Joseph Klein

Patent Trials and Appeals BoardDec 23, 2021

2021003947 (P.T.A.B. Dec. 23, 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. 16/259,297 01/28/2019 Joseph Klein 069874/00001 5066 148433 7590 12/23/2021 Burr Forman LLP dba Burr Forman McNair Bank of America Plaza 101 South Tryon Street, Suite 2610 Charlotte, NC 28280 EXAMINER KIM, CHRISTOPHER S ART UNIT PAPER NUMBER 3752 NOTIFICATION DATE DELIVERY MODE 12/23/2021 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): mcnairip@mcnair.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSEPH KLEIN Appeal 2021-003947 Application 16/259,297 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL J. FITZPATRICK, and MICHAEL L. WOODS, Administrative Patent Judges. WOODS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1 and 3–20. See Appeal Br. 1, 16. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the inventor, Joseph Klein, as the real party in interest. See Appeal Br. 1. Appeal 2021-003947 Application 16/259,297 2 CLAIMED SUBJECT MATTER The application is titled “Unmanned Winged Aircraft for Autonomous Fire Extinguishing.” Spec. 1. Claim 1 is the sole independent claim (see Appeal Br. 17–19 (Claims App.)) and is reproduced below with emphasis added to a particular limitation addressed in our decision: 1. An aircraft for unmanned firefighting, the aircraft comprising: a water tank fillable via a scoop operation conducted at a body of water during flight of the aircraft, and configured to be emptied by a release operation at a target of interest; a communications module configured to employ wireless communication via a ground link and/or a satellite link to provide real time or near real time communication with a remote configuration or monitoring facility; an imaging module configured to obtain image data at the target of interest for identifying updated target information; and a navigation module configured to enable remote or autonomous operation of the aircraft during the scoop operation and the release operation, wherein a scoop is disposed at a front portion of the water tank and an adjustable nozzle is disposed at a rear portion of the water tank. Id. at 17 (Claims App.) (emphasis added). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Doshay US 6,364,026 B1 Apr. 2, 2002 Stupakis US 2014/0000917 A1 Jan. 2, 2014 Appeal 2021-003947 Application 16/259,297 3 REJECTIONS The following rejections are before us on appeal: Claims Rejected 35 U.S.C. § Reference(s)/Basis 13, 15–172 112(b) Indefinite 1, 4–12, 18–20 102 Stupakis 1, 3–203 103 Stupakis, Doshay See Final Act. 3–7. I. Rejection under 35 U.S.C. § 112(b) The Examiner rejects claims 13 and 15–17 as indefinite under 35 U.S.C. § 112(b). See Final Act. 3–4; see also supra n.2. In rejecting claim 13 as indefinite, the Examiner explains that the “preamble is directed to an aircraft,” yet the “body of the claim is directed to an aircraft and a remote configuration and monitoring facility (combination).” Final Act. 3 (emphasis added). In rejecting claim 15 as indefinite, and in similar note to the rejection of claim 13 as indefinite, the Examiner explains, “In the event that Applicant intends to positively recite the ground line and the one or more transmission towers, the limitations exceed the scope of the preamble.” Final Act. 4. The Examiner further explains, “The preamble is directed to an aircraft,” yet the 2 Although the rejection lists claims 13–15 as rejected (see Final Act. 3; see also Ans. 3), we understand this to be an inadvertent and harmless typographical error, and Appellant and the Examiner understand that claims 13 and 15–17 are instead rejected. See Final Act. 3–4; see also Appeal Br. 4. 3 Although the Examiner lists claims 1–20 as rejected, we understand that claim 2 has been cancelled, and the rejection applies to claims 1 and 3–20, instead. See Final Act. 6; see also Appeal Br. 17 (Claims App.). Appeal 2021-003947 Application 16/259,297 4 “body of the claim is directed to an aircraft, ground link and one or more transmission towers (combination).” Id. (emphasis added). In rejecting claims 16 and 17 as indefinite, the Examiner raises a concern similar to that raised with claim 15. See id. In contesting the rejection of claim 13, Appellant argues that “it is not outside the scope of the aircraft recited in the preamble to include equipment (i.e., the navigation module) capable of receiving insertion of the coordinates as claimed.” Appeal Br. 4. In contesting the rejection of claims 15–17, Appellant similarly argues that “it is not outside the scope of the aircraft recited in the preamble to include equipment (i.e., the communications module) capable of establishing the ground link as claimed.” See id. at 5 (presenting the same or similar argument to claims 15–17). We agree with Appellant. The Examiner’s rejection is premised on the misunderstanding that the claims recite an aircraft in combination with either a: (1) “remote configuration or monitoring facility” (claim 13); or (2) a “ground link” and “transmission towers” (claims 15–17). See Final Act. 3–4. The claims do not recite an aircraft in combination with such structures. Rather, claim 13 recites, “wherein coordinates defining a geographic location of each of the body of water and the target of interest are provided to the navigation module from the remote configuration or monitoring facility.” Appeal Br. 18 (Claims App.). As it relates to the rejection, claim 13 simply specifies how the aircraft’s “navigation module” receives geographic location coordinates from “the remote configuration or monitoring facility.” See Appeal Br. 18 (Claims App.). Id. The claim does Appeal 2021-003947 Application 16/259,297 5 not require a “remote configuration or monitoring facility.” Rather, the remote configuration or monitoring facility is only used to further define how the navigation module—part of the claimed aircraft—operates. See Final Act. 3. As to claim 15, this claim recites, “wherein the communications module is configured to communicate via the ground link, the ground link being established with one or more transmission towers erected for line-of- sight communication covering a fixed geographic location.” Appeal Br. 19 (Claims App.). As it relates to the rejection, claim 15 simply requires, inter alia, the aircraft’s communications module to be “configured to communicat[e]” with a “ground link,” which “ground link” is “established with one or more transmission towers.” See Appeal Br. 19 (Claims App.). The plain language of the claim does not require the aircraft in combination with a transmission tower, as the rejection suggests. See Final Act. 4. Rather, the tower is used in a manner similar to that discussed with regard to claim 13, to define how a component of the claimed aircraft (the communications module) operates. As to claims 16 and 17, the Examiner rejects the claims for nearly identical reasons as the rejection of claim 15 (see Final Act. 4), yet just like claim 15, claims 16 and 17 do not recite limitations that require the aircraft combined with a transmission tower. See Appeal Br. 19 (Claims App.); see also Final Act. 4. Accordingly, we do not sustain the rejection of claims 13 and 15–17 as indefinite. Appeal 2021-003947 Application 16/259,297 6 II. Anticipated by Stupakis The Examiner rejects claims 1, 4–12, and 18–20 as anticipated by Stupakis. Final Act. 5. We reproduce Figure 3 of Stupakis, below: Figure 3 “illustrates a schematic cross-section of [a] fuselage according to” an embodiment of Stupakis. Stupakis ¶ 23. In particular, Figure 3 depicts water tank 400 carried within fuselage 120 of an aircraft. Id. ¶ 39. Stupakis further discloses that Discharge of water from the tank 400 is obtained by placing valve 440 in a position to connect the interior 414 of the tank 400 with the discharge port 450. Preferably, an aft-facing hatch 452 is openable in-flight to permit water discharge, whether under the force of gravity, and/or aided by air pressure applied to vent 445, a pump 465, some other means, or any combination. Id. ¶ 46 (emphasis omitted). Appeal 2021-003947 Application 16/259,297 7 The Examiner finds that Stupakis discloses the claimed water tank (400) with a scoop (the “entry point of probe 212”) with “an adjustable nozzle 450.” Final Act. 5 (citing Stupakis ¶ 46). The Examiner explains that Stupakis’s discharge port 450 satisfies the claimed “adjustable nozzle” because “Stupakis discloses air pressure applied to vent 445 to aid in water discharge” and that “[n]either the claim nor the specification requires the ‘structure’ to be located within the nozzle.” Ans. 10. Appellant disagrees with the Examiner’s position that Stupakis discloses an “adjustable nozzle.” See Appeal Br. 8–9. Appellant contends that “what is claimed is specifically an adjustable nozzle and not an adjustable flow rate in abstract terms.” Id. at 9; see also Reply Br. 2 (“the difference between these structures is plainly clear to one of ordinary skill in the art (and even those of no skill in the art).”). We agree with Appellant. The Examiner’s interpretation of “adjustable nozzle” is unreasonably broad as it ignores the plain meaning of the claim language and is inconsistent with the Specification. Independent claim 1 recites, inter alia, “an adjustable nozzle is disposed at a rear portion of the water tank.” Appeal Br. 17 (Claims App.). The claim does not merely recite an adjustable flow rate, as the Examiner’s rejection presumes, but specifically requires the nozzle to be adjustable. See Ans. 10. Indeed, the Specification describes the importance of an adjustable nozzle to “provid[e] the capability to throttle release and control the volume of water release” in order to prevent damage to structures by water dropped from elevated heights. See Spec. ¶ 22 (emphasis added); see also id. ¶ 23. Appeal 2021-003947 Application 16/259,297 8 Stupakis, on the other hand, discloses “discharge port 450” and “an aft-facing hatch 452 [that] is openable in-flight to permit water discharge, whether under the force of gravity, and/or aided by air pressure applied to vent 445, a pump 465, some other means, or any combination.” Stupakis ¶ 46 (emphasis omitted). Even if we construe discharge port 450 as satisfying a “nozzle,” nothing in Stupakis describes discharge port 450 as being adjustable. Moreover, Stupakis merely discloses that “air pressure applied to vent 445” may be used to “permit water discharge.” See Stupakis ¶ 46 (emphasis omitted). This is not a disclosure that the flow rate through discharge port 450 is adjustable. Even if, however, the water discharged from port 450 may vary due to varying air pressure encountered at vent 445—which we do not find as being explicitly taught in Stupakis—this does not somehow transform discharge port 450 to be “adjustable,” thereby satisfying the claimed “adjustable nozzle.” For the foregoing reasons, we do not sustain the rejection of independent claim 1, or of its dependent claims 4–12 and 18–20, which inherit the same rejection infirmity (see Final Act. 5), as anticipated by Stupakis. III. Unpatentable Over Stupakis and Doshay In rejecting the claims as unpatentable over Stupakis and Doshay, the Examiner relies on the same flawed finding discussed above. In particular, in rejecting the claims based on Stupakis and Doshay, the Examiner erred in finding that Stupakis’s discharge port 450 satisfies the claimed “adjustable nozzle.” See Final Act. 6. Appeal 2021-003947 Application 16/259,297 9 For the same reasons we do not sustain the anticipation rejection, we do not sustain the rejection of claims 1 and 3–20 as unpatentable over Stupakis and Doshay. IV. Conclusion For the foregoing reasons, we reverse the Examiner’s rejections of claims 1 and 3–20. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 13, 15–17 112(b) Indefiniteness 13, 15–17 1, 4–12, 18–20 102 Stupakis 1, 4–12, 18–20 1, 3–20 103 Stupakis, Doshay 1, 3–20 Overall Outcome 1, 3–20 REVERSED