Ex Parte Ariyur et al

Patent Trial and Appeal Board

Sep 23, 2013

11470099 (P.T.A.B. Sep. 23, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KARTIK B. ARIYUR and MICHAEL R. ELGERSMA
____________

Appeal 2011-009740
Application 11/470,099
Technology Center 3600
____________

Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-009740
Application 11/470,099

2

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1-9, 12, and 21-24. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We affirm the decision of the Examiner.

CLAIMED SUBJECT MATTER
The claimed subject matter relates generally to a method for collision
avoidance of an unmanned aerial vehicle (UAV) with other aircraft, such as
manned aircraft or another UAV. Spec., para. [0004]. Claim 1, directed to a
method for collision avoidance, and claim 21, directed to a computer
program product having a computer readable medium with stored
instructions, are the only independent claims. Claim 1 is illustrative of the
subject matter on appeal, and recites:
1. A method for collision avoidance of an
unmanned aerial vehicle with other aircraft, the method
comprising:
detecting an aircraft approaching a flight path of an
unmanned aerial vehicle;
estimating a position, distance, and velocity of the
aircraft;
determining an estimated path of the aircraft from
the position, distance, and velocity; and
calculating a new flight path for the unmanned
aerial vehicle to a waypoint to avoid the estimated path of
the aircraft, wherein calculating the new flight path
comprises:
solving a partial differential equation for a
potential function defined by boundary conditions of a
three-dimensional domain, wherein substantially no
local minima exist along a boundary of the domain as
Appeal 2011-009740
Application 11/470,099

3

substantially all boundary points of the domain have a
potential value of zero; and
constructing the new flight path by following a
gradient of the potential function.

REFERENCES
The Examiner relied on one or more of the following references to
reject all the claims.
Trudeau U.S. 6,975,246 B1 Dec. 13, 2005
Wittenberg U.S. 2005/0285774 A1 Dec. 29, 2005
Ansell WO 2006/021813 A1 Mar. 2, 2006
C.I. Connolly, et al. Path Planning Using
Laplace's Equation, 3
Robotics and
Automation, 1990,
2102-06
Mar. 6, 1990

REJECTIONS
The following rejections are before us for review:
1. Claims 1, 3, 4, 6-9, 12, and 21-24 rejected under 35 U.S.C.
§ 103(a) based on Ansell, Wittenberg, and Connolly;
2. Claims 2 and 5 rejected under 35 U.S.C. § 103(a) based on Ansell,
Wittenberg, Connolly, and Trudeau; and
3. Claims 21-24 rejected under 35 U.S.C. § 101 because the claimed
invention is directed to non-statutory subject matter.1

1 This is a New Ground of Rejection entered in the Examiner’s Answer.
Ans. 3.
Appeal 2011-009740
Application 11/470,099

4

ANALYSIS
Rejection 1
Claims 1, 3, 4, 6-9, 12, and 21-24 Under Section 103
Appellants quote independent claims 1 and 21 but argue these claims
together and generally. App. Br. 5-10; Reply Br. 1-4. Appellants also assert
that the dependent claims are patentable based on their dependency on an
allowable claim. App. Br. at 10. We chose claim 1 as representative and
claims 3, 4, 6-9, 12, and 21-24 rise or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
In relevant part to Appellants’ arguments, the Examiner found that
Ansell disclosed a method for collision avoidance of a UAV with other
aircraft by determining an estimated path of the aircraft from its position,
direction, and velocity, and calculating a new flight path for the UAV to
avoid the estimated path of the aircraft. Ans. 5. The Examiner recognized
that Ansell relied on position, direction, and velocity, rather than position,
distance, and velocity, as claimed. Id. The Examiner cited Wittenberg for
the disclosure of relying on position, distance, and velocity for determining
the position of a moving target. Id. The Examiner reasoned that it would
have been obvious to substitute the distance parameter suggested by
Wittenberg for the direction parameter used in Ansell, since the proposed
substitution did no more than yield predictable results. Id. at 5-6.
The Examiner also recognized that Ansell did not explicitly disclose
the step of calculating a new flight path using a partial differential equation,
as called for in claim 1. Ans. 6. The Examiner cited Connolly for the use of
a partial differential equation to calculate a collision-free path. Id. The
Examiner reasoned that it would have been obvious to incorporate
Appeal 2011-009740
Application 11/470,099

5

Connolly’s calculation into the method for collision avoidance of a UAV
with other aircraft established by the Examiner’s proposed combination of
Ansell and Wittenberg. Id.
Appellants argue that Wittenberg does not disclose using position,
distance, and velocity to track a target. App. Br. 8-9.
The Examiner found that Wittenberg discloses “estimating the
position, distance, and velocity of the aircraft and determining an estimated
path of the aircraft from the position, distance, and velocity.” Ans. 5. The
Examiner cited paragraphs “[0020]-[0025]; [0032]; [0033]+” in support of
this finding. Id.
Regarding position, in paragraph [0022], cited by the Examiner,
Wittenberg’s autonomous vehicle 10 determines the first position 14, 16 at a
first time, and at a second position 14’, 16’ at a second time.2 See also
Wittenberg, fig. 1.
Regarding distance, in paragraph [0025], cited by the Examiner,
Wittenberg discloses that “[t]he amount of time between the transmission of
the radar signal and the reception of the target data signals indicates the
radial distance of the object.” Regarding velocity, in paragraph [0032], cited
by the Examiner, Wittenberg discloses that knowing a first position at a first
time (e.g., 14, 16) and a second position at a second time (e.g., 14’, 16’) the
distance traversed by the moving target is determined. Further, Wittenberg’s

2 Notably, the radar device 12 is mounted to an autonomous vehicle 10 and
therefore the position of the targets is relative to the position of vehicle 10
and thus includes distance from the vehicle 10. Wittenberg, paras. [0019],
[0021].
Appeal 2011-009740
Application 11/470,099

6

device determines the speed and direction of the tracked targets. See also
Wittenberg, para. [0022]; fig. 1.
Regarding determining an estimated path of an aircraft from position
(14, 16, 14’, 16’), distance (radial distance), and velocity (the speed from 14
to 14’), in paragraph [0032], cited by the Examiner, Wittenberg’s device
determines a future position of a target at a third time by extrapolating from
the first and second positions. See also Ans. 11. Because Wittenberg’s
device determines position in part from distance and utilizes the velocity
from the first to the second position to extrapolate the third position, this
determination thus involves position, distance, and velocity.
Consequently, the Examiner’s finding that Wittenberg discloses
“estimating the position, distance, and velocity of the aircraft and
determining an estimated path of the aircraft from the position, distance, and
velocity” is supported by a preponderance of the evidence.
Appellants also argue against the proposed combined disclosures of
Ansell and Wittenberg because the combination does not disclose the
“determining” step called for in claim 1. App. Br. 9. However, the
Examiner found that Ansell discloses “determining an estimated path (i.e.
projected path 6) of the aircraft from the position, direction, and velocity
(i.e. via path prediction means 18) (col 5, line 4 - page 6, line 28).” Ans. 5.
Combined with Wittenberg as proposed by the Examiner, this determination
would be based on position, distance, and velocity, as called for in the claim.
Appeal 2011-009740
Application 11/470,099

7

Appellants’ argument, unsupported by any evidence, does not apprise us of
error by the Examiner.3
Appellants argue that Connolly does not disclose calculating a “flight
path” but only discloses calculating a path for robots. App. Br. 10. We
understand the Examiner’s rejection to be that the combination of
Ansell/Wittenberg is cited for calculating a flight path, and Connolly is cited
for the specific use of differential equations in calculating the
Ansell/Wittenberg flight paths. Ans. 6.
Contrary to Appellants’ arguments that Connolly only discusses
robots (App. Br. 10), Connolly discloses “a global method which generates
smooth collision-free paths.” Connolly, p. 2102, col. 1. The method
“computes solutions to Laplace's Equation in arbitrary n-dimensional
domains” and results in “navigation functions.” Id. Connolly states that the
disclosed method can be used “in a static situation, where the goal point and
obstacles are fixed” or in “a dynamic situation,” where “the solution must be
recomputed whenever the configuration of the environment changes.” Id. at
p. 2104, col. 2. Appellants offer no evidence to support their argument that
path planning for collision avoidance in the air is “much more complex than
for a robot.” Id.
Appellants also argue that the Examiner has “not articulated sufficient
reasons” to combine “various elements from the disparate references” (App.
Br. 9) and alleges that the Examiner is relying on “hindsight reconstruction”
for the proposed combination (App. Br. 10).

3 “Argument in the brief does not take the place of evidence in the record.”
In re Schulze, 346 F.2d 600, 602 (CCPA 1965).
Appeal 2011-009740
Application 11/470,099

8

The reason stated by the Examiner for the proposed combination of
references was that it represented the combination of familiar elements
according to known methods and does no more than yield predictable
results. Ans. 6.
Whether a patent claiming the combination of prior art elements is
obvious is determined by whether the improvement is more than the
predictable use of prior art elements according to their established functions.
KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Often, it will be necessary for a court to look to interrelated
teachings of multiple patents; the effects of demands known to
the design community or present in the marketplace; and the
background knowledge possessed by a person having ordinary
skill in the art, all in order to determine whether there was an
apparent reason to combine the known elements in the fashion
claimed by the patent at issue.
Id. at 418.
“Common sense teaches, however, that familiar items may have
obvious uses beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle.” Id. at 420. In piecing together these pieces of a
puzzle, the Supreme Court reminds us that “[a] person of ordinary skill is
also a person of ordinary creativity, not an automaton.” Id. at 421.
The Examiner found that Ansell is directed to a collision avoidance
method for a UAV and an aircraft (Ans. 5) and that Wittenberg is directed to
“the same field of endeavor” (id.). As discussed above, and as found by the
Examiner (id. at 6), Connolly also is directed to “the same field of
endeavor,” which is calculating collision-free paths in both a static and
dynamic environment.
Appeal 2011-009740
Application 11/470,099

9

The Examiner’s clearly articulated rationale for the proposed
combination of references is fully supported by the evidence. Appellants’
statements to the contrary do not establish any error in the Examiner’s
rationale or in the rejection. Accordingly, we affirm the Examiner’s
rejection of claim 1. Claims 3, 4, 6-9, 12, and 21-24 fall with claim 1. 37
C.F.R. § 41.37(c)(1)(vii).
Rejection 2
Claims 2 and 5 Under Section 103
Appellants argue that “[a]dding the teachings of Trudeau as proposed
by the Examiner does not overcome the deficiencies of Ansell, Wittenberg,
and Connolly.” App. Br. 11. Thus, Appellants assert that claims 2 and 5
also are allowable. Id. For the reasons stated in our analysis of rejection 1,
we affirm the rejection of claims 2 and 5.
Rejection 3
Claims 21-24 Under Section 101
Claims 21-24 are generally directed to a computer readable medium.
The Examiner entered a new ground of rejection in the Examiner’s Answer
rejecting claims 21-24 because these claims are “not limited to tangible
embodiments.” Ans. 3. The Examiner found “that the machine-readable
storage medium would include embodiments including propagation media,
such as carrier waves,” which are not a statutory category of patentable
invention. Id.; see In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007).
The Examiner proposed an amendment to the Specification and claims to
overcome this rejection. Ans. 3.
Appellants filed a Reply Brief, but do not argue the merits of the new
ground of rejection. Appellants state in the Reply Brief that they are
Appeal 2011-009740
Application 11/470,099

10

“willing to make the amendments proposed by the Examiner” to overcome
the Section 101 rejection if “the rejection of these claims over the prior art is
reversed.” Reply Br. 1. Appellants did not file an amendment, affidavit, or
other evidence to overcome the new ground of rejection.
Accordingly, we sustain the rejection of claims 21-24 under Section
101. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(citing Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) for the
proposition that the Board may treat arguments appellant failed to make as
waived).

DECISION
Upon consideration of the record as a whole in light of Appellants’
contentions and the preponderance of relevant evidence:
1. We affirm the Examiner’s decision rejecting claims 1, 3, 4, 6-9, 12,
and 21-24 under 35 U.S.C. § 103(a) based on Ansell, Wittenberg, and
Connolly;
2. We affirm the Examiner’s decision rejecting claims 2 and 5 under
35 U.S.C. § 103(a) based on Ansell, Wittenberg, Connolly, and Trudeau;
and
3. We affirm the Examiner’s rejection of claims 21-24 under 35
U.S.C. § 101.
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).

AFFIRMED
Appeal 2011-009740
Application 11/470,099

11

hh