Ex Parte Werjefelt et al

Patent Trial and Appeal Board

Jun 13, 2017

12232058 (P.T.A.B. Jun. 13, 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.
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.
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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.
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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
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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;
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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.
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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:
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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).
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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
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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.
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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.
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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)?
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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
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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