Joseph Klein

Patent Trials and Appeals Board

Dec 23, 2021

2021003947 (P.T.A.B. Dec. 23, 2021)

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.
16/259,297 01/28/2019 Joseph Klein 069874/00001 5066
148433 7590 12/23/2021
Burr Forman LLP
dba Burr Forman McNair
Bank of America Plaza
101 South Tryon Street, Suite 2610
Charlotte, NC 28280
EXAMINER
KIM, CHRISTOPHER S
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
12/23/2021 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):
mcnairip@mcnair.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH KLEIN

Appeal 2021-003947
Application 16/259,297
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL J. FITZPATRICK, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1 and 3–20. See Appeal Br. 1, 16. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the inventor, Joseph Klein, as the real party
in interest. See Appeal Br. 1.
Appeal 2021-003947
Application 16/259,297

2
CLAIMED SUBJECT MATTER
The application is titled “Unmanned Winged Aircraft for Autonomous
Fire Extinguishing.” Spec. 1. Claim 1 is the sole independent claim (see
Appeal Br. 17–19 (Claims App.)) and is reproduced below with emphasis
added to a particular limitation addressed in our decision:
1. An aircraft for unmanned firefighting, the aircraft
comprising:
a water tank fillable via a scoop operation conducted at a
body of water during flight of the aircraft, and configured to be
emptied by a release operation at a target of interest;
a communications module configured to employ wireless
communication via a ground link and/or a satellite link to provide
real time or near real time communication with a remote
configuration or monitoring facility;
an imaging module configured to obtain image data at the
target of interest for identifying updated target information; and
a navigation module configured to enable remote or
autonomous operation of the aircraft during the scoop operation
and the release operation,
wherein a scoop is disposed at a front portion of the water
tank and an adjustable nozzle is disposed at a rear portion of the
water tank.
Id. at 17 (Claims App.) (emphasis added).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Doshay US 6,364,026 B1 Apr. 2, 2002
Stupakis US 2014/0000917 A1 Jan. 2, 2014

Appeal 2021-003947
Application 16/259,297

3
REJECTIONS
The following rejections are before us on appeal:
Claims Rejected 35 U.S.C. § Reference(s)/Basis
13, 15–172 112(b) Indefinite
1, 4–12, 18–20 102 Stupakis
1, 3–203 103 Stupakis, Doshay
See Final Act. 3–7.
I. Rejection under 35 U.S.C. § 112(b)
The Examiner rejects claims 13 and 15–17 as indefinite under 35
U.S.C. § 112(b). See Final Act. 3–4; see also supra n.2.
In rejecting claim 13 as indefinite, the Examiner explains that the
“preamble is directed to an aircraft,” yet the “body of the claim is directed to
an aircraft and a remote configuration and monitoring facility
(combination).” Final Act. 3 (emphasis added).
In rejecting claim 15 as indefinite, and in similar note to the rejection
of claim 13 as indefinite, the Examiner explains, “In the event that Applicant
intends to positively recite the ground line and the one or more transmission
towers, the limitations exceed the scope of the preamble.” Final Act. 4. The
Examiner further explains, “The preamble is directed to an aircraft,” yet the

2 Although the rejection lists claims 13–15 as rejected (see Final Act. 3; see
also Ans. 3), we understand this to be an inadvertent and harmless
typographical error, and Appellant and the Examiner understand that claims
13 and 15–17 are instead rejected. See Final Act. 3–4; see also Appeal Br.
4.
3 Although the Examiner lists claims 1–20 as rejected, we understand that
claim 2 has been cancelled, and the rejection applies to claims 1 and 3–20,
instead. See Final Act. 6; see also Appeal Br. 17 (Claims App.).
Appeal 2021-003947
Application 16/259,297

4
“body of the claim is directed to an aircraft, ground link and one or more
transmission towers (combination).” Id. (emphasis added).
In rejecting claims 16 and 17 as indefinite, the Examiner raises a
concern similar to that raised with claim 15. See id.
In contesting the rejection of claim 13, Appellant argues that “it is not
outside the scope of the aircraft recited in the preamble to include equipment
(i.e., the navigation module) capable of receiving insertion of the coordinates
as claimed.” Appeal Br. 4.
In contesting the rejection of claims 15–17, Appellant similarly argues
that “it is not outside the scope of the aircraft recited in the preamble to
include equipment (i.e., the communications module) capable of establishing
the ground link as claimed.” See id. at 5 (presenting the same or similar
argument to claims 15–17).
We agree with Appellant.
The Examiner’s rejection is premised on the misunderstanding that
the claims recite an aircraft in combination with either a: (1) “remote
configuration or monitoring facility” (claim 13); or (2) a “ground link” and
“transmission towers” (claims 15–17). See Final Act. 3–4. The claims do
not recite an aircraft in combination with such structures.
Rather, claim 13 recites, “wherein coordinates defining a geographic
location of each of the body of water and the target of interest are provided
to the navigation module from the remote configuration or monitoring
facility.” Appeal Br. 18 (Claims App.). As it relates to the rejection, claim
13 simply specifies how the aircraft’s “navigation module” receives
geographic location coordinates from “the remote configuration or
monitoring facility.” See Appeal Br. 18 (Claims App.). Id. The claim does
Appeal 2021-003947
Application 16/259,297

5
not require a “remote configuration or monitoring facility.” Rather, the
remote configuration or monitoring facility is only used to further define
how the navigation module—part of the claimed aircraft—operates. See
Final Act. 3.
As to claim 15, this claim recites, “wherein the communications
module is configured to communicate via the ground link, the ground link
being established with one or more transmission towers erected for line-of-
sight communication covering a fixed geographic location.” Appeal Br. 19
(Claims App.). As it relates to the rejection, claim 15 simply requires, inter
alia, the aircraft’s communications module to be “configured to
communicat[e]” with a “ground link,” which “ground link” is “established
with one or more transmission towers.” See Appeal Br. 19 (Claims App.).
The plain language of the claim does not require the aircraft in combination
with a transmission tower, as the rejection suggests. See Final Act. 4.
Rather, the tower is used in a manner similar to that discussed with regard to
claim 13, to define how a component of the claimed aircraft (the
communications module) operates.
As to claims 16 and 17, the Examiner rejects the claims for nearly
identical reasons as the rejection of claim 15 (see Final Act. 4), yet just like
claim 15, claims 16 and 17 do not recite limitations that require the aircraft
combined with a transmission tower. See Appeal Br. 19 (Claims App.); see
also Final Act. 4.
Accordingly, we do not sustain the rejection of claims 13 and 15–17
as indefinite.
Appeal 2021-003947
Application 16/259,297

6
II. Anticipated by Stupakis
The Examiner rejects claims 1, 4–12, and 18–20 as anticipated by
Stupakis. Final Act. 5. We reproduce Figure 3 of Stupakis, below:

Figure 3 “illustrates a schematic cross-section of [a] fuselage according to”
an embodiment of Stupakis. Stupakis ¶ 23. In particular, Figure 3 depicts
water tank 400 carried within fuselage 120 of an aircraft. Id. ¶ 39. Stupakis
further discloses that
Discharge of water from the tank 400 is obtained by
placing valve 440 in a position to connect the interior 414 of the
tank 400 with the discharge port 450. Preferably, an aft-facing
hatch 452 is openable in-flight to permit water discharge,
whether under the force of gravity, and/or aided by air pressure
applied to vent 445, a pump 465, some other means, or any
combination.
Id. ¶ 46 (emphasis omitted).
Appeal 2021-003947
Application 16/259,297

7
The Examiner finds that Stupakis discloses the claimed water tank
(400) with a scoop (the “entry point of probe 212”) with “an adjustable
nozzle 450.” Final Act. 5 (citing Stupakis ¶ 46). The Examiner explains
that Stupakis’s discharge port 450 satisfies the claimed “adjustable nozzle”
because “Stupakis discloses air pressure applied to vent 445 to aid in water
discharge” and that “[n]either the claim nor the specification requires the
‘structure’ to be located within the nozzle.” Ans. 10.
Appellant disagrees with the Examiner’s position that Stupakis
discloses an “adjustable nozzle.” See Appeal Br. 8–9. Appellant contends
that “what is claimed is specifically an adjustable nozzle and not an
adjustable flow rate in abstract terms.” Id. at 9; see also Reply Br. 2 (“the
difference between these structures is plainly clear to one of ordinary skill in
the art (and even those of no skill in the art).”).
We agree with Appellant.
The Examiner’s interpretation of “adjustable nozzle” is unreasonably
broad as it ignores the plain meaning of the claim language and is
inconsistent with the Specification.
Independent claim 1 recites, inter alia, “an adjustable nozzle is
disposed at a rear portion of the water tank.” Appeal Br. 17 (Claims App.).
The claim does not merely recite an adjustable flow rate, as the Examiner’s
rejection presumes, but specifically requires the nozzle to be adjustable. See
Ans. 10. Indeed, the Specification describes the importance of an adjustable
nozzle to “provid[e] the capability to throttle release and control the volume
of water release” in order to prevent damage to structures by water dropped
from elevated heights. See Spec. ¶ 22 (emphasis added); see also id. ¶ 23.
Appeal 2021-003947
Application 16/259,297

8
Stupakis, on the other hand, discloses “discharge port 450” and “an
aft-facing hatch 452 [that] is openable in-flight to permit water discharge,
whether under the force of gravity, and/or aided by air pressure applied to
vent 445, a pump 465, some other means, or any combination.” Stupakis
¶ 46 (emphasis omitted). Even if we construe discharge port 450 as
satisfying a “nozzle,” nothing in Stupakis describes discharge port 450 as
being adjustable.
Moreover, Stupakis merely discloses that “air pressure applied to vent
445” may be used to “permit water discharge.” See Stupakis ¶ 46 (emphasis
omitted). This is not a disclosure that the flow rate through discharge port
450 is adjustable. Even if, however, the water discharged from port 450 may
vary due to varying air pressure encountered at vent 445—which we do not
find as being explicitly taught in Stupakis—this does not somehow
transform discharge port 450 to be “adjustable,” thereby satisfying the
claimed “adjustable nozzle.”
For the foregoing reasons, we do not sustain the rejection of
independent claim 1, or of its dependent claims 4–12 and 18–20, which
inherit the same rejection infirmity (see Final Act. 5), as anticipated by
Stupakis.
III. Unpatentable Over Stupakis and Doshay
In rejecting the claims as unpatentable over Stupakis and Doshay, the
Examiner relies on the same flawed finding discussed above. In particular,
in rejecting the claims based on Stupakis and Doshay, the Examiner erred in
finding that Stupakis’s discharge port 450 satisfies the claimed “adjustable
nozzle.” See Final Act. 6.
Appeal 2021-003947
Application 16/259,297

9
For the same reasons we do not sustain the anticipation rejection, we
do not sustain the rejection of claims 1 and 3–20 as unpatentable over
Stupakis and Doshay.
IV. Conclusion
For the foregoing reasons, we reverse the Examiner’s rejections of
claims 1 and 3–20.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
13, 15–17 112(b) Indefiniteness 13, 15–17
1, 4–12, 18–20 102 Stupakis 1, 4–12, 18–20
1, 3–20 103 Stupakis, Doshay 1, 3–20
Overall
Outcome
1, 3–20

REVERSED