Ex Parte Eller et al

Patent Trial and Appeal Board

Aug 31, 2017

13347316 (P.T.A.B. Aug. 31, 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.
13/347,316 01/10/2012 Erez Eller 53131US02 (U110003US2) 4162
91017 7590 09/05/2017
Cantor Colburn LLP - Sikorsky Aircraft Corp.
20 Church Street
22nd Floor
Hartford, CT 06103
EXAMINER
WANG, MICHAEL H
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EREZ ELLER and JOHN KNAG
Appeal 2016-000922
Application 13/347,3161
Technology Center 3600
Before EDWARD A. BROWN, LEE L. STEPINA, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Erez Eller and John Knag (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner’s final decision rejecting claims 1—21 and 23
under 35 U.S.C. § 103(a) as unpatentable over Osder (US 5,850,615, iss.
Dec. 15, 1998) and Arlton (US 8,042,763 B2, iss. Oct. 25, 2011).2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellants, the real party in interest is Sikorsky Aircraft
Corporation. Appeal Br. 2 (filed Apr. 6, 2015).
2 Claim 22 has been canceled. Appeal Br. 2. The Examiner’s indefiniteness
rejection of claim 23 has been withdrawn. Adv. Act. 2 (dated Feb. 27,
2015).
Appeal 2016-000922
Application 13/347,316
INVENTION
Appellants’ invention relates to the “control and reduction of rotor
moments in dual-rotor helicopters.” Spec. 12.
Claims 1, 8, 15, and 23 are independent claims. Claim 1 is illustrative
of the claimed invention and reads as follows:
1. A method of counteracting a rotor moment of one or more
rotors of a concentric dual-rotor helicopter comprising:
sensing angular velocity and angular acceleration of a
helicopter during a flight maneuver;
comparing the angular velocity and angular acceleration to
a set of control parameters;
issuing a command to one or more control servos of a rotor
swashplate according to the comparison; and
changing the cyclic pitch of the one or more rotors in
response to the command via the control servos to counteract the
rotor moment;
wherein the one or more rotors is two rotors, and the cyclic
pitch change of a first rotor of the two rotors is in an opposite
direction to the cyclic pitch change of a second rotor of the two
rotors to increase a minimum blade tip clearance between the two
rotors.
Appeal Br. 11 (Claims App.).
ANALYSIS
Although not using identical wording in each instance, each
independent claim on appeal includes the following limitation,
wherein the one or more rotors is two rotors, and the cyclic pitch
change of a first rotor of the two rotors is in an opposite direction
to the cyclic pitch change of a second rotor of the two rotors to
increase a minimum blade tip clearance between the two rotors.
See Appeal Br. 11, 12, 14, and 15 (Claims App.). The Examiner finds “this
limitation is taught by Arlton.” Final Act. 4, 8, 12, 14. As support, the
Examiner refers to blades 20 and 22 shown in Figure 1 of Arlton and its
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Application 13/347,316
statement that “roll servo 59 to vary the cyclic pitch of rotor blades 20.” Id.
(citing Arlton, col. 4,11. 14—15). The Examiner asserts further “[djuring a
maneuver, the cyclic pitch change in counterrotating rotors must be in
opposite directions in order to be effective.” Id. at 4—5, 8, 12, 14. The
Examiner concludes “[i]t would [have been] obvious to a person having
ordinary skill in the art to modify Osder using the teachings from Arlton as a
matter of design choice to use dual counter-rotating rotors instead of a single
rotor.” Id. at 5, 8—9, 12, 14.
Appellants argue Arlton does not support the core premise that “cyclic
pitch change in counterrotating rotors must be in opposite directions in order
to be effective” underlying the Examiner’s obviousness determination, and,
moreover, that the Examiner’s “design choice” position lacks a rational
underpinning. Appeal Br. 7—8, 9. Appellants note Arlton contradicts the
Examiner’s core premise by teaching an apparatus with counter-rotating
rotors with swashplates (56, 57) that are coupled together by a linkage
member (e.g., 126), which is moved by a servo motor to vary the cyclic
pitch of the rotors in unison. Id. at 7 (citing Arlton, col. 4,11. 47—61).
Appellants also point out that the claims recite changing the cyclic pitch
specifically “to increase a minimum blade tip clearance between the two
rotors,” rather than simply to accomplish a pitch maneuver. Id. at 7.
Regarding the “design choice” rational, Appellants assert the Examiner
simply makes a conclusory statement that lacks a rational underpinning
because “adding another set of rotors dramatically changes the entire
design.” Id. at 9. We find these arguments persuasive.
With respect to core factual findings in a determination of
patentability, the Examiner “cannot simply reach conclusions based on
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Application 13/347,316
[their] own understanding or experience — or on [their] assessment of what
would be basic knowledge or common sense.” In re Zurko, 258 F.3d 1379,
1386 (Fed. Cir. 2001). “Rather, the [Examiner] must point to some concrete
evidence in the record in support of these findings.” Id. In this case, the
Examiner offers no persuasive evidence supporting the core factual finding
“cyclic pitch change in counterrotating rotors must be in opposite directions
in order to be effective” and, consistent with Appellants’s argument, Arlton
appears to suggest this finding is not accurate. The Examiner refers to a
Wikipedia article, but we find it provides little, if any, persuasive evidentiary
value. First, and perhaps most importantly, the Examiner introduces no
evidence that the Wikipedia article qualifies as prior art. In fact, the article
indicates it was edited as recently as August 14, 2017.
https://en.wikipedia.org/wiki/Dissymmetry_of_lift (last visited Aug. 29,
2017). Second, while the article discloses general principles of dissymmetry
for lift in the context of a single rotor, we do not find the Examiner’s
analysis demonstrates persuasively that this necessarily leads to the
conclusion the cyclic pitch change in counterrotating dual rotors must be in
opposite directions in order to be effective. Finally, we note the Wikipedia
article includes a section specifically addressing “counter-measures” in
which it specifically refers to apparatuses with two sets of rotor blades, but
we see no suggestion of it being a necessity to change the cyclic pitch of the
two rotors in opposite directions in order to be effective. Id.
Lastly, in appropriate circumstances, a modification of prior art
teachings may be a simple matter of design choice. E.g., ACCO Brands
Corp. v. Fellowes, Inc., 813 F.3d 1361, 1367 (Fed. Cir. 2016) (where the
prior art consistently located two sensors in shredder’s feed, a skilled artisan
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Application 13/347,316
faced two design choices of placing the thickness sensor above or below the
presence sensor and each design choice was an obvious combination of prior
art elements); RexnordIndus., LLC v. Kappos, 705 F.3d 1347, 1356 (Fed.
Cir. 2013) (where the prior art taught that conveyor belt elements are spaced
to avoid pinching fingers, the claimed 10 mm dimension was a design choice
that takes into account the size of fingers and small objects); Sciele Pharma
Inc. v. Lupin Ltd., 684 F.3d 1253, 1263 (Fed. Cir. 2012) (“it would have
been a routine and obvious design choice to make an extended release
dosage form with a lower Tmax” in view of teachings in the prior art to lower
Tmax and evidence that such change was predictable and within the level of
skill in the art); PlaSmart, Inc. v. Kappos, 482 Fed. Appx. 568, 574 (Fed.
Cir. 2012) (unpublished) (attaching safety wheel directly to twister member
of scooter instead of body would have been a common sense alternative
design choice as a safety feature to prevent tipping of the scooter); In re
Conte, 36 Fed. Appx. 446, 451 (Fed. Cir. 2002) (unpublished) (whether
keyhole slot used to retain rubber band to front of gun barrel faced upwardly
or downwardly was a fairly insignificant design choice as both slots retained
rubber band); In re Aslanian, 590 F.2d 911, 915 (CCPA 1979) (making front
and rear bottom side portions co-planar was a design choice); In re Kuhle,
526 F.2d 553, 555 (CCPA 1975) (a spring-loaded electrical contact was an
obvious matter of design choice within the skill in the art where placement
of electrical contact provides no novel or unexpected result).
Nevertheless, a proposed change that results in different structure and
function may not be an obvious design choice. E.g., Flour Tec, Corp. v.
Kappos, 499 Fed. Appx. 35, 41-42 (Fed. Cir. 2012) (adding an expander to a
lower pressure configuration to accommodate a high-pressure feed was not a
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Application 13/347,316
design choice where a separate high-pressure configuration also was used);
In re Gal, 980 F.2d 717, 719-20 (Fed. Cir. 1992) (custom logic cells had
different structure and purpose than prior art logic cells and, thus, were not a
design choice), cf, Gardner v. TEC Sys., Inc., 725 F.2d 1338, 1349 (Fed.
Cir. 1984) (claim was obvious because structure that functioned differently
was not claimed).
In this case, there can be no dispute that a single and dual rotor system
have significant differences in structure and function. The Examiner,
however, has not explained why a skilled artisan would have modified the
single rotor blade of Osder with dual counter-rotating rotors of Arlton as a
mere design choice when the modification would change the structure and
operation of the system of Osder. Merely asserting that the change is an
obvious design choice because both are recognized to provide rotor lift is
insufficient. See Cutsforth, Inc. v. MotivePower, Inc., 636 Fed. Appx. 575,
578 (Fed. Cir. 2016) (unpublished) (stating that a particular placement of an
element is a design choice does not make it obvious; a reason must be
offered as to why a skilled artisan would have made the specific design
choice). Instead, the Examiner was obligated to provide a rational
underpinning explaining why a person of ordinary skill in the art would have
recognized the dual counter-rotating rotors were a recognized option for the
apparatus Osder discloses.
For all of the foregoing reasons, we agree with Appellants that the
Examiner’s rejections of claims 1, 8, 15, and 23, as well as the claims
depending therefrom, are improper. Therefore, we do not sustain the
rejection of claims 1—21 and 23.
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DECISION
The Examiner’s rejection of claims 1—21 and 23 is reversed.
REVERSED
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