Ex Parte Chow et al

Patent Trial and Appeal BoardMar 20, 2017

12998115 (P.T.A.B. Mar. 20, 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. 12/998,115 03/18/2011 Leung Choi Chow SCS-5065-111 6120 23117 7590 03/22/2017 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER BURGESS, MARC R ART UNIT PAPER NUMBER 3643 NOTIFICATION DATE DELIVERY MODE 03/22/2017 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): PTOMAIL@nixonvan.com pair_nixon @ firsttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LEUNG CHOI CHOW, DAVID ANGLAND, XIN ZHANG, and MICHAEL GOODYER Appeal 2015-001624 Application 12/998,115 Technology Center 3600 Before MICHAEL C. ASTORINO, CYNTHIA MURPHY, and BRUCE T. WIEDER, Administrative Patent Judges. MURPHY, Administrative Patent Judge. DECISION ON APPEAL The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s rejections of claims 9-12, 15, 16, and 18—23. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 The Appellants identify the real party in interest as “Airbus Operations Limited.” (Appeal Br. 4.) Appeal 2015-001624 Application 12/998,115 STATEMENT OF THE CASE The Appellants’ invention “relates to noise-reduction apparatus for use on an aircraft.” (Spec. 1,11. 5—6.) Illustrative Claim2 9. An aircraft noise reduction device comprising a flow control apparatus located downstream of a flow-facing element, wherein the flow control apparatus is configured to reduce noise induced by unsteady flow downstream of the flow-facing element, and wherein the flow control apparatus and the flow facing element are configured to move, between a respective stowed position and a respective deployed position, wherein the flow control apparatus is made from a resiliently flexible material and is deformable between the stowed and deployed positions, wherein the flow control apparatus naturally assumes the deployed position when the flow-facing element is moved from the stowed position to the deployed position. Rejections I. The Examiner rejects claims 9—12, 15, 16, and 18—23 under 35 U.S.C. § 112, second paragraph as indefinite. (Final Action 2.) II. The Examiner rejects claims 9—12, 15, 16, and 18—23 under 35 U.S.C. § 102(b) as anticipated by Moe (WO 2005/096721 published October 20, 2005). (Final Action 3.) ANALYSIS Independent claim 9 recites “[a]n aircraft noise reduction device comprising a flow control apparatus located downstream of a flow-facing element.” (Appeal Br., Claims App.) Claims 10-12, 15, 16, and 18—20 2 This illustrative claim is quoted from the Claims Appendix set forth on pages 17—19 of the Appeal Brief. 2 Appeal 2015-001624 Application 12/998,115 depend directly or indirectly from independent claim 9. (See id.) Claim 21 recites “[a]n aircraft landing gear comprising an aircraft noise reduction device as claimed in claim 9,” claim 22 recites “[a]n aircraft comprising an aircraft landing gear as claimed in claim 21,” and claim 23 recites “[a] method” including the step of “providing an aircraft noise reduction device as claimed in claim 9.” (Id.) Rejection I Independent claim 9 recites that the flow control apparatus and the flow-facing element “are configured to move” between “a respective stowed position and a respective deployed position.” (Appeal Br., Claims App.) Independent claim 9, as well as claims 10—12, recite further limitations making reference to “the stowed position” and “the deployed position.” (Id.) The Examiner maintains that “it is not clear which stowed and deployed positions” the claim language is referring to in the subsequent recitals. (Final Action 2.) According to the Examiner, the claims must “include language to distinguish between the different stowed and deployed positions.” (Id.) The Examiner suggests including an appropriate modifier for each of the recited positions (i.e., “flow control apparatus stowed position,” “flow control apparatus deployed position,” “flow-facing element stowed position,” “flow-facing element deployed position”). (Id. at 2—3.) The Appellants argue that the term “respective” in independent claim 9 provides “clear antecedent basis for the subsequent references to ‘the stowed and deployed positions’ of the respective elements, which positions may be different actual positions within the aircraft.” (Appeal Br. 9.) According to the Appellants, recited claim features “are tied to the 3 Appeal 2015-001624 Application 12/998,115 respective elements, i.e., the flow control apparatus and the flow-facing element in their respective deployed and stowed positions.” (Id.) We are not persuaded by the Appellants’ position because subsequent references to “the stowed position” and “the deployed position” are not clearly tied to one component or the other. In claims 10—12, for example, it is unclear whether “the deployed position” and/or “the stowed position” refer to the position of the flow control apparatus or the position of the flow- facing element.3 We note that the Examiner’s suggestion to insert a modifier to more specifically identify each of the recited stowed/deployed positions would straightforwardly remedy such uncleamess. Thus, we sustain the Examiner’s rejection of claims 9-12, 15, 16, and 18 as indefinite. Rejection II In view of our determination that claims 9-12, 15, 16, and 18 are indefinite, infra, it follows that the prior art rejection of these claims under 35 U.S.C. § 102(b) must fall because it is necessarily based on a speculative assumption as to the meaning of the claims. See In re Steele, 305 F.2d 859, 862—63 (CCPA 1962). ft should be understood, however, that our decision 3 Claim 10 sets forth “[a]n aircraft noise reduction device as claimed in claim 9, wherein the flow control apparatus comprises a splitter plate arranged to extend downstream of the flow-facing element when in the deployed position.” (Appeal Br., Claims App.) Claim 11 sets forth “[a]n aircraft noise reduction device as claimed in claim 10, wherein, when in the deployed position, the splitter plate is substantially aligned with the free stream airflow. (Id.) And claim 12 sets forth “[a]n aircraft noise reduction device as claimed in claim 10 wherein, when in the stowed position, the splitter plate is oriented to at least partly align with the flow-facing element. (Id.) 4 Appeal 2015-001624 Application 12/998,115 in this regard is pro forma and based solely on the indefiniteness of the claimed subject matter, and does not reflect on the adequacy of the prior art evidence applied in support of the rejection. Thus, for this reason only, we cannot sustain the Examiner’s rejection of claims 9-12, 15, 16, and 18—23 as anticipated by Moe. DECISION We AFFIRM the Examiner’s rejection of claims 9—12, 15, 16, and 18—23 under 35 U.S.C. § 112, second paragraph. We REVERSE pro forma the Examiner’s rejection of claims 9—12, 15, 16, and 18-23 under 35 U.S.C. § 102(b). 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 5