DETAILED ACTION
Status of Claims
The present application, filed on or after 3/16/2013, is being examined under the first inventor to file provisions of the AIA .
This action is in reply to the RCE, Remarks, and Amendments filed 09/02/2025.
Claim 1 has been amended.
Claims 1-8 have been examined and are pending.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09/02/2025, has been entered.
(AIA ) Examiner Note
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(B) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-8 are rejected under 35 U.S.C. 112(b) or (for pre-AIA ) 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor, a joint inventor, or (for pre-AIA ) the applicant regards as the invention.
Independent claim 1 has been amended to recite in part the following:
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Respectfully, it is not clear what the set of “statistical and probability data of weight ranges”, which is to be “generated”, is intended to encompass. For example, although the claim states “the statistical and probability data of weight ranges being a function of the assumed and averaged weight values of the payload and the indicated weights of the non-payload items, carried by the first aircraft.” It is not clear whether applicant intends that the data which is generated is to be used as “the assumed and averaged weight values of the payload and the indicated weights of the non-payload items, carried by the first aircraft.” or, is the result of some undisclosed algorithm, e.g.: is calculated as a function of the assumed and averaged weight values of the payload and the indicated weights of the non-payload items. If this term represents the results of some algorithm, it is not clear what algorithm is necessary to transform said variables into this generated statistical and probability data of weight ranges.
Multiple different and mutually exclusive interpretations exist. Therefore, a person of ordinary skill in the art would not understand what this set of “statistical and probability data of weight ranges” must encompass once it is generated in order to infringe the claims. For this reason, the claim is indefinite.
Additionally, respectfully, Examiner notes that per MPEP 2173.05(q) “Attempts to claim a process without setting forth any steps involved in the process generally raises an issue under 35 USC 112(b)…”; i.e. in this particular instance, it is not clear what the scope of the recited “using the computer” is intended to encompass – i.e. is the computer performing the functions now claimed? Or, is a human actor using a computer to facilitate mental calculations? For the purpose of compact prosecution, the Examiner interprets the feature in question to be a human actor using a computer to assist with mental calculations as this interpretation appears to be commensurate with the teachings from the original disclosure.
Additionally, independent claim 1 has also been amended to recite in part the following:
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This feature is rejected under similar grounds as noted supra. Primarily, the original disclosure including Specification are silent as regards any particular “modeling programs” and is also silent regarding any particular technique for using the computer, modeling programs, and respective additional sets of randomly generated passenger weights to perform the claimed function – i.e. generating respective additional statistical and probability data of weight ranges. Per MPEP 2173.05(q) “Attempts to claim a process without setting forth any steps involved in the process generally raises an issue of indefiniteness under 35 U.S.C. 112(b)… It is appropriate to reject a claim that recites a use but fails to recite steps under 35 U.S.C. 101 and 35 U.S.C. 112(b) if the facts support both rejections…” Because the claim does not set forth any steps involved in “use” of a computer, modeling programs, and respective additional sets of randomly generated passenger weights, and is silent regarding any particular “modeling programs”, it is wholly unclear what “modeling programs” must be used and it is unclear what method must be performed to infringe the intended “use” of a computer, modeling programs, and respective additional sets of randomly generated passenger weights to achieve the claimed function. A claim is indefinite where it merely recites a use without any active, positive steps delimiting how this use is actually practiced. Therefore, the claim is rejected under 35 U.S.C. 112 because the claimed recitation of a use, without setting forth any steps involved in the process, results in an improper definition of a process, i.e., results in a claim which is not a proper process claim under 35 U.S.C. 101 and is therefore also ambiguous under 35 U.S.C. 112 – again See MPEP § 2173.05(q). See also for example Ex parte Dunki, 153 USPQ 678 (Bd. App. 1967) and Clinical Products, Ltd. v. Brenner, 255 F. Supp. 131, 149 USPQ 475 (D.D.C. 1966). Although a claim should be interpreted in light of the specification disclosure, it is generally considered improper to read limitations contained in the specification into the claims. See In re Prater, 415 F.2d 1393, 162 USPQ 541 (CCPA 1969) and In re Winkhaus, 527 F.2d 637, 188 USPQ 129 (CCPA 1975), which discuss the premise that one cannot rely on the specification to impart limitations to the claim that are not recited in the claim.
Additionally, independent claim 1 recites in part the following:
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And,
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Respectfully, it is not clear what applicant’s “respective automated systems to measure respective actual total aircraft weights” is intended to encompass as applicant’s entire original disclosure and Specification is silent regarding “automated systems to measure respective actual total aircraft weights”. Furthermore, the claims have not previously recited nor introduced any particular “automated systems” which are associated with any of the already mentioned aircraft, plural aircraft, or aircraft type. The claimed features simply lack the clarity, deliberateness, and precision required to conform to 35 U.S.C. 112(b). Applicant’s Specification only discusses “automated”, or anything close to “auto-“ at pgs. 6 and 18 and at each passage this is only in reference to: “the flight's automated load planning program” as follows (exemplified per passage found in Specification, pg. 18):
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However, “the flight’s automated load planning program” which is used by a Flight Dispatcher is completely different than disclosing a “respective automated systems to measure respective actual total aircraft weights”. The claim simply fails to provide the clarity, deliberateness, and precision required for a person of ordinary skill in the art at the time of the invention to understand what applicant’s respective automated systems to measure respective actual total aircraft weights” is intended to encompasses. Said another way, Applicant certainly did not invent all possible “automated systems” to perform this functionality and has not even disclosed a single system to perform this functionality. Therefore, it is impossible for a person of ordinary skill in the art to know whether they have created or are using respective automated systems which infringes, or not, applicant’s claim. The function of 35 USC 112(b) is to ensure the claims “…[provide] clear warning to others as to what constitutes infringement of the patent. See, e.g., Solomon v. Kimberly-Clark Corp., 216 F.3d 1372, 1379, 55 USPQ2d 1279, 1283 (Fed. Cir. 2000).” In this case, the claims fail this test and do not serve the aforementioned purpose.
Dependent claims 2-8 inherit the deficiencies of their parent claim and are also rejected under 35 U.S.C. 112(b) or (for pre-AIA ) 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor, a joint inventor, or (for pre-AIA ) the applicant regards as the invention.
Examiner’s Note
Adhering to the guidelines of MPEP 2173.06(II), the Examiner acknowledges that all words in a claim must be considered in judging the patentability of a claim against the prior art. In re Wilson, 424 F.2d 1382, 165 USPQ 494 (CCPA 1970). The fact that terms may be indefinite does not make the claim obvious over the prior art. However, when the terms of a claim are considered to be indefinite, at least two approaches to the examination of an indefinite claim relative to the prior art are possible.
First, where the degree of uncertainty is not great, and where the claim is subject to more than one interpretation and at least one interpretation would render the claim unpatentable over the prior art, an appropriate course of action would be for the examiner to enter two rejections: (A) a rejection based on indefiniteness under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph; and (B) a rejection over the prior art based on the interpretation of the claims which renders the prior art applicable. See, e.g., Ex parte Ionescu, 222 USPQ 537 (Bd. App. 1984). When making a rejection over prior art in these circumstances, it is important for the examiner to point out how the claim is being interpreted.
Second, where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.
In the present set of claims (filed 9/2/2025), a great deal of confusion and uncertainty as to the proper interpretation of the limitations of the claims exists. Therefore, a rejection under 35 U.S.C. 103 is not made regarding these claims, because, as shown in the 35 USC § 112 rejections, speculation and conjecture must be utilized by the Office and the artisan inasmuch as the claims do not adequately reflect what the disclosed invention is under the second paragraph of 35 USC § 112. Again, see In re Steele, 305 F.2d 859, 862 (CCPA 1962) (A prior art rejection cannot be sustained if the hypothetical person of ordinary skill in the art would have to make speculative assumptions concerning the meaning of claim language.) A similar conclusion is reached regarding analysis under 35 USC 101; i.e. a rejection under 35 USC 101 cannot be sustained because the hypothetical person of ordinary skill in the art would have to make great speculative assumptions concerning the meaning of claim language (e.g. is the method performed by a human or a machine? if a machine, then specifically what hardware and/or algorithms perform the method? Such questions must be clarified before analysis under 35 USC 101 may be made).
Response to Arguments
Applicant amended claim 1 on 09/02/2025. Applicant's arguments (hereinafter “Remarks”) also filed 09/02/2025, have been fully considered but are moot in view of the new grounds of rejection necessitated by applicant’s amendments. Note the new 35 USC 112 rejections and the Examiner’s Note provided above. Also note the following:
The following prior art has been made of record: FAA AC 120-27E Advisory Circular dated 6/10/2005, a copy of which may be found at the following web address: https://www.faa.gov/documentlibrary/media/advisory_circular/ac120-27e.pdf.
In particular, note per [Page ii, (4)(b)], the aforementioned FAA advisory circular notes the following: “…When using average weights for passengers and bags, the operator must be vigilant to ensure that the weight and balance control program reflects the reality of aircraft loading. The FAA will periodically review the guidance in this AC and update this AC if average weights of the traveling public should change or if regulatory requirements for carry-on bags or personal items should change. Ultimately, the operator is responsible for determining if the procedures described in this AC are appropriate for use in its type of operation….” which when read in view of the general knowledge of a person of ordinary skill in the art before the effective filing date of the claimed invention (which includes an understanding of basic math and statistical analysis) would appear to render obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, the general idea (i.e. obtaining a change to approved weight limits of a regulated aircraft type) which applicant is apparently attempting to recite in the claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J SITTNER whose telephone number is (571)270-3984. The examiner can normally be reached M-F; ~9:30-6:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Waseem Ashraf can be reached on (571) 270-3948. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michael J Sittner/
Primary Examiner, Art Unit 3621