Ex Parte Ferro et al

Patent Trial and Appeal Board

Jun 30, 2014

12253634 (P.T.A.B. Jun. 30, 2014)

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.
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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
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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).
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Application 12/253,634

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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
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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.
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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,
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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
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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
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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.
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(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.
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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).

AFFIRMED

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