DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This office action is in response to an amendment/argument submitted on 06/17/2026. The applicant does not submit a new Information Disclosure Statement. The applicant amends claims 1, 2, 7 - 9, 11, 15 – 18, and 20. Claims 10 and 19 are canceled.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 – 9, 11 – 18, and 20 – 22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 - 43 of U.S. Patent No. 10,665,114. Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed invention is the same inventive concept as the patent. The application is rejected pursuant to the standards or MPEP 804, where the application is more generic to the species or the subspecies of the patent. In this case, the claims are of the application are broadly claimed to determine the efficient cruise operation of an aircraft. The patent '114 is more specific in the claims of the features used to calculate the same operation. In addition, the application does no identify any specific unique structure that is required to perform the function.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 – 9, 11 – 18, and 20 - 22 are rejected under 35 U.S.C. 103 as being unpatentable over Smith US 5,606,505 in view of Carvalho US 2020/030981.
As per claim 1, A system for operating an aircraft during a cruise phase of flight, the system comprising:
a control unit configured to receive data regarding one or both of the cruise phase of a current flight or the cruise phase of one or more previous flights of the aircraft from one or more sensors of the aircraft, (Smith Col 2 lines 12 – 15, Col 12 lines 35 – 43, and Col 15 lines 40 – 47) and (Carvalho paragraph 0059 teaches, “Ground Speed (GS): normally measured by aircraft's Inertial Reference Units (IRU) (e.g., accelerometers and/or gyro sensors) or Global Positioning System (GPS), but might also be supplied by other systems in some particular implementations. Corresponds to the aircraft's speed relative to the ground, considered as an inertial reference;” and paragraphs 0060 – 0067)
wherein the control unit is further configured to generate a cruise phase model for the aircraft to determine cruise phase parameters for the aircraft based on the data, and wherein the aircraft is operated during the cruise phase of one or both of the current flight or one or more future flights according to the cruise phase parameters; (Smith Col 2 lines 20 – 38 and Col 12 lines 28 – 34) and
wherein the control unit is further configured to automatically operate controls of the aircraft during the cruise phase according to the cruise phase parameters. (Smith Col 12 lines 59 - 61)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection of sensor data in the past to be used for cruise performance calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 2, The system of claim 1, further comprising the one or more sensors. (Smith Col 12 lines 48 – 50) and (Carvalho paragraph 0059 teaches, “Ground Speed (GS): normally measured by aircraft's Inertial Reference Units (IRU) (e.g., accelerometers and/or gyro sensors) or Global Positioning System (GPS), but might also be supplied by other systems in some particular implementations. Corresponds to the aircraft's speed relative to the ground, considered as an inertial reference;” and paragraphs 0060 – 0067)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection of sensor data in the past to be used for cruise performance calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
3. (Original) The system of claim 2, wherein the one or more sensors comprise one or more flight recorders. (Carvalho paragraph 0038 teaches, “Real Flight Test Data (12). Signals recorded along flights during aircraft development phase (12) may also be used as exemplars for training the neural network.”)
As per claim 4, The system of claim 3, wherein the one or more sensors further comprise one or more of one or more speed sensors, one or more altitude sensors, one or more position sensors, one or more ambient sensors, or one or more weight sensors. (Carvalho paragraph 0059 teaches, “Ground Speed (GS): normally measured by aircraft's Inertial Reference Units (IRU) (e.g., accelerometers and/or gyro sensors) or Global Positioning System (GPS), but might also be supplied by other systems in some particular implementations. Corresponds to the aircraft's speed relative to the ground, considered as an inertial reference;” and paragraphs 0060 – 0067)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection of sensor data in the past to be used for cruise performance calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 5, The system of claim 1, wherein the control unit is onboard the aircraft. (Smith Col 12 lines 59 - 61)
As per claim 6, The system of claim 1, wherein the control unit is configured to determine the cruise phase parameters for a future flight of the aircraft based on the data received from one or more previous flights of the aircraft. (Smith Col 2 lines 12 – 15, Col 12 lines 35 – 43, and Col 15 lines 40 – 47)
As per claim 7, The system of claim 1, wherein the cruise phase model is a neural network model. (Smith Col 8 lines 46, 47) and (Carvalho paragraph 0036 teaches, “train the neural network may be obtained from two different sources of data: aircraft representative model (11) or real flight tests data (12).”)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the use of a neural network for calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 8, The system of claim 1, wherein the control unit is further configured to show the cruise phase parameters on a monitor within a flight deck of the aircraft. (Smith Col 12 lines 51 – 58)
As per claim 9, The system of claim 1, wherein the control unit is configured to determine the cruise phase parameters by determining an optimum cost index from a plurality of cost indices. (Carvalho paragraph 0080 discloses, "One possible solution is using the weight or center of gravity informed by the Flight Management System (FMS). If these values already contain information about the fuel consumption, i.e., if weight value decreases with time in a magnitude that represents fuel consumption and if center of gravity moves accordingly, they may be good alternatives. However, in cases where the fuel consumption is not properly informed through these signals, another possibility is to hold the last trustworthy calculated values and then, from this point, integrate the fuel consumption, or alternatively using the volume of fuel in the fuel tank.")
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection and determination of fuel in various manners to have the most accurate data for consumption calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
10. (Cancelled)
As per claim 11, A method for operating an aircraft during a cruise phase of flight, the method comprising:
receiving, by a control unit, data regarding one or both of the cruise phase of a current flight or the cruise phase of one or more previous flights of the aircraft from one or more sensors of the aircraft; (Smith Col 2 lines 12 – 15, Col 12 lines 35 – 43, and Col 15 lines 40 – 47) and (Carvalho paragraph 0059 teaches, “Ground Speed (GS): normally measured by aircraft's Inertial Reference Units (IRU) (e.g., accelerometers and/or gyro sensors) or Global Positioning System (GPS), but might also be supplied by other systems in some particular implementations. Corresponds to the aircraft's speed relative to the ground, considered as an inertial reference;” and paragraphs 0060 – 0067)
generating a cruise phase model, by the control unit, to determine cruise phase parameters for the aircraft based on the data, wherein the aircraft is operated during the cruise phase of one or both of the current flight or one or more future flights according to the efficient cruise phase parameters; (Smith Col 2 lines 20 – 38 and Col 12 lines 28 – 34) and
automatically operating, by the control unit, controls of the aircraft during the cruise phase according to the cruise phase parameters. (Smith Col 12 lines 59 - 61)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection of sensor data in the past to be used for cruise performance calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 12, The method of claim 11, wherein the one or more sensors comprise one or more flight recorders. (Smith Col 12 lines 35 – 45) and (Carvalho paragraph 0059 teaches, “Ground Speed (GS): normally measured by aircraft's Inertial Reference Units (IRU) (e.g., accelerometers and/or gyro sensors) or Global Positioning System (GPS), but might also be supplied by other systems in some particular implementations. Corresponds to the aircraft's speed relative to the ground, considered as an inertial reference;” and paragraphs 0060 – 0067)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection of sensor data in the past to be used for cruise performance calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 13, The method of claim 12, wherein the one or more sensors further comprise one or more of one or more speed sensors, one or more altitude sensors, one or more position sensors, one or more ambient sensors, or one or more weight sensors. (Smith Col 12 lines 48 – 50) and (Carvalho paragraph 0059 teaches, “Ground Speed (GS): normally measured by aircraft's Inertial Reference Units (IRU) (e.g., accelerometers and/or gyro sensors) or Global Positioning System (GPS), but might also be supplied by other systems in some particular implementations. Corresponds to the aircraft's speed relative to the ground, considered as an inertial reference;” and paragraphs 0060 – 0067)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection of sensor data in the past to be used for cruise performance calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 14, The method of claim 11, further comprising disposing the control unit onboard the aircraft. (Smith Col 12 lines 35 – 45)
As per claim 15, The method of claim 11, wherein said determining comprises determining the cruise phase parameters for a future flight of the aircraft based on the data received from one or more previous flights of the aircraft. (Smith Col 2 lines 12 – 15, Col 12 lines 35 – 43, and Col 15 lines 40 – 47)
As per claim 16, The method of claim 11, wherein the cruise phase model is a neural network model. (Smith Col 8 lines 46, 47) and (Carvalho paragraph 0036 teaches, “train the neural network may be obtained from two different sources of data: aircraft representative model (11) or real flight tests data (12).”)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the use of a neural network for calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 17, The method of claim 11, further comprising showing, by the control unit, the cruise phase parameters on a monitor within a flight deck of the aircraft. (Smith Col 12 lines 51 – 58)
As per claim 18, The method of claim 11, wherein said determining comprises determining the cruise phase parameters by determining an optimum cost index from a plurality of cost indices. (Carvalho paragraph 0080 discloses, "One possible solution is using the weight or center of gravity informed by the Flight Management System (FMS). If these values already contain information about the fuel consumption, i.e., if weight value decreases with time in a magnitude that represents fuel consumption and if center of gravity moves accordingly, they may be good alternatives. However, in cases where the fuel consumption is not properly informed through these signals, another possibility is to hold the last trustworthy calculated values and then, from this point, integrate the fuel consumption, or alternatively using the volume of fuel in the fuel tank.")
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection and determination of fuel in various manners to have the most accurate data for consumption calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
19. (Cancelled)
As per claim 20, A non-transitory computer-readable storage medium comprising executable instructions that, in response to execution, cause one or more control units comprising a processor, to perform operations comprising:
receiving data regarding one or both of the cruise phase of a current flight or the cruise phase of one or more previous flights of an aircraft from one or more sensors of the aircraft; (Smith Col 2 lines 12 – 15, Col 12 lines 35 – 43, and Col 15 lines 40 – 47) and (Carvalho paragraph 0059 teaches, “Ground Speed (GS): normally measured by aircraft's Inertial Reference Units (IRU) (e.g., accelerometers and/or gyro sensors) or Global Positioning System (GPS), but might also be supplied by other systems in some particular implementations. Corresponds to the aircraft's speed relative to the ground, considered as an inertial reference;” and paragraphs 0060 – 0067)
generating a cruise phase model to determine cruise phase parameters for the aircraft based on the data, wherein the aircraft is operated during a cruise phase of one or both of the current flight or one or more future flights according to the cruise phase parameters; (Smith Col 2 lines 20 – 38 and Col 12 lines 28 – 34) and
automatically operating, with a control unit, controls of the aircraft during the cruise phase according to the cruise phase parameters. (Smith Col 12 lines 59 - 61)
Smith discloses a method of airplane performance estimation and prediction. Smith does not disclose collecting sensor data related to cruise performance in the past. Carvalho teaches the collection of sensor data in the past to be used for cruise performance calculations. Therefore, at the time of filing it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Carvalho et.al. into the invention of Smith. Such incorporation is motivated by the need for best calculations under varying circumstances to minimize fuel consumption during a flight.
As per claim 21, The system of claim 1, wherein the cruise phase parameters include airspeed from a beginning of a cruise phase to an end of the cruise phase. (Smith Col 15 lines 40 – 57, and Col 17 lines 5 – 26)
As per claim 22, The method of claim 11, wherein the cruise phase parameters include airspeed from a beginning of a cruise phase to an end of the cruise phase. (Smith Col 15 lines 40 – 57, and Col 17 lines 5 – 26)
Response to Arguments
Applicant’s arguments with respect to claims 1-9, 11-18, and 20 - 22 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant does not address the double patenting rejection, and it is maintained.
The drawing objections are withdrawn.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYLER D PAIGE whose telephone number is (571)270-5425. The examiner can normally be reached M-F 7:00am - 6:00pm (mst).
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/TYLER D PAIGE/Primary Examiner, Art Unit 3664
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