Ex Parte Wong

Patent Trial and Appeal BoardOct 5, 2018

14713343 (P.T.A.B. Oct. 5, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/713,343 05/15/2015 94468 7590 10/10/2018 DISNEY ENTERPRISES INC. c/o Patent Ingenuity, P.C. 9701 Wilshire Blvd., Suite 1000 Beverly Hills, CA 90212 FIRST NAMED INVENTOR Clifford Wong 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 ATTORNEY DOCKET NO. CONFIRMATION NO. DISNEY-0900-US 7635 EXAMINER SMITH, AARON C ART UNIT PAPER NUMBER 3665 NOTIFICATION DATE DELIVERY MODE 10/10/2018 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): ssimpson@patentingenuity.com patents@patentingenuity.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CLIFFORD WONG Appeal2018-000228 Application 14/713,343 Technology Center 3600 Before MICHELLE R. OSINSKI, WILLIAM A. CAPP, and PAUL J. KORNICZKY, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. Â§ 134(a) of the final rejection of claims 1--4, 6-12, 14--16, and 18-20 as unpatentable under 35 U.S.C. Â§ 103(a) over Wang (US 8,979,023 Bl, iss. Mar. 17, 2015) and Official Notice, and claims 5, 13, and 17 over Wang, Official Notice, and Lim (WO 2014209220 Al, pub. Dec. 31, 2014). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Disney Enterprises, Inc., a wholly owned subsidiary of The Walt Disney Company, is the Applicant and real party in interest. Appeal Br. 2. Appeal2018-000228 Application 14/713,343 THE INVENTION Appellant's invention relates to safety mechanisms for an unmanned aerial vehicle (U AV). Spec. ,r 2. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A unmanned aerial vehicle comprising: a frame; a propulsion mechanism coupled to the frame that propels the frame through the air; one or more airbags coupled to the frame; and an inflation device coupled to the frame and to at least one of the one or more airbags, wherein the inflation device inflates the one or more airbags based upon receipt of an activation signal such that the one or more airbags engulf the frame and the propulsion mechanism. OPINION Unpatentability of Claims 1--4, 6--12, 14-16, and 18-20 over Wang and Official Notice Appellant argues independent claim 1, but does not offer separate arguments for the patentability of independent claims 11 and 16, or of claims 2--4, 6-10, 12, 14, 15, and 18-20, apart from their dependency on an independent claim. Appeal Br. 7-10. We select claim 1 as representative of the three independent claims and their respective dependent claims subject to this ground of rejection. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner finds that Wang discloses the invention substantially as claimed, except for the airbags engulfing the frame and propulsion mechanism. Final Action 9. The Examiner considers "engulfing" as an obvious result of selecting particular sizes and shapes for the airbags. Id. ( citing Wang, col. 7, 11. 24--31 ). In addition, the Examiner takes Official Notice that it was well-known in the art at the time of the invention to 2 Appeal2018-000228 Application 14/713,343 completely engulf a vehicle in airbags to protect against an impending collision. Id. at 9-10, citing an on-line article describing the airbag configuration for the NASA Mars Pathfinder landing system (hereinafter the "NASA Article"). 2 The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to use a size and shape for one or more airbags that engulf the frame and propulsion mechanism. Id. at 10. According to the Examiner, a person of ordinary skill in the art would have done this to prevent damage to the vehicle in the event of a collision. Id. Appellant argues that Wang's airbags are spaced "at a distance from" the propulsions mechanisms of the UA V. Appeal Br. 7. Appellant argues that Wang's airbags are designed to allow for the propulsions mechanisms to continue to operate even when the airbags are inflated. Id. Appellant argues that Wang "teaches away" from engulfing the propulsion mechanisms with airbags. Id. at 8. Appellant disputes the Examiner's taking of Official Notice with respect to the NASA Mars Pathfinder vehicle. Id. at 9. Appellant characterizes NASA's technology as "typically" considered to be "esoteric" technology and, therefore, it is improper for the Examiner to take Official Notice of such technology. Id. (citing MPEP Â§ 2144.03(A)). In response, the Examiner points out that there is no evidence in the record to support Appellant's statement that Wang allows for its propulsion mechanisms to continue to operate after airbag deployment. Ans. 18-19. The Examiner points out that Wang, in Column 1 7, indicates that the 2 https://www.nasa.gov/centers/glenn/ about/history/marspbag.html - (last visited April 6, 2018). 3 Appeal2018-000228 Application 14/713,343 propulsion system is protected by airbags from various directions including top, bottom and sides thereof. Id. at 20. With respect to Appellant's arguments based on Official Notice, the Examiner states that the NASA Article discloses completely engulfing an aerospace vehicle to prevent damage. Id. at 22. The Examiner states that an airbag is not considered "NASA technology." Id. The Examiner takes the position that inflating airbags to prevent damage/injury is well-known to those of ordinary skill and, therefore, is not "esoteric." Id. In reply, Appellant argues that the Examiner is improperly trying to shift the burden of persuasion to Appellant. Reply Br. 2-3. With respect to Official Notice, Appellant argues that the Examiner has not demonstrated why engulfing would be well known in the art without resort to esoteric technology. Id. at 4. Wang is directed to an airbag deployment system to protect an aerial vehicle. Wang, Abstract. Contrary to Appellant's argument that Wang's airbags are disposed "at a distance" from the propulsion units, Wang explicitly discloses that airbags may be deployed "proximate" to the propulsion units. Id. at col. 17, 11. 24--25. The airbags may be configured to deploy "near a propulsion unit" of a UA V. Id. at col. 17, 11. 42--43. Similarly, multiple airbags may be deployed "in proximity" of each propulsion unit. Id. at col. 18, 11. 7-10. In Wang, airbags may be deployed below the propulsion unit. Id. at col. 17, 11. 44--45. They may also be deployed above the propulsion unit. Id. at col. 17, 11. 45--4 7. In addition, multiple airbags may be deployed in any combination of below and above the propulsion unit. Id. at col. 17, 11. 47- 53. In some instances, airbags may also be deployed to a side of the 4 Appeal2018-000228 Application 14/713,343 propulsion unit. Id. at col. 17, 11. 53-55. Wang further discloses that the propulsion unit "may be surrounded by one or more airbags from different sides when they are deployed." Id. at col. 17, 11. 55-57 ( emphasis added). We fail to see any patentably non-obvious distinction between "engulfing" an aerial vehicle and "surrounding" an aerial vehicle with airbags. We are not persuaded by Appellant's "teach away" argument. A reference does not teach away unless it provides "clear discouragement" from implementing a technical feature. In re Ethicon, Inc., 844 F.3d 1344, 13 51 (Fed. Cir. 2017). Wang cannot be said to "clearly" discourage engulfing a UAV when it explicitly teaches surrounding a UAV with airbags. Appellant's teach away argument is predicated, in the first instance, on its unsubstantiated assertion that Wang's propulsion units maintain aerodynamic propulsion following airbag deployment. Appeal Br. 7. We find no evidence in the record to support this unsubstantiated assertion. See Estee Lauder, Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) ( explaining that attorney argument cannot take the place of evidence in the record). We also find unpersuasive Appellant's argument that the Examiner's taking of Official Notice relies on "esoteric" technology. The Examiner substantiated taking Official Notice by referencing the NASA Article which clearly depicts an aerospace vehicle, including its retro-rocket propulsion units, engulfed in airbags. Appellant's reliance on MPEP Â§ 2144.03(A) is to no avail. This MPEP Section merely explains that it is not appropriate for the Examiner to take official notice without citing an appropriate reference showing that the asserted facts are capable of instant and unquestionable demonstration as well-known. MPEP Â§ 2144.03(A). Here, the NASA 5 Appeal2018-000228 Application 14/713,343 Article provides the requisite support for the Examiner's taking of Official Notice. Furthermore, we agree with the Examiner that airbags are not "esoteric" technology. The use of airbags to cushion collision impact has become commonplace, particularly in the automotive industry. The fact that NASA also uses such well-known airbag technology does not make it "esoteric." In view of the foregoing discussion, we determine the Examiner's findings of fact are supported by a preponderance of the evidence and that the Examiner's legal conclusion of unpatentability is well-founded. Accordingly, we sustain the Examiner's unpatentability rejection of claims 1--4, 6-12, 14--16, and 18-20. Unpatentability of Claims 5, 13, and 17 over Wang, Official Notice, and Lim These three claims depend from claims 1, 11, and 16, respectively and are not separately argued. Thus, they fall with claims 1, 11, and 16. See 37 C.F.R. Â§ 4I.37(c)(l)(iv) (failure to separately argue claims). We sustain the rejection of claims 5, 13, and 17. DECISION The decision of the Examiner to reject claims 1-20 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). AFFIRMED 6