Ex Parte Hanchey et al

Patent Trial and Appeal BoardNov 13, 2012

11469701 (P.T.A.B. Nov. 13, 2012)

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. 11/469,701 09/01/2006 Jefferson Michael Hanchey 000479.00180 6847 22907 7590 11/14/2012 BANNER & WITCOFF, LTD. 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER XAVIER, VALENTINA ART UNIT PAPER NUMBER 3645 MAIL DATE DELIVERY MODE 11/14/2012 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 JEFFERSON MICHAEL HANCHEY and MICHAEL WAYNE MAJORS ____________________ Appeal 2010-010683 Application 11/469,701 Technology Center 3600 ____________________ Before: MICHAEL C. ASTORINO, LYNNE H. BROWNE, and SCOTT E. KAMHOLZ, Administrative Patent Judges. KAMHOLZ, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-010683 Application 11/469,701 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, 3, 4, 6, 9-13, 15, 17-22, and 24-28. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. THE CLAIMED SUBJECT MATTER The claimed subject matter is directed to automatic flight control systems. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A jet aircraft automatic flight control system comprising: a flight control input device configured to receive an automatic flight control command from a user; a low duty cycle motor attached to a flight control surface that controls the altitude of the jet aircraft; and a computer device configured to monitor the duty cycle of the low duty cycle motor and generate signals that drive the low duty cycle motor to implement the automatic flight control command without exceeding the duty cycle. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Korte Nixon Dickie Doyama McKeown US 4,066,945 US 4,378,518 US 5,753,983 US 6,232,730 B1 US 6,325,331 B1 Jan. 3, 1978 Mar. 29, 1983 May 19, 1998 May 15, 2001 Dec. 4, 2001 Murphy Cartmell Wang Sutardja US 2003/0154550 A1 US 2004/0078121 A1 US 2004/0098185 A1 US 2004/0196018 A1 Aug. 21, 2003 Apr. 22, 2004 May 20, 2004 Oct. 7, 2004 Appeal 2010-010683 Application 11/469,701 3 REJECTIONS Appellants seek our review of the following rejections: Claims 1, 4, 6, 9, 15, 18, 21, 22, and 24 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nixon, Murphy, and Sutardja. Ans. 3. Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Nixon, Murphy, Sutardja, and Cartmell. Ans. 5. Claims 3, 17, and 26 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nixon, Murphy, Sutardja, and Korte. Ans. 6. Claim 10 and 27 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nixon, Murphy, Sutardja, and Wang. Ans. 7. Claims 11 and 28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nixon, Murphy, Sutardja, and Doyama. Ans. 8. Claims 13, 19, and 25 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nixon, Murphy, Sutardja, and McKeown. Ans. 8. Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Nixon, Murphy, Sutardja, and Dickie. Ans. 9. ANALYSIS 1. Claims 1, 4, 6, 9, 15, 18, 21, 22, and 24 a. Claims 1 and 4 The Examiner found that Nixon discloses a jet aircraft automatic flight control system having all limitations of claim 1 except (a) that it is a “low duty cycle motor” that is attached to a flight control surface that controls the altitude of the jet aircraft; and (b) “a computer device configured to monitor the duty cycle of the low duty cycle motor and Appeal 2010-010683 Application 11/469,701 4 generate signals that drive the low duty cycle motor to implement the automatic flight control command without exceeding the duty cycle.” Ans. 3-4. The Examiner further found that Murphy discloses a low duty cycle motor and that Sutardja discloses a computer device configured to perform the functions recited in claim 1. Ans. 4. The Examiner concluded: To provide the motor having a low duty cycle rating taught by Murphy et al for operating the ailerons of Nixon would have been obvious to one of ordinary skill in the art to provide a low current usage and thereby reduce the infrastructure for activating the motor, since all the claimed elements were known in the prior art and one skilled in the art could have combined these elements as claimed by known methods with no change in their respective functions, and the combination would have yielded nothing more than predictable results of low current usage. Ans. 4. The Examiner further concluded that it would have been obvious to include Sutardja’s duty cycle limiter in the system of Nixon as modified with Murphy “in order to prevent the motor from exceeding a duty cycle limit for the well-known advantage of lower power usage.” Ans. 4. Upon consideration of all evidence of record in this case, we determine that the Examiner has made out a prima facie case of obviousness for claims 1 and 4. The Examiner found, and we agree, that adding Murphy’s low duty cycle motor and Sutardja’s duty cycle limiter to Nixon’s control system amounts to little more than a simple combination by known methods to give a predictable outcome, and that such is well within the capability of one having ordinary skill in the art. We determine that the Examiner articulated reasoning with sufficient rational underpinning to show that it would have been obvious to combine Nixon, Murphy, and Sutardja in Appeal 2010-010683 Application 11/469,701 5 the manner indicated. Our decision thus turns on whether Appellants’ arguments have overcome the Examiner’s prima facie case. Appellants argue that (i) modifying Nixon to control its ailerons with Murphy’s low duty cycle motor would result in an inoperable aircraft system having limited steering capabilities (App. Br. 8-11; Reply Br. 2-5); and (ii) Sutardja fails to disclose a system configured to “generate signals” (App. Br. 11). We consider each of these arguments in turn. (i) Aileron control by low duty cycle motor Appellants argue that “ailerons have to be able to move frequently to adequately control an aircraft” and that controlling them with low duty cycle motors “would result in a control system that could not control the aircraft about the roll axis.” App. Br. 9-10 (emphasis omitted). Appellants argue that this combination would unacceptably limit the ability to control the aircraft during, for example, turbulent weather or collision avoidance. App. Br. 9. Appellants point out that Murphy recommends using a high duty cycle motor in a “device… intended to be used repetitively” and argue that use of a low duty cycle motor in an application requiring “relatively frequent movement” would result in “destruction of the motor.” App. Br. 9 (emphasis omitted). Appellants cite U.S. Pat. No. 4,555,974 as an example of a servo motor that controls an aileron and argue that one could have “no expectation of success” in replacing it with a “relatively small” low duty cycle motor. App. Br. 10-11. In response, the Examiner takes the position that “[i]f Nixon’s ailerons are unable to be controlled using a low duty cycle motor, it is unclear how Applicant’s aileron is controlled using a low duty cycle motor in a functioning manner.” Ans. 10. The Examiner also argues that “Nixon Appeal 2010-010683 Application 11/469,701 6 does not disclose the frequency at which the ailerons are operated.” Ans. 10. In reply, Appellants argue that “aileron” is not recited in any claims and that “[t]he present application describes embodiments that use low duty cycle motors attached to trim tabs.” Reply Br. 3-4. Appellants also argue that “[o]ne skilled in the art would appreciate that there cannot be a limit on how frequently a primary control surface operates” so that a pilot is not “forced to risk exceeding the duty cycle… and risk burning out the motor and having no ability to further control the aileron.” Reply Br. 4-5. Appellants’ arguments in response do not overcome the prima facie case, principally because they are unsupported by objective evidence of record. There is insufficient evidence in the record to establish that a low duty cycle motor, specifically “a motor having a duty cycle less than about 15%,”1 would not be able to drive an aileron without unacceptably limiting the ability to control the aircraft. Appellants’ contentions may well be true, but without evidence showing that they are, in fact, true, we cannot determine that Appellants have rebutted the Examiner’s prima facie case of obviousness with a preponderance of the evidence. We express no opinion as to whether Appellants’ contentions, if adequately supported by objective evidence of record, would be sufficient to overcome the rejection. (ii) The duty cycle limiter of Sutardja does not “generate signals” Appellants argue that Sutardja does not disclose a computer device configured to “generate signals that drive the low duty cycle motor to implement the automatic flight control command” as claimed; rather, 1 Appellants note (App. Br. 9) that the term “low duty cycle motor” is defined in this manner in paragraph [18] of the Specification. Appeal 2010-010683 Application 11/469,701 7 Sutardja is “similar to a passive valve that cuts power… based on a feedback value.” App. Br. 11. In response, the Examiner observes that Sutardja discloses a duty cycle limiter having digital controller 900 that “generates a duty cycle signal to operate an output regulator of a motor.” Ans. 11. Appellants’ arguments do not apprise us of error in the rejection. The Examiner correctly determined that Sutardja’s digital controller 900 generates signals, and that in the context of Nixon’s control system as modified to include Murphy’s low duty cycle motor, Sutardja’s signals would drive the motor to implement the automatic flight control command without exceeding the duty cycle. Appellants’ arguments do not address the Examiner’s findings that Sutardja’s digital controller 900 in fact generates signals. For these reasons, we affirm the Examiner’s decision to reject claim 1. Separate patentability was not argued for claim 4, and we sustain the decision to reject it as well. b. Claims 15 and 18 Appellants’ arguments for patentability of claim 15 (App. Br. 11-13) are analogous to those given for patentability of claim 1 given in section I(A)(i) of the Appeal Brief and in the Reply Brief. We affirm the Examiner’s decision to reject claim 15 (and claim 18, for which separate patentability was not argued) for reasons analogous to those given supra in section 1(a)(i) of our Analysis. c. Claims 21 and 22 Appellants’ arguments for patentability of claim 21 (App. Br. 13-17) are analogous to those given for patentability of claim 1 given in sections I(A)(i)-(ii) of the Appeal Brief and in the Reply Brief. We affirm the Appeal 2010-010683 Application 11/469,701 8 Examiner’s decision to reject claim 21 (and claim 22, for which separate patentability was not argued) for reasons analogous to those given supra in sections 1(a)(i)-(ii) of our Analysis. d. Claims 6, 9, and 24 Appellants’ arguments concerning these claims are largely analogous to those given for claims 1 and 21. App. Br. 17. Appellants’ only argument specific to these claims, stated in full, is: “One skilled in the art would never control ailerons with low duty cycle motors or use such a system to maintain an altitude or obtain an altitude.” Id. Like Appellants’ assertions regarding claims 1 and 21, this assertion is unsupported by objective evidence of record and so is insufficient to rebut the Examiner’s prima facie case of obviousness. 2. Claim 12 In response to the Examiner’s finding that that Cartmell discloses a computer device that is configured to estimate a position of the low duty cycle motor at para. [0029] (Ans. 6), Appellants argue that Cartmell merely discloses “position demand signals” and does not disclose estimating motor position. App. Br. 18. In response, the Examiner states that Cartmell’s position demand signals represent a required position of the motor shaft. We agree with Appellants that the Examiner erred in finding that the cited portion of Cartmell discloses estimating the position of a motor. The Examiner has not explained how disclosure of issuing position demand signals amounts to a disclosure of estimating motor position. The Examiner has not made out a prima facie case of obviousness for this claim. Appeal 2010-010683 Application 11/469,701 9 3. Claims 3, 17, and 26 Appellants’ arguments are analogous to those given with respect to claims 1, 15, and 21. We affirm this rejection for reasons similar to those given above. 4. Claims 10 and 27 Appellants’ arguments are analogous to those given with respect to claims 1 and 21. We affirm this rejection for reasons similar to those given above. 5. Claims 11 and 28 Appellants’ arguments are analogous to those given with respect to claims 1 and 21. We affirm this rejection for reasons similar to those given above. 6. Claims 13, 19, and 25 These claims require that the low duty motor comprise a “trim actuator motor.” The Examiner found that McKeown discloses a trim actuator motor and concluded that it would have been obvious to include McKeown’s trim tab actuator in the flight control system of Nixon as modified by Murphy and Sutardja “for actuating mechanical controls in an aircraft flight control system.” Ans. 9. Appellants argue that the Examiner’s rejection “never suggests where the additional trim tab actuator would be located” and that “[a] trim tab actuator controls a trim tab. There is no suggestion in any of the prior art of record for using a trim actuator ‘attached to a flight control surface that controls the altitude of the jet aircraft.’ ” App. Br. 20. Appellants also argue that the claims do not require controlling an aileron with a trim actuator motor. Reply Br. 5. Appeal 2010-010683 Application 11/469,701 10 Appellants’ arguments do not apprise us of error in the rejection because they are not commensurate in scope with the claims. The claims do not require a “trim tab actuator,” so the Examiner’s failure to explain its placement does not constitute error in the rejection. Elements that a claim does not require are irrelevant to the obviousness determination. 7. Claim 20 Appellants’ arguments are analogous to those given with respect to claim 15. We affirm this rejection for reasons similar to those given above. DECISION For the above reasons, the Examiner’s decision to reject claims 1, 3, 4, 6, 9-11, 13, 15, 17-22, and 24-28 is AFFIRMED, and the Examiner’s rejection of claim 12 is REVERSED. 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-IN-PART mls