Ex Parte Pepitone et al

Patent Trial and Appeal Board

Nov 29, 2016

13022000 (P.T.A.B. Nov. 29, 2016)

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.
13/022,000 02/07/2011 Dave Pepitone H0028001 (HOOO-1-1844) 5799
89941 7590
HONEYWELL/S&S
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
12/01/2016 EXAMINER
MAHNE, KEVIN P
ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
12/01/2016 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):
patentservices-us @ honey well, com
pairdocketing @ ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVE PEPITONE, EMMANUEL LETSU-DAKE,
DONALD SINGER, and PATRICK MULHALL
Appeal 2015-000413
Application 13/022,000
Technology Center 3600
Before LYNNE H. BROWNE, JILL D. HILL, and PAUL J. KORNICZKY,
Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants, Dave Pepitone et al.,1 appeal under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 1, 2, 6—9, 15, and 17—29.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Honeywell International, Inc. as
interest. Appeal Br. 3.
2 Claims 3—5, 10-14, and 16 are cancelled. Final Act,
the real party in
2.
Appeal 2015-000413
Application 13/022,000
THE CLAIMED SUBJECT MATTER
The claims are directed to systems and methods for providing in-trail
procedures (ITP) clearance information. Claims 1, 9, and 23 are
independent. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A method comprising:
receiving, at a user interface located on a host aircraft, a
user selection of a desired altitude;
receiving information from one or more proximate target
aircraft via a communications system on the host aircraft;
receiving host aircraft information from one or more other
systems located on the host aircraft; determining, by a processor,
if each of an In-Trails Procedure (ITP) transition and a standard
(STD) transition to the desired altitude by the host aircraft are
possible based on the received information from one or more
proximate target aircraft and the host aircraft information; and
generating, by the processor, a graphical user interface
display for presentation on a display, the graphical user interface
display comprising a vertical profile view, wherein the vertical
profile view comprises at least one of a valid or invalid indication
for each of the ITP transition and the STD transition to the
desired altitude.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Schilke
Depape
Tjorhom
Shafaat
Reynolds
US 2010/0057362 A1
US 2010/0286900 A1
US 2011/0144833 A1
US 2011/0270472 A1
US 2011/0270473 A1
Mar. 4, 2010
Nov. 11,2010
June 16, 2011
Nov. 3,2011
Nov. 3,2011
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Application 13/022,000
REJECTIONS
The Examiner made the following rejections:
1. Claims 17, 22, and 24 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
2. Claims 17, 22, and 24 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite
3. Claims 1, 2, 7, 9, 15, 17, 19, 21—26, and 29 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Shafaat, Depape, and Reynolds.
4. Claims 6, 18, 20, 27, and 28 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Shafaat, Depape, Reynolds, and
Tjorhom.
5. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shafaat, Depape, Reynolds, and Schilke.
Appellants seek our review of these rejections.
ANALYSIS
The Rejection of Claims 17, 22 and 24
As Failing to Comply With the Written Description Requirement
In the Answer, the Examiner finds that Appellants’ argument that “the
limitations ‘[calculating or calculate] when an altitude climb by the host
aircraft to the desired altitude via the STD transition will no longer be
valid’” is supported by the Specification is persuasive. Ans. 4. However,
the Examiner maintains that “the limitation ‘second icon indicating a first
position where the altitude climb to the desired altitude via the STD
transition will no longer be valid’ is not supported by Appellants’
disclosure.” Id.
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In response, Appellants argue that
[A] person having ordinary skill in the art would understand that
Appellant had possession of the claimed second icon indicating
a first position where the altitude climb to the desired altitude via
the STD transition will no longer be valid. For example, the
leading edge and the trailing edge of linking box 166 shown in
FIG. 8 of Appellant’s disclosure indicate the beginning position
and the ending position for where the STD transition is valid.
One of ordinary skill in the art would further understand that the
end point of the valid STD transition is also the position where
the altitude climb to the desired altitude via the STD transition
will no longer be valid. Thus, at least FIG. 8 of Appellant’s
originally filed disclosure illustrates a second icon indicating a
first position where the altitude climb to the desired altitude via
the STD transition will no longer be valid.
Reply Br. 3. In response to the Examiner’s assertion that “icons are not the
same as windows or lines or scales or boxes and the terms are not
interchangeable” (Ans. 5), Appellants respond that “[o]ne of ordinary skill in
the art would understand that the linking box 166 shown in FIG. 8 may be an
example of an icon.” Reply Br. 3. We agree with Appellants and do not
sustain the rejection of claims 17, 22, and 24.
The Rejection of Claims 17, 22 and 24 As Being Indefinite
In the Answer, the Examiner finds persuasive Appellants’ arguments
that the word “if’ in claims 17 and 22 indicates a positive limitation so that
the claims 17, 22, and 24 are not indefinite. Ans. 6; Reply Br. 4. However,
the Examiner maintains that the use of the terms “when” and “where” in the
claims are indefinite because claims 17, 22, and 24 “fail to link the
calculating functions of time to the display of position by the first and
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Application 13/022,000
second icons in the wherein clause.” Final Act. 11. According to the
Examiner,
Per the terms used in the claim, the Appellants’ invention first
calculates a time (when) that an altitude climb by the host aircraft
to a desired altitude via the ITP transition and the STD transition
will no longer be valid and then at some later point displays a
first icon indicating a first position (where) the altitude climb will
no longer be valid via the ITP transition and STD transition
respectively.
Ans. 8—9. We agree with the Appellants that:
One having ordinary skill in the art would understand that the
recitation, “when an altitude climb by the host aircraft to the
desired altitude via the ITP transition will no longer be valid”
refers to the satisfaction of a particular condition and is not
necessarily limited to the calculation of a particular time. For
example, Appellant’s disclosure describes that, “the indication
presents time or distance information of when the ITP transition
or the STD transition to the altitude associated with the received
desired altitude will be valid or will cease to be valid.” Thus, at
least this sentence indicates that time information or distance
information may be used to indicate “when the ITP transition ...
will be valid or will cease to be valid.”
Reply Br. 5 (citing to Spec. Tflf 9 and 30). Thus, we do not sustain the
indefmiteness rejection of claims 17, 22, and 24.
The Rejection of Claims 1, 2, 7, 9, 15, 17, 19, 21—26, and 29
As Being Unpatentable Over Shafaat, Depape, and Reynolds
Claims 1, 2, 7, 17, and 19
Appellants argue claims 1, 2, 7, 17, and 19 as a group. Appeal Br. 13—
18. We select claim 1 as the representative claim, and claims 2, 7, 17, and
19 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/022,000
The Examiner finds that Shafaat discloses the limitation reciting “the
vertical profile view comprises at least one of a valid or invalid indication
for each of the . . . STD transition,” and Reynolds discloses the limitation
reciting “the vertical profile view comprises at least one of a valid or invalid
indication for [each of the] ITP transition.'1'’ Final Act. 13—16. The
Examiner determines that it would have been obvious to modify the distance
separation criteria indicator system as disclosed in Shafaat to include (1)
“determining altitude change under ITP in order to reduce fuel consumption
and emissions, improve flight quality and safety, and increase traffic on the
air space” (citing Depape 8—11) and (2) “a vertical [profile] display for
the aircrew that shows the host aircraft and adjacent aircraft and indicates
whether an ITP is authorized because the display provides increase aircraft
safety by providing the pilot enhanced situational awareness” (citing
Reynolds 3, 19). Final Act. 15—16.
In response to the Examiner’s findings, Appellants present several
different arguments. First, Appellants argue that Shafaat does not disclose a
“valid or invalid indication for an STD transition.” Appeal Br. 15.
According to Appellants’ definition of STD transition, “an STD transition
requires certain minimum separation distances between aircraft.” Id.
Appellants also state that the “portions of Shafaat cited by the Examiner do
not describe any specific measurements or procedures that would lead one of
ordinary skill in the art to understand that Shafaat, either explicitly or
implicitly, was describing an STD transition.” Id. The Examiner states that
“during the examination ‘STD transition’ was interpreted to be any
transition to a desired altitude based on some authority, custom, general
consent, requirements, or rule.” Ans. 12—13.
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Contrary to Appellants’ arguments, Shafaat’s flight system discloses
that
pilots may have readily available visual access to real time in­
flight traffic information at various flight levels or altitudes
around the aircraft. Pertinent flight information is collected from
surrounding traffic aircraft and from the aircraft itself, and is
analyzed to determine whether climbing or descending through
adjacent and consecutive flight levels is possible based on the
current traffic conditions in light of the safe minimum separation
requirements and procedures mandated by applicable flight
regulations. The current traffic environment is displayed along
with the results of the climb and descent analysis in a manner that
enables the pilots to view the display and at a glance,
immediately know whether it is possible to climb or descend to
or through a desired flight level.
Shafaat 115. Shafaat also discloses that
criteria indicators 118 may include horizontal lines or other
symbols that indicate to a pilot whether or not a climb or descent
to a desired flight level is possible in light of separation
minimums. A “separation minimum” as used throughout this
disclosure is a minimum longitudinal distance between aircraft
as required by regulatory agencies, airline operating procedures,
or any other applicable procedures or guidelines.
Id. at 122. Thus, Shafaat discloses certain minimum separation distances
are required between aircraft, based upon certain regulations or procedures.
Under Appellants’ and the Examiner’s proposed claim construction, one
skilled in the art would understand that Shafaat discloses a “valid or invalid
indication for. . . [an] STD transition,” as recited in claim 1.
The Examiner also correctly notes that Appellants do not explain why
“the display in the Shafaat reference which includes a vertical axis that
indicates whether or not an altitude climb or descent to the desired altitude is
possible based on separation minimums does not read on the limitation
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Application 13/022,000
‘valid or invalid indication for each of the ... STD transition to the desired
altitude.,',, Ans. 13. Shafaat’s use of different terminology for the STD
transition, however, does not persuade us of error in the Examiner’s finding
that Shafaat discloses the STD transition. In re Bond, 910 F.2d 831, 832
(Fed. Cir. 1990) (The element must be arranged as required by the claim, but
this is not an ipsisimis verbis test.). Thus, Appellants do not identify error
by the Examiner.
Second, to the extent that Appellants are arguing that Shafaat does not
disclose “specific measurements or procedures” for the STD transition
(Appeal Br. 15), neither Appellants’ Specification nor the claims disclose
any measurement or procedures for the STD transition. Thus, Appellants’
argument is not commensurate with the scope of the claims.
Third, Appellants argue that the Examiner relies on an “improper
assertion of inherent[] disclosure [of the recited STD transition] in Shafaat.”
Appeal Br. 15. As discussed above, Shafaat explicitly discloses the recited
STD transition and, thus, Appellants’ argument is not persuasive.
Fourth, Appellants argue that the combination of Shafaat and Depape
do not disclose a “vertical profile view compris[ing] at least one of a valid or
invalid indication for each of an ITP transition and an STD transition to a
desired altitude,” as recited in claim 1. Appeal Br. 16 (emphasis added).
The Examiner correctly notes that the rejection relies on Reynolds, not
Depape, in combination with Shafaat for disclosure of the recited limitation.
Ans. 18—19; see Final Act. 15—16. Thus, Appellants’ argument does not
address the rejection as articulated by the Examiner and does not identify
Examiner error.
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Application 13/022,000
Fifth, Appellants argue that the Examiner’s reason to modify Shafaat
in view of the teachings of Depape and Reynolds is improper because the
“Examiner did not cite to any part of the applied art evidence that establishes
that a vertical profile view that comprises at least one of a valid or invalid
indication for both the ITP transition and the STD transition would have
been required to provide the asserted ‘enhanced situational awareness,’”3 or
that the ITP and STD transitions are displayed on a “common” vertical
profile view, instead of “separate” vertical views. Appeal Br. 17. However,
this argument is foreclosed by KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398
(2007), in which the Supreme Court rejected the rigid requirement of a
teaching or suggestion or motivation to combine know elements in order to
show obviousness. KSR, 550 U.S. at 415. The Court noted that an
obviousness analysis “need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ.” Id. at 418.
In addition, the key to supporting any rejection under 35 U.S.C. § 103
is a clear “articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness.” KSR, 550 U.S. at 418. Here, the
Examiner determines that it would have been obvious to modify the distance
3 To the extent that Appellants are attempting to show non-obviousness
by attacking the references individually, the relevant inquiry is whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of Shafaat, Depape, and Reynolds.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non­
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.”).
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Application 13/022,000
separation criteria indicator system as disclosed in Shafaat to include (1)
“determining altitude change under ITP in order to reduce fuel consumption
and emissions, improve flight quality and safety, and increase traffic on the
air space” as disclosed in Depape (Final Act. 15 (citing Depape 8—11)),
and (2) “a vertical display for the aircrew that shows the host aircraft and
adjacent aircraft and indicates whether an ITP is authorized because the
display provides increase aircraft safety by providing the pilot enhanced
situational awareness” as disclosed in Reynolds (Final Act. 16 (citing
Reynolds Tflf 3, 19)). See also Ans. 17—18. Appellants do not address the
Examiner’s first rationale and, thus, do not show Examiner error.
For the reasons discussed above, we sustain the rejection of claim 1,
and claims 2, 7, 17, and 19 fall with claim 1.
Claims 9, 15, 21, and 22
Appellants argue claims 9, 15, 21, and 22 as a group. Appeal Br. 18—
19. We select claim 9 as the representative claim, and claims 15, 21, and 22
stand or fall with claim 9. 37 C.F.R. § 41.37(c)(l)(iv).
Appellants argue that the rejection of claim 9 is in error for the same
reasons that the rejection of claim 1 is in error. As we find no error in the
rejection of claim 1, Appellants’ argument is unconvincing. We sustain the
rejection of claim 9. Claims 15, 21, and 22 fall with claim 9.
Claims 23—26 and 29
Appellants argue claims 23—26 and 29 as a group. Appeal Br. 19—20.
We select claim 23 as the representative claim, and claims 24—26 and 29
stand or fall with claim 23. 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/022,000
Appellants argue that the rejection of claim 23 is in error for the same
reasons that the rejection of claim 1 is in error. As we find no error in the
rejection of claim 1, Appellants’ argument is unconvincing. We sustain the
rejection of claim 23, and claims 24—26 and 29 fall with claim 23.
The Rejection of Claims 6, 18, 20, 27, and 28
As Being Unpatentable Over Shafaat. Depape, Reynolds, and Tjorhom
Appellants argue claims 6, 18, 20, 27, and 28 as a group. Appeal Br.
20. We select claim 6 as the representative claim, and claims 18, 20, 27, and
28 stand or fall with claim 6. 37 C.F.R. § 41.37(c)(l)(iv).
Claims 6, 18, 20, 27, and 28 depend from independent claims 1, 9, or
23. Appellants argue that “for at least the reasons discussed with respect to
the independent claims [1, 9, or 23], Shafaat in view of Depape, in view of
Reynolds, and in further view of Tjorhom fails to disclose or suggest the
features of Appellant’s claims 6, 18, 20, 27, and 28.” Appeal Br. 20.
Appellants also argue that “at the time of Appellant's invention, there would
have been no apparent reason for one having ordinary skill in the art to
modify the display system disclosed by Shafaat in view of the three other
references applied by the Examiner, namely, Depape, Reynolds and
Tjorhom, in the manner proposed by the Examiner.” Id. Because the
rejections of claims 1, 9, and 23 are sustained and Appellants do not allege
any other patentable distinctions for claims 6, 18, 20, 27, and 28, we
likewise sustain the Examiner’s rejections of these claims under 35 U.S.C.
§ 103(a).
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The Rejection of Claim 8 As Being
Unpatentable Over Shafaat, Depape, Reynolds, and Schilke
Claim 8 depends from independent claim 1. Appellants argue that
“for at least the reasons discussed with respect to the independent claim 1
(Group 1), Shafaat in view of Depape, further in view of Reynolds, and in
further view of Schilke fails to disclose or suggest the features of Appellant's
claim 8.” Appeal Br. 21. Appellants also argue that “at the time of
Appellant's invention, there would have been no apparent reason for one
having ordinary skill in the art to modify the display system disclosed by
Shafaat in view of Depape, and then further in view of Reynolds, and yet
further [in] view of Schilke in the manner proposed by the Examiner.” Id.
Because the rejection of claim 1 is sustained and Appellants do not allege
any other patentable distinctions for claim 8, we likewise sustain the
Examiner’s rejection of claim 8 under 35 U.S.C. §103(a).
DECISION
For the above reasons, the Examiner’s rejections of claims 17, 22, and
24 under 35 U.S.C. § 112 are REVERSED.
The Examiner’s rejections of claims 1, 2, 6—9, 15, and 17—29 under 35
U.S.C. § 103(a) 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)(l)(iv).
AFFIRMED
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