Ashley Gilmore et al.

Patent Trials and Appeals Board

Apr 15, 2021

2020006502 (P.T.A.B. Apr. 15, 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.
15/154,828 05/13/2016 Ashley A. Gilmore 9587P001C 5855
123583 7590 04/15/2021
Compass IP Law PC
4804 NW Bethany Blvd, Ste I-2 #237
Portland, OR 97229
EXAMINER
KONG, SZE-HON
ART UNIT PAPER NUMBER
3661
NOTIFICATION DATE DELIVERY MODE
04/15/2021 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ASHLEY A. GILMORE and DAVID L. DEWEY
____________

Appeal 2020-006502
Application 15/154,828
Technology Center 3600
____________

Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and
NINA L. MEDLOCK, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE1
Ashley A. Gilmore and David L. Dewey (Appellant2) seek review
under 35 U.S.C. § 134 of a final rejection of claims 21–40, the only claims
pending in the application on appeal. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
The Appellant invented a tracking aerial device. Specification para. 2.
An understanding of the invention can be derived from a reading of
exemplary claim 21, which is reproduced below (bracketed matter and some
paragraphing added).
21. An aerial robot, comprising:
a target tracking unit to identify a target to be tracked by an
imaging device on the aerial robot;
and
a processor of the aerial robot
to compute target tracking information based on a
location of the target as determined from information
from the imaging device and a location of the aerial
robot,
and
to compute a flight path for the aerial robot based on a
predicted future position of the aerial robot with respect
to a predicted future position of the target that will
maintain a substantially constant three-dimensional (3D)

1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal
Br.,” filed April 22, 2020) and Reply Brief (“Reply Br.,” filed September 16,
2020), and the Examiner’s Answer (“Ans.,” mailed July 16, 2020), and Final
Action (“Final Act.,” mailed September 6, 2019).
2 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 Aerial
Shadow LLC (Appeal Br. 2).

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relative position of the aerial robot with respect to the
target,
the predicted future position of the aerial robot based on
a determined current position and previous position for
the aerial robot
and
the predicted future position of the target based on a
determined current position and previous position for the
target,
the target tracking information including control signals to
adjust a position of the aerial robot to maintain the
substantially constant 3D relative position,
and
adjust an angle of the imaging device to monitor the
target,
the processor to cause the aerial robot to adjust the flight path
based on the computed flight path.
The Examiner relies upon the following prior art:
Name Reference Date
Kokkeby US 2009/0157233 A1 June 18, 2009
Bevirt US 2012/0287274 A1 Nov. 15, 2012
Lee US 2012/0307042 A1 Dec. 6, 2012

Claims 21–40 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Bevirt and Kokkeby.
Claims 26, 27, and 36 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bevirt, Kokkeby, and Lee.
ISSUES
The issues of obviousness turn primarily on whether the art describes
the limitations.
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FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure contains no lexicographic definition of
“substantially constant three-dimensional (3D) relative position.”
Facts Related to Appellant’s Disclosure
02. An aerial device or robot maintains a position A with respect to a
target. The aerial robot has a digital tether with the target.
Vector A or position A represents an offset between the aerial
robot and the target. Vector A can include X, Y, and/or Z
components, representing two horizontal axes and a vertical axis.
Spec. para. 33.
03. The aerial robot can be set at an offset of a certain distance in
front or behind the target, to one side or the other, and at a certain
altitude with respect to the target. The aerial robot can also set an
angular rotation or angle R with respect to the target. Angle R
refers to how the aerial robot is “pointed” at the target. Spec.
para. 34.
04. A user can set vector A, and/or adjust the position offsets of the
digital tethering. Both expressions, digital tethering and
shadowing, are used to refer to the tracking of the aerial robot at a
relatively constant vector A. In practice vector A may only be
fixed with respect to expected tolerances. Thus, the aerial robot
can maintain substantially the same relative position with respect
to the target, while still varying slightly. The tolerances can
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include positional tolerances, as well as delay/timing tolerances.
For example, initial movements and/or acceleration by the target
can cause a delay in the tracking of the aerial robot. Over time, on
average, the aerial robot is expected to track the target at
substantially the same distance or offset(s). Spec para. 35.
Facts Related to the Prior Art
Bevirt
05. Bevirt is directed to “aerial vehicles, namely a system with an
aerial platform adapted for tracking and video recording a moving
target.” Bevirt para. 2.
06. Bevirt describes tracking, video imaging, and photographing a
dynamic object using an autonomous aerial videographic
platform. Its system follows a user possessing a GPS device with
a transmitter, such as an advanced cellular telephone. A user
commands the aerial platform to follow an object of interest (OoI),
“during a course of time, such as during the completion of an
outdoor activity, either from a given position, or on a prescribed
trajectory pattern, relative to the user.” Bevirt para. 8.
07. Bevirt describes selecting from a variety of operational modes.
Multiple operational modes may be strung together, with user
specified parameters, to pre-plan a scene recording mission for the
vehicle. Instances of user selected and specified video recording
sequences are for the aerial vehicle to record from a prescribed
position, or on a given trajectory pattern, either relative to the
Object of Interest location, or relative to a fixed reference
location. For example, the user may desire to have the aerial
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platform record video images of the user at an altitude of 15 m
higher than the altitude of the user, from a position 30 m north of
the user. The relative position may also be specified with respect
to the Object of Interest current direction of travel averaged over a
specified time interval. The position of the aerial platform may be
relative to the direction of the user, such that the platform
maintains a position of 30 m behind the user along the user’s
direction of travel, or 30 m to the left of the user on a parallel
trajectory, for example. Prescribed flight trajectories may be
composed by the user by selecting basic flight pattern primitives
from a list (including hover, straight line, spiral, circular and
polygonal patterns) and specifying their parameters. Spirals and
straight lines may be in the horizontal plane, or vertical plane, or
ascending or descending at a specified rate. Bevirt para. 15.
Kokkeby
08. Kokkeby is directed to control of unmanned air vehicles (UAVs),
tracking of moving targets and surveillance of areas, stationary
targets and moving targets. Kokkeby para. 2.
09. Kokkeby describes autonomously tracking a target from an air
vehicle with an automatic target recognition (ATR) module
configured to receive video information, process the video
information, and produce ATR information including target
information. A multi-sensor integrator (MSI) module receives the
ATR information, an air vehicle state input and a target state
input, processes the inputs and produces track information for the
target. A target module receives the track information, processes
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the track information, and produces predicted future state
target information. An ownship module receives the track
information, processes the track information, and produces
predicted future state air vehicle information. A planner module
receives the predicted future state target information and the
predicted future state air vehicle information and generates travel
path information including flight and camera steering commands
for the air vehicle. Kokkeby para. 7.
10. Kokkeby describes loiter circles and weave plans as exemplary
embodiments. Kokkeby paras. 13–14.
11. Kokkeby describes its sensors detecting various states of the
UAV and of the target. The detected states may include, but are
not limited to position, orientation, heading, speed, acceleration
and other kinematic states, size, type and/or class of the target, and
other states. Kokkeby para. 26.
12. Kokkeby describes the MSI module sending the track file to a
target module and an ownship module. The target module
processes the data in the track file relating to the current state of
the target, and compares (Gates) this data to previous predictions
made regarding the current state of the target. The target module
uses all available data and comparisons between past predictions
and current states, and makes further predictions about future
states of the target. Gating in the target module produces an
output that it sends to a planner module. Ownship module
processes the data in the track file relating to the current state of
the UAV, and compares (Gates) this data to previous predictions
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(not shown) made regarding the current state of the UAV.
Discrepancies in the predicted state of the UAV versus its current
state may be due to, for example, winds blowing the UAV off its
intended course. The ownship module uses all available data and
comparisons between past predictions and current states, and
makes further predictions about future states of the UAV. Gating
in the ownship module then produces an output that it sends to the
planner module. Kokkeby paras. 30–31.
13. Kokkeby describes the planner module building a model for
predicting future UAV states given its current state and the
currently active command. The planner module uses the model to
predict future UAV states at certain critical times, and to establish
goals, which in turn produce predicted UAV and camera positions.
Kokkeby para. 32.
Lee
14. Lee is directed to controlling an unmanned aerial vehicle (UAV)
in flight. Lee para. 2.
15. Lee describes an image capture unit with a video camera having
night viewing capabilities and pan/tilt/zoom functions, that is used
to capture one or more images of one or more scenes of a
monitored area. The UAV control unit analyzes the scene image
to detect an image of a person from the scene image, determines
location information of the figure image within the scene image,
and a ratio of an area of the figure image to a total area of the
scene image, and generates control commands to adjust a tilt angle
and a focus of the lens, and a flight height and a flight orientation
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of the UAV based on the location information and the ratio
information of the figure image within the scene image. Lee
para. 9.
ANALYSIS
We begin by construing the limitation “substantially constant three-
dimensional (3D) relative position.” This is not lexicographically defined.
The Specification instead recites “the aerial robot can maintain substantially
the same relative position with respect to the target, while still varying
slightly.” FF 04. This in turn refers to tracking of an aerial robot at a
relatively constant vector A, where A may only be fixed with respect to
expected tolerances. FF 02–04. Thus we construe “substantially constant
three-dimensional (3D) relative position” as meaning a position determined
by a relatively constant vector A, where A may only be fixed with respect to
expected tolerance.
Claims 21–40 rejected under 35 U.S.C. § 103(a) as unpatentable over Bevirt
and Kokkeby
We adopt the Examiner’s determinations and analysis from Final
Action 4–13 and Answer and reach similar legal conclusions. We now turn
to the Reply Brief arguments.
We are not persuaded by Appellant’s argument that
Since the flight patterns (loiter circles, and weave patterns,
for example) would necessarily not maintain a relative 3D
position between the target and the UAV, it can be assumed that
the assertion of the combination of these references intentionally
leaves this teaching out of Kokkeby. Said another way, Kokkeby
describes the flight pattern functions as a necessary part of its
system, which means the assertion in the Office Action requires
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changing a principle of operation of the reference so that the
combination of references can work.
Reply Br. 3. This argument is a non-sequitur. A description of exemplary
flight patterns is just that, a list of examples. Nothing in Kokkeby even
suggests its modules are necessarily constrained to produce signals for loiter
circles and weave plans. Instead, Kokkeby refers to these as exemplary
flight pattern embodiments.
We are not persuaded by Appellant’s argument that
Seeing the [sic] Kokkeby fails to disclose what future state
predictions the ownship module and the target module make, it
is necessarily an assumption to say that these are predicted future
positions as claimed. However, seeing that the reference
explicitly teaches that the future state predictions are used to
build a model to model the future UAV states, “which in turn
produce predicted UAV positions,” one of skill in the art can only
conclude that the assumption cannot be correct.
If the future state predictions from the ownship module
and target module were predicted future positions, there would
be no reason to commit all the processing power required to build
a model to produce the predicted UAV positions. The reference
is not clear what the predicted future states are, but the predicted
future states cannot be the claimed predicted future position of
the aerial robot with respect to a predicted future position of the
target used to compute a flight path that will maintain a
substantially constant three- dimensional (3D) relative position
of the aerial robot with respect to the target.
Rather, according to the descriptions of Kokkeby, the
predicted UAV position that is used to compute the flight path is
the one created by the planner module.
Reply Br. 4. Among the states Kokkeby collects and uses is position.
Kokkeby describes using such state information for future predictions.
Appellant admits as much. Instead, Appellant argues that such predicted
positions are created by a planner module. Appellant does not state why this
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would be pertinent to the rejection. Kokkeby’s planner module generates
travel path information including flight and camera steering commands for
the air vehicle. More to the point, the claims makes no recitations as to how
its steps are modularized, so which of Kokkeby’s modules do what is not
pertinent.
We are not persuaded by Appellant’s argument that “the use of past
predictions and current state to make future predictions sounds like the
application of Kalman filters.” Reply Br. 6. The claims do not refer to
Kalman filters. Appellant referred to Kalman filters at Appeal Brief 7–8,
arguing that the use of such filters meant no future positions were computed,
only current positions. However, it is Bevirt, not Kokkeby, that mentions
such filters (Bevirt para. 50), and then only to say that some enhanced
Kalman filter flavors are used for its, not for Kokkeby’s, tracking. So this
has no bearing on how Kokkeby is applied to Bevirt. The Examiner applies
Kokkeby, not Bevirt for the portions of the claim reciting vehicle control.
Bevirt is applied only for its description matching the functional result of
such control in terms of positioning.
Claims 26, 27, and 36 rejected under 35 U.S.C. § 103(a) as unpatentable
over Bevirt, Kokkeby, and Lee
These claims are not separately argued.
CONCLUSIONS OF LAW
The rejection of claims 21–40 under 35 U.S.C. § 103(a) as
unpatentable over Bevirt and Kokkeby is proper.
The rejection of claims 26, 27, and 36 under 35 U.S.C. § 103(a) as
unpatentable over Bevirt, Kokkeby, and Lee is proper.
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CONCLUSION
The rejection of claims 21–40 is affirmed.
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
21–40 103 Bevirt, Kokkeby 21–40
26, 27, 36 103 Bevirt, Kokkeby,
Lee
26, 27, 36
Overall Outcome 21–40

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED