Michael Kordt

Patent Trials and Appeals Board

Aug 3, 2020

13641918 - (D) (P.T.A.B. Aug. 3, 2020)

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.
13/641,918 12/19/2012 Michael Kordt 4404.91784 1093
24978 7590 08/03/2020
GREER, BURNS & CRAIN, LTD
300 S. WACKER DR.
SUITE 2500
CHICAGO, IL 60606
EXAMINER
XAVIER, VALENTINA
ART UNIT PAPER NUMBER
3642
NOTIFICATION DATE DELIVERY MODE
08/03/2020 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):
docket@gbclaw.net
ptomail@gbclaw.net
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PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL KORDT

Appeal 2019-000502
Application 13/641,918
Technology Center 3600
____________

Before CHARLES N. GREENHUT, MICHAEL L. WOODS, and
FREDERICK C. LANEY, Administrative Patent Judges.

LANEY, 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 (entered Oct. 6, 2017, “Final Act.”) to reject claims 16–
28 and 30. Claims 1–15 have been cancelled and claim 29 has been
withdrawn. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Airbus
Operations GmbH.” Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The disclosed subject matter relates to “a system and a method for
minimizing buffeting loads in the case of an aircraft.” Spec. ¶ 1.
“Buffeting,” according to the Specification, “is generally identified as a
shaking or vibrating of airfoils.” Id. ¶ 3. The Specification describes
“buffeting” generally as follows. When the speed of an aircraft decreases, to
maintain the lift, the angle of its airfoils is increased to a degree “in which a
relatively low-energy boundary layer on the upper side of the wing can no
longer overcome the pressure maximum after passing through a pressure
minimum.” Id. “The flow then separates upstream of the rear edge of the
wing” and “[t]he unstable separation point can rapidly drift backwards and
forwards in a specific region.” Id. This drifting movement of the separation
point can cause “the position and magnitude of the resulting compressive
force [to] constantly chang[e]” and “produce[] a turbulent wake downstream
of the wing.” Id. As a result, the tailplane (also known as a horizontal
stabilizer) may undergo irregular vibrations, which are called buffeting
(vibrations). Id. These vibrations can create mechanical stresses that must
be considered in the construction of an aircraft and can cause discomfort to
the passengers. Id.
Claims 16 and 30 are independent; claims 17–28 depend from claim
16. Claim 16 is illustrative of the claims on appeal and is reproduced below.
16. A system for minimizing buffeting in an aircraft,
comprising buffeting load control elements located in airfoils of
the aircraft which can be at least partly extended out of the
airfoils by a control to reduce buffeting loads acting on the
aircraft, wherein the buffeting load control elements are fin-
shaped webs.

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EVIDENCE
Name Reference Date
Kerker US 2,885,161 May 5, 1959
Schülein US 2010/0243818 A1 Sept. 30, 2010
REJECTIONS
I. Claims 16, 18, 20, and 30 are rejected under 35 U.S.C. § 102(b)
as anticipated by Kerker.
II. Claims 17, 19, and 21–28 are rejected under 35 U.S.C. § 103(a)
as obvious in view of Kerker and Schülein.
ANALYSIS
I. Anticipation of Claims 16, 18, 20, and 30
The Examiner found Kerker to disclose each of the recited elements
of claims 16, 18, 20, and 30. Final Act. 2. In particular, the Examiner found
Kerker discloses, “stability control system in an aircraft, comprising
buffeting load control elements (16) located in airfoils (1, 2) of the aircraft
which can be at least partly extended out of the airfoils by a control . . . to
reduce buffeting loads acting on the aircraft, wherein the buffeting load
control elements are fin-shaped.” Id. (citing Kerker, 4:20, Figs. 1–5). The
Examiner further found that, because “[t]he structure disclosed in the claims
do not differ from the structure disclosed in Kerker,” “any buffeting loads
being minimized . . . by the wing in the applicant’s invention would be
similar to that of Kerker.” Id. at 4. The Examiner found that “[w]hile
Kerker does not explicitly discuss minimizing buffeting loads, the structure
taught by Kerker would result in the same effect since it is similar to that of
the instant application.” Id.
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Appellant argues claims 16, 18, 20, and 30 collectively. See Appeal
Br. 7–9. We select independent claim 16 for review, with the remaining
claims (i.e., claims 18, 20, and 30) standing or falling together with claim
16. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant has waived, however, all
other arguments of error that it could have raised regarding these claims.
See In re Berger, 279 F.3d 975, 984–85 (Fed. Cir. 2002).
Appellant contends, “Kerker does not disclose ‘buffeting load control
elements located in airfoils of the aircraft which can be at least partly
extended out of the airfoils by a control to reduce buffeting loads acting on
the aircraft, wherein the buffeting load control elements are finshaped webs’
as required by Claim 16.” Appeal Br. 7. Appellant does not rely on any
structural differences between the elements recited in claim 16 and the
structures identified by the Examiner from Kerker, but instead argues that
the structure Kerker discloses serves a different purpose than controlling
buffeting loads. See id. at 7–9. In particular, Appellant argues, “Kerker
does not provide a device, in which device load forces caused by buffeting
are reduced as far as possible independently of a flight maneuver and
independently of simultaneous gust effects in any flight phase of the
aircraft.” Id. at 8–9 (emphasis omitted).
Appellant argues that a “person of ordinary skill will be readily aware
that the general configuration of a buffeting load control element must fulfill
different requirements than a longitudinal stability control element such as
described by Kerker, e.g. with respect to specific position, orientation,
material etc. and depending on the type of aircraft.” Id. at 9. According to
Appellant, “the claimed buffeting load control element needs to be partially
or fully extended out of an airfoil under different conditions and
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requirements, e.g. with respect to flight phase and flight maneuvers and so
on, because the physical causes are different and consequently also the
actions to be taken to prevent adverse effects or to counteract certain effects
are different.” Id.
In the Answer, the Examiner counters that “alleviating instability on
an airframe would inevitably minimize buffeting loads.” Ans. 3. In
addition, the Examiner asserts that “[t]he structure and operation of the
control elements (16) of Kerker is not distinct from that of the instant
application, and would be similarly capable of reducing buffeting loads as
claimed.” Id. at 4. The Examiner notes that “Appellant has also failed to
present evidence in the Appeal Brief with reasons as to why the structure of
Kerker, while being capable of alleviating longitudinal instability on the
airframe, would not reduce buffeting loads acting on the airframe.” Id.
Finally, “in response to [A]ppellant’s argument that the references fail to
show certain features of Appellant’s invention, it is noted [by the Examiner]
that the features upon which Appellant relies (i.e., load forces caused by
buffeting being reduced independently of a flight maneuver or gust effects in
any flight phase) are not recited in the rejected claim(s).” Id.
Appellant replies by arguing that there is no support for the
Examiner’s suggestion that minimizing buffeting loads is an inevitable result
of the structure disclosed by Kerker. Reply Br. 2. This is so, according to
Appellant, because “the stability control of Kerker, i.e. either longitudinal,
directional or lateral stability control of an aircraft as such, is an entirely
different aspect of aeroelasticity than buffeting control, i.e. control of
dynamic high-frequency oscillations of airfoils.” Id.
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Having considered the evidence and arguments, we do not find
Appellant to have apprised us that an error exists with the Examiner’s
anticipation rejection. We find the facts and Appellant’s argument regarding
this rejection to be analogous to those raised and rejected in In re Schreiber,
128 F.3d 1473 (Fed. Cir. 1997).
In Schreiber, there was no dispute that the structural limitations
recited by the claim were found in the prior art reference. Schreiber, 128
F.3d at 1477. Instead, Schreiber argued that the prior art reference, Harz,
did not disclose structure that can be used in the recited manner (i.e., to
dispense popcorn). Id. The Federal Circuit held that “[a]lthough Schreiber
is correct that Harz does not address the use of the disclosed structure to
dispense popcorn, the absence of a disclosure relating to function does not
defeat the [Examiner’s] finding of anticipation.” Id. “It is well settled that
the recitation of a new intended use for an old product does not make a claim
to that old product patentable.” Id.
Because the structure of the prior art was intended to dispense oil
from an oil can (id. at 1475), Schreiber further argued that the functional
limitations of the claim (i.e., the conically shaped dispenser “allows several
kernels of popped popcorn to pass through at the same time” by “[jamming]
up the popped popcorn before the end of the cone and permit the dispensing
of only a few kernels at a shake of a package”) distinguished it from the
prior art. Id. at 1478. While noting that there is nothing wrong with reciting
features of an apparatus using functional language, the Federal Circuit stated
that “choosing to define an element functionally, i.e., by what it does, carries
with it a risk.” Id. The Federal Circuit described this “risk” as follows:
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where the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent characteristic
of the prior art, it possesses the authority to require the applicant
to prove that the subject matter shown to be in the prior art does
not possess the characteristic relied on.
Id. Because the structural elements recited in the claim at issue in Schreiber
were described broadly (e.g., “dispensing top,” “a generally conical shape
and an opening at each end”) and because the prior art depicted a structural
element with the “same general shape” as was shown for a preferred
embodiment of the claimed invention, the Federal Circuit held that the
examiner “was justified” in finding the prior art disclosed the functional
limitations. Id. “At that point, the burden shifted to Schreiber to show that
the prior art structure did not inherently possess the functionally defined
limitations of his claimed apparatus,” which Schreiber failed to do. Id. The
burden-shifting framework employed by the PTO in situations such as these
is detailed in MPEP § 2112(V).
Similar to the situation in Schreiber, Appellant here does not dispute
the Examiner’s finding that Kerker discloses the structural limitations claim
16 recites, but instead limits its arguments to whether those disclosed
structures perform the recited function of controlling buffeting loads. Given
the similarity between the broadly claimed structure in claim 16 and the
structure disclosed by Kerker, we find that the Examiner was justified in
concluding the disclosed structure is likewise capable of performing the
recited functional attributes as well. Thus, we do not find any error with the
prima facie case made by the Examiner that Kerker anticipates claim 16.
As Schreiber makes clear, this shifts the burden to Appellant to
provide evidence or argument demonstrating that the subject matter shown
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to be in the prior art does not necessarily possess the characteristic relied on.
Appellant, however, has merely provided us with attorney argument without
any evidentiary support, which is not enough to carry its burden. Even
accepting Appellant’s contentions that Kerker does not contemplate
controlling buffeting loads and that Kerker discloses controlling completely
different loads with its disclosed structure, Appellant fails to offer any
evidence, or supported technical reasoning, to show that the disclosed
structures do not also control buffeting loads. As a result, we are not
apprised of error by Appellant regarding the Examiner’s rejection of claim
16.
Therefore, we sustain the Examiner’s rejection of claims 16, 18, 20,
and 30.
II. Obviousness of Claims 17, 19, and 21–28
For claims 17, 19, and 21–28, the Examiner concludes that the
claimed combination of elements would have been obvious in view of
Kerker and Schülein. Final Act. 3–4. Appellant disputes the Examiner’s
determination that a skilled artisan would have known to combine the
apparatuses in the manner claimed because neither Kerker nor Schülein is
directed to reducing load forces caused by buffeting. Appeal Br. 9–10.
Appellant further argues, “[t]he combination of Kerker with Schulein only
makes sense in hindsight.” Id. For the following reasons, we find
Appellant’s argument persuasive.
Claims 17, 19, and 21
Addressing collectively claims 17, 19, and 21, the Examiner finds
that, although “Kerker fails to disclose the use of a sensor for detecting flight
phases for controlling the buffeting load control elements accordingly,”
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“Schülein discloses a device on a wing that's retractable and extendable
[0065] wherein actual flight phases might be identified in order to apply
suitable controls [0053].” Id. at 3. The Examiner determines that “[i]t
would have been obvious to one having ordinary skill in the art at the time
the invention was made to use sensors to detect flight phases in order to use
stored information to minimize buffeting would further prevent structural
fatigue failures and the need for costly repairs.” Id. The Examiner adds that
“using flight phase sensors (to sense flight phases in which buffeting would
occur) would prevent these failures preemptively as opposed to sensing
buffeting before alleviating the problem.” Id.
The Examiner’s reasoning for why a skilled artisan would have been
motivated to combine Kerker and Schülein in the manner claimed depends
on a skilled artisan knowing that the structure Kerker discloses can be used
to minimize buffeting. The Examiner, however, offers no evidence to
establish that a skilled artisan would have known to use the structures
disclosed by Kerker to minimize buffeting. Notably, the Examiner does not
dispute that Kerker relates to a longitudinal stability control for aircrafts that
have a high degree of sweep-back and that move at ultra-high speeds (see
Ans. 4; Kerker, 1:12–15, 1:72–2:3). Moreover, the Examiner does not
suggest that a skilled artisan would have understood Schülein to teach
controlling a structure in order to minimize buffeting. Rather, the Examiner
states Schülein teaches more generally that it was known to use load sensors
with control elements in order detect flight phases. Ans. 5.
In the anticipation rejection, the issue was not whether a skilled
artisan at the time of the invention recognized that the structure Kerker
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discloses would minimize buffeting,2 but whether the Examiner’s finding
that the structure would perform the function of minimizing buffeting was
justified because, if justified, it shifted the burden to Appellant to establish
that the structure would not perform the recited function. In the obviousness
rejection, however, the Examiner’s reasoning depends on the factual
assertion that a skilled artisan knew that the structure Kerker discloses would
minimize buffeting.
The Examiner here, however, has provided no evidence that at the
time of the invention it was known by a skilled artisan to use the structures
Kerker discloses to reduce buffeting loads. With respect to core factual
findings in a determination of patentability, an Examiner cannot establish a
prima facie case based on conclusions simply deemed to be basic knowledge
or common sense. In re Zurko, 258 F.3d 1379, 1385–86 (Fed. Cir. 2001).
Rather, the Examiner “must point to some concrete evidence in the record in
support of [those] findings.” Id. As a result, the Examiner’s rationale for
why a skilled artisan would have combined Kerker and Schülein in the
manner claimed lacks a rational underpinning. Therefore, we do not sustain
the Examiner’s obviousness rejection of claims 17, 19, and 21.
Claim 22
For claim 22, the Examiner finds Kerker fails to disclose the recited
elements, but “takes Official Notice that the use of load sensors are very
well known in the art.” Id. The Examiner determines that “[i]t would have
been obvious to . . . include load sensors in the device of Kerker as modified

2 See, e.g., Schering Corp. v. Geneva Pharmaceuticals, 339 F. 3d 1373, 1377
(Fed. Cir. 2003) (“this court rejects the contention that inherent anticipation
requires recognition in the prior art”)
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by Schülein in order to impart precise actuation on the buffeting load control
elements.” Id. Similar to the obviousness determination of claims 17, 19,
and 21, the Examiner’s rejection of claim 22 depends on the unsupported
assertion that a skilled artisan knew to use the structure that Kerker discloses
to minimize buffeting. Therefore, we do not sustain the Examiner’s
obviousness rejection of claim 22.
Claims 23 –28
Regarding claims 23–28, the Examiner does not identify any reason
why a skilled artisan would have been motivated to modify Kerker with the
teachings of Schülein in the manner claimed. Presumably, the Examiner is
relying on the same rationale articulated for claims 17, 19, 21, and 22, which
we have found defective. Therefore, we do not sustain the Examiner’s
obviousness rejection of claim 23–28.
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DECISION
The Examiner’s rejection of claims 16, 18, 20, and 30 is affirmed and
the rejection of claims 17, 19, and 21–28 is reversed.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
16, 18, 20,
30
102(b) Kerker 16, 18, 20,
30

17, 19,
21–28
103(a) Kerker, Schülein 17, 19, 21–
28
Overall
Outcome3
16, 18, 20,
30
17, 19, 21–
28
No 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-IN-PART

3 37 C.F.R. § 41.50(a)(1) states: “The affirmance of the rejection of a claim
on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim.”