NORTHROP GRUMMAN SYSTEMS CORPORATION

Patent Trials and Appeals BoardDec 14, 2020

2020002491 (P.T.A.B. Dec. 14, 2020)

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. 15/449,368 03/03/2017 ALAN R. CHERRETTE NGC-00199(007954-0030) 9231 64728 7590 12/14/2020 SHUMAKER, LOOP & KENDRICK, LLP NORTHROP GRUMMAN CORPORATION 1000 JACKSON STREET TOLEDO, OH 43604 EXAMINER SANDERSON, JOSEPH W ART UNIT PAPER NUMBER 3619 NOTIFICATION DATE DELIVERY MODE 12/14/2020 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): cgolupski@shumaker.com hpeppard@shumaker.com tlopez@shumaker.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALAN R. CHERRETTE Appeal 2020-002491 Application 15/449,368 Technology Center 3600 Before JOHN C. KERINS, JILL D. HILL, and CARL M. DEFRANCO, Administrative Patent Judges. HILL, 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 1–20. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 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 Northrop Grumman Systems Corporation. Appeal Br. 3. Appeal 2020-002491 Application 15/449,368 2 BACKGROUND Appellant’s invention relates to a stackable, three-axis spacecraft. Claims 1, 12, and 18 are independent. Claim 1, reproduced below, illustrates the claimed subject matter, with certain limitations italicized: 1. A three-axis spacecraft comprising: a spacecraft body being rectangular in shape and including first and second opposing radiator/equipment panels, first and second opposing mounting panels, an earth deck thermally coupled to the first radiator/equipment panel and a zenith deck thermally coupled to the second radiator/equipment panel, wherein the first and second radiator/equipment panels face a north and south direction relative to the Earth when the spacecraft is on orbit, the first and second mounting panels face an east and west direction relative to the Earth when the spacecraft is on orbit, the earth deck faces the Earth when the spacecraft is on orbit, and the zenith deck faces away from the Earth when the spacecraft is on orbit; a plurality of antennas mounted to the earth deck, and a mounting cylinder extending through the spacecraft body and out of the first and second mounting panels, wherein the mounting cylinder includes a mounting flange at each end of the cylinder and being operable to be mounted to a mounting flange of a mounting cylinder of other spacecraft. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Rosen US 4,972,151 Nov. 20, 1990 Walker ’547 WO 2016/120547 A1 Aug. 4, 2016 Walker ’951 US 2017/0361951 A1 Dec. 21, 2017 Appeal 2020-002491 Application 15/449,368 3 REJECTIONS I. Claims 10, 11, and 17 stand rejected under 35 U.S.C. § 112(b) as indefinite. Final Act. 3. II. Claims 1, 2, 8, 10, 11, 18, and 20 stand rejected under 35 U.S.C. § 102(a)(2) as anticipated by Walker ’951. Final Act. 3. III. Claims 1, 2, 8, 10, 11, 18, and 20 stand rejected under 35 U.S.C. § 102(a)(1) as anticipated by Walker ’547.2 Final Act. 4. IV. Claims 3–7, 12–15, 17, and 19 stand rejected under 35 U.S.C. § 103 as unpatentable over Walker ’951 and Appellant’s Admitted Prior Art (“AAPA”). Final Act. 4. V. Claims 9 and 16 stand rejected under 35 U.S.C. § 103 as unpatentable over Walker ’951 and Rosen. Final Act. 5. ANALYSIS Rejection I –– Indefiniteness The Examiner finds that independent claims 1 and 12 are drawn to a single spacecraft, and claims 10, 11, and 17 (which depend therefrom) refer to multiple spacecraft by using “are,” rather than “is.” Final Act. 3. According to the Examiner, use of “are” to refer back to a single spacecraft causes each of claims 10, 11, and 17 to improperly recite “subject matter outside the scope of the claim, rendering the claim scope indefinite.” Id. 2 Walker ’547 is the international application of Walker ’951, so that Walker ’547 has an earlier date. The Examiner makes separate anticipation rejections based on each reference, though stating that Walker ’951 serves as a translation for Walker ’547. In the briefing, the content of both references is discussed simply as “Walker.” Appeal 2020-002491 Application 15/449,368 4 Appellant argues that claims 1 and 12 actually recite more than one spacecraft, because (1) “the plural of spacecraft is spacecraft,” (2) “independent claim 1 refers to one spacecraft in the first line and ‘other spacecraft’ in the last line,” and “independent claim 12 refers to one spacecraft in the first line and an ‘adjacent spacecraft’ in the last line.” Appeal Br. 8. The Examiner responds that the actual issue is that “the claim[s] actively recite[] multiple spacecraft when the claim scope is drawn to only one spacecraft.” Ans. 3. Appellant replies that a skilled artisan would understand that the claims at issue are directed to a single spacecraft having “features that allow it to be mounted to other spacecraft,” which makes use of the term “are” in the dependent claims referring to the claimed spacecraft and the spacecraft to which it mounts “proper.” Reply Br. 1–2. The test for indefiniteness is whether a skilled artisan would understand what is claimed when the claim is read in light of the specification. The Examiner and Appellant disagree about whether a skilled artisan would understand the scope of claims 10, 11, and 17. The Federal Circuit has stated that the patent drafter is in the best position to resolve the ambiguity in the patent claims, and it is highly desirable that patent examiners demand that applicants do so in appropriate circumstances so that the patent can be amended during prosecution rather than attempting to resolve the ambiguity in litigation. Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255 (Fed. Cir. 2008). Appeal 2020-002491 Application 15/449,368 5 We agree with the Examiner that the scope of claims 10, 11, and 17 is indefinite. Independent claim 1 is directed to “a three-axis spacecraft.” Appeal Br. 14 (Claims App.). Despite its reference to the “three-axis spacecraft” being “operable to be mounted” to “other spacecraft,” claim 1 only positively recites one spacecraft. Id. Similarly, claim 12 is directed to “a three-axis geostationary orbit spacecraft.” Id. at 15–16. Despite the single three-axis spacecraft being “operable to be mounted” to “an adjacent spacecraft,” claim 12 only positively recites one spacecraft. Id. Claim 10 depends from claim 1 and recites that “the spacecraft are selected from” a group of alternatives. Id. at 15 (Claims App.) (emphasis added). With only one of the spacecraft being positively recited, there is a lack of clarity regarding how the additional limitation affects the claim scope in limiting the “other spacecraft” that is/are not positively recited. Claim 11 also depends from claim 1 and recites that “the spacecraft that are mounted together are three spacecraft.” Id. In addition to there being no indication how “[a] three-axis spacecraft” and “other spacecraft” provide proper antecedent bases for “three spacecraft,” with only one of the spacecraft being positively recited, there is, again, a lack of clarity regarding how the additional limitation affects the claim scope in limiting two additional spacecraft that are not positively recited. Similarly, claim 17 depends from claim 12 and attempts to additionally limit the single positively-recited spacecraft in a manner directed to more than one spacecraft, leaving ambiguity in the scope of claim 17. For this reason, we sustain the indefiniteness rejection. Appeal 2020-002491 Application 15/449,368 6 Rejection II –– Anticipation by Walker ’951 The Examiner rejects independent claims 1 and 18, and claims 2, 8, 10, 11, and 20 that depend therefrom as anticipated by Walker ’951. Final Act. 3. The Examiner finds that “Walker clearly discloses the limitations of the claims, particularly in Fig 4.” Id. The Examiner reasons that “[t]he claims refer to north, south, east, west, earth, and zenith directions,” which indicate “a desired orientation when the satellite is in use,” such that the directions are not given patentable weight other than denoting differing sides of the satellite, as the claims are drawn to the apparatus rather than a method of use. Id. at 2. Appellant argues that Walker does not disclose the claimed invention, instead disclosing a satellite 2 with east-west facing walls 6, 10 and an earth deck 12. Appeal Br. 8 (citing Walker ’951 ¶ 62). Appellant argues that the Examiner erred in not giving the indicated deck sides patentable weight, because “identifying the sides of the spacecraft based on their pointing direction” has meaning to a skilled designer. Id. at 9–10 (“persons designing the satellites and spacecraft will know the direction each side of the satellite or spacecraft will face when in use.”). The Examiner responds that the claimed faces are “based on the orientation of the satellite when in orbit,” such that “the respective notations (‘north’, etc.) only apply to the spacecraft when the satellite is on orbit about the earth.” Ans. 5. Thus, the Examiner argues, “[t]he structure as claimed only has the intended use of being orientated in a manner to provide specific sides with north, etc., orientations,” which “does not affect the structure itself.” Id. (emphases omitted). The Examiner considers Appellant to be Appeal 2020-002491 Application 15/449,368 7 claiming, inter alia, a three-axis spacecraft having a mounting cylinder extending through mounting panels that face in the east and west directions during orbit, which the Examiner considers to be intended use and not limiting on the spacecraft structure itself. Id. at 5–6 (“the orientation of Walker in space is immaterial to the structural limitations required by the claims.”). The Examiner reasons that “Walker may be rotated as desired during use, such as if the mission objective changes, but the structure is not changed thereby.” Id. at 7. Appellant disagrees with the Examiner’s contention that the sides of a spacecraft only refer to the direction they will point after the spacecraft is put in orbit. Reply Br. 2. According to Appellant, spacecraft sides are referred to using the claimed “type of notation during the design and manufacture of the spacecraft,” and a skilled artisan would have known that “[c]ertain elements are placed on certain sides of the spacecraft because those sides will be pointing in a certain direction when the spacecraft is on orbit.” Id. Thus, Appellant argues, the Examiner erred in assuming that the respective notations “only apply to the spacecraft when the satellite is on orbit about the earth.” Id. (emphasis omitted). This is because “a spacecraft can’t be positioned in any manner when on orbit and be effective for its intended purpose” –– the spacecraft must be “oriented in the manner it is designed for.” Id. at 4. Appellant has the better argument. Independent claims 1 and 18 each recite, inter alia, a spacecraft with a body having “first and second opposing mounting panels” that “face an east and west direction relative to the Earth,” and “an earth deck that faces the Earth.” The mounting cylinder extends out of the first and second opposing mounting panels. It appears from Appeal 2020-002491 Application 15/449,368 8 Appellant’s Specification that at least the term “earth deck” is a term of art that would have been understood by a skilled artisan to be the spacecraft wall/deck that is designed to face the earth during orbit, and thus would include various communication equipment, including antennas and phased arrays. See Spec. ¶¶ 7, 15, 19. We thus construe the term “earth deck” to be a known specific wall or deck (i.e., structure) of the spacecraft. Further, the first and second opposing mounting panels are structurally defined in the independent claims as separate from (and perpendicular to) the earth deck. Thus, the claim should be construed so that the first and second opposing mounting panels, through which the mounting cylinder extends, are not the earth deck. The mounting cylinder not extending through the earth deck is, thus, part of the claimed structure, and not solely intended use. Because Walker’s central cylinder 32 and associated adapter 16 extend through Walker’s anti-earth equipment bearing wall 12, which is its earth deck (Walker ’951 ¶ 52, Fig. 4), Walker does not disclose a spacecraft with a mounting cylinder that extends through walls defined as separate from its earth deck. For this reason, we do not sustain the Examiner’s anticipation rejection based on Walker ’951. Rejection III –– Anticipation by Walker ’547 The Examiner finds that “Walker clearly discloses the limitations of the claims, particularly in Fig 4.” Final Act 4. For the reasons explained above regarding the structural limitations of the independent claims and the disclosure of Walker ’547, which is the international application of Walker ’951 (and provides a translation of thereof), we do not sustain Rejection III. Appeal 2020-002491 Application 15/449,368 9 Rejection IV –– Obviousness In making this rejection of independent claim 12 and dependent claims 3–7, 13–15, 17, and 19, the Examiner relies on the findings set forth in Rejection II regarding the disclosure of Walker ’951 and certain aspects of the claim scope being intended use. Final Act. 4. The Examiner proposes to modify Walker to use the AAPA communication devices “for the predictable advantage of communicating with the ground and other spacecraft without having to reorient the craft to direct the antenna, and since it has been held that rearranging parts of an invention involves only routine skill in the art.” Id. at 5 (citation omitted). Like independent claims 1 and 18, independent claim 12 recites, inter alia, a spacecraft with a body having an earth deck facing the Earth on orbit and “first and second opposing mounting panels” through which mounting cylinder extends, and that “face an east/west Z-direction relative to the Earth” on orbit Appeal Br. 15–16 (Claims App.). The Examiner does not find that AAPA teaches or suggests this subject matter. Thus, for the reasons explained regarding the structural limitations of the independent claims and the disclosure of Walker, we do not sustain Rejection IV. Rejection V –– Obviousness Claim 9 depends from claim 1 and claim 16 depends from claim 12. In making this rejection of dependent claims 9 and 16, the Examiner relies on the findings set forth in Rejections II and IV, respectively, regarding the disclosure of Walker and the claim scope. Final Act. 5. The Examiner does not find that Rosen teaches or suggests the subject matter that we determined Appeal 2020-002491 Application 15/449,368 10 is missing from Walker. For the reasons explained in our analysis of Rejection II and IV, we do not sustain Rejection V. CONCLUSION The Examiner’s indefiniteness rejections are affirmed, and the prior art rejections are reversed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 10, 11, 17 112(b) Indefiniteness 10, 11, 17 1, 2, 8, 10, 11, 18, 20 102(a)(2) Walker ’951 1, 2, 8, 10, 11, 18, 20 1, 2, 8, 10, 11, 18, 20 102(a)(1) Walker ’547 1, 2, 8, 10, 11, 18, 20 3–7, 12–15, 17, 19 103 Walker ’951, AAPA 3–7, 12– 15, 17, 19 9, 16 103 Walker ’951, Rosen 9, 16 Overall Outcome 10, 11, 17 1–9, 12– 16, 18–20 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2019). AFFIRMED IN PART