DETAILED ACTION
The present application is being examined under the pre-AIA first to invent provisions.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosures of the prior-filed applications fail to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
The prior-filed applications do not provide for a single actuator for actuating multiple control surfaces.
Accordingly, the effective filing date of claim 18 is 18 June 2024.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
a single actuator actuating multiple control surfaces.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 18 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 18 recites causing the actuator to adjust a first control surface and a second control surface. The disclosure generally provides for individual actuators for each control surface. The disclosure does not adequately disclose a system using a single actuator actuating multiple control surfaces.
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.
Claim 18 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 18 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: the components/arrangements to permit a single actuator to adjust multiple control surfaces.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 2-22, 24, 25, 27, and 28 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Guida (US 7 900 877).
Regarding independent claim 2:
Guida discloses an aircraft comprising:
a fuselage (202);
a wing (102) including first and second ends and an aileron (116); and
a flow modification device (generally 100) coupled to the second end of the wing and including first and second control surfaces (112; col 3, lines 7-10) and an actuator (402, 504, or other inherent device for activation) “configured to” adjust the surface (804) to alleviate flutter.
Regarding claim 3:
The discussion above regarding claim 2 is relied upon.
Guida discloses the flow medication comprising a winglet, wingtip, and wing extension (e.g. Fig 1; note: a winglet is a wing tip, and an extension of the wing).
Regarding claim 4:
The discussion above regarding claim 2 is relied upon.
Guida discloses first portion (104; Fig 1) and an oblique second portion (106) with respective control surfaces thereon (Fig 1) or both on the first portion (col 3, lines 7-10).
Regarding claims 5-8:
The discussion above regarding claim 2 is relied upon.
Guida discloses the actuators configured to adjust the respective control surfaces based on signals indicative of sensor data generated via one or more sensors (114; Fig 8), the data associated with a load on the wing (e.g. claim 8), and a second control surface (on other wing) to operate independently or cooperatively (col 4, lines 51-53).
Regarding claim 9:
The discussion above regarding claim 2 is relied upon.
Guida discloses the actuator “configured” to adjust the control surfaces by different amounts at various times (by adjusting the control surface to alleviate the loading based on the sensed load data).
Regarding independent claim 10:
The discussion above regarding claims 2, 4, and 5 is relied upon.
Guida disclose processors (206) with instructions (e.g. Fig 8) to adjust based on dynamic or torsional loading (dynamic load due to aerodynamic effects, etc.; torsion loading, e.g. claim 15).
Regarding claims 11-18:
The discussion above regarding claim 10 is relied upon.
Guida discloses the features of the claims as outlined above with regard to claims 2-9, or as implied therefrom (e.g. receiving a second signal to adjust by the second amount at the second time).
Regarding claim 20:
Guida discloses a method comprising:
receiving a signal indicative of sensor data generated via one or more sensors (114) located onboard an aircraft (e.g. claims 9 and 12);
adjusting, based on the signal, a portion of a first control surface (112) of a flow modification device coupled to a wing (102) via an actuator (e.g. 402, etc.) to reduce a torsional load (claim 15); and
adjusting, based at least in part on the first amount, the second control surface by a second amount (the devices are simultaneously or independently operated to reduce the loading on the wing, and as the first surface is operated, the second is operated based in part on the resultant loading).
Regarding claim 21:
The discussion above regarding claim 20 is relied upon.
Guida discloses adjusting the control surface applies a torsional load to the wing (via Newton’s Third Law, to counter the torsional load).
Regarding claims 22, 24, 25,and 29:
The discussion above regarding claim 20 is relied upon.
Guida discloses the features of the claims as outlined above with regard to claims 2-9, or as implied therefrom (e.g. receiving a second signal to adjust by the second amount at the second time).
Regarding claim 27:
The discussion above regarding claim 2 is relied upon.
Guida discloses the actuators configured to adjust the surfaces independently of the aileron (as the surfaces are independently controllable).
Regarding claim 28:
The discussion above regarding claim 10 is relied upon.
Guida discloses the control surfaces as different sizes (Fig 1).
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 2-18, 20-22, 24, 25, and 27-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent Nos. 7 900 877, 8 684 315, 9 162 755, 9 567 066, 9 764 825, 9 969 487, 10 486 797, 10 562 610, 10 562 613, 11 111 006, 11 884 383, 11 912 398, and 12 017 753. The patented claims recite the general system of an aircraft with flow control modification devices comprising control surfaces, with the primary difference being the type of load to be alleviated. However, alleviating these specific loads is generally well-known in the art (e.g. torsional loads in Guida, flutter in Irving et al., US 7 275 722) and generally an intended result of the claimed systems/methods.
Claim 2-18, 20-22, 24, 25, and 27-29 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application Nos. 18/421,610 and 18/443,869 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the copending claims recite the general system of an aircraft with flow control modification devices comprising control surfaces, with the primary difference being the type of load to be alleviated. However, alleviating these specific loads is generally well-known in the art (e.g. torsional loads in Guida, flutter in Irving et al., US 7 275 722) and generally an intended result of the claimed systems/methods.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 20 November 2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that Guida does not disclose two control surfaces and respective actuators to alleviate flutter, Guida provides for two control surfaces, either one horizontal and one vertical (e.g. Fig 1) or both on the horizontal portion (col 3, lines 7/10). Actuators for each are generally disclosed in Figs 4, et al., though such would be inherent regardless in order to actuate the control surfaces for operation. Further, alleviating flutter is an intended result of the system and method of use during operation.
In response to applicant’s argument hat Guida does not provide for the second surface to be actuated based in part on the first amount, this is a broad arrangement for actuation, and encompasses subsequent actuations based on prior actuations. Since both surfaces can be actuated to facilitate load alleviation, the system would sense the conditions caused by the initial/prior actions and base further actuations thereon.
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 Joseph W Sanderson whose telephone number is (571)272-6337. The examiner can normally be reached Mon-Thu 6-3 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anita Coupe can be reached on 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH W SANDERSON/ Primary Examiner, Art Unit 3619