Gregory Stayton et al.

Patent Trials and Appeals Board

Mar 16, 2021

2020006576 (P.T.A.B. Mar. 16, 2021)

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.
12/775,321 05/06/2010 Gregory T. Stayton 78057.00213 9915
35161 7590 03/16/2021
DICKINSON WRIGHT PLLC
1825 EYE ST., NW
SUITE 900
WASHINGTON, DC 20006
EXAMINER
PAULSON, SHEETAL R.
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
03/16/2021 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):
dwpatents@dickinsonwright.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GREGORY T. STAYTON,
PETER J. BOBROWITZ, CHARLES C. MANBERG, and
RICHARD D. RIDENOUR II

Appeal 2020-006576
Application 12/775,321
Technology Center 3600
____________

Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and
MICHAEL A. VALEK, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
The Examiner rejected the claims under 35 U.S.C. § 103 as obvious.
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject the claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Aviation
Communication & Surveillance Systems, LLC. Appeal Br. 3.
Appeal 2020-006576
Application 12/775,321

2
STATEMENT OF THE CASE
The Examiner rejected claims 1–4 and 6–8 in the Final Office Action
(“Final Act.) under pre-AIA 35 U.S.C. § 103(a) as obvious in view of
Meserole et al. (US 2008/0035784 A1, published Feb. 14, 2008)
(“Meserole”) and Robinson (US 7,471,995 B1, issued Dec. 30, 2008)
(“Robinson”). Final Act. 2.
Claim 1, the only independent claim on appeal, is reproduced below:

1. A system, comprising:
a processor;
a transceiver coupled to the processor; and
memory including instructions for execution by the
processor to send with the transceiver meteorological data,
position of an own ship aircraft, velocity of the aircraft, time to
a point in space for the aircraft, velocity data for the aircraft,
and time and configuration data to a provided ATC (Air Traffic
Control) ground station; and
the provided ATC (Air Traffic Control) ground station
utilizes information sent by the aircraft transceiver to determine
one or more of a wake vortex magnitude, a wake vortex
direction and a time until dissipation of the wake vortex.

DISCUSSION
The system of claim 1 comprises a processor, a transceiver coupled to
the processor, and memory. The memory contains instructions for the
processor to send, by the transceiver, the recited data in claim 1 to an Air
Traffic Control (ATC) ground station. The ground station utilizes the
information sent from the transceiver to determine a characteristic of a wake
vortex.
A “wake vortex” is the wake turbulence “generated in the form of
vortexes trailing from aircraft wingtips.” Meserole ¶ 3. Meserole explains:
Appeal 2020-006576
Application 12/775,321

3
The strength of the vortexes is dependent on the aircraft speed
and configuration and on the instantaneous lift being generated
by the wing. While there are ways to reduce the strength of tip
vortexes, they cannot be eliminated. The vortexes can severely
buffet another aircraft that flies into them, and the vortexes
from a transport aircraft flying at landing or take-off speeds can
upend a small aircraft and cause loss of control.

Meserole ¶ 3.
The Specification discloses that the invention “provides wake vortex
data elements from the airplane that provides an optimized wake vortex
algorithm so that the pilot and ATC [air traffic control] can provide for more
traffic throughput at the airport while maintaining the necessary safe
separation distances or timing between airplane types during various
meteorological conditions.” Spec. ¶ 11.
The Examiner found that Meserole teaches an onboard monitoring
system for providing the same type of data recited in rejected claim 1 to the
Air Traffic Control ground station. Final Act. 3. The Examiner also found
that the Air Traffic Control ground station in Meserole “utilizes information
sent by the aircraft transceiver to determine one or more of a wake vortex
magnitude, a wake vortex direction and a time until dissipation of the wake
vortex” as recited in the last step of claim 1. Id. at 3.
While the Examiner found that Meserole describes a processor as
required by the claim, the Examiner stated that Meserole does not explicitly
teach the recited “transceiver coupled to the processor.” Final Act. 3. For
this limitation, the Examiner further cited Robinson. Id.
The Specification does not define what it means to “couple” a
transceiver to a processor. The Specification does not show any structure in
which a transceiver is coupled to a processor. We, therefore, look to the
Appeal 2020-006576
Application 12/775,321

4
plain language of the claim. The claim requires that the processor sends data
to the ATC ground station “with the transceiver.” Therefore, giving the
claim terms their broadest reasonable interpretation,2 we construe “coupled
to” the transceiver to mean that the processor is functionally connected to
the transceiver in such a way that it can send data to the transceiver. See
Appeal Br. 12–13.
The Examiner found that Robinson discloses a “display generator,”
which the Examiner found comprises a computer or processor. Final Act. 2.
The Examiner also found that Robinson describes sending data from the
display generator using a transceiver as required by the rejected claim. Id.
The Examiner found it would have been obvious to couple the display
generator to the transceiver as “a matter of obvious engineering choice,”
which would result in “a system capable of providing a safe and efficient
aircraft navigation.” Final Act. 3–4.
In the Appeal Brief, Appellant only addressed the Examiner’s legal
discussion of In re Larson, 340 F.2d 965, 968 (CCPA 1965) (Final Act. 3)
regarding the coupling of the transceiver and processor, but did not address
the Examiner’s substantive findings about Robinson’s teaching of a
processor, such as the display generator, coupled to a transceiver. In the
Reply Brief, however, Appellant states that “Robinson’s alleged ‘processor’
is remote from the aircraft and not coupled to any transceiver in the aircraft.”

2 During patent examination proceedings, claim terms are given “the
broadest reasonable meaning . . . in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in the applicant's specification.” In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).

Appeal 2020-006576
Application 12/775,321

5
Reply Br. 10. Appellant cites to Figures 3 and 5 and various disclosures
from Robinson which purportedly show the display generator remote from
the aircraft and not coupled to the transceiver. Id. at 11. Appellant states,
after reproducing Figure 3 of Robinson in the Reply Brief, “Robinson’s
‘processor,’ being remotely disposed, is incapable of being coupled to the
aircraft transceiver.” Id. at 12.
Initially, we note that while Examiner pointed to the same disclosure
in Robinson in the Final Office Action and Answer for all aspects of the
rejection, Appellant only addressed Robinson substantively in the Reply
Brief, but not in the Appeal Brief. A Reply Brief is not a forum to raise new
arguments not made in the Appeal Brief. 37 C.F.R. § 41.41(b)(2). Appellant
could have made these same arguments in the Appeal Brief, but chose not to.
By only addressing the substance of Meserole and Robinson in the Reply
Brief, Appellant has denied the Examiner the opportunity to respond to
Appellant’s arguments in the Answer, because the appeal is no longer in the
Examiner’s jurisdiction. “For this reason, Appellant has waived the
substantive arguments concerning the teachings in Robinson.” 37 C.F.R. §
41.37(c)(1)(iv).”
Even if we were to reach the merits of Appellant’s newly-presented
argument, we are not persuaded.” To begin, we do not find it necessary to
address the legal argument involving Larson because the Examiner factually
established that Robinson describes a transceiver coupled to a processor.
Appellant pointed to Figures 3 and 5 of Robinson and other disclosures in
the publication, but failed to consider the entirety of Robinson. Specifically,
Figure 4 of Robinson, sandwiched between Figures 3 and 5, shows a
transceiver coupled to a processor. Figure 4 is copied below:
Appeal 2020-006576
Application 12/775,321

6

Figure 4 of Robinson, copied above, shows an aircraft comprising a
receiver/transceiver 412, monitoring system 413, aircraft database 414,
display generator 416, and display 418. The figure shows the
receiver/transceiver 412 communicating with another aircraft 440 and a
transmitter/remote transceiver 430 on the ground which is connected to
ground display 450. Robinson 10: 49–58. The display generator 416 aboard
the aircraft can comprise a computer or central processing unit, namely a
“processor” as required by claim 1. Robinson, col. 7, ll. 34–36; col. 14, ll.
47–54 (describing Fig. 5). The aircraft database 414 also has data processing
capacity. Robinson, col. 11, l. 63–col. 12, l. 6.
While Figure 3 of Robinson shows the display generator on the
ground and not coupled to the transceiver in the aircraft, Figure 4 expressly
shows the receiver/transceiver 412, the display generator 416, and the
aircraft database 414, each onboard the aircraft (Robinson, col. 11, ll. 2–6)
Appeal 2020-006576
Application 12/775,321

7
and functionally coupled to each other. Specifically, Robinson discloses that
the onboard monitoring system 413 collects data regarding vehicle and
environmental conditions. Robinson, col. 11, ll. 19–33. The onboard systems
apply “various algorithms” to the data to determine environmental
conditions. Robinson, e.g., col. 11, l. 64–col. 12, l. 1 (“when dynamic
vehicle information is received from the monitoring system 413, the aircraft
characteristics database 414 uses various algorithms to determine an
environmental conditions value for the received environmental conditions
information.”). One of ordinary skill in the art would recognize that the use
of “algorithms” to determine environmental conditions would require a
processor to apply the algorithms to the data collected from the monitoring
system 413. The display generator also possesses processing capacity.3 The
information from the aircraft processors is transmitted by the transceiver to
receivers on another aircraft or to the ground (see receivers 430 shown in
Figure 4) (Robinson, col. 12, ll. 21–24: “the data and/or information may be
transmitted to a ground-based receiver, an airborne receiver, or a space-
based receiver.”). Thus, we find that Figure 4 of Robinson clearly shows a
processor functionally connected, and “coupled to,” a transceiver because

3 “When the display generator 116 receives the environmental conditions
data, the display generator 116 compares the environmental conditions data
to the static and dynamic aircraft characteristics stored in the aircraft
characteristics database 114, as described above, and determines whether
there are any environmental conditions that exceed a determined threshold
and will affect the aircraft. The display generator 116 then creates a display
map that includes all of the environmental conditions that will affect the
aircraft and sends the map to the display 118 to be displayed.” Robinson,
col. 8, ll. 54–63
Appeal 2020-006576
Application 12/775,321

8
the transceiver sends data from the processors to a ground-based receiver,
meeting the corresponding limitations of claim 1.
Appellant argues in the Reply Brief that the Examiner did not explain
why one of skill in the art would have been motivated to combine Meserole
and Robinson nor what benefits are provided by the combination. Reply Br.
14. As indicated above, this newly presented argument is waived, and even
if we were to consider it, we find it to be unpersuasive. The Examiner
explained that providing Meserole with both the transceiver and processor
onboard the aircraft would improve the system by providing safe and
efficient navigation. Final Act. 4. We agree. Robinson specifically teaches
that placing a processor and transceiver on an aircraft is one configuration
useful to process and transmit aircraft information pertinent to determining
aircraft wake turbulence (Robinson, col. 2, ll. 43–50). Therefore, the use of
the transceiver coupled to the processor in Meserole is nothing more than
“the predictable use of prior art elements according to their established
functions.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). “A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421.
For the foregoing reasons, the obviousness rejection of claim 1 is
affirmed. Dependent claims 2–4 and 6–8 were not argued separately and fall
with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 6–8 103 Meserole,
Robinson
1–4, 6–8
Appeal 2020-006576
Application 12/775,321

9

TIME PERIOD
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).

AFFIRMED