Ex Parte Bakker et al

Patent Trial and Appeal Board

Aug 24, 2017

13276007 (P.T.A.B. Aug. 24, 2017)

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.
13/276,007 10/18/2011 Michael John Bakker 252272/71966-0051 2229
91753 7590 08/28/2017
General Electric Company
Global Patent Operation-Aviation
901 Main Avenue
3rd Floor
Norwalk, CT 06851
EXAMINER
SANDERSON, JOSEPH W
ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
08/28/2017 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):
gpo.mail@ge.com
lori.E.rooney@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL JOHN BARKER,
JOACHIM KARL ULF HOCHWARTH, and
SEAN EDWARD FLANARY
Appeal 2015-006067
Application 13/276,007
Technology Center 3600
Before EDWARD A. BROWN, ARTHUR M. PESLAK, and
SEAN P. O’HANLON, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael John Bakker et al. (“Appellants”) appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1—16.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants submit the real party in interest is GE Aviation Systems LLC.
Br. 2.
Appeal 2015-006067
Application 13/276,007
THE CLAIMED SUBJECT MATTER
Claim 1, the only independent claim, is reproduced below.
1. A method of operating an aircraft capable of operating at
a plurality of performance profiles having differing noise
levels during takeoff from an airport having a corresponding
predetermined noise abatement zone, the method comprising:
flying the aircraft during takeoff along a flight path from
the airport;
determining when the flight path intersects at least two
dimensions of the predetermined noise abatement zone
including a predetermined altitude dimension and a
predetermined ground path dimension; and
operating the aircraft at a performance profile having a
noise level acceptable for the noise abatement zone when the
aircraft is flown during takeoff within the noise abatement
zone;
wherein the performance profile results in a reduced
climb setting during takeoff that is less than a normal climb
setting during takeoff when the aircraft is flown outside the
noise abatement zone during the takeoff.
REJECTIONS
1) Claims 1—11, 15, and 16 are rejected under 35 U.S.C. § 102(b) as
anticipated by a Wikipedia article regarding the Aerospatiale-BAC
Concorde (“Concorde”).
2) Claims 12—14 are rejected under 35 U.S.C. § 102(b) as anticipated
by Concorde or, alternatively, as unpatentable under 35 U.S.C.
§ 103(a) over Concorde.
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DISCUSSION
Claims 1—16: Anticipation by Concorde
Appellants argue claims 1—14 as a group. Br. 11—18. We select claim
1 as representative, and claims 2—14 stand or fall with claim 1. 37 C.F.R.
§41.37 (c)(iv). We separately address claims 15 and 16 below.
The Examiner finds that the “Concorde is flown with afterburners
(very noisy) for takeoff, which are then turned off over land .... This is
largely due to regulatory restrictions.” Non-Final Act. 3 (citing 49 U.S.C. §
44715, 14 C.F.R. § 36, and 14 C.F.R. § 91). The Examiner further finds that
“pilots ‘temporarily’ [throttle] back over residential areas to reduce noise,
resulting in a ‘noise abatement zone.’” Id. (citing Concorde). The Examiner
also takes official notice of a 112 PNdB noise takeoff restriction for the
Concorde at JFK airport. Id. The Examiner finds that in claim 1
the “predetermined” dimensions of the zone are not indicated
other than having a ground and altitude dimension, and thus
may broadly encompass the ground to flight envelope in
altitude, but at the least the altitude encompassing the flight
path where the noise levels could . . . exceed airport. . .
restrictions, and the ground path over residential zones.
Id.
Appellants argue that during flight of the Concorde, “no determination
is made by the pilot when the flight path intersects a predetermined noise
abatement zone” because the pilot estimates or guesses when the aircraft is
over a residential area. Br. at 14. Appellants next argue that no
predetermined noise abatement zone is identified by the Concorde pilot that
“includes a predetermined altitude dimension and a predetermined ground
path dimension” because the Concorde pilot estimates or guesses the
“ground path dimension of a residential area, without regard to an altitude
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Application 13/276,007
dimension.'1'’ Id. at 15. Appellants next argue that “while the pilot may
voluntarily throttle back the engines to reduce noise during overflight,
nothing . . . indicates that the reduced noise level is acceptable for the noise
abatement zone.'’'’ Id. Appellants contend that the regulations cited by the
Examiner are “limited to instances outside the scope of claim 1, which is
limited to takeoff,” 14 C.F.R. § 36.301 does not define a noise level
acceptable for the noise abatement zone because it only requires the lowest
noise levels practicable and appropriate for the Concorde design, and the
112 PNdB takeoff noise restriction is based on a noise measurement at
ground level at a predetermined distance from the runway not at an altitude
dimension. Id. at 16.
The Examiner responds that “air space above the residential area”
where the Concorde pilot throttles back the engines corresponds to the noise
abatement zone recited in claim 1. Ans. 3. The Examiner explains that
because claim 1 does not require a particular manner to determine when the
flight path intersects a predetermined noise area, a guess or estimate by the
Concorde pilot suffices. Id. The Examiner also explains that “[t]he altitude
dimension, at maximum, would be the space from the ground to the flight
envelope of the aircraft (i.e. the highest altitude the aircraft is designed to
fly, usually restricted due to thinner air reducing engine thrust and lift,
amongst other factors.).” Id.; see also Non-Final Act. 6. The Examiner
notes that claim 1 does not define the scope of lowering noise to acceptable
levels and 14 C.F.R. § 36.301, thus, meets the claim limitation. Ans. 4. The
Examiner also maintains the regulatory requirement of 112 PNdB for the
Concorde meets the claim limitation “operating the aircraft at a[n] . . .
acceptable noise level” because the claim does not require any more
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Application 13/276,007
specificity. Id. For the following reasons, we sustain the rejection of
claim 1.
Claim 1 requires that the predetermined noise abatement zone include
“a predetermined altitude dimension” and “a predetermined ground path
dimension.” Br. 22 (Claims App.). Appellants do not adequately explain
why the Concorde pilot’s “guess” or “estimate” of when the pilot is over the
noise abatement zone, i.e., residential area, is not a determination of ground
path dimension because, as the Examiner correctly notes, claim 1 does not
require any specific manner or process for determining the predetermined
ground path dimension. Likewise, Appellants do not apprise us of error in
the Examiner’s determination that the Concorde’s flight path includes a
predetermined altitude dimension over the noise abatement area bounded by
the highest altitude at which the Concorde can fly with sufficient lift or the
highest altitude at which noise would exceed ground level restrictions.
Appellants also do not explain why the noise level of 112 PNdB is not “a
noise level acceptable for the noise abatement zone.” Further, Appellants’
argument that the 112 PNdB noise level is not “a noise level acceptable for
the noise abatement zone” because it is measured at ground level is
unavailing because Appellants’ invention is directed to abating noise levels
when “aircraft are closest to the ground.” See Spec. 11. Finally, we also
agree with the Examiner that 14 C.F.R. § 36.301 states “a noise level
acceptable for the noise abatement zone.” As Appellants do not apprise us
of error, we sustain the rejection of claim 1. Claims 2—14 fall with claim 1.
Claim 15 depends from claim 1, and recites “identifying a noise
budget allowed within the predetermined noise abatement zone.” Br. 24
(Claims App.). Claim 16 depends from claim 15 and recites “the
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Application 13/276,007
performance profile having the noise level acceptable for the predetermined
noise abatement zone is determined based on the noise identified budget.”
Id. Appellants contend that “the Concorde reference does not include, and
the Examiner fails to identify any supporting reference containing the
limitations of identifying a noise budget and/or determining the performance
profile based on the noise identified budget.” Id. at 19. The Examiner
responds that “[i]n the broadest terms, ‘identifying’ a noise budget is
performed by the pilots, who determined that aircraft noise needs to be lower
over the residential area. Understanding the need for reduced noise is
‘identifying’ a noise budget.” Ans. 5. The Examiner also submits that the
regulatory requirements for the Concorde provide an additional noise
budget. Id. at 5—6.
We note that Appellants do not offer a proposed construction of the
term “noise budget” in support of their contentions regarding claim 15. Br.
18—19. The Specification provides
an embodiment of the invention may contemplate a three-
dimensional noise abatement zone. Such a three-dimensional
zone may also include a time dimension, ft is also
contemplated that a noise budget allowed within the noise
abatement zone may be identified and may be used to vary the
performance profile at which the aircraft is operated at when the
aircraft is flown within the noise abatement zone. The noise
budget may be a quota that represents the total sum of noise
allowed over a specific period.
Spec. 119 (emphasis added).
Thus, the Specification indicates that a “noise budget” may represent
the total sum of noise allowed over a specific period of time in the context of
a three-dimensional noise abatement zone wherein time is the third
dimension. To act as his own lexicographer, “the patentee must ‘clearly
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Application 13/276,007
express an intent’ to redefine the term.” See Thorner v. Sony Computer Ent.
Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (internal citations omitted).
The noted description at paragraph 19 of the Specification does not,
however, reflect such clear intent to define the term “noise budget.” Further,
claim 15 does not expressly limit “noise budget” to a total sum of noise over
a period of time, nor does claim 15 require that the noise abatement zone is
three-dimensional with time as the third dimension. Although the claims are
interpreted in light of the Specification, limitations from the Specification
are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993). In the absence of any proposed construction of the term “noise
budget” as recited in claim 15, Appellants do not apprise us of error in the
Examiner’s determination that a pilot’s understanding of the need for
reduced noise corresponds to identifying a noise budget, or that the
Concorde regulatory requirements provide a noise budget. We, thus, sustain
the rejection of claims 15 and 16.
Claims 12—14: Unpatentability over Concorde
Appellants rely on the same contentions of error for this rejection as
for the anticipation rejection of claim 12—14. Br. 19—20. We sustain the
rejection of Claims 12—14 as unpatentable over Concorde for the same
reasons stated above.
DECISION
The Examiner’s decision rejecting claims 1—16 under 35 U.S.C.
§ 102(b) is affirmed.
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The Examiner’s decision rejection claims 12—14 under 35 U.S.C.
§ 103(a) 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).
AFFIRMED
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