Ex Parte Werjefelt et alDownload PDFPatent Trial and Appeal BoardJun 13, 201712232058 (P.T.A.B. Jun. 13, 2017) 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. 12/232,058 09/10/2008 Bertil R.L. Werjefelt 7648 6228 39196 7590 06/13/2017 SHLESINGER, ARKWRIGHT & GARVEY LLP 5845 Richmond Highway, Suite 415 ALEXANDRIA, VA 22303 EXAMINER COULTER, KENNETH R ART UNIT PAPER NUMBER 2445 MAIL DATE DELIVERY MODE 06/13/2017 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 BERTIL R.L. WERJEFELT and DAVID JENKINS ____________________ Appeal 2017-006017 Application 12/232,0581 Technology Center 2400 ____________________ Before THU A DANG, LARRY J. HUME, and TERRENCE W. MCMILLIN, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1, 8, 15, 22, 24–31, and 33–37. Appellants have canceled claim 32. Claims 2–7, 9–14, 16–21, and 23 are indicated as being objected to, but otherwise allowable. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 According to Appellants, the real party in interest is Bertil R. L. Werjefelt, a co-inventor. Br. 2. Appeal 2017-006017 Application 12/232,058 2 STATEMENT OF THE CASE2 The Invention Appellants' disclosed and claimed inventions are "generally directed to an apparatus to enable an operator to maintain visual contact with instruments or other visual sources of data after smoke and/or particulate from a fire or other sources has invaded the operator's environment." Spec. 1, ll. 17–21. Exemplary Claims Claims 1, 8, 15, 22, and 24, reproduced below, are representative of the subject matter on appeal (emphases added to contested limitations): 1. An emergency vision apparatus for providing an aircraft pilot in a cockpit visual access to information during a smoke emergency, comprising: a) a first objective lens for being operably associated with a cockpit windshield, said objective lens being oriented to view objects outside the cockpit; b) a first viewing lens for viewing objects encompassed by said first objective lens; c) a first optic fiber having one end operably associated with said first objective lens and an opposite end being operably associated with said first viewing lens for transmitting light from said first objective lens to said first viewing lens; d) an enclosure made of airtight material having spaced apart front and rear panels, said front panel being transparent; 2 Our decision relies upon Appellants' Appeal Brief ("Br.," filed Nov. 28, 2016); Examiner's Answer ("Ans.," mailed Jan. 12, 2017); Final Office Action ("Final Act.," mailed June 28, 2016); and the original Specification ("Spec.," filed Sept. 10, 2008). We note Appellants did not file a Reply Brief in response to the factual findings and legal conclusions in the Examiner's Answer. Appeal 2017-006017 Application 12/232,058 3 e) a second objective lens operably associated with said rear panel, said second objective lens being oriented to view an instrument panel through said transparent front panel; f) a second viewing lens for viewing the instrument panel encompassed by said second objective lens; g) a second optic fiber having one end operably associated with said second objective lens and an opposite end being operably associated with said second viewing lens for transmitting light from said second objective lens to said second viewing lens; and h) said first and second viewing lens for being operably disposed in front of a pilot's eye. 8. An emergency vision apparatus for providing an aircraft pilot in a cockpit visual access to information during a smoke emergency, comprising: a) a first camera for being operably associated with a cockpit windshield, said first camera being oriented to view objects outside the cockpit; b) a first display for displaying images generated by said first camera; c) a first wire having one end operably associated with said first camera and an opposite end being operably associated with said first display for transmitting video signals from said first camera to said first display; d) an enclosure made of airtight material having spaced apart front and rear panels, said front panel being transparent; e) a second camera operably associated with said rear panel, said second camera being oriented to view an instrument panel through said transparent front panel; f) a second display for displaying images generated by said second camera; g) a second wire having one end operably associated with said second camera and an opposite end being operably associated with said second display for transmitting video signals from said second camera to said second display; and Appeal 2017-006017 Application 12/232,058 4 h) said first and second displays are for being operably disposed in front of the pilot's eye. 22. An electro-optical emergency vision apparatus for providing an aircraft pilot in a cockpit visual access to information during a smoke emergency, comprising: a) a computer operably connected to an aircraft avionics systems for receiving flight data to be displayed; b) an image processor for processing data from said computer suitable for display; c) a first camera for being operably associated with a cockpit windshield, said first camera being oriented to view objects outside the cockpit, said first camera being operably connected to said image processor; d) an enclosure made of airtight material having spaced apart front and rear panels, said front panel being transparent; e) a second camera operably associated with said rear panel, said second camera being oriented to view the instrument panel through said transparent front panel, said second camera being operably attached to said image processor; and f) a display for being operably disposed in front of the pilot's eye for displaying data from said computer and said first and second cameras. 24. An emergency vision apparatus for providing an operator visual access to information during a smoke emergency, comprising: a) an enclosure made of airtight material having spaced apart front and rear panels, said front panel being transparent, said enclosure is movable during the smoke emergency to selected parts of the instrument panel; b) an image capture device operably associated with said rear panel, said image capture device being oriented to view the instrument panel through said transparent front panel; Appeal 2017-006017 Application 12/232,058 5 c) an image viewing device for being disposed in front of one of the operator's eyes, said image viewing device being operably associated with said image capture device; and d) said image viewing device for being operably positioned in front of the operator's eye. Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Werjefelt ("Werjefelt '287") US 4,832,287 May 23, 1989 Kennedy US 2003/0201911 A1 Oct. 30, 2003 Werjefelt ("Werjefelt '042") US 8,888,042 B2 Nov. 18, 20143 Rejections on Appeal R1. Claims 1, 8, 15, 22, 24, and 26 stand rejected on the ground of nonstatutory obviousness-type double patenting (OTDP) as being unpatentable over claims 1, 5, and 16 of Werjefelt '042. Final Act. 5. R2. Claims 24–31 and 33–37 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Kennedy and Werjefelt '287. Final Act. 14. CLAIM GROUPING Based on Appellants' arguments (Br. 7–16), we decide the appeal of OTDP Rejection R1 of claims 8, 15, 24, and 26 on the basis of representative claim 8. We decide the appeal of OTDP Rejection R1 of each of separately argued claims 1 and 22, infra. 3 Although Werjefelt '042 is not prior art, per se, to the claimed invention, we include it for completeness of the record as this reference is relied upon in OTDP Rejection R1. Appeal 2017-006017 Application 12/232,058 6 Based on Appellants' further arguments (Br. 16–30) and the dispositive issue identified herein with respect to obviousness Rejection R2, we find claims 24–31 and 33–37 stand with independent claim 24. ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. We do not consider arguments Appellants could have made but chose not to make in the Briefs, and we deem any such arguments waived. 37 C.F.R. § 41.37(c)(1)(iv). We agree with particular arguments advanced by Appellants with respect to obviousness Rejection R2 of claim 24 for the specific reasons discussed below. However, we disagree with Appellants' arguments with respect to OTDP Rejection R1 of claims 1, 8, 15, 22, 24, and 26, and incorporate herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellant's Appellants' arguments. We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. However, we highlight and address specific findings and arguments regarding claims 1, 8, 22, and 24 for emphasis as follows. 1. OTDP Rejection R1 of Claim 1 Issue 1 Appellants argue (Br. 7–11) the Examiner's rejection of claim 1 under the judicially created doctrine of OTDP is in error. These contentions present us with the following issue: Appeal 2017-006017 Application 12/232,058 7 Did the Examiner err in finding the cited Werjefelt '042 patent reference teaches or suggests "[a]n emergency vision apparatus for providing an aircraft pilot in a cockpit visual access to information during a smoke emergency" that includes, inter alia, "a first optic fiber having one end operably associated with said first objective lens," as recited in claim 1? Analysis Appellants contend "the cited reference claim limitations do not teach or suggest an optic fiber inside the second camera." Br. 9. In response, the Examiner finds, "'[o]perably connected' is a broad phrase that includes optical fibre connections." Ans. 2. We agree with the Examiner because, broadly construed, "operably connected" includes the use of optical fibers, as is known in the art.4 Another way to analyze the rejection is that claims 1 and 16 in the reference Werjefelt '042 patent are directed to a genus of connections (e.g., operable 4 "In the patentability context, claims are to be given their broadest reasonable interpretations . . . limitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Any special meaning assigned to a term "must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description."). Absent an express intent to impart a novel meaning to a claim term, the words take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art. Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003) (citation omitted). Appeal 2017-006017 Application 12/232,058 8 connections such as electrical wiring or optical fiber, as would be known in the art), and claim 1 on appeal is directed to a species within the reference patent genus of operable connections, i.e., an optical fiber, which we find to be an obvious variant of the claimed connection of Werjefelt '042. Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the reference patent claims to teach or suggest the disputed limitation of claim 1. Accordingly, we sustain the Examiner's OTDP Rejection R1 of independent claim 1. 2. OTDP Rejection R1 of Claims 8, 15, and 24, and 26 Issue 2 Appellants argue (Br. 8–13, 15–16) the Examiner's rejection of claims 8, 15, 24, and 26 under the judicially created doctrine of OTDP is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited Werjefelt '042 patent reference claim limitations teach or suggest "[a]n emergency vision apparatus for providing an aircraft pilot in a cockpit visual access to information during a smoke emergency," that includes, inter alia, "an enclosure," as recited in claim 8, and as commensurately recited in each of claims 15, 24, and 26? Analysis Appellants contend: [T]he Examiner maps the application claim 8 limitation of a first display to the '042 patent reference claim limitation of a second display disposed on the first enclosure front panel. The Examiner further maps the claim limitation of the enclosure and the second camera to the '042 patent reference claim limitation Appeal 2017-006017 Application 12/232,058 9 of the first camera disposed at the rear panel of the second enclosure. The reference claims teach two enclosures, the first enclosure being used for the second display and the second enclosure for the first camera. The reference claims do not teach or suggest doing away with the first enclosure or the second enclosure. Accordingly, it is asserted that claim 8 is not obvious over the reference claims. Br. 11–12. Appellants make similar arguments with respect to claims 15 and 24, and claim 26 which depends from claim 24. Br. 12–16. Here, because claim 8 is silent regarding only one enclosure being allowed by the open-ended transitional phrase "comprising," as urged by Appellants (see Br. 11–12), we find Appellants have not evinced a clear intent to limit the indefinite article "an" to "one": i.e., "an enclosure made of airtight material having spaced apart front and rear panels, said front panel being transparent," as recited in claim 8 (emphasis added), and commensurately recited in each of claims 15, 24, and 26. The Examiner further finds, "[a] one enclosure device in Werjefelt '042 would inherently be a simplified device, essential in an emergency situation. The simplified Werjefelt '042 device would be easier to use in an emergency situation." Ans. 3. We agree with the Examiner's factual findings and legal conclusions in this regard. Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the teachings and suggestions of the cited reference claim to teach or suggest the disputed limitation of claim 8, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Accordingly, we sustain the Examiner's OTDP Rejection R1 of independent claim 8, and claims 15, 24, and 26 which fall therewith. See Claim Grouping, supra. Appeal 2017-006017 Application 12/232,058 10 3. OTDP Rejection R1 of Claim 22 Issue 3 Appellants argue (Br. 13–15) the Examiner's Rejection R1 of claim 22 under the judicially created doctrine of OTDP is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited Werjefelt '042 patent reference claim teaches or suggests "[a]n electro-optical emergency vision apparatus for providing an aircraft pilot in a cockpit visual access to information during a smoke emergency" that includes, inter alia, "a computer operably connected to an aircraft avionics systems for receiving flight data to be displayed," as recited in claim 22?5 Analysis Appellants contend: The reference claims do not disclose or suggest a computer operably connected to aircraft avionics systems for receiving flight data to be displayed. The Examiner refers to reference claim 16 limitation of a second display connected to a second camera. However, nowhere does claim 16 teach or suggest a computer operably connected to an aircraft avionics systems. Br. 14–15. In response, the Examiner finds, Werjefelt '042 discloses "a first camera disposed at said rear panel of said second enclosure, said camera being directed 5 Appellants additionally argue limitation d) in claim 22 of "an enclosure made of airtight material having spaced apart front and rear panels, said front panel being transparent." Br. 13–15 (emphasis added). For the same reasons discussed above with respect to Issue 2, Rejection R1 of claims 8, 15, 24, and 26, we are not persuaded the Examiner erred. Appeal 2017-006017 Application 12/232,058 11 toward said front panel to image said second source of information through said second enclosure front panel" (claim 1). The "second source of information" can easily be important flight data from the instrument panel (avionics information). Ans. 3. We agree with the Examiner's factual findings and legal conclusions in this regard because we conclude it would have been obvious, in combination with the reference claim, to use a computer to receive and display avionics information in the reference claim. Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the teachings and suggestions of the cited reference claim to teach or suggest the disputed limitation of claim 22, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Accordingly, we sustain the Examiner's OTDP Rejection R1 of independent claim 22. 4. § 103 Rejection R2 of Claims 24–31 and 33–37 Issue 4 Appellants argue (Br. 17–30) the Examiner's rejection of claim 24 under 35 U.S.C. § 103(a) over the combination of Kennedy and Werjefelt '287 is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art reference teaches or suggests "[a]n emergency vision apparatus for providing an operator visual access to information during a smoke emergency," that includes, inter alia, "an enclosure made of airtight material having spaced apart front and rear panels," as recited in claim 24 (emphasis added)? Appeal 2017-006017 Application 12/232,058 12 Analysis Appellants generally contend Kennedy's enclosure does not teach or suggest a "front panel" when removed from its attachment to the windshield, and more specifically contend "[t]he cavity 68 does not include a front panel when separated from the windshield. The cavity 68 of Kennedy does not have a separate front panel of its own." Br. 22. Appellants summarize, "Appellants claimed invention includes an enclosure with a front panel. The cavity 68 of Kennedy does not have the claimed front panel." Br. 23. In response, the Examiner finds "[t]he camera assembly of Kennedy would easily have a 'front panel' when removed from its attachment to the windshield. The front panel of the enclosure would easily be considered to be a lens or a lens cover for the windshield camera of Kennedy." Ans. 5. In the Final Action, the Examiner finds Kennedy Figure 8b and paragraphs 30 and 84 teach or suggest the contested limitation and, in particular, Kennedy's protective gasket surrounding the windshield camera provides a sealed cavity that prevents the ingress of smoke into the windshield camera. Final Act. 14. While we interpret the claims broadly, such an interpretation must be reasonable. We disagree with the Examiner's finding that Kennedy's disclosed gasket (at the open end of cavity 68) teaches or suggests the recited front panel. Therefore, based upon the findings above, on this record, we are persuaded of at least one error in the Examiner's reliance on the combined teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitation of claim 24, such that we find error in the Appeal 2017-006017 Application 12/232,058 13 Examiner's resulting legal conclusion of obviousness. Accordingly, we do not sustain the Examiner's obviousness rejection of independent claim 24, and grouped claims 24–31 and 33–37 which stand therewith. See Claim Grouping, supra. CONCLUSIONS (1) The Examiner did not err with respect to OTDP Rejection R1 of claims 1, 8, 15, 22, 24, and 26 over claims 1, 5, and 16 of Werjefelt '042, and we sustain the rejection. (2) The Examiner erred with respect to obviousness Rejection R2 of claims 24–31 and 33–37 under 35 U.S.C. § 103(a) over the cited prior art combination of record, and we do not sustain the rejection. DECISION We affirm the Examiner's decision rejecting claims 1, 8, 15, 22, 24, and 26. We reverse the Examiner's decision rejecting claims 25, 27–31, and 33–37. 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). See 37 C.F.R. § 41.50(f). AFFIRMED-IN-PART Copy with citationCopy as parenthetical citation