Ex Parte Zubkow et al

Patent Trial and Appeal BoardNov 30, 2012

11565173 (P.T.A.B. Nov. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ZYGMUNT ZUBKOW and ROBERT R. BACON ____________________ Appeal 2010-006585 Application 11/565,173 Technology Center 2800 ____________________ Before DAVID M. KOHUT, LARRY J. HUME, and RAMA G. ELLURU, 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 rejection of claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2010-006585 Application 11/565,173 2 STATEMENT OF THE CASE 1 The Invention Appellants' invention is directed to a method of determining when a gyro is providing faulty data using a single system, i.e., gyroscopic failure detection in a navigation device through sensor correlation. Spec. p. 1, Title and ¶ [0002]. Exemplary Claim Claim 1 is an exemplary claim representing an aspect of the invention which is reproduced below (emphasis added to disputed limitations): 1. A method of determining the integrity of a gyro in a navigation system, the method comprising: detecting a sudden change in one of a pitch, yaw and roll signal from a respective pitch, yaw and roll gyro in the navigation system of a device experiencing coning in an exoatmospheric environment; and reviewing at least one other of the pitch, yaw and roll signals to verify the sudden change. 1 Our decision refers to Appellants’ Appeal Brief (“App. Br.,” filed Sept. 28, 2009); Reply Brief (“Reply Br.,” filed Feb. 26, 2010); Examiner’s Answer (“Ans.,” mailed Dec. 30, 2009); Non-Final Office Action (“NFOA,” mailed Jul. 8, 2009); and the original Specification (“Spec.,” filed Nov. 30, 2006). Appeal 2010-006585 Application 11/565,173 3 Prior Art The prior art relied upon by the Examiner in rejecting the claims on appeal is: Lanzaro Hall Ignagni US 3,638,883 US 4,470,562 US 5,834,623 Feb. 1, 1972 Sep. 11, 1984 Nov. 10, 1998 Reynolds US 2006/0253253 A1 Nov. 9, 2006 Rejections on Appeal 2 A. Claims 1-14 stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Ans. 3. B. Claims 1-4, 6-8, 11-13, 15, 17, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ignagni in view of Lanzaro. Ans. 5. C. Claims 5, 9, 10, and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ignagni and Lanzaro in view of Reynolds. Ans. 10. D. Claims 14 and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ignagni and Lanzaro in view of Hall. Ans. 11. 2 We note that the unpatentability rejection of independent claim 1 under 35 U.S.C. § 103(a) is dispositive of this Appeal, such that we need not reach a conclusion on the arguments presented with respect to the non-statutory subject matter rejection of claims 1-14 under 35 U.S.C. § 101. Appeal 2010-006585 Application 11/565,173 4 GROUPING OF CLAIMS Based upon Appellants’ arguments against the rejection of claim 1 and lack of separate arguments for patentability with respect to other claims on appeal (App. Br. 13-27; Reply Br. 5-11), we select claim 1 as the representative claim to decide this appeal in accordance with those arguments and rejections. 37 C.F.R. § 41.37(c)(1)(vii). Thus, claims 2-19 stand or fall with independent claim 1. APPELLANTS’ CONTENTIONS Appellants contend that “Lanzaro . . . is at least drawn to guidance systems for a spacecraft and discusses coning of such spacecraft . . . [but, i]n contrast, Ignagni is not relevant prior art but is instead drawn to an ‘Apparatus and method to provide high accuracy calibration of machine tools’ . . . .” App. Br. 13. In addition, Appellants contend that: The Examiner's response [i.e., that Ignagni is not limited to precision machining] is not relevant because it focuses on the perspective of a person in the field of machine tools for work tables. Even if it were true that a person possessing an inventive mind in the field of machine tools, such as Ignagni, might look to the avionics field because avionics “inertial navigation systems provide a highly precise measurement of position and orientation in inertial space,” that does not imply that one of ordinary skill in the art of avionics would look to the field of precision machining to find solutions to address problems in exoatmospheric navigation. However, in this case the Examiner provides no insight as to how the Lanzaro reference would have imparted any knowledge that would motivate Ignagni to improve his machine tool. There is no Appeal 2010-006585 Application 11/565,173 5 suggestion in Ignagni or Lanzaro that industrial machine tools experience any conditions akin to coning. App. Br. 14-15. Appellants further contend that “there is no teaching or suggestion in the references that those particular solutions presented in Ignagni, which are focused on precision machining, translate back into solutions that would be applicable to solving known problems associated with aircraft or spacecraft navigation.” App. Br. 15. Furthermore, Appellants contend that Ignagni is not within the scope of relevant prior art and, for at least this reason, the rejection should be reversed. App. Br. 16. Appellants also contend that “[e]ven assuming that Ignagni and Lanzaro are within the scope and content of the prior art for these claims, Appellant asserts that the differences between the art and the claimed invention at least dictates a conclusion that the pending claims are not obvious in view of the applied art.” Id. In addition, Appellants contend that: Neither the Ignagni nor the Lanzaro reference teach or suggest the significance of “experiencing coning in an exoatmospheric environment” with respect to establishing an interrelationship between pitch, yaw and roll gyroscopic signals . . . [and that] “coning in an exoatmospheric environment” specifies an operational initial condition for performing the described method and as such is a limitation rather than simply “a recitation of intended use.” App. Br. 17. Appeal 2010-006585 Application 11/565,173 6 Finally, Appellants contend that “the subject limitation is not a ‘recitation of intended use’ as the coning condition is what causes the phase relationship between pitch, yaw and roll signals to emerge from the orthogonally oriented gyroscopes . . . [and] therefore asserts that these limitations as they appear in claims 1, 8 and 15 must be given full weight.” Reply Br. 10. ISSUE Did the Examiner err in finding that the combination of Ignagni and Lanzaro teach or suggest all the claimed limitations, particularly the limitation of “detecting a sudden change in one of a pitch, yaw and roll signal from a respective pitch, yaw and roll gyro in the navigation system of a device experiencing coning in an exoatmospheric environment,” as recited in independent claim 1 and, by doing so, did the Examiner err in finding that the phrase “in the navigation system of a device experiencing coning in an exoatmospheric environment” is merely a statement of intended use? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions with respect to claim 1, and we 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 by the Examiner in the Examiner’s Answer (Ans. 5-6, 8-9, 18-43) in response to Appellants’ Arguments (App. Br. 13-27; Reply Br. 5-11). However, we highlight and Appeal 2010-006585 Application 11/565,173 7 address specific findings and arguments regarding claim 1 for emphasis as follows. In particular, we concur with the Examiner’s finding that “Ignagni does teach employing a gyro system in a machine tool as well as explicitly indicating that the same gyro system is applicable in aircraft and spacecraft (i.e., exoatmospheric) navigation systems . . . .” Ans. 21 (citing Ignagni at col. 1:62-67 and col. 2:14-17). We also agree with the Examiner’s finding that: [T]he proposed combination only requires one having ordinary skill in the art to look to Lanzaro to modify the exoatmospheric navigation system of Ignagni to explicitly indicate that the navigation system is of a device experiencing coning. Therefore, Appellant’s indication that “a person possessing an inventive mind in the field of machine tools, such as Ignagni, might look to the avionics field” supports the proposed combination of Ignagni and Lanzaro as the proposed combination is to modify the invention of Ignagni to explicitly indicate that the system is used in a navigation device experiencing coning. Ans. 22 (emphasis added). Finally, we agree with the Examiner’s finding that “the limitation specifying that the navigation system is of a device experiencing coning in an exoatmospheric environment, is a recitation of intended use.” Ans. 23. We note that a statement of intended use cannot distinguish over a prior art apparatus that discloses all the recited limitations and is capable of performing the recited function. In re Schreiber, 128 F.3d 1473, 1477 (Fed. Appeal 2010-006585 Application 11/565,173 8 Cir. 1997) and Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Even assuming, arguendo, that the limitation at issue is not a statement of intended use, the phrase “in the navigation system of a device experiencing coning in an exoatmospheric environment,” in conjunction with the other method claim limitations (i.e., the “detecting” and “reviewing” steps), provides no further limits or requirements on the recited method steps, and does not claim any particular output or result therefrom. While Appellants’ contention cited above that “the subject limitation is not a ‘recitation of intended use’ as the coning condition is what causes the phase relationship between pitch, yaw and roll signals to emerge from the orthogonally oriented gyroscopes” may be technically correct on its face with respect to any underlying inventive concept that Appellants may have, Appellants are arguing limitations that are not present in the claims. That is, Appellants’ arguments are not commensurate with the scope of claim 1. We find that known gyro systems, in operation, e.g., as cited by the Examiner, will provide pitch, yaw and roll signals that emerge from orthogonally oriented gyroscopes. In KSR, the Court stated “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007). When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of Appeal 2010-006585 Application 11/565,173 9 ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. . . . [A] court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. Id. at 417. To summarize, Appellants’ contentions do not persuade us of error on the part of the Examiner because Appellants are responding to the rejection by attacking the references separately, even though the rejection is based on the combined teachings of the references. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Therefore, we find that Appellants have not set forth persuasive evidence that the Examiner erred in the unpatentability rejection of claim 1. Accordingly, we sustain the Examiner’s rejection of claim 1, as well as claims 2-19 which fall with claim 1. CONCLUSIONS (1) Appellants have not established that the Examiner erred with respect to the unpatentability rejections of claims 1-19 under 35 U.S.C. § 103(a) over Ignagni in view of Lanzaro, and the rejections are sustained. Appeal 2010-006585 Application 11/565,173 10 (2) We have not reached a Decision on the merits of the non- statutory subject matter rejection of claims 1-14 under 35 U.S.C. § 101, since the unpatentability rejection of claim 1 is dispositive of this Appeal, as discussed, supra. DECISION The decision of the Examiner to reject claims 1-19 is affirmed. On the record before us, claims 1-19 are unpatentable. 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)(2011). AFFIRMED tj