Ex Parte Ferro et alDownload PDFPatent Trial and Appeal BoardJun 30, 201412253634 (P.T.A.B. Jun. 30, 2014) Copy Citation 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. 12/253,634 10/17/2008 Daniel Ferro 073070-08162 9772 79297 7590 06/30/2014 Dickinson Wright PLLC James E. Ledbetter, Esq. International Square 1875 Eye Street, N.W., Suite 1200 Washington, DC 20006 EXAMINER BEHNCKE, CHRISTINE M ART UNIT PAPER NUMBER 3661 MAIL DATE DELIVERY MODE 06/30/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte DANIEL FERRO, VERONIQUE ROAN, PHILLPPE HAAS, and FULGENCE ROLLET ________________ Appeal 2012-005764 Application 12/253,6341 Technology Center 3600 ________________ Before: EDWARD A. BROWN, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a rejection of claims 1–4 and 7–10. App. Br. 3. Claims 5 and 6 have been cancelled. App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b). Appellants’ representative presented oral argument on June 19, 2014. We AFFIRM. THE CLAIMED SUBJECT MATTER 1 According to Appellants, the real party in interest is Airbus Operations SAS of Toulouse, France. App. Br. 3. Appeal 2012-005764 Application 12/253,634 2 The disclosed subject matter “relates to a method and a device for creating an aircraft flight plan, in particular for a transport airplane.” Spec. 1:1–2. Independent claim 1 is illustrative of the claims on appeal and is reproduced below: 1. A method of creating at least one flight plan of an aircraft, the method comprising: a) entering, by an operator of the aircraft, into a creation objective entering unit a creation objective which illustrates a type, general characteristics, and a written description of the operator's intention regarding the type of the flight plan to be created; b) automatically generating a flight plan outline, said flight plan outline being in accordance with said creation objective and being devoid of certain parameters which represent missing parameters, on the basis of the creation objective entered with the aid of said creation objective entering unit and information received from external information sources, the information comprising first information related to the creation objective and second information dependent on a current situation; c) automatically generating a targeted request for information relating to said missing parameters, to be presented to the operator on a viewing screen; d) the operator entering in an information entering unit the requested information relating to said missing parameters; and e) supplementing automatically said flight plan outline and automatically deleting any discontinuities to create, in a definitive manner, said flight plan, that is displayed on another viewing screen, on the basis of said information entered into the information entering unit and of said flight plan outline generated in step b), wherein step c) further comprises, for at least one missing parameter of said missing parameters, automatically proposing various options to the operator on the viewing screen and requesting the operator to select one option from among said various options with the aid of said information entering Appeal 2012-005764 Application 12/253,634 3 unit, and, wherein step d) further comprises receiving the option selected by the operator in the information entering unit, and wherein the method further comprises automatically naming said flight plan created in step e) with a name which depends on said creation objective and which comprises a skeleton of the flight plan, as well as modifications to the flight plan which have been performed. REFERENCES RELIED ON BY THE EXAMINER Onken US 6,163,744 Dec. 19, 2000 Dwyer US 6,522,958 B1 Feb. 18, 2003 Lusardi US 7,769,501 B2 Aug. 3, 2010 THE REJECTIONS ON APPEAL Claims 1, 2, and 7‒10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Dwyer and Lusardi. Ans. 5. Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Dwyer, Lusardi, and Onken. Ans. 9. ANALYSIS The rejection of claims 1, 2, and 7‒10 as being unpatentable over Dwyer and Lusardi As indicated supra, Appellants’ counsel presented oral argument on June 19, 2014. 37 C.F.R. § 41.47(i) (2011) states that “[a]t oral hearing only the Record will be considered . . . . Any argument not presented in a brief cannot be raised at an oral hearing.” Appellants’ arguments presented at this hearing have been taken into consideration in our analysis below. Appellants argue claims 1, 2, and 7‒10 together. App. Br. 9‒15. We select method claim 1 for review with claims 2 and 7‒10 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appeal 2012-005764 Application 12/253,634 4 The Examiner finds that Dwyer primarily teaches the limitations of claim 1. Ans. 5‒6. However, while “Dwyer teaches automatically naming a flight plan with a name which depends on the creation objective,” the Examiner acknowledges that “Dwyer does not specifically teach automatically naming the flight plan created in step e) with a name which depends on the creation objective and which comprises a skeleton of the flight plan, as well as modifications to the flight plan which have been performed.” Ans. 6 (italics added). The Examiner relies on Lusardi for these missing limitations. Ans. 6. The Examiner concludes that it would have been obvious to include automatically naming the flight plan with a name which depends on the creation objective and which comprises the skeleton of the flight plan, as well as the modification which has been performed, as clearly taught by Lusardi, as this would have provided all of the information individually required or desired by a user in the cockpit during flight (Lusardi: column 2, lines 5-13). Ans. 7. Appellants disagree that Dwyer teaches steps b) and c) of claim 1. App. Br. 9‒10, 13‒14. Initially, Appellants contend that “[i]t is unclear” whether the Examiner is alleging that Dwyer’s flight plan 418 or Dwyer’s flight plan 408 “corresponds to the ‘flight plan outline’ recited by claim 1.” App. Br. 11. Nevertheless, Appellants contend that neither flight plan 418 nor flight plan 408 “corresponds to the ‘flight plan outline’ recited by claim 1.” App. Br. 11. Here, the Examiner is referring to both flight plans, i.e., “original flight plan 418 and dashed line 408, figure 6.” Ans. 5, see also Ans. 11 (“the answer to this question is both”). Dwyer teaches that “[w]hen a flight plan change is initiated on the original flight plan [i.e., 418], the Appeal 2012-005764 Application 12/253,634 5 original flight plan is copied into the modified flight plan [i.e., 408].” Dwyer 12:17‒19, see also Ans. 11. Dwyer also discloses a system for “textually and/or graphically displaying flight plans on a textual display 304 and a graphical display 306” and that this system includes “[i]nterface devices” that “allow a user to interface with the CPU 302 to operate the navigation system.” Dwyer 6:27‒43, see also Dwyer Fig. 3. Dwyer further discloses that the block outline of the various components of the system shown in Figure 3, including “cursor control device 310,” “is well known.” Dwyer 6:18‒21, Ans. 5. Appellants address each of Dwyer’s flight plans 418 and 408 separately. App. Br. 11‒12, see also App. Br. 14‒15. Addressing Dwyer’s flight plan 418 first, Appellants repeat specific limitations found in claim 1 and contend that Dwyer does not teach same. App. Br. 11. Appellants do not explain how or why Dwyer’s flight plan fails to teach these limitations; only that it does not teach these limitations. App. Br. 11. In short, Appellants contend that “Dwyer does not teach or suggest” followed by the limitations in question whether pertaining to the claimed “creation objection” or what the flight plan is “devoid of.” App. Br. 11. In a similar situation where there was only a recitation of the limitation in question and an assertion that the cited art lacks this teaching, our reviewing court stated that “the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.” In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). This same holding in Lovin applies equally here with respect to Appellants’ contentions with respect to Dwyer’s flight plan 418. Appeal 2012-005764 Application 12/253,634 6 Regarding Dwyer’s modified flight plan 408, Appellants present conclusory arguments similar to those discussed supra regarding flight plan 418. App. Br. 11‒12, see also App. Br. 15. However, here, Appellants also contend that, according to Dwyer, “in order to create the dashed line 408, the operator must first enter missing parameters into the system.” App. Br. 12, see also App. Br. 14. This is not a wholly correct paraphrasing of Dwyer in that, as indicated supra, Dwyer teaches that “[w]hen a flight plan change is initiated on the original flight plan [i.e., 418], the original flight plan is copied into the modified flight plan [i.e., 408].” Dwyer 12:17‒19, see also Ans. 11. Only after such copying can changes to the modified flight plan 408 be initiated such that prior to any changes being made, the modified flight plan shares the same data as found in the original flight plan and hence the modified flight plan need not be constructed anew or otherwise require the pilot to re-enter the same data. See also Ans. 11‒12. Appellants also contend “Dwyer fails to teach or suggest that the dashed line 408 is automatically generated on the basis of ‘ ... information received from external information sources,’ as recited by claim 1.” App. Br. 12, see also App. Br. 14. Appellants’ argument is not persuasive in that each flight plan (both the original and the copy) rely on flight and map data provided by outside/external sources. See Dwyer Fig. 3 and 6:22‒43, see also Ans. 12. Appellants further address the “automatically generating a flight plan outline” limitation (App. Br. 12, Reply Br. 7) contending that Dwyer’s disclosure of “copying” does not meet this limitation. Reply Br. 7, see also App. Br. 12. Appellants do not explain how Dwyer’s “copying” of the original flight plan (see supra and Dwyer 12:17‒21) fails to result “in the automatic generation of a flight plan outline.” Reply Br. 7‒8. In short, Appeal 2012-005764 Application 12/253,634 7 Appellants contend that the pilot must “perform a manual process” (Reply Br. 8) but it is clear from the teachings of Dwyer that the original waypoints and data previously input do not need to be added anew to the modified flight plan?, only the changes to the original flight plan; the same as in Appellants’ system. Dwyer 12:19‒29, see also Ans. 11 referencing Spec. 10:12‒16. Furthermore, once the changes are input, Dwyer illustrates that the modified flight plan is automatically generated. See the transition of the flight plan from Dwyer Fig. 4 to Fig. 8, see also Spec. 10:12‒16. In the Reply Brief, Appellants focus more specifically on the claim term “creation objection” contending that “Dwyer discloses the claimed ‘creation objective’ by disclosing the ‘Amend Route’ option in Fig. 5.” Reply Br. 5. To be clear, the Examiner identifies Dwyer’s “task menu 424, figure 5” as corresponding to the claimed “creation objective” and the Examiner’s reference to the entire menu does not limit this term to only the one sub-menu item entitled “Amend Route.” Ans. 5, Dwyer Fig. 5. Hence, any indication that the Examiner is asserting that “only the ‘Amend Route’ option” (Reply Br. 5) corresponds to the claimed “creation objection” is not supported in the record and as a consequence, any speculative contention made by Appellants based on this specific presumption (see Reply Br. 5‒6), is not persuasive. Furthermore, in making an argument based on this premise, Appellants contend that “the mere selection of an ‘Amend Route’ option is not the same as entering a ‘creation objective’” as claimed, and for emphasis, Appellants explain how “creation objective” is a “significant feature of the claimed method.” Reply Br. 5‒6, see also Reply Br. 8. However, the indicated features relied upon for support and which are Appeal 2012-005764 Application 12/253,634 8 disclosed in Appellants’ Specification (i.e., modifications affecting departure, arrival, return, diversion to another airport, etc.) (see Reply Br. 5 referencing Spec. 9:28 to 10:11), are not recited in claim 1. Thus, even assuming Dwyer is silent regarding these reasons why a flight plan might be modified, Dwyer’s silence is not indicative of Examiner error. In short, unclaimed features cannot impart patentability. See In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“the name of the game is the claim”). Further, we must be careful not to read a particular embodiment appearing in the written description into the claim if the claim language is broader than the embodiment. See SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). Appellants also compare Dwyer to conventional techniques “which create[] an unnecessary workload on the pilot” and hence, “may become irksome.” Reply Br. 8 (referencing Spec. 1: 21-17). However, such contentions are not persuasive of Examiner error in that Appellants have not identified any feature in claim 1 that is missing in Dwyer. In an alternate contention, Appellants address three of the ten sub- menu items depicted in task menu 424. Reply Br. 6. Appellants contend that “none of these options illustrate” the claimed “creation objective” as recited in claim 1. Reply Br. 6. To be clear, this term “creation objective” is defined in claim 1 as “a type, general characteristics, and a written description of the operator’s intention regarding the type of the flight plan to be created.” App. Br. 17, Claims App’x. In Dwyer, the flight plan is generated based on both user input and exterior sources, which Dwyer discloses “is well known, per se.” Dwyer 6:18‒21, see also Ans. 5 and Dwyer 6:22‒34. Appellants do not make clear how Dwyer’s disclosure of Appeal 2012-005764 Application 12/253,634 9 inputting information sufficient enough to generate a flight plan between different way points along with the associated estimated time of arrival and fuel consumption (see, e.g., Dwyer Fig. 4) fails to likewise disclose the entering of “a type, general characteristics, and a written description of the operator’s intentions” as recited in claim 1. See also Ans. 13. Further, Appellants’ focus here on only three of Dwyer’s sub-menu items is not persuasive of Examiner error in this matter. Appellants also address Lusardi contending that “Lusardi does not mention anything about automatically naming this flight plan based on a ‘creation objective’” and thereafter Appellants recite the portion of claim 1 defining this term. App. Br. 13. However, as previously indicated, the Examiner finds that “Dwyer [not Lusardi] teaches automatically naming a flight plan with a name which depends on the creation objective.” Ans. 6 (citations omitted). The Examiner acknowledges the lack in Dwyer regarding naming the flight plan “with a name which depends on the creation objective and which comprises a skeleton of the flight plan, as well as modifications to the flight plan which have been performed.” Ans. 6 (italics added). The Examiner finds that Lusardi teaches a naming “which comprises the skeleton of the flight plan (‘KBWI2 to CYQM3’, figure 5), as well as the modification which has been performed (‘Modified’, figure 5; column 4, lines 54‒67).” Ans. 6 (internal footnotes added). Further, as also stated by the Examiner, the combination of the naming disclosures described in both Dwyer and Lusardi “would have provided all of the information individually required or desired by a user in the cockpit during flight 2 Baltimore-Washington International Airport (KBWI). 3 Greater Moncton International Airport in New Brunswick, Canada. Appeal 2012-005764 Application 12/253,634 10 (Lusardi: column 2, lines 5‒13).” Ans. 7, see also Ans. 14. Appellants’ contentions to the contrary are not persuasive. Appellants also specifically address that portion of the limitation directed to “‘as well as modifications to the flight plan which have been performed,’ as recited by claim 1” Reply Br. 9. In short, Appellants contend that while Lusardi does disclose a “Modified” flight plan (see Lusardi Fig. 5), Lusardi “does not include the modifications to the flight plan” “because the generic indicator [‘Modified’] does not provide any details at all regarding the nature of the particular modification.” Reply Br. 9. To be clear, the flight plans referenced by the Examiner in Lusardi Fig. 5 are “KBWI to CYQM (Modified)” and “KBWI to CYQM.” Ans. 13 referencing Lusardi Fig. 5, boxes 50 and 66. In view of the above, the added term “Modified” enables the pilot to distinguish between the two plans based on the modifications performed. Accordingly, we are not persuaded that the naming techniques disclosed in Dwyer and Lusardi fail to satisfy the limitation of a name that indicates “modifications to the flight plan which have been performed.” Furthermore, regarding Appellants’ reliance on the claim term “automatic”, the Examiner references both MPEP § 2144.04(III) and also In re Venner, 262 F.2d 91 (CCPA 1958) for instruction “that the mere use of the word ‘automatically’ in the claims does not distinguish the invention over the prior art which accomplishes the same result manually.” Ans. 14; see also Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007). Accordingly, Appellants’ contentions to the contrary whether with respect to automatic naming (App. Br. 13) or automatic generating (App. Br. 12, 14) are not persuasive of Examiner error. Appeal 2012-005764 Application 12/253,634 11 In summary, we are not persuaded by Appellants’ contentions that the Examiner erred in rejecting claims 1, 2, and 7‒10 as being obvious over Dwyer and Lusardi. The rejection of claims 3 and 4 as being unpatentable over Dwyer, Lusardi, and Onken Appellants contend that claims 3 and 4 are independently patentable “for at least the same reasons presented in the argument above, and Onken fails to remedy the deficiencies of Dwyer and Lusardi.” App. Br. 15. Appellants’ contention is not persuasive that the Examiner erred in finding that the additional reference to Onken discloses the additional limitations recited in claims 3 and 4. Accordingly, we sustain the Examiner’s rejection of claims 3 and 4. DECISION The Examiner’s rejections of claims 1‒4 and 7‒10 are 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)(1)(iv). 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