Ex Parte Bodin et al

Patent Trial and Appeal Board

May 30, 2013

11041922 (P.T.A.B. May. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte WILLIAM KRESS BODIN, JESSE REDMAN, and
DERRAL CHARLES THORSON
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Appeal 2011-001823
Application 11/041,922
Technology Center 3600
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Before STEVEN D.A. McCARTHY, ANNETTE R. REIMERS, and
CARL M. DeFRANCO, Administrative Patent Judges.

DeFRANCO, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-18. App. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.
CLAIMED INVENTION
Claims 1, 7, and 13 are the independent claims. They are directed to a
method, system, and computer program, respectively, for navigating
unmanned aerial vehicles (UAVs) in formations. Claim 1 is illustrative of
the claims on appeal:
1. A method for navigating UAVs in formations, the
method comprising:

assigning transition pattern positions of a transition
pattern to each of a multiplicity of UAVs flying together
in a travel pattern toward a waypoint to be orbited by the
UAVs;

flying the UAVs into the transition pattern, continuing
toward the waypoint; and

flying the UAVs into an orbital pattern upon arrival at the
waypoint, the orbital pattern having an orbital radius.

App. Br., Claims Appx. (emphasis added).

EVIDENCE
The Examiner relied upon the following prior art as evidence of
unpatentability:
Duggan US 2005/0004723 A1 Jan. 6, 2005

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REJECTIONS
1. Claim 1 stands rejected under 35 U.S.C. § 112, paragraph 2, as
being indefinite for failing to particularly point out and distinctly claim the
subject matter which Appellants regard as their invention. Ans. 2.
2. Claims 1, 3, 5, 7, 9, 11, 13, 15, and 17 stand rejected under 35
U.S.C. § 102(e) as being anticipated by Duggan. Id. at 6.
3. Claim 2, 4, 6, 8, 10, 12, 14, 16, and 18 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Duggan. Id. at 12.
ANALYSIS
The “indefiniteness” rejection of claim 1
Claim 1 is directed to a method. In rejecting claim 1 for
indefiniteness, the Examiner found that it recites “means (or step) plus
function limitations” that invoke 35 U.S.C. § 112, paragraph 6. Ans. 3.
Based on that initial premise, the Examiner looked to Appellants’
Specification and concluded that it “does not provide adequate disclosure or
flowchart or algorithm” for performing the functions recited by claim 1.
Ans. 4-5. Appellants note, however, that claim 1 “recites a method with no
means plus function steps” and thus does not invoke a § 112, paragraph 6
analysis. Reply Br. 4.
We agree with Appellants that § 112, paragraph 6 is not applicable to
claim 1. On its face, method claim 1 does not include the phrase “step for.”
As such, there is a rebuttable presumption that it does not fall within the
ambit of § 112, paragraph 6. See, e.g., Phillips v. AWH Corp., 415 F.3d
1303, 1311 (Fed. Cir. 2005) (en banc) (a claim limitation that does not use
the phrase “means for” or “step for” will trigger the rebuttable presumption
that 35 U.S.C. § 112, paragraph 6 does not apply). Here, the Examiner has
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not provided a persuasive reason for overcoming that presumption. Thus,
we cannot sustain the Examiner’s rejection of claim 1 as indefinite.1
The “anticipation” rejection of
claims 1, 3, 5, 7, 9, 11, 13, 15, and 17
Appellants argue independent claims 1, 7, and 13 as a group, relying
on the same arguments for all three claims. App. Br. 10. We select claim 1
for review with claims 7 and 13 standing or falling with claim 1. Appellants
do not raise additional arguments with respect to dependent claims 3, 5, 9,
11, 15, and 17, so they too will stand or fall with claim 1. Id. Any
arguments which Appellants could have made but chose not to make with
respect to these dependent claims are deemed to be waived. See 37 C.F.R. §
41.37(c)(1)(iv).
Claim 1 recites, in essence, three flight patterns for the UAVs – “a
travel pattern,” “a transition pattern,” and “an orbital pattern.” App. Br.,
Claims Appx. Appellants appear not to dispute Duggan’s disclosure of
UAVs flying in a travel pattern and an orbital pattern. App. Br. 9, Reply Br.
10 ("Duggan does not disclose a transition pattern. Duggan merely discloses
flight patterns or orbit patterns for UAVs.”); see also App. Br. 7, Reply Br. 8
(“Duggan at paragraph 0424 discloses UAVs flying autonomously to an
orbit pattern"). Rather, Appellants contend that Duggan discloses neither
the limitation of “a multiplicity of UAVs flying together” nor the limitation
of “assigning transition pattern positions” to the UAVs. App. Br. 5, 7-9,

1 In the event of further prosecution, however, we note that Appellants
concede that claim 7 recites means-plus-function language and, in turn,
argue that the Specification provides adequate support for such language.
Reply Br. 4-5. However, because the Examiner’s rejection was entered
against claim 1, not claim 7, we do not consider Appellants’ argument as to
whether claim 7 satisfies the requirements of § 112.
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Reply Br. 6, 8-10. Appellants also attack Duggan as non-enabling. Reply
Br. 10. We address each of Appellants’ arguments in turn.
First, Appellants contend that Duggan does not teach “a multiplicity
of UAVs flying together.” App. Br. 5; Reply Br. 6. According to
Appellants, Duggan “makes no suggestion of . . . coordination among the
UAVs,” rather it “discloses only UAVs individually flown by individual
operators.” App. Br. 7- 8, Reply Br. 8-9. We disagree. Duggan is replete
with disclosures of a single operator controlling multiple UAVs
simultaneously. See, e.g., para. [0013] (“Empowered by the multi-modal
control system, an operator can even manage multiple vehicles
simultaneously”) (emphasis added); para. [0152] (“Such control capability
even enables the single operator to effectively manage and control a team of
vehicles”) (emphasis added); paras. [0422]-[0423] (“Sample Mission . . .
three UAV’s are simultaneously controlled by a single operator from a
ground control station”) (emphasis added).
An even more glaring indication of Duggan’s disclosure of multiple
UAVs flying together is Duggan’s disclosure of UAVs flying in formation.
Specifically, the Examiner cited Duggan’s express teaching of “Formation
flying (multiple vehicles[]).” Ans. 6, 9 (citing Duggan, para. [0169]).
Appellants gloss over this finding, instead arguing that Duggan does not
disclose "positioning UAVs relative to other UAVs, such as in a line or an
N-sided polygon, during travel." App. Br. 8, Reply Br. 9. We disagree.
Duggan expressly recognizes that the UAVs are flying relative to each other,
describing an “autonomous” control function which “generate[s] line-of-
sight commands for UAV-to-UAV rendezvous formation flying.” Duggan,
para. [0322] (emphasis added). Moreover, by definition, formation flying
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means the UAVs are positioned relative to each other while in flight. See
Encyclopedia Britannica Online Academic Edition,
http://www.britannica.com/EBchecked/topic/1403296/formation-flying,
Encyclopedia Britannica, Inc. (last visited May 10, 2013)
formation flying, two or more aircraft traveling and
maneuvering together in a disciplined, synchronized,
predetermined manner. In a tight formation, such as is
typically seen at an air show, aircraft may fly less than three
feet (one metre) apart and must move in complete harmony, as if
they are joined together.
(emphasis added). Given Duggan's clear disclosure of multiple UAVs flying
together in formation, we agree with the Examiner (see Ans. 18-19) that
Duggan meets the limitation of “a multiplicity of UAVs flying together.”
We find meritless Appellants’ arguments to the contrary.
Second, Appellants contend that Duggan does not disclose a
“transition pattern” for the UAVs. And “because Duggan does not disclose
a transition pattern,” Appellants assert that it “cannot possibly disclose
assigning transition pattern positions . . . to each UAV,” as claim 1 requires.
App. Br. 8, Reply Br. 9. The Examiner, however, found that Duggan
satisfies the claimed “transition pattern” limitations. Ans. 6-7. In
painstaking detail, the Examiner took Appellants through Duggan’s
disclosure, matching the relevant passages of Duggan to the corresponding
“transition pattern” limitations of claim 1. Id. at 6-17. We do not discern
any errors in the Examiner's detailed analysis of Duggan.
According to the Examiner, “transition pattern can be interpreted as
waypoints.” Ans. 7, 10. And because Duggan teaches “waypoint guidance”
for flying multiple UAVs in formation, the Examiner found that Duggan
teaches UAVs flying in “transition patterns.” Id. at 6-7. Specifically, the
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Examiner found that Duggan's disclosures of UAVs “flying a set of
waypoints,” and “utiliz[ing] waypoint component[s]” to transition between a
“planned navigation route” and “an operator specified orbit pattern” would
have been viewed by a skilled artisan as flying a transition pattern. Id. at 7.
We have considered Appellants’ arguments, but do not find them
persuasive. Duggan fully supports the Examiner's position. For example,
Duggan teaches that:
the described vehicle control scheme supports transitions
between changing control modes and functions. For example,
suppose a UAV is flying a set of waypoints and the operator
edits the waypoints. A transition must be made from the old
waypoints to the new waypoints. In another example, suppose
an aircraft flying a set of waypoints is on course to collide with
another aircraft. It is within the scope of the present invention
that an air collision avoidance sub-component will override the
waypoint path and direct the aircraft off of the collision course.
In this case, in accordance with one embodiment, the
commands generated for level 316 will first correspond to the
requested waypoint path, then there will be a transition to a
non-collision path, and then there will be a graceful transition
back to the waypoint path.

Duggan, para. [0080] (emphasis added). This passage, cited by the
Examiner (Ans. 7), provides no better example of how Duggan satisfies the
“transition pattern” limitations of claim 1. While this passage describes the
"transition" function in terms of a single UAV, Duggan clearly contemplates
its application to multiple UAVs flying in formation, as discussed above.
See, e.g., Duggan, para. [0108] (“FIG. 7 is a schematic diagram illustrating
an interface system similar to that illustrated in FIG. 6 but adapted for
multiple vehicles”) (emphasis added).
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As for the claimed feature of “assigning transition pattern positions”
to the UAVs, Duggan describes the computation of “waypoint leg transition”
in terms of “position error” and “coordinate frames” for transitioning from
“current waypoint leg” to “next waypoint leg.” See Duggan, paras. [0169]-
[0188]. According to Duggan, those waypoint route computations are
“augmented with smooth turn and leg propagation logic” and may include
“preprogram[ing] a set of orbit patterns embedded within a waypoint route
or dynamically insert[ing] orbit patterns into an existing route in real-time.”
Duggan, para. [0187] and [0190], respectively. Given those disclosures, the
Examiner correctly determined that Duggan meets the limitations of claim 1
of “assigning transition pattern positions” to the UAVs and flying them from
the transition (i.e., waypoint) pattern “into an orbital pattern.”
Lastly, Appellants make the general assertion that Duggan's disclosure
is non-enabling, but they fail to provide any specific explanation. App. Br.
9-10; Reply Br. 10-11. Duggan, an issued patent, is presumed operable, and
an appellant challenging the operability of the reference has the burden to
rebut this presumption of operability. In re Sasse, 629 F.2d 675, 681 (CCPA
1980) (when the reference relied on expressly anticipates or makes obvious
all of the elements of the claimed invention, the reference is presumed to be
operable, and the burden is on applicant to provide facts rebutting that
presumption). Duggan is not inoperable on its face. See In re Morsa, 713
F.3d 104, 109 (Fed. Cir. 2013) (a prior art patent cited by an Examiner is
presumed enabling absent evidence to the contrary by the Applicant). Here,
Appellants do not point to any facts evincing Duggan is non-enabling , but
simply rely on the argument that “Duggan does not disclose each and every
element and limitation of the independent claim.” Reply Br. 10. That
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argument, however, relates to anticipation, not enablement. As such,
Appellants have failed to carry their burden.2
For the foregoing reasons, we sustain the rejection of independent
claims 1, 7 and 13, and their respective dependent claims 3, 5, 9, 11, 15, and
17, as anticipated by Duggan.
The “obviousness” rejection of
claims 2, 4, 6, 8, 10, 12, 14, 16, and 18
Appellants do not challenge the Examiner’s findings with respect to
the additional limitations recited in dependent claims 2, 4, 6, 8, 10, 12, 14,
16, and 18, but instead argue for patentability solely on the basis of their
dependency from respective independent claims 1, 7 and 13. App. Br. 11,
Reply Br. 12. Any arguments which Appellants could have made but chose
not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv).
Because we previously sustained the rejection of claims 1, 7 and 13, we
likewise sustain the rejection of claims 2, 4, 6, 8, 10, 12, 14, 16, and 18.
DECISION
We reverse the Examiner’s decision rejecting claim 1 under 35 U.S.C.
§ 112, second paragraph. We affirm the Examiner’s decision rejecting
claims 1-18 under 35 U.S.C. §§ 102 and 103.

2 Also, to the extent that Appellants take issue with some of Duggan’s
references to “manual” operation of the control system, they are not
persuasive. Reply Br. 8. Duggan teaches that the UAVs’ system
architecture “support[s] the execution of manual and automated flight
control decisions.” Duggan, para. [0107]. Indeed, Duggan recognizes that
“the ‘operator’ is not necessarily human. For example, the operator could be
an automated decision-making source, such as a military C4I system.”
Duggan, para. [0088].

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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

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