Ex Parte Stayton et al

Patent Trial and Appeal Board

Jul 25, 2017

13206369 (P.T.A.B. Jul. 25, 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.
13/206,369 08/09/2011 Gregory T. Stayton 050847.00371 3690
23619 7590 07/27/2017
Squire Patton Boggs (US) LLP
PHX-IP&T-S PB
8000 Towers Crescent Drive
14 th Floor
Tysons Corner, VA 22182
EXAMINER
CHEN, SHELLEY
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
07/27/2017 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):
PHXIPDOCKET @ SquirePB .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY T. STAYTON, MARK D. SMITH, and
HEIDI A. TOMOOKA
Appeal 2016-004847
Application 13/206,369 1
Technology Center 3600
Before BRUCE R. WINSOR, JOSEPH P. LENTIVECH, and
SHARON FENICK, Administrative Patent Judges.
WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1, 3—12. 14—21, and 36-40, which constitute all of the claims pending
in this application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 2,
13, and 22—352 are cancelled. Br. 5.
'The real party in interest identified by Appellants is Aviation
Communication & Surveillance Systems LLC. Br. 3.
2 Although the Examiner indicates claims 22—35 are withdrawn from
consideration (Final Act. 1), claims 22—35 were withdrawn and cancelled by
an amendment filed June 18, 2014.
Appeal 2016-004847
Application 13/206,369
We affirm.
STATEMENT OF THE CASE
Appellants’ disclosed invention may be used to determine that an
aircraft reported to be airborne “is actually a falsely reported aircraft, i.e., a
‘spoof aircraft.” Spec. 128. Accordingly, the disclosed invention relates to
“[s]poof detection ... by passive listening, active interrogation, and other
techniques . . . [and to] reporting and displaying information relating to
detected spoofing.” Spec. 12. Claim 1, which is illustrative, reads as
follows:
1. A method, comprising:
receiving, on a device, a signal providing a report for an
aircraft;
determining, with the device, a first parameter for the
aircraft from information in the report;
determining, with the device, a second parameter for the
aircraft from at least one signal characteristic of the signal; and
determining, with the device, a validity status of the
report based on comparing the first parameter and the second
parameter,
wherein the device is comprised in own aircraft.
The Examiner relies on the following prior art in rejecting the claims:
Morrel US 3,208,064 Sept. 21, 1965
Smith US 2006/0119515 A1 June 8, 2006
Cotton et al. US 2008/0030375 A1 Feb. 7, 2008
Lanzkron US 2009/0322586 Al Dec. 31, 2009
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Claims 1, 3—12, 14—21, and 36-40 stand rejected under 35 U.S.C.
§ 103(a)3 as being unpatentable over Lanzkron and Smith. See Final Act. 3—
7.
Claims 1, 3—12, 14—21, and 36-40 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Lanzkron and Cotton et al. (hereinafter
“Cotton”). Final Act. 7—11.
Claims 5—7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lanzkron and Morrel. See Final Act. 12—13.
Rather than repeat the arguments here, we refer to the Appeal Brief
(“Br.” filed Apr. 20, 2015) and the Specification (“Spec.” filed Aug. 9, 2011
amended Oct. 18, 2011) for the positions of Appellants and the Final Office
Action (“Final Act.” mailed July 9, 2014) and Examiner’s Answer (“Ans.”
mailed Jan. 25, 2016) for the reasoning, findings, and conclusions of the
Examiner. Only those arguments actually made by Appellants have been
considered in this decision. Arguments that Appellants did not make in the
Briefs have not been considered and are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(iv) (2014).
ISSUES
The issues presented by Appellants’ arguments are as follows:
Does the Examiner err in incorporating Lanzkron’s method and
device for preventing spoofing of Automatic Dependent Surveillance
3 All prior art rejections are under the provisions of 35 U.S.C. in effect prior
to the effective date of the Leahy-Smith America Invents Act of 2011. Final
Act 2.
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Broadcast (ADS-B) (Spec. 13) targets (See Lanzkron, Title, Abstract) into
the avionics systems carried by Smith’s or Cotton’s aircraft in the rejection
of claim 1?
Does the Examiner err in concluding that it would have been obvious
over Lanzkron and Smith or Cotton combined with well-known knowledge
in the art, as evidenced by Morrel, or, in the alternative, over Lanzkron and
Morrel, to “determin[e], with the device, a validity status of the report based
on comparing the first parameter and the second parameter, wherein the first
parameter and/or the second parameter comprises a bearing of the aircraft
with respect to own aircraft,” as recited in claim 5?
Does the Examiner err in concluding that it would have been obvious
over Lanzkron and Smith or Cotton combined with well-known knowledge
in the art, as evidenced by Morrel, or, in the alternative, over Lanzkron and
Morrel, to “determin[e] the first parameter comprises calculating a bearing
to the aircraft with respect to own aircraft based on a position in the report
and a position of own aircraft,” as recited in claim 6?
Does the Examiner err in concluding that it would have been obvious
over Lanzkron and Smith or Cotton combined with well-known knowledge
in the art, as evidenced by Morrel, or, in the alternative, over Lanzkron and
Morrel, to “determin[e] the second parameter comprises calculating a
bearing based on a time, amplitude, and/or phase difference of arrival the
signal,” as recited in claim 7?
Does the Examiner err in concluding that it would have been obvious
over Lanzkron and Smith or Cotton for
the first parameter and/or the second parameter [to] comprise[]
at least one of the following: range of the aircraft; range rate of
the aircraft; range acceleration of the aircraft; bearing of the
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aircraft; bearing rate of the aircraft; bearing acceleration of the
aircraft; altitude of the aircraft; altitude rate of the aircraft; or
altitude acceleration of the aircraft,
as recited in claim 10?
Does the Examiner err in concluding that it would have been obvious
over Lanzkron and Smith or Cotton for “the first parameter and/or the
second parameter comprises a range of the aircraft with respect to own
aircraft,” as recited in claim 20?
Does the Examiner err in concluding that it would have been obvious
over Lanzkron and Smith or Cotton to “send[] a request for the report [for an
aircraft]” “prior to receiving the signal providing the report,” as recited in
claim 37?
Does the Examiner err in concluding that it would have been obvious
over Lanzkron and Smith or Cotton that “determining the second parameter
comprises determining a range of the aircraft based on a time when the
request was sent and the time of arrival of the signal,” as recited in claim 38?
ANALYSIS
The Examiner has cumulatively rejected all pending claims over a
combination of Lanzkron with Smith and, in the alternative, with Cotton. To
the extent the Examiner’s reliance on Smith and Cotton, and Appellants’
arguments traversing the rejections over Lanzkron with Smith and with
Cotton, are substantially the same, we discuss the rejections by referring
primarily to the rejection over Lanzkron and Smith, it being understood that,
except where specifically noted, our comments apply in the same way to the
rejection over Lanzkron and Cotton.
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Application 13/206,369
Claim 1
The Examiner finds that Lanzkron teaches an anti-spoofing method
having all of the limitations of claim 1 except Lanzkron does not teach that a
device implementing the method “is comprised in own aircraft,” as recited in
claim 1. Final Act. 3. The Examiner finds it would have been obvious to
place Lanzkron’s device in an aircraft “as suggested by Lanzkron and taught
by Smith in order to detect spoofing even when away from ground stations
and/or to reduce the risk of collision with spoofed or unspoofed aircraft, with
predictable results.”
Appellants contend “it would be contrary to common sense in air
traffic control to place an air traffic control system in an aircraft as distinct
from the traditional ground placement.” Br. 11. Appellants continue “[t]he
proposed motivation of being able to detect spoofing ‘even when away from
ground stations’ is clear error, because the point of Lanzkron’s system is to
use ground-based air traffic control to assist aircraft.” Br. 12. Additionally
Appellants assert “Lanzkron does not envision an air traffic control system
without ground stations, and such a system is contrary to the conventional
wisdom regarding the appropriate place for air traffic control. Thus,
replacement of the system of Lanzkron with a single aircraft is not an
obvious modification to Lanzkron.” Br. 12—13. We disagree.
To justify combining reference teachings in support of a
rejection it is not necessary that a device shown in one reference
can be physically inserted into the device shown in the
other. The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the
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references would have suggested to those of ordinary skill in the
art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). As
pointed out by the Examiner, “[t]he proposed modification does not replace
the traditional ground stations of an air traffic control system .... The
proposed modification simply adds another device to an aircraft, wherein
said device is capable of performing some of the same functions as a ground
station, as taught by Smith.” Ans. 3. For emphasis, we note that the
relocation of the spoofing detection system from the ground stations to an
aircraft is merely a rearrangement of the parts of Lanzkron’s system. See
In reJapikse, 181 F.2d 1019, 1031—32 (CCPA 1950) (claims to a hydraulic
power press which read on the prior art except with regard to the position of
the starting switch were held unpatentable because shifting the position of
the starting switch would not have modified the operation of the device.); In
reKuhle, 526 F.2d 553, 555 (CCPA 1975) (the particular placement of a
contact in a conductivity measuring device was held to be an obvious matter
of design choice); cf. Ex parte Chicago Rawhide Mfg. Co., 223 USPQ 351,
353 (BPAI 1984) (non-precedential) (holding there must be a reason apart
from appellant’s specification to rearrange the parts).
Appellants contend moving Lanzkron’s device into Smith’s aircraft
would change Lanzkron’s principle of operation because “the fundamental
principle of operation of Lanzkron's system is spatial separation of the two
stations. . . . There is no hint or suggestion that these two receivers could be
in the same location (i.e., in own aircraft).” Br. 12. Appellants continue,
“[fjurthermore, Lanzkron is explicit that ‘the ADS-B system depends on
aircraft GPS data being transmitted to ground stations . . . .’ (paragraph
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Application 13/206,369
[0044]). ... In this case, the proposed modification would change the
principle of operation, since the ground stations would no
longer be used.” Br. 13 (first ellipsis in original). We are not persuaded of
error. As explained by the Examiner,
[t]he proposed modification does not replace the two stations
with a single station, contrary to the Applicant's suggestion. The
proposed modification would still include two stations, spaced
apart at different locations on the aircraft.
Please note that the proposed modification would also not
replace the ground stations, as explained in the section above, but
simply add new stations in the aircraft.
Ans. 4. For emphasis, we note that Lanzkron contemplates implementing its
device for preventing spoofing of ADS-B targets in a single station having
two antennae. Compare Lanzkron || 6, 53, claim 8, with Spec., Fig. 8.
Appellants contend “Smith has nothing to do with moving ground
station functionality into aircraft. The cited. . . [passages of Smith] merely
disclose that an aircraft can receive an ADS-B signal, which is already
mentioned in Lanzkron.” Br. 13. We disagree. Smith clearly teaches that
aircraft safety electronics may advantageously be incorporated into an
aircraft. See generally Smith, Figs. 1—6. That Lanzkron may cumulatively
teach or suggest incorporating aircraft safety electronics into an aircraft does
not demonstrate error in the rejection. See Final Act. 4 (“as suggested by
Lanzkron and taught by Smith”).
Appellants have not persuaded us of error in the rejection of claim 1.
Accordingly, we sustain the rejection over Lanzkron and Smith of (1) claim
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1; (2) independent claims 12,4 36, and 40, which are not separately argued
with particularity; and (3) claims 3, 4, 8, 9, 11, 14, 15, 19, and 21, which
variously depend from claims 1, and were not separately argued with
particularity. For substantially the same reasons we sustain the rejection of
claims 1, 3, 4, 8, 9, 11, 12, 14, 15, 19, 21, 36, and 40 over Lanzkron and
Cotton. To the extent Appellants argue the patentability of claims 5, 6, 7,
10, 16, 17, 18, 20, 37, 38, and 39 based on their similarity to, or dependency
from, claims 1,12, and 36 (see, e.g., Br. 14 (discussing claim 5), we are
unpersuaded by such arguments for substantially the same reasons.
Claim 5
Cumulative with rejections over Lanzkron and Smith and Lanzkron
and Cotton, combined with what is well-known in the art, as evidenced by
Morrel (see Final Act. 5—6, 10-11), claim 5 is rejected over Lanzkron and
Morrel (see Final Act. 12—13). Regardless of how the rejections are
described by the Examiner (cf. In re Bush, 296 F.2d 491, 496 (CCPA 1961)
(explaining that the order in which prior art references are cited to the
Applicant is of no significance, but merely a matter of exposition)), the
salient question regarding claim 5 whether Morrel, when read together with
Lanzkron (with or without Smith or Cotton), teaches or suggest using
“bearing of the [target] aircraft with respect to own aircraft” in Lanzkron’s
anti-spoofing method.
Appellants contend “since Lanzkron is designed to work with two
ground stations, rather than an aircraft, Lanzkron has no obvious benefit
4 Appellants purport to argue claims 3, 4, 8, 9, 11, 12, 14, 15, 19, 21, 36, 39,
and 40 separately, but no separate substantive arguments are made particular
to these claims. See, e.g., Br. 18—19 (discussing claim 12).
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from making the first or second parameter a bearing of the aircraft with
respect to one or other of the two ground stations, nor with respect to some
greater entity encompassing both ground stations. “ Br. 14—15. This
argument, which relies on the arguments presented for claim 1, is
unpersuasive for the reasons discussed above regarding claim 1.
Appellants contend “there is no teaching or suggestion to us[e]
‘bearing of the aircraft’ in the comparison.” Br. 15. This conclusory
argument, with no discussion of substance of the rejection articulated by the
Examiner, is unpersuasive. See 37 C.F.R. § 41.37(c)(l)(iv) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”); see also In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”).
With regard to the rejection of claim 5 over Fanzkron and Morrel the
Examiner concludes “it would have been obvious at the time of the
applicant's invention for Fanzkron to use the bearing as the parameter in
place of or in addition to the position, as taught by Morrel, in order to reduce
the risk of aircraft collision, with predictable results.” Final Act. 13
(emphasis added). Appellants contend “[tjhere is no evidence of record, nor
any reason of record, to suppose that using bearing in place of position
would in any way reduce the risk of aircraft collision. There is nothing to
suggest such a benefit. Thus, the rejection should not be sustained on these
grounds.” Br. 40. We are not persuaded of error. The reason for combining
references need not come from the references themselves. See KSR Int 7 Co.
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v. Teleflex Inc., 550 U.S. 398, 419 (2007) (“The obviousness analysis cannot
be confined by a formalistic conception of the words teaching, suggestion,
and motivation, or by overemphasis on the importance of published articles
and the explicit content of issued patents.”); see also id. at 421 (“Rigid
preventative rules that deny factfinders recourse to common sense . . . are
neither necessary under our case law nor consistent with it.”). Here the
Examiner has concluded, based on the common-sense finding that additional
information, in particular the bearing of the target aircraft from the own
aircraft position, would predictably improve collision-avoidance, that the
combination of Lanzkron and Morrel would have been obvious. Appellants
do not identify any specific error in the Examiner’s finding.
Appellants have not persuaded us of error in the rejection of claim 5.
Accordingly, we sustain the rejection over Lanzkron and Smith of (1) claim
5; and (2) claim 16, which depends from claim 12 and is argued on
substantially the same basis as claim 5. For substantially the same reasons
we sustain the rejections of claims 5 and 16 over Lanzkron and Cotton and
claim 5 over Lanzkron and Morrel. To the extent Appellants argue the
patentability of claims 6 and 7 based on their dependency from claim 5, we
are unpersuaded by such arguments for substantially the same reasons.
Claims 6 and 7
Claims 6 and 7, which depend from claim 5, are rejected over the
same combinations of references as claim 5. Appellants contend that
comparing a bearing rather than a position to Lanzkron’s phase difference
signal would change Lanzkron’s principle of operation, rendering Lanzkron
inoperable for its intended purpose. Br. 15—17 (citing Lanzkron | 59, Fig. 4
(item 410).
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The Examiner explains, as follows:
It is well known in the art to calculate bearing based on the
reported positions of two objects. If Lanzkron were modified to
use bearing as the comparison parameter (as in the rejection for
claim 5), the simplest and most obvious method to calculate the
first bearing parameter given the reported GPS position of the
aircraft and the known position of own aircraft (as in Lanzkron)
would be to calculate the bearing using these two positions, as
claimed.
This modification would not remove the interferometry
(phase difference) aspect of Lanzkron, as argued by the
Applicant, because the interferometry would still be used to
determine the second bearing parameter which is compared to
the first bearing parameter. . . . Lanzkron derives the angle of
incidence (i.e. the bearing) based on the phase information
(interferometry) for the second parameter. Thus the modification
would not change the principle of operation of Lanzkron or
render the reference inoperable.
Ans. 6—7 (discussing claim 6). furthermore, the Examiner explains,
“Lanzkron discloses calculating a bearing based on a phase difference of
arrival of the signal (fig 4: 406, P58, etc: angle of incidence = bearing), as
required by [claim 7].” Ans. 7. We agree with the Examiner.
Appellants have not persuaded us of error in the rejection of claims 6
and 7. Accordingly, we sustain the rejection over Lanzkron and Smith of (1)
claims 6 and 7; and (2) claims 17 and 18, which depend from claim 12 and
are argued on substantially the same basis as claims 6 and 7. Lor
substantially the same reasons we sustain the rejections of claims 6, 7, 17,
and 18 over Lanzkron and Cotton and claims 6 and 7 over Lanzkron and
Morrel.
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Claim 10
Appellants’ arguments with regard to claim 10 are substantially the
same as presented for claims 6 and 7. Compare Br. 17—18, with id. at 15—
16. The arguments are unpersuasive for at least the same reasons as for
claims 6 and 7. See also Ans. 8—9. In addition, the Examiner explains, and
we agree,
the altitude of the aircraft is a component of the GPS position of
the aircraft as disclosed by Lanzkron. Thus if the parameters
comprise the position of the aircraft, then the parameters also
comprise the altitude of the aircraft, as required by the claim.
This requires no modification of Lanzkron.
Ans. 9.
Appellants have not persuaded us of error in the rejection of claim 10.
Accordingly, we sustain the rejection over Lanzkron and Smith of claim 10.
For substantially the same reasons we sustain the rejections of claim 10 over
Lanzkron and Cotton.
Claim 20
The Examiner finds and concludes as follows:
Lanzkron does not explicitly disclose using the range as
the parameter. However, it is well known in the art to derive
range from position, and/or to perform computations using range
in place of position.
Thus it would have been obvious at the time of the
applicant's invention for Lanzkron to use the range as the
parameter in place of the position, as suggested by Lanzkron and
well known in the art, in order to simplify computations
performed on the signal characteristics, with predictable results.
Final Act. 7. The Examiner further explains, “[i]t is easier to calculate
range to an aircraft than absolute position of the aircraft from the phase
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information. Thus the modification would simplify computations performed
on the signal characteristics.” Ans. 11.
Appellants contend as follows:
Even assuming that [the Examiner’s]. . . general statements were
true, it does not follow that making such derivations would be an
obvious modification to Lanzkron. Such modifications would
serve no obvious purpose and provide no obvious benefit to the
system of Lanzkron. Thus, there is nothing that would motivate
the modification.
The Office Action alleged that the motivation would be "to
simplify computations performed on the signal characteristics."
There is no evidence to support the allegation that this
modification would simplify any computation in Lanzkron. The
Office Action has not identified any particular computation that
would be simplified, and the rejection cannot be supported by
bare allegations.
Br. 23.
We are not persuaded of error. Implicit in the Examiner’s findings is
the recognition that one of ordinary skill in the art understands that the
relative position of the target aircraft to own aircraft can be expressed, at
least in part, as a range (distance) and a bearing (direction). See, e.g., Morrel
col. 3,11. 26—30. The Examiner finds, and we agree, that one of ordinary
skill in the art would recognize that in analyzing Lanzkron’s phase
information, it would be simpler to calculate and compare one part of the
relative position expression, e.g., range, than to calculate and compare two
parts of the relative position expression, i.e., range and bearing.
Appellants have not persuaded us of error in the rejection of claim 20.
Accordingly, we sustain the rejection over Lanzkron and Smith of claim 20.
For substantially the same reasons we sustain the rejections of claim 20 over
Lanzkron and Cotton.
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Claim 37 and 38
Claim 37 recites “prior to receiving the signal providing the report,
sending a request for the report.” Claim 38, which depends from claim 37,
recites that “determining the second parameter comprises determining a
range of the aircraft based on a time when the request was sent and the time
of arrival of the signal.” Appellants contend regarding claim 37 “[t]he
Office Action does not appear to point to any particular place in Lanzkron or
Smith as allegedly disclosing these features, and the features such as a
request cannot be found in the cited prior art.” Br. 24. Appellants’
contentions regarding claim 38 are similar. See Br. 24—25.
The Examiner explains as follows:
ft is well known in the art to send a request for a report
prior to receiving the report, ft would have been obvious for
Lanzkron to do so, as well known in the art, in order to avoid the
unnecessary transmission and reception of unwanted reports,
with predictable results.
Ans. 12 (discussing claim 37). The Examiner further explains as follows:
ft is well known in the art to determine a range based on a
time when the request was sent and the time of arrival of the
signal. It would have been obvious for Lanzkron to do so, as well
known in the art, in order to calculate the range very easily and/or
verify a range computed using phase information, with
predictable results.
Id. (discussing claim 38).
We agree with the Examiner. As admitted by Appellants, “[t]he
current secondary surveillance radar relies on a radar interrogation of an
airborne aircraft transponder that replies after a fixed delay. The total round
trip time for a reply, minus the fixed delay, is used to calculate the range to
the airborne aircraft.” Spec. 13 (emphasis added).
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Appellants have not persuaded us of error in the rejection of claims 37
and 38. Accordingly, we sustain the rejection over Lanzkron and Smith of
(1) claims 37 and 38; and (2) claim 39, which depends from claim 37, and
was not separately argued with particularity. For substantially the same
reasons we sustain the rejection of claims 37—39 over Lanzkron and Cotton.
DECISION
The decision of the Examiner to reject claims 1, 3—12. 14—21, and 36—
40 is affirmed.
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). See 37 C.F.R.
§§ 41.50(f), 41.52(b).
AFFIRMED
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