Ex Parte Wingate

Patent Trial and Appeal Board

Aug 26, 2016

13029333 (P.T.A.B. Aug. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/029,333 02/17/2011 John WINGATE
22429 7590 08/30/2016
HAUPTMAN HAM, LLP
2318 Mill Road
Suite 1400
ALEXANDRIA, VA 22314
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. CONFIRMATION NO.
4928-148 (XA3157) 1520
EXAMINER
MATHEWS, CRYSTAL
ART UNIT PAPER NUMBER
2623
NOTIFICATION DATE DELIVERY MODE
08/30/2016 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):
docketing@ipfirm.com
pair_lhhb@firsttofile.com
EAnastasio@IPFirm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN WINGATE
Appeal2014-006154
Application 13/029,333
Technology Center 2600
Before CARLA M. KRIVAK, MICHAEL J. STRAUSS, and
MICHAEL M. BARRY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-11 and 13-16. Claim 12 is canceled. We have jurisdiction under
35 U.S.C. § 6(b). An Oral Hearing was conducted on June 14, 2016.
We affirm.
THE INVENTION
The claims are directed to monitoring aircraft brake performance.
Spec., Title. Claim 1, reproduced below with additional formatting, is
representative of the claimed subject matter:
Appeal2014-006154
Application 13/029,333
1. A method of monitoring the performance of an aircraft
wheel brake comprising the steps of:
providing an aircraft having a wheel brake, recording
wheel brake control input variable data of a braking event,
calculating a total pseudo-energy demand to be absorbed by the
wheel brake over the braking event from the wheel brake control
input variable data;
recording wheel brake performance output variable data
over at least part of the braking event, calculating a total energy
absorbed by the wheel brake over the braking event from the
wheel brake performance output variable data;
determining a wheel brake energy differential for the
braking event, the wheel brake energy differential being a
difference between (i) the total energy absorbed and (ii) the total
pseudo-energy demand to be absorbed for a healthy wheel brake;
and
comparing the wheel brake energy differential with a
statistical model of normal wheel brake performance to detect
impaired performance of the wheel brake.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Amberg
Scharpf
Hartmann
US 4,822,113 Apr. 18, 1989
US 6,739,675 Bl May 25, 2004
US 2009/0164172 Al June 25, 2009
David Halliday et al., Fundamentals of Physics: Enhanced Problems
Version, 233-34, 246-47 (2003) (John Wiley & Sons, Inc.; Sixth Ed.)
(herein referred to as "Halliday").
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Application 13/029,333
REJECTIONS
The Examiner made the following rejections1:
Claims 1-8, 10, 11, and 13-15 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hartmann, Halliday, and Scharpf. Ans.
3-22.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hartmann, Halliday, Scharpf, and Amberg. Ans. 23.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We disagree with Appellant's
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the Final Office Action from which this appeal is taken
(Final Act. 2-23) and (2) the reasons set forth by the Examiner in the
Examiner's Answer in response to Appellant's Appeal Brief (Ans. 2-20) and
concur with the conclusions reached by the Examiner. We highlight the
following for emphasis.
Appellant nominally faults the Examiner for failing to properly
ascertain the level of skill in the art. App. Br. 9-10. Such argument is
unpersuasive because, in the absence of other evidence addressing the level
of skill, it is presumed to be represented by the references themselves. See,
e.g., In re Oelrich, 579 F.2d 86, 91 (CCPA 1978) ("the PTO usually must
evaluate both the scope and content of the prior art and the level of ordinary
skill solely on the cold words of the literature"); see also In re GPAC Inc., 57
1 The rejection of claims 1 and 15 under 35 U.S.C. § 112(b) has been
withdrawn. Ans. 12.
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Application 13/029,333
F.3d 1573, 1579-80 (Fed. Cir. 1995) (Board did not err in adopting the
approach that the level of skill in the art was best determined by the
references of record). We further disagree "[t]he 'art of physics' is an overly
broad and unspecific standard by which to ascertain the level of skill in the
art." App. Br. 10 (emphasis omitted). To the contrary, one of ordinary skill,
i.e., someone experienced with aircraft braking system design, will be
familiar with the physics involved in the mechanics of braking.
Appellant further faults the Examiner as having inadequate experience
in the pertinent technical art. App. Br. 11-14. We find such argument
unpersuasive. Patent examiners are presumed to have some expertise in
interpreting the references upon which they rely and to be familiar from their
work with the level of skill in the art. Am. Hoist & Derrick Co. v. Sowa &
Sons, Inc., 725 F.2d 1350, 1354 (Fed. Cir. 1984). However, patent
examiners are not "experts" in all technologies involved in the myriad of
applications which come before the Board. Nor is the actual scientific
knowledge of any particular examiner (or member of the Board) relevant.
Western Elec. Co. v. Piezo Tech., Inc. v. Quigg, 860 F.2d 428, 433 (Fed. Cir.
1988) (stating "[i]t is no more appropriate to question a patent examiner's
technical expertise than it is to question the quality of a judge's law school
education or judicial experience" and holding that the district court abused
its discretion in ordering discovery of an examiner's scientific background).
It follows that Appellant's assertion that "[a ]s far as Appellants' [sic]
can ascertain, the Examiner has little, if any, experience" (App. Br. 11) is
irrelevant to any issue before us. The only question becomes whether the
record supports the findings and credibility assessments made in connection
with the rejections in this case.
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Application 13/029,333
Appellant next contends the Examiner erred by finding Scharpf's
disclosure of determining which of two energy values is greater as indicated
by the result of dividing one by the other fails to teach or suggest
determining a difference between the two energy values. App. Br. 15-18.
The Examiner responds by characterizing Appellant's argument as based on
a claim requirement of subtraction rather than the recited difference
determination. Ans. 12-13. The Examiner concludes claim 1 should not be
so narrowly construed and finds "Scharpf's quotient of the actual energy
sum and the energy requested sum is also a difference within the scope of
the claim limitation." Id. at 13.
Appellant fails to persuade us Scharpf's disclosure of determining,
through division, that one energy value is greater than another does not at
least suggests, if not teaches, determining a difference between the values.
We instead find, under a broad but reasonable interpretation, determining a
difference includes determining that one value is greater than another
without necessarily requiring determining a numeric magnitude of the
difference. We are mindful "while it is true that claims are to be interpreted
in light of the specification and with a view to ascertaining the invention, it
does not follow that limitations from the specification may be read into the
claims." Sjolund v. Musland, 847 F.2d 1573, 1581 (Fed. Cir. 1988). As the
court explained in In re Zletz, the rationale for this approach to claim
interpretation is that "during patent prosecution when claims can be
amended, ambiguities should be recognized, scope and breadth of language
explored, and clarification imposed" 893 F.2d 319, 321 (Fed. Cir. 1989).
Thus, we agree with the Examiner the claims do not require subtraction, and
we find Appellant's contention unpersuasive of reversible Examiner error.
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Application 13/029,333
Appellant next contends "[t]he Examiner has never addressed the fact
that there is no comparison to a statistical model of any wheel brake energy
differential, where the energy differential is a difference between the (i)
total energy absorbed and (ii) the total pseudo-energy demand to be
absorbed for a healthy wheel brake." App. Br. 19. The Examiner responds
by finding "Hartmann can only determine whether a deviation is
'permissible' or whether [a] braking performance parameter 'falls below a
specific setpoint value' if Hartmann compares the performance parameter
(defined by the deviation) with a data range defined accordingly." Ans. 14.
The Examiner further finds modifying Hartmann' s brake performance
parameter criteria to instead perform a comparison based on energies is
taught or suggested by the combination with Halliday and Scharpf. Ans. 15.
We again find no reversible Examiner error. We instead agree with
the Examiner in finding Hartman's deviation determination teaches or
suggests a comparison with a statistical model and, when modified
according to Halliday and Scharpf to substitute a comparison based on
energy rather than friction, teaches or suggests the argued comparison. See
Final Act. 6-12.
Appellant further contends the Examiner has not provided a proper
rationale for modifying Hartmann according to the teachings of Halliday and
Scharpf. App. Br. 21--43. Appellant makes several arguments including:
(i) The Examiner has identified the wrong person of ordinary skill
in the art in determining obviousness (App. Br. 21-23);
(ii) The rejection under 35 U.S.C. § 103(a) is improperly based on
a rationale only applicable under 35 U.S.C. § 101 (App. Br. 23-
29);
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(iii) One skilled in the aircraft braking arts would not have found
any equivalence between friction coefficients and braking
energy to be obvious (App. Br. 30-32);
(iv) The asserted combination "is a Rube Goldberg modification
that only is reasonable if one treats Hartmann as a physics
experiment instead of a functional system having utility" (App.
Br. 37; see also id. at 33-36);
(v) Because the energy equations taught by Halliday include a time
component omitted by Hartmann, there is insufficient
equivalence to support the combination (App. Br. 37--40);
(vi) The Examiner's rationale to modify Hartmann is insufficient as
constituting "nothing more than a statement that Hartmann can
be modified" (App. Br. 40--41); and
(vii) In formulating the rejection, the Examiner has failed to consider
the claimed invention as a whole (App. Br. 41--43).
The Examiner responds, finding:
(i) Hartmann's disclosure of the relationship between friction and
friction torque and "use of the phrase 'mechanical work'
implies a knowledge and understanding of the work-energy
theorem of Halliday" (Ans. 16);
(ii) "Hartmann and Scharpf apply the work-energy theorem of
Halliday in the braking systems designs disclosed by both.
Thus, it is reasonable to conclude that the work-energy theorem
of Halliday was within the level of ordinary skill for braking
system designers at the time of the invention" (Ans. 17);
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(iii) Hartmann obtains friction values over "short periods" and,
therefore, contrary to Appellant's contention, includes a
temporal component (Ans. 17-19); and
(iv) KSR supports a rationale for modifying Hartmann (Ans. 19-20
(citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)).
Appellant's arguments are unpersuasive of Examiner error. For
example, Appellant has failed to provide sufficient evidence that the
Examiner has applied an incorrect standard in determining the level of skill
in the art. See App. Br. 21-23, 30-32. Appellant's argument that use of a
physics textbook for disclosing what Appellant characterizes as "laws of
nature" renders the rejection under 35 U.S.C. § 103(a) improper (App. Br.
23-29) is unpersuasive as the Examiner does not find the claim is directed to
non-statutory subject matter, only that the textbook as prior art discloses the
relationship between friction (a metric of Hartmann) and energy (a metric
used by Scharpf). We are also not persuaded the level of skill in the aircraft
braking arts excludes a knowledge of physics such that those skilled in the
art would not appreciate the relationship between brake friction, braking
forces, and energy. Instead, in full consideration of Appellant's arguments,
we find the Examiner has articulated reasoning with rational underpinnings
sufficient to justify the legal conclusion of obviousness. See KSR, 550 U.S.
at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). In contrast,
Appellant fails to provide persuasive evidence or explanation showing the
Examiner's asserted combination is anything other than the combination of
familiar elements yielding no more than predictable results. See KSR, 550
U.S. at 416-17. Such a combination is itself a sufficient reasoning with
rational underpinning to support a finding of obviousness.
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Application 13/029,333
For the reasons discussed supra we find Appellant's argument
unpersuasive of Examiner error. Accordingly, we sustain the rejection of
independent claim 1 and, for the same reasons, the rejection of independent
claim 15 under 35 U.S.C. § 103(a) over Hartmann, Halliday, and Scharpf,
together with the rejections of dependent claims 2-5, 7-11, and 13-15,
which are not argued separately.
In connection with claim 6 Appellant contends, because Hartmann
discloses determining a friction coefficient in the field instead of by the
brake manufacturer, Hartmann teaches away from providing the wheel brake
on the wheel. App. Br. 44--45. The Examiner responds, finding Hartmann
discloses vehicle brakes and that "[a]ssuming a brake of Hartmann is not
provided on a wheel defies common sense." Ans. 15.
We again find Appellant's contention unpersuasive of Examiner error.
Hartman describes a vehicle brake including a rotating brake disk (Hartmann
i-fi-13--4) thereby teaching or suggesting the disputed limitation of claim 6,
including providing the recited wheel brake on a wheel. Appellant's
contention that claim 6 requires the manufacturer to perform the recited
steps is without merit, as Appellant is arguing features not recited in the
claim 6, nor supported by Appellant's Specification. Accordingly, we
sustain the rejection of claim 6 under 35 U.S.C. § 103(a) over Hartmann,
Halliday, and Scharpf.
DECISION
The Examiner's decision to reject claims 1-11 and 13-16 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)(l )(iv).
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AFFIRMED
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