Cir. 1991). “[I]t is well established
that patent drawings do not define the precise proportions of the elements
and may not be relied on to show particular sizes if the specification is
completely silent on the issue.” Hockerson-Halberstadt, Inc. v. Avia Group
Intern., Inc. 222 F.3d 952, 956 (Fed. Cir. 2000).
Appellants contend that Figure 3 provides evidence of possession of
the claimed subject matter. Reply Br. 3. Particularly, Appellants state:
Turning to Figure 3 of Appellants’] originally filed application,
the buffer space 40 is shown at a first time of the route tl as
having a first shape and then traverses along the future route until
it reaches a time t2 which is shown as having the same shape the
buffer space had at time tl. Therefore, one of ordinary skill in
the art could clearly evaluate that the shape of the buffer space
40 remains constant while travelling along the future route 24
between times tl and t2.
Id.
The Examiner determines, however, that Appellants’ drawings do not
define precise proportions as they are not drawn to scale, and “one of
ordinary skill would not be capable of fleshing out the words from the visual
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Application 12/640,540
representation of the drawings.” Ans. 3, 4. Specifically, the Examiner
states, “it would not have been clear to one of ordinary skill in the art that
the buffer spaces are in fact constant as a position of the buffer spaces
traverse the future route(s) based solely upon the drawings of the current
application.” Id. at 4.
Appellants reply that Figure 3 is relied upon to show that the shape of
the buffer space at time tl is the same as the buffer space at time t2, not to
show a precise proportion, or to define precise proportions, of the buffer
spaces. Reply Br. 2—3. We agree with Appellants that Figure 3 does not
need to show that buffer space 40 has the same proportions at time tl and t2
to provide support for claim 1. Figure 3 shows that buffer space 40 at first
time tl has a first shape (i.e., a first three-dimensional cylindrical shape) and
then traverses along the future route until it reaches time t2, at which buffer
space has a second shape (i.e., a second three-dimensional cylindrical
shape). See Spec. 12:5—8. As shown, the second shape at time t2 is the
same as the first shape at time tl. Also, Appellants’ Specification states that
“[a]t time tl, no conflict exists. However, at time t2, a conflict exists
wherein both buffer spaces 40 occupy the same space at the same future
timer Id. at 12:12—14 (emphasis added). This description supports
Appellants’ position that the original disclosure supports claim 1.
Accordingly, we do not sustain the rejection of claims 1—27 under 35
U.S.C. § 112, first paragraph, written description requirement.
Claims 1, 3, 6, 7, 10, 12, 15, 16, 19, 21, 24, and 25
as unpatentable over Wise and Lai
Appellants present argument for the patentability of claims 1,10, and
19 as a group, and do not present separate argument for dependent claims 3,
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Application 12/640,540
6, 7, 12, 15, 16, 21, 24, and 25. Appeal Br. 8—11. We select claim 1 to
decide the appeal as to the rejection, with claims 3, 6, 7, 10, 12, 15, 16, 19,
21, 24, and 25 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
As to claim 1, the Examiner finds that Wise discloses all limitations
except for the buffer shape limitation. Final Act. 4—5. The Examiner finds
that Wise discloses a first airspace object (aircraft 302), a second airspace
object (aircraft 308), a first buffer space (predicted protected airspace 306),
and a second buffer space (predicted protected airspace 312). Id. at 4. The
Examiner finds that Lai teaches that the shape of buffer space 250 remains
constant as a position of an airspace object changes while traversing the
future route. Id. at 5 (citing Lai, col. 12,11. 11—54, Figs. 1—4); see also Ans.
8. The Examiner concludes that it would have been obvious to modify the
system of Wise to have the buffer shape limitation, as taught by Lai, “for the
purpose[] of having the buffers shapes being constant when sensors aren’t
available to more accurately display a shape of the buffer shapes.” Final
Act. 5.
Figures 3 and 4 of Wise show current and future separation distances
of first aircraft 302 and nearby second aircraft 308. Wise Tflf 30, 32, Figs. 3,
4. First aircraft 302 has projected flight trajectory 304 and second aircraft
308 has projected flight trajectory 310. Id. 132, Figs. 3, 4. An indicator of
a predicted protected air space 306 is displayed ahead of first aircraft 302
and an indicator of a predicted protected air space 312 is displayed ahead of
aircraft 308. Id. Tflf 32—33, Figs. 3, 4. Figure 4 of Wise “indicates an area of
overlap 320 in the predicted protected airspaces 306, 312 projected for the
first aircraft 302 and 308.” Id. 134, Fig. 4.
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Appellants contend that in Wise, predicted protected air spaces
306/312 are not surrounding aircrafts 302/308 and do not travel with
aircrafts 302/308 along routes 304/310. Appeal Br. 10. Appellants point out
that Wise discloses that predicted protection spaces 306/312 are displayed
ahead of aircrafts 302/308. Id. Appellants contend that these figures show
first aircraft 302 and second aircraft 308 at first positions outside of
estimated predicted protection airspaces 306/312 at a first time period, and
then within estimated predicted protection airspaces 306/312 at a later point
in time. Id. Appellants add that Wise states that the vertical display of
Figures 3 and 4 shows “aircraft 308 approaching a fixed predicted
protected] airspace 312 located at an ‘arrival phase of the flight.’” Id.
Therefore, Appellants submit, Wise does not teach or suggest the limitation
[determine] ... a conflict... in response to a first buffer space
having a predetermined shape that surrounds a first airspace
object and that traverses the future route along with the first
airspace object intersecting a second buffer space having the
predetermined shape that surrounds a second airspace object
and that traverses the future route along with the second
airspace object.
Id. (hereinafter “conflict determining limitation”).
Appellants’ contentions are not persuasive. Claim 1 recites that the
first airspace object, first buffer space, second airspace object, and second
buffer space traverse a “future route.” In Wise, predicted protection spaces
306/312 represent future positions of respective aircrafts 302/308. See, e.g.,
Wise H32—33. This is indicated in Wise by aircraft symbols, like those of
aircrafts 302/308, shown within the circular shapes of predicted protection
spaces 306/312. Id. Accordingly, predicted protection spaces 306/312 are
shown to effectively “surround” “future positions” of respective aircrafts
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Application 12/640,540
302/308 along projected flight trajectories 304, 310. Id. Appellants do not
apprise us of any error in the Examiner’s determination, with regard to Wise,
that “one of ordinary skill in the art would understand that the separation
distances of both current and future positions of the buffer zones (306 and
312) would be calculated in order to determine the overlapping of buffer
zones ([306] and 312).” Ans. 7. Such changes in the future positions of
predicted protection spaces 306/312 would be along the projected flight
trajectories. Id. Accordingly, we are not persuaded by Appellants’
contentions that Wise fails to teach the claimed conflict determining
limitation.
Appellants also contend that Lai does not teach the buffer shape
limitation. Appeal Br. 11. Rather, Appellants contend, “Lai, at most,
describes forming a protected airspace zone (PAZ) around only a monitoring
aircraft 200.” Appeal Br. 11.
Lai discloses that Ligures 2A—2C show “it may sometimes be
desirable to monitor for aircraft with conflicting flight paths over a distance
range from the monitoring aircraft 200 by defining, for example, a Protected
Airspace Zone (‘PAZ’) 250 about the monitoring aircraft 200.” Lai, col. 7,
11. 34—38, Pigs. 2A—2C. further, Lai states that “[i]n some instances, the
PAZ 250 may be defined as an upright cylinder having a defined radius S
with the monitoring aircraft 200 as its center.” Id. at col. 7,11. 38-41. PAZ
250 defines a desired separation distance S between monitoring aircraft 250
and another aircraft. Id. at col. 8,11. 5—8, Pigs. 2A—2C. As shown in figures
2A—2C, PAZ 250 has the same circular shape, that is, a shape that remains
constant. Appellants’ contentions with regard to Lai are not persuasive.
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Application 12/640,540
Furthermore, in Wise, as aircrafts 302 and 308 move along their
respective projected flight trajectories 304, 310, associated predicted
protected airspaces 306, 312 will also move along projected flight
trajectories 304, 310. Although we find no explicit description in Wise that
the circular shape of predicted protected airspaces 306, 312 remains constant
during this movement, Figures 3 and 4 show predicted protected airspaces
306, 312 as only having the same shape (i.e., circular). Accordingly, at least
based on these figures, Wise does appear to teach the buffer shape
limitation, although the Examiner determined otherwise.
Consequently, we sustain the rejection of claims 1,10, and 19, and
claims 3, 6, 7, 12, 15, 16, 21, 24, and 25 depending therefrom, as
unpatentable over Wise and Lai. However, because our analysis differs
from the Examiner’s, we designate our affirmance as a new ground of
rejection pursuant to 37 C.F.R. § 41.50(b) to provide Appellants with a fair
opportunity to respond.
Claims 2, 11, and 20 as unpatentable over Wise, Lai, and Erzberger
Claims 4, 13, and 22 as unpatentable over Wise, Lai, and Harkness
Claims 5, 14, and 23 as unpatentable over Wise, Lai, and Johansson
Claims 8, 9, 17, 18, 26, and 27 as unpatentable over Wise, Lai, and Zobell
Claims 2, 4, 5, 8, 9, 11, 13, 14, 17, 18, 20, 22, 23, 26, and 27 depend,
respectively, from claim 1, 10, or 19. Appellants do not present separate
argument for these dependent claims. Appeal Br. 8—11. Accordingly, we
sustain the Examiner’s rejection of these dependent claims for the same
reasons discussed above for the rejection of claims 1, 10, and 19 over Wise
and Lai, and designate our affirmance as a new ground of rejection pursuant
to 37 C.F.R. § 41.50(b).
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Appeal 2015-005344
Application 12/640,540
DECISION
We reverse the Examiner’s decision to reject claims 1—27 under 35
U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement.
We affirm the Examiner’s decision to reject claims 1—27 under 35
U.S.C. § 103(a), and designate our affirmance as a new ground of rejection
pursuant to 37 C.F.R. § 41.50(b).
FINALITY OF 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:
When the Board enters such a non-final decision,
[Appellants], within two months from the date of the
decision, must exercise one of the following two options
with respect to the new ground[s] 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
prosecution will be remanded to the examiner. The new
ground[s] of rejection [are] binding upon the Examiner
unless an amendment or new Evidence not previously of
Record is made which, in the opinion of the examiner,
overcomes the new ground[s] of rejection designated in
this decision. Should the examiner reject the claims,
[Appellants] may again appeal to the Board pursuant to
this subpart.
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board upon
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Application 12/640,540
the same Record. The request for rehearing must address
any new ground of rejection and state with particularity
the points believed to have been misapprehended or
overlooked in entering the new ground of rejection and
also state all other grounds upon which rehearing is
sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED; 37 C.F.R, $ 41.50(b)
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