Ex Parte Kiel

Patent Trial and Appeal Board

Aug 22, 2017

14079408 (P.T.A.B. Aug. 22, 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.
590.01NP 7530
EXAMINER
SWARTHOUT, BRENT
ART UNIT PAPER NUMBER
2689
MAIL DATE DELIVERY MODE
14/079,408 11/13/2013
36955 7590 0
MOORE PATENTS
794 LOS ROBLES AVENUE
PALO ALTO, CA 94306-3159
Taylor L. Kiel
08/23/2017 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 TAYLOR L. KIEL
Appeal 2017-005317
Application 14/079,408
Technology Center 2600
Before ERIC B. CHEN, IRVIN E. BRANCH, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
CHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1—19, all the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b). We reverse and enter a new ground of rejection
pursuant to our authority under 37 C.F.R. § 41.50(b).
Appeal 2017-005317
Application 14/079,408
STATEMENT OF THE CASE
Appellant’s invention relates to lighting systems for landing in a
degraded visual environment, which includes lighting units mounted to an
aircraft, operable to hover near a landing zone. (Abstract.)
Claim 1 is exemplary, with disputed limitations in italics and minor
formatting added:
1. An aircraft lighting system comprising[:]
one or more lighting units mounted to an aircraft, the aircraft
operable to hover near a landing zone,
wherein each lighting unit is operable to provide adjustable
illumination to an illuminated area in the landing zone, and
wherein each lighting unit has a radiant power output between a
minimum and a maximum,
wherein the minimum radiant power output is the least value
that is sufficient to allow a pilot to distinguish features in the landing
zone when below a first altitude
wherein the downwash from the aircraft rotors, propellers, or
engines begins to raise particulates from the landing zone and
sufficient to allow the pilot to distinguish features as the pilot
descends from the first altitude to termination at the landing zone, and
wherein the maximum radiant power output is less than about
five times the minimum radiant power output.
Claims 1—19 stand rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the enablement requirement.
Claims 1, 5, 11—13, and 15—18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Hagan (US 2008/0158012 Al; July 3, 2008)
and Kabrt (US 2014/0062755 Al; Mar. 6, 2014).
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Claims 2, 3, 4, and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hagan, Kabrt, and Singer (US 2012/0069562 Al;
Mar. 22, 2012).
Claims 7—10 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hagan, Kabrt, and Hamilton (US 2003/0086251 Al;
May 8, 2003).
Claim 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Hagan, Kabrt, and Kaiser (US 5,315,296; May 24, 1994).
§ 112, First Paragraph, Rejection
We are persuaded by Appellant’s arguments (App. Br. 8) that the
Examiner erred in concluding that the limitation “wherein the minimum
radiant power output is the least value that is sufficient to allow a pilot to
distinguish features in the landing zone when below a first altitude” is not
enabled by the Specification.
The Examiner concluded that “[t]he claim(s) contain subject matter
which was not described in the specification in such a way as to enable one
skilled in the art to which it pertains, or with which it is most nearly
connected, to make and/or use the invention.” (Final Act. 2.) In particular,
the Examiner stated that “[i]t would seem that one least value lighting power
value would not always be ‘sufficient’ to allow a pilot to distinguish
features, since visibility would change as an aircraft descended through rotor
downwash to a landing zone” and “that conditions would vary for different
landing zone situations, i.e., landing on sand would differ from landing on
dirt or mulch, creating differing visibility conditions for each particular
landing site.” {Id. at 3.) We do not agree with the Examiner’s conclusions.
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Application 14/079,408
The Examiner has not alleged any amount of experimentation that
would be required, much less demonstrated an amount that would be undue,
pursuant to supporting the legal conclusion of an enablement rejection. See
In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988) (listing the factual findings
required to show undue experimentation and lack of enablement).
Therefore, the Examiner has erred by not meeting the initial burden of
demonstrating that independent claim 1 lacks enablement under 35 U.S.C.
§ 112, first paragraph.
Thus, we are persuaded by Appellant’s arguments that “[t]he
Examiner declined, even when challenged, to present a Wands factors
analysis, and also failed to respond to Applicant’s Wands factors analysis.”
(App. Br. 8.)
Accordingly, we do not sustain the rejection of independent claim 1
under 35 U.S.C. § 112, first paragraph, as failing to comply with the
enablement requirement.
Claims 2—16 depend from independent claim 1. We do not sustain the
rejection of claims 2—16 under 35 U.S.C. § 112, first paragraph, for the same
reasons discussed with respect to independent claim 1.
Independent claim 17 recites limitations similar to those discussed
with respect to independent claim 1. We do not sustain the rejection of
claim 17, as well as dependent claims 18 and 19, for the same reasons
discussed with respect to claim 1.
§103 Rejection—Hagan andKabrt
We are persuaded by Appellant’s arguments (App. Br. 12; see also
Reply Br. 7) that the combination of Hagan and Kabrt would not have
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rendered obvious independent claim 1, which includes the limitation
“wherein the minimum radiant power output is the least value that is
sufficient to allow a pilot to distinguish features in the landing zone . . .
wherein the downwash from the aircraft rotors, propellers, or engines begins
to raise particulates from the landing zone.”
The Examiner acknowledged that “Hagan discloses an aircraft
lighting system . . . except for specifically stating that the illuminated area is
a landing zone subject to downwash conditions.” (Final Act. 4.) However,
the Examiner found that “light reflected off dust particulates in a landing
zone would have presented the same visibility issues that would have been
raised by light reflected off cloud particles” and “both situations would have
involved improving visibility in a zone where pilot’s view was obstructed
due to light reflected off of particulates outside a cockpit.” (Ans. 6.)
Accordingly, the Examiner concluded that “[i]t would have been obvious . . .
to adjust the lighting unit to a least value that was sufficient for visibility of
objects, in order to minimize reflections in a cockpit while allowing visual
observation of objects outside a cockpit.” (Final Act. 4.) We do not agree
with the Examiner’s findings and conclusions.
Hagan relates to “aircraft anti-collision warning light systems.” (11.)
In the “Background” section, Hagan explains that aircraft are equipped with
strobe warning lights, which pulse a high-intensity, short-duration, white
light approximately once per second to reduce the risk of in-flight collisions
between aircraft. (12.) As a drawback, Hagan explains that reflection of the
strobe warning lights into a cockpit can: “(1) adversely affect a pilot’s night
vision, which can take up to thirty minutes to recover; and (2) it can induce
vertigo in the pilot.” (| 3.) Figure 1 of Hagan illustrates an aircraft
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Application 14/079,408
equipped with an anti-reflecting, anti-collision warning light apparatuses
103, 105, and 106. Figure 3 of Hagan illustrates a flow chart illustrating a
logic system for an anti-reflecting, anti-collision strobe light warning
apparatus (126), including operation 308 which “determines that there is at
least the requisite amount of reflected light detected” and operation 310
“which would either deactivate (turn off) the warning lights, or alternatively
reduce the flash intensity of the warning lights . . . (e.g., flash the lights at
50% of full intensity)” (| 32). With respect to operation 308, Hagan
explains that the determination of the amount of reflected light detected
“represents nighttime or dark conditions, where clouds, haze, fog and other
light reflecting conditions are present.” (Id.)
Although, the Examiner cited to the anti-reflecting, anti-collision
strobe light warning apparatus of Hagan, in which operation 308 detects
conditions that “represents nighttime or dark conditions, where clouds, haze,
fog and other light reflecting conditions are present” and operation 310 that
reduces flash intensity (132), the Examiner has provided insufficient
evidence to support a conclusion that the limitation “wherein the minimum
radiant power output is the least value that is sufficient to allow a pilot to
distinguish features in the landing zone . . . wherein the downwash from the
aircraft rotors, propellers, or engines begins to raise particulates from the
landing zone” would have been obvious. In particular, Hagan relates to
reducing the intensity of an anti-reflecting, anti-collision strobe light
warning apparatus to prevent reflection from “clouds, haze, fog and other
light reflecting conditions are present” during aircraft flight (| 32),
conditions that are very different from the limitation “wherein the downwash
from the aircraft rotors, propellers, or engines begins to raise particulates
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Application 14/079,408
from the landing zone,” as recited in claim 1. While the Examiner’s
statement that “light reflected off dust particulates in a landing zone would
have presented the same visibility issues that would have been raised by
light reflected off cloud particles” may be correct (Ans. 6), the Examiner has
not provided any evidence to support this position. Moreover, Kabrt does
not cure the deficiencies of Hagan.
Accordingly, we are persuaded by Appellant’s arguments that
“[reflected light due to the presence of clouds outside the cockpit is not
relevant to a degraded visual environment at a landing zone” (App. Br. 12)
because “[t]he ‘visibility issue’ in a landing zone is enabling the pilot to
distinguish feature in the landing zone (i.e., to see through the [degraded
visual environment] DVE)” while “[t]he visibility issue when flying away
from a landing zone but within or near clouds is to maximize visibility of the
aircraft to any nearby aircraft while minimizing reflected glare from clouds
into the cockpit” (Reply Br. 7).
Accordingly, we do not sustain the rejection of independent claim 1
under 35 U.S.C. § 103(a). Claims 5, 11—13, 15, and 16 depend from
independent claim 1. We do not sustain the rejection of claims 5, 11—13, 15,
and 16 under 35 U.S.C. § 103(a) for the same reasons discussed with respect
to independent claim 1.
Independent claim 17 recites limitations similar to those discussed
with respect to independent claim 1. We do not sustain the rejection of
claim 17, as well as dependent claim 18, for the same reasons discussed with
respect to claim 1.
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§103 Rejection—Hagan, Kabrt, and Singer
Claims 2, 3, 4, and 6 depend from independent claim 1. Singer was
cited by the Examiner for teaching the additional features of claims 2, 3, 4,
and 6. (Final Act. 7.) However, the Examiner’s application of Singer does
not cure the above noted deficiencies of Hagan and Kabrt.
§103 Rejection—Hagan, Kabrt, and Hamilton
Claims 7—10 and 19 depend from independent claim 1. Hamilton was
cited by the Examiner for teaching the additional features of claims 7—10
and 19. (Final Act. 7—8.) However, the Examiner’s application of Hamilton
does not cure the above noted deficiencies of Hagan and Kabrt.
§103 Rejection—Hagan, Kabrt, and Kaiser
Claim 14 depends from independent claim 1. Kaiser was cited by the
Examiner for teaching the additional features of claim 14. (Final Act. 8.)
However, the Examiner’s application of Kaiser does not cure the above
noted deficiencies of Hagan and Kabrt.
NEW GROUND OF REJECTION UNDER 37 C.F.R. § 41.50(b)
We enter the following new ground of rejection:
Claims 1—19 are rejected under 35 U.S.C. § 112, second paragraph, as
indefinite for failing to particularly point out and distinctly claim the subject
matter which applicant regards as the invention.
Independent claim 1 recites the limitations “wherein the minimum
radiant power output is the least value that is sufficient to allow a pilot to
distinguish features in the landing zone when below a first altitude” and
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“wherein the downwash from the aircraft rotors, propellers, or engines
begins to raise particulates from the landing zone and sufficient to allow the
pilot to distinguish features as the pilot descends from the first altitude to
termination at the landing zone” (emphases added). Independent claim 17
recites similar limitations.
The claim limitation “sufficient to allow the pilot to distinguish
features” (or similar language) involves a subjective judgment by “the pilot”
without an objective standard. In particular, such pilot judgment is
influenced by a variety of factors, including type of aircraft (e.g., helicopter
or vertical takeoff and landing aircraft (Spec. 12)), type of pilot (e.g.,
military {id. 13)), experience level of the pilot, landing zone conditions
(e.g., “heavy fog, rain, snow, water landings, marsh landings” {id. 138)),
time of day, and type of dust (e.g., light dust, medium dust, or heavy dust
{id. 39-41)). For example, the “minimum radiant power output [which]
is the least value that is sufficient to allow a pilot to distinguish features in
the landing zone,” as recited in claim 1, is likely to be very different for a
highly-experience military pilot performing a daytime landing in a “light
dust” landing zone, in comparison to a novice civilian pilot performing a
nighttime landing in a “heavy dust” landing zone under heavy fog.
Because the limitation “sufficient to allow the pilot to distinguish
features” involves the subjective judgment of the pilot, we turn to the
Appellant’s Specification for further guidance. Appellant’s Specification
discloses the following: “the lighting systems can have multiple modes and
levels to provide good visual assistance to the pilot(s) to enable them to see
the ground with sufficient visual acuity without making the aircraft
excessively visible to outside observers” {id. 149 (emphasis added)),
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Application 14/079,408
“visible light is used of sufficient intensity that the pilot can see the landing
zone with the unaided eye below his [night-vision goggles] NVGs {id. 1 53
(emphasis added)) and “[t]he minimum total radiant power output should be
just sufficient to provide ground visibility to the pilot as he descends below a
particular altitude such as the 50 ft or 20 ft suggested above for use with the
Black Hawk helicopter” {id. 1 58 (emphasis added)). Thus, Appellant’s
Specification merely discloses language similar to claim 1 without further
explanation and thus, provides little guidance with respect to any objective
standard for determining “minimum radiant power output is the least value
that is sufficient to allow a pilot to distinguish features in the landing zone
when below a first altitude” or similar language.
Because the claim language “sufficient to allow the pilot to
distinguish features” (or similar language) depends on the subjective
judgement of the pilot and Appellant’s Specification provides little guidance
with respect to any objective standards, independent claims 1 and 17, as well
as dependent claims 2—16, 18, and 19, are indefinite under 35 U.S.C. § 112,
second paragraph. See Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364,
1373 (Fed. Cir. 2014) (the claim phrase “unobtrusive manner” is indefinite
because the Specification did not “provide a reasonably clear and exclusive
definition, leaving the facially subjective claim language without an
objective boundary”); see also Datamize, LLC v. Plumtree Software, Inc.,
417 F.3d 1342, 1350 (Fed. Cir. 2005) (the claim phrase “aesthetically
pleasing” is indefinite because “no objective definition identifying a
standard for determining when an interface screen is ‘aesthetically
pleasing’”).
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Application 14/079,408
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject
independent claims 1—19 under 35 U.S.C. § 112, second paragraph, as
indefinite for failing to particularly point out and distinctly claim the subject
matter which applicant regards as the invention.
This decision contains a new ground of rejection pursuant to
37 C.F.R. §41.50(b).
37 C.F.R. § 41.50(b) provides that a “new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of proceedings (37 C.F.R. § 1.197 (b)) as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .
DECISION
The Examiner’s decision rejecting claims 1—19 under 35 U.S.C.
§112, first paragraph, is reversed.
The Examiner’s decision rejecting claims 1—19 under 35 U.S.C.
§ 103(a) is reversed.
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A new ground of rejection has been entered under 37 C.F.R.
§ 41.50(b) for claims 1—19, rejected under 35 U.S.C. § 112, second
paragraph.
REVERSED
37 C.F.R. § 41.501b)
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