Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 31
`Date: September 28, 2021
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CIRRUS DESIGN CORPORATION,
`Petitioner,
`v.
`HOYT AUGUSTUS FLEMING,
`Patent Owner.
`
`IPR2020-00762
`Patent RE47,474 E
`
`
`
`Before JOSIAH C. COCKS, SCOTT C. MOORE, and
`STEPHEN E. BELISLE, Administrative Patent Judges.
`
`COCKS, Administrative Patent Judge.
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`
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`IPR2020-00762
`Patent RE47,474 E
`
`I. INTRODUCTION
`
`A. Background
`Cirrus Design Corporation (“Petitioner” or “Cirrus”) filed a Petition
`(Paper 2, “Pet.”) to institute an inter partes review of claims 95–131 (“the
`challenged claims”) of U.S. Patent No. RE47,474 E (Ex. 1001, “the
`’474 patent”).1 See 35 U.S.C. § 311. We instituted trial to determine
`whether the challenged claims were unpatentable as follows:
`Claims Challenged
`35 U.S.C. §
`References/Basis
`95–131
`1032
`POH,3 James,4 Hoffmann5
`
`Paper 19 (“Dec. on Inst.”).
`Hoyt Augustus Fleming (“Patent Owner”) timely filed a Patent Owner
`Response (Paper 21, “PO Resp.”).6 Petitioner filed a Reply to Patent Owner
`
`
`1 The ’474 patent is a reissue of U.S. Patent No. 8,100,365 B2. See
`Ex. 1001, code (64).
`2 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29,
`125 Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103, effective
`March 16, 2013. Because the application from which the ’474 patent issued
`was filed before this date, the pre-AIA version of § 103 applies.
`3 Cirrus Design, Pilot’s Operation Handbook, SR22, Revision A7 dated
`Oct. 10, 2003 (Ex. 1007, “POH”).
`4 U.S. Patent No. 6,460,810 B2 issued Oct. 8, 2002 (Ex. 1005, “James”).
`5 U.S. Patent No. 7,584,928 B2 issued Sep. 8, 2009 (Ex. 1006, “Hoffmann”).
`6 In its Patent Owner Response, Patent Owner states that “Patent Owner
`recently filed a Disclaimer with the Patent Office that disclaims claim 125.
`Ex. 2005.” PO Resp. 2. We discern that Exhibit 2005 is a “Disclaimer in
`Patent Under 37 CFR 1.321(a)” and indicates that claim 125 has been
`disclaimed. Accordingly, that claim is no longer regarded as part of the
`’474 patent and is no longer involved in this proceeding. See 35 U.S.C.
`§ 253 (2018) (disclaimer of claims considered effective as if part of original
`patent); 37 C.F.R. § 42.107(e) (“No inter partes review will be instituted on
`
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`IPR2020-00762
`Patent RE47,474 E
`Response (Paper 24, “Pet. Reply”). Patent Owner filed a Sur-Reply
`(Paper 26, “PO Sur-Reply”). Oral argument was conducted on June 29,
`2021. A transcript of the oral argument appears in the record. Paper 30.
`For the reasons set forth below, we determine that Petitioner has
`shown, by a preponderance of the evidence, that all of the remaining
`challenged claims are unpatentable. See 35 U.S.C. § 316(e).
`
`B. Related Matter
`The parties identify Cirrus Design Corporation v. Fleming, No. 0:19-
`cv-01286 (D. Minn.) as a related matter under 37 C.F.R. § 42.8(b)(2).
`Pet. 1; Paper 5, 2. The parties also reference IPR2019-01566 (“the ’1566
`IPR”), in which Petitioner challenged claims 2, 3, 8, 10, 15, 132 and 135–
`139 of the ’474 patent, and U.S. Patent Application Nos. 16/422,357 and
`16/422,440, which are said to be continuations of the ’474 patent. Pet. 1;
`Paper 5, 2.7
`
`C. The ’474 Patent
`The ’474 patent is titled “Intelligent Ballistic Parachute System that
`Performs Pre-Activation and/or Post-Activation Actions.” Ex. 1001,
`code (54). The ’474 patent characterizes its disclosure as relating generally
`“to whole aircraft parachute systems.” Id. at 1:22. The Abstract of the
`’474 patent is reproduced below:
`
`
`disclaimed claims.”). Thus, claims 95–124 and 126–131 are the remaining
`challenged claims.
`7 In a Final Written Decision in the ’1566 IPR, we determined that Petitioner
`had shown by a preponderance of the evidence that claims 137–139 of the
`’474 patent were unpatentable based on the combined teachings of POH and
`James. See Ex. 1054.
`
`3
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`IPR2020-00762
`Patent RE47,474 E
`An aircraft, the aircraft including a whole-aircraft ballistic
`parachute that is coupled to the aircraft. The aircraft determines
`if a pre-activation action needs to be performed before activation
`of the whole-aircraft ballistic parachute. The aircraft also
`receives a whole-aircraft ballistic parachute activation request.
`The aircraft then issues a command to perform the pre-activation
`action and then activates the deployment of the whole-aircraft
`ballistic parachute. The aircraft then issues a command to
`perform a post-activation action.
`Id. at code (57).
`Figure 14 of the ’474 patent is reproduced below:
`
`
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`IPR2020-00762
`Patent RE47,474 E
`Figure 14 above is characterized as a flowchart of a method
`performed by “a system for increasing the safety of aircraft occupants.” Id.
`at 2:14–15.
`
`D. Illustrative Claim
`
`Of the challenged claims, claims 95, 101, 107, 113, 119, 125–128,
`130, and 131 are independent claims. Claims 96–100, 102–106, 108–112,
`114–118, 120–124, and 129 ultimately depend from one of those dependent
`claims.
`Claim 95 is illustrative and is reproduced below.
`95. An aircraft, the aircraft including:
`a fuselage,
`a whole-aircraft ballistic parachute, which includes a
`rocket, that is coupled to the fuselage of the aircraft,
`an activation interface,
`an airspeed sensor,
`an altitude sensor,
`a roll sensor,
`an autopilot,
`an aircraft engine,
`one or more memories having machine-readable
`instructions stored thereon, and
`one or more processors, each of the one or more processors
`configured to read and execute a portion of the machine-readable
`instructions;
`wherein at least one of the one or more processors is
`coupled to the activation interface, at least one of the one or more
`processors is coupled to the airspeed sensor, at least one or the
`one or more processors is coupled to the altitude sensor, at least
`one of the one or more processors is coupled to the roll sensor, at
`least one of the one or more processors is coupled to the
`autopilot, at least one or the one or more processors is coupled to
`the aircraft engine, at least one of the one or more processors is
`coupled to the rocket, at least one of the one or more processors
`is coupled to the one or more memories;
`
`5
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`IPR2020-00762
`Patent RE47,474 E
`the aircraft configured to perform a method comprising:
`receiving, by the activation interface, a whole-aircraft
`ballistic parachute deployment request from an occupant of the
`aircraft; then
`based upon the receipt of the whole-aircraft ballistic
`parachute deployment request by the activation interface, both
`performing an action and also deploying the whole-aircraft
`ballistic parachute;
`wherein the machine readable-instructions include the
`actions comprising:
`(a) performing a first evaluation that produces a first
`output;
`(b) based at least upon the first output being in a first state,
`then commanding deployment of the whole-aircraft ballistic
`parachute;
`(c) based at least upon the first output being in a second
`state, then:
`(i) commanding a reduction in engine power;
`
`(ii) commanding a climb; and
`
`(iii) commanding a decrease in aircraft roll;
`
`(d) after commanding the reduction in engine power, then
`performing a second evaluation that produces a second output;
`(e) based at least upon the second output being in a first
`state, then, commanding deployment of the whole-aircraft
`ballistic parachute.
`Id. at 41:10–62.
`
`II. ANALYSIS
`
`A. Claim Construction
`In an inter partes review proceeding for a petition filed on or after
`November 13, 2018, a patent claim “shall be construed using the same claim
`construction standard that would be used to construe the claim in a civil
`action under 35 U.S.C. [§] 282(b).” 37 C.F.R. § 42.100(b) (2019).8 Under
`
`
`8 The Petition in this proceeding was filed on March 27, 2020.
`
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`IPR2020-00762
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`this standard, claim terms are given their ordinary and customary meaning as
`would have been understood by a person of ordinary skill in the art at the
`time of the invention and in the context of the entire patent disclosure. In re
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). If the
`specification “reveal[s] a special definition given to a claim term by the
`patentee that differs from the meaning it would otherwise possess[,] . . . the
`inventor’s lexicography governs.” Phillips v. AWH Corp., 415 F.3d 1303,
`1316 (Fed. Cir. 2005) (en banc) (citing CCS Fitness, Inc. v. Brunswick
`Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).
`According to Petitioner, “[t]he bases for Petitioner’s invalidity ground
`do not turn on a specific construction of any of the Challenged Claims, as
`the prior art discloses and renders obvious the Challenged Claims even
`under the most narrow application of the ordinary and customary meaning.”
`Pet. 6. Patent Owner “respectfully submits that no claim terms need to be
`specially construed, as each should be accorded its ordinary and customary
`meaning, and none of the parties’ disputes turn on a disputed construction of
`any claim term.” PO Resp. 10.
`We agree that no claim terms require express construction and that
`any differences raised by the parties as to claim scope can be resolved in the
`context of the analysis of the parties’ arguments as set forth below. See
`Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013,
`1017 (Fed. Cir. 2017) (noting that “we need only construe terms ‘that are in
`controversy, and only to the extent necessary to resolve the controversy’”
`(quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
`(Fed. Cir. 1999))).
`
`7
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`IPR2020-00762
`Patent RE47,474 E
`
`B. Principles of Law
`A claim is unpatentable under 35 U.S.C. § 103 if the differences
`between the claimed subject matter and the prior art are “such that the
`subject matter as a whole would have been obvious at the time the invention
`was made to a person having ordinary skill in the art to which such subject
`matter pertains.” 35 U.S.C. § 103(a). The question of obviousness under
`35 U.S.C. § 103 is resolved on the basis of underlying factual
`determinations, including: (1) the scope and content of the prior art; (2) any
`differences between the claimed subject matter and the prior art; (3) the level
`of skill in the art; and (4) objective evidence of nonobviousness,
`i.e., secondary considerations. See Graham v. John Deere Co., 383 U.S. 1,
`17–18 (1966).
`
`C. Level of Ordinary Skill in the Art
`Petitioner offers the following in assessing the level of ordinary skill
`in the art: “[a] person of ordinary skill in the art (“POSA”) would have had
`(1) a degree in Aerospace Engineering or equivalent technical background
`and (2) familiarity with parachute systems, related sensing systems, and
`automated flight control.” Pet. 5 (citing the Hoffmann Declaration, Ex. 1003
`¶¶ 29–32). Patent Owner contends the following:
`[A] person of ordinary skill would have had a degree in
`aerospace engineering, or an engineering degree coupled with
`experience evaluating and/or designing aircraft and/or avionics,
`on February 10, 2009, which is the date [Patent Owner] filed
`continuation-in-part Application No. 12/368,911. Ex. 1001 at
`6:28–15:9 and bibliographical information. The person of
`ordinary skill also would be familiar with whole-aircraft ballistic
`parachute systems.
`PO Resp. 9.
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`IPR2020-00762
`Patent RE47,474 E
`The parties are in apparent substantive agreement as to the level of
`ordinary skill in the art. We do not discern any material differences in the
`respective assessments of that level by the parties. For purposes of this
`Decision, we accept and adopt both assessments of the level of ordinary skill
`in the art and view them as equivalent to one another. We further find that
`the cited prior art references reflect the appropriate level of skill at the time
`of the claimed invention and that the level of appropriate skill reflected in
`these references is consistent with the definitions of a person of ordinary
`skill in the art proposed by the parties. See Okajima v. Bourdeau, 261 F.3d
`1350, 1355 (Fed. Cir. 2001).
`
`D. Scope and Content of the Prior Art
`
`1. Overview of POH
`POH is titled “Pilot’s Operating Handbook and FAA[9] Approved
`Airplane Flight Manual for the Cirrus Design SR22.” Ex. 1007, 1.10 POH
`describes itself as a handbook “to familiarize operators with the Cirrus
`Design SR22 airplane.” Id. at 7. The following are portions of POH
`describing operation of the Cirrus Airframe Parachute System (“CAPS”):
`
`
`9 Federal Aviation Administration.
`10 The identified pagination for POH refers to the page numbering added by
`Petitioner at the bottom right of each page.
`
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`IPR2020-00762
`IPR2020-00762
`Patent RE47,474 E
`Patent RE47,474 E
`
`Cirrus Airplane Parachute System
`The SR22 is equipped with a Cirrus Airplane Parachute System
`to
`bring the aircraft and its occupants to the ground
`(CAPS) designed
`in the event of a
`life-threatening emergency. The system is intended to
`saves the lives of the occupants but will most
`the aircraft
`likely destroy
`and may, in adverse circumstances, cause serious injury
`or death to
`to
`the occupants. Because of this it
`is important
`carefully read the
`CAPS descriptions in this section, section 3 Emergency Procedures
`and Section 10, Safety and consider when and how you would use the
`system.
`
`
`
`Id. at 279.
`Id. at 279.
`
`
`
`*
`
`WARNING
`
`*
`
`if the aircraft enters an unusual attitude from
`In all cases,
`which recovery is not expected before
`ground impact,
`immediate deployment of the CAPS is required.
`a CAPS
`The minimum demonstrated altitude loss
`for
`deployment from a one-turn
`spin is 920 feet. Activation at
`higher altitudes provides enhanced safety margins
`for
`parachute recoveries, Do not waste time and altitude trying
`to
`recover from a
`spiral/spin before activating CAPS.
`Inadvertent Spin Entry
`wu.
`Www.
`ACTIVATE
`
`4. CAPS
`
`
`
`10
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`
`
`
`Id. at 72–73. The exerpted portions of POH reproduced above describe
`operation of CAPS, including safety considerations for CAPS deployment
`such as “high deployment speed, low altitude, rough terrain or high wind
`conditions.” Id. POH also states that “the chances of successful deployment
`increase with altitude.” Id. at 468. POH, thus, expresses a recommendation
`in connection with CAPS deployment pertaining to the desirability of higher
`altitudes of the aircraft to provide “enhanced safety margins for parachute
`recoveries,” and a warning that deployment at “low altitude . . . may result in
`severe injury or death to the occupants.” Id. at 72–73. POH also discloses
`in deploying CAPS, “[r]educing airpseed allows minimum parachute loads
`and prevents structural overload and possible parachute failure.” Id. at 74.
`POH further discloses that “to minimize the chances of parachute
`entaglement and reduce aircraft oscillations under the parachute, the CAPS
`should be activated from a wings-level, upright attitude if at all possible.”
`Id. at 468.
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`IPR2020-00762
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`
`2. Overview of James
`James is titled “Semiautonomous Flight Director.” Ex. 1005,
`code (54). James’s Abstract is reproduced below:
`A device for programming industry standard autopilots by
`unskilled pilots. The effect of the invention is such that when the
`invention is employed in a flying body comprising an industry
`standard autopilot with a digital flight control system, the
`invention provides for the safe operation of any aircraft by an
`unskilled pilot. The device additionally affords skilled pilots a
`more rapid and simplified means of programming autopilots
`while in flight thus reducing a skilled pilot's cockpit workload
`for all aircraft flight and directional steering, way points, and
`aircraft flight functions reducing the possibility of pilot error so
`as to effect safer flight operations of an aircraft by affording a
`skilled pilot to direct aircraft steering and function while under
`continuous autopilot control.
`Id. at code (57).
`
`James presents use of various switches as a part of its device including
`a “sixth switch (77)” that is described as “being a non return to null, manual,
`single poll, single throw, secured safety, type switch to provide an
`‘emergency shutdown/deploy parachute/activate visual, audible and radio
`frequency beacons’ command function logic signal (62) and interrupt signal
`(67).” Id. at 10:14–19. James also explains the following with respect to the
`operation of its disclosed “Semiautonomous Flight Director” (“SFD”):
`If for some reason the SFD receives a flight status back
`from the aircraft's autopilot that the aircraft has encountered a
`negative flight maneuver or some other in-flight incident or
`status not conducive to safe operation; either the pilot or
`optionally a preprogrammed SFD action may automatically
`initiate an emergency shut down procedure; in the case of a low
`Reynolds class UAV applications; to accomplish such tasks as
`shutting off all engines, terminating all flight functions,
`deploying an emergency recovery parachute and activating any
`
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`IPR2020-00762
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`locating beacons such as; visual light beacons, audio sound
`beacons, and/or a radio frequency locator beacon, to aid ground
`crews in locating and recovering the aircraft after the mishap.
`Id. at 18:28–41.
`
`James further sets forth the following:
`
`It is the object of the invention to improve overall flight
`safety by providing a means capable of significantly reducing a
`skilled pilot’s work load and/or eliminating or supplanting the
`piloting skills normally required to fly any manned or unmanned
`helicopter or aircraft equipped with an autopilot employing a
`digital flight control system.
`Ex. 1005, 6:23–28.
`
`3. Overview of Hoffmann
`Hoffmann is titled “Drogue Parachute Drag Force Actuated
`Programmable Controller to Generate an Event Trigger Signal.” Ex. 1006
`code (54). Hoffmann’s Abstract is reproduced below:
`A parachute control system is actuated primarily by drogue
`parachute drag force. Drag force is used as a proxy for vehicle
`airspeed. The control system uses altitude and force sensors
`combined with a chronograph to determine the state of a
`deployed drogue parachute. It then compares the sensed
`condition with a condition defined by a preset altitude force, and
`time values. Once both altitude and drogue parachuting drag
`force are below certain maximum values and within
`predetermined time windows, an event trigger signal is
`generated.
`Id. at code (57).
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`
`Hoffmann’s Figure 1 is reproduced below:
`
`
`
`Figure 1 above “is a block diagram showing the components of a
`
`parachute system that includes a parachute control system.” Id. at 2:19–20.
`Parachute system 10 includes drogue parachute 12, main parachute 14,
`drogue parachute deployment mechanism 16, drogue parachute release
`mechanism 18, main parachute deployment mechanism 20, and control
`system 22. Id. at 2:30–34. Control system 22 includes force sensor 24,
`chronograph 26, altitude sensor 28, and event trigger signal generator 30.
`Id. at 2:34–36. Hoffmann describes that based on sensed outputs from the
`disclosed sensors of control system 22, “the event trigger signal generator
`can generate the event trigger signal at a desired airspeed without actually
`measuring airspeed.” Id. at 4:26–29. Hoffmann also sets forth the
`following:
`Once the drogue parachute deployment mechanism 16 has
`
`been activated by an outside event, parachute system 10 is
`capable of functioning autonomously, requiring no information
`input or control from the host vehicle. Furthermore, system 10
`enables main parachute 14 deployment, drogue parachute 12
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`14
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`IPR2020-00762
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`release, or both at a specified airspeed without requiring actual
`measurement of airspeed.
`Id. at 2:66–3:5.
`
`E. Summary of Petitioner’s Contentions
`Petitioner contends that the challenged claims of the ’474 patent are
`unpatentable and lays out in detail where it believes all the features of those
`claims reside in the prior art. Pet. 25–71. For example, in conjunction with
`claim 95, Petitioner cites to each of POH, James, and Hoffmann as
`disclosing the preamble recitation of an “aircraft.” Pet. 25. Petitioner also
`points to where the prior art discloses each of: (1) a “fuselage” (id.);
`(2) “a whole-aircraft parachute” including a “rocket” coupled to the fuselage
`(id.); (3) “an activation interface” (id. at 26); (4) various required sensors (id.
`at 26–28); (5) “an autopilot” (id. at 28); (6) “an aircraft engine” (id. at 29);
`(7) “one or more memories having machine-readable instructions, and one or
`more processors” that are configured to read and execute portion of those
`instructions (id. at 29–30); (8) the requirements of the processors being
`coupled to various claimed components (id. at 31–42); (9) requirements that
`the aircraft be configured to “perform[] an action” and deploy the whole-
`aircraft ballistic parachute based on a request (id. at 43–44); and (10) and
`performance of the actions required based on the machine-readable
`instructions (id. at 44–55). Petitioner makes similar assessments as those
`noted above for each of the other challenged claims. See Pet. 55–71.
`Petitioner also offers an explanation for why a person of ordinary skill
`in the art would have had adequate reasons to combine the teachings of
`POH, James, and Hoffmann to arrive at the claimed invention. Id. at 20–25.
`Petitioner makes reference to James’s statement that its disclosure applies to
`
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`IPR2020-00762
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`“any manned or unmanned helicopter or aircraft equipped with an autopilot
`employing a digital flight control system,” that the “SR22 aircraft described
`in the POH is an aircraft equipped with a digital autopilot,” and that
`“Hoffmann discloses that its system may be integrated into a parachute
`system useful for aircraft rescue.” Pet. 20 (citing Ex. 1005, 6:23–28;
`Ex. 1007, 263–273; Ex. 1006 1:10–16; 5:30–32). Petitioner reasons that
`“[t]he SR22 aircraft discussed in the POH is therefore within the intended
`application for the SFD taught by James and the system taught by
`Hoffmann, and the combination of the POH with both James and Hoffmann
`represents only a routine implementation of James and Hoffmann within
`their intended applications.” Id. (citing Ex. 1003 (Hoffmann Declaration)
`¶ 156).
`Petitioner further reasons the following:
`It would have been obvious to a POSA to combine the
`POH’s aircraft, components, and instructions regarding manual
`actions to be taken based on a decision to deploy a whole-aircraft
`ballistic parachute, with James’ and Hoffmann’s processor-based
`system
`for deploying a whole-aircraft parachute and
`automatically performing such actions. Ex. 1003, ¶165. A POSA
`would have been motivated to incorporate the teachings of the
`POH
`regarding
`safe whole-aircraft ballistic parachute
`deployment into the programmable “deploy parachute” function
`of James, and to use James’ and Hoffmann’s processor-based
`parachute deployment as part of the aircraft’s autopilot system.
`Id., ¶¶166-168. A POSA would have been motivated to make this
`combination to ensure that the desired pre-deployment and post-
`deployment actions would be automatically performed, even if
`the operator was unskilled or otherwise unable to perform them.
`Id.
`Id. at 23.
`
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`IPR2020-00762
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`Petitioner additionally explains that: (1) “combination of familiar
`elements using known methods would yield predictable results”; (2) “a
`POSA would have a reasonable expectation of success in making such a
`combination”; and (3) “a POSA would expect that combining James’ and
`Hoffmann’s programmable ‘deploy parachute’ functions with the POH’s
`aircraft, autopilot, and pilot instructions for CAPS deployment would
`successfully enable the aircraft and methods recited in the Challenged
`Claims.” Id. at 23–24 (citing Ex. 1003 ¶¶ 169–170).
`
`F. Summary of Patent Owner’s Contentions
`Patent Owner challenges Petitioner’s position as to the unpatentability
`of the remaining challenged claims (claims 95–124 and 126–131) based on
`POH, James, and Hoffmann. PO Resp. 25–64. Patent Owner centers its
`challenge on the features of independent claim 95 pertaining to machine
`readable-instructions and the actions of limitations (a)–(e) expressed by
`those instructions. Ex. 1001, 41:45–62. In that regard, Patent Owner takes
`the position that Petitioner has not accounted adequately in the prior art for
`certain aspects of those actions. Id. In taking that position, Patent Owner is
`also of the view that Petitioner’s proposed combination of the prior art is
`“vague, ambiguous, and indecipherable” (id. at 28) so as to lack the
`necessary particularity in identifying required claim features in the prior art.
`Id. at 28–36. Patent Owner also generally characterizes the proposed ground
`as unclear in conveying how the prior art is being modified in accounting for
`that required by the claims, specifically claim 95. Id. at 26–28.
`Patent Owner’s contentions as to missing claim features in the prior
`art focus on (1) the features of “element (c),” which Patent Owner submits
`“requires three commanding actions based upon the output of the same
`
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`IPR2020-00762
`Patent RE47,474 E
`evaluation” (PO Resp. 36–39), and (2) the requirement of “machine-readable
`instructions” as a part of “elements (a) – (e)” (id. at 40–44). Also, in
`conjunction with its challenges pertaining to alleged missing claim features,
`Patent Owner characterizes the Petition as impermissibly relying on “gap-
`filler” grounded in “common sense” rather than record evidence to account
`for claim features. See id. at 44–64 (citing and discussing the Federal
`Circuit’s analysis in Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1361
`(2016) and DSS Tech. Management, Inc. v. Apple Inc., 885 F.3d 1367, 1374
`(Fed. Cir. 2018)).
`
`Patent Owner generally emphasizes, or elaborates on, the above-
`summarized arguments as a part of its Patent Owner’s Sur-Reply. PO Sur-
`Reply 2–29. As a part of that elaboration, Patent Owner expresses the view
`that combining James’s teachings with those of POH changes POH’s
`principle of operation, and that POH “teaches away” from the Petition’s
`proposed combination of prior art. Id. at 8–13, 22–29.
`
`G. Discussion—Ground of Unpatentability Based on POH, James, and
`Hoffmann
`
`1. Claim 95
`The general thrust of Petitioner’s proposed ground of unpatentability
`is premised on the theory that one of ordinary skill in the art would have
`automated the deployment of the parachute of an aircraft, such as that of
`POH, in view of the teachings of prior art techniques pertaining to
`automated parachute deployment, such as those of James and Hoffmann.
`Petitioner contends that a skilled artisan would have appreciated that the
`teachings of James and Hoffmann convey “processor based approaches for
`deploying a whole–aircraft parachute and automatically performing” various
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`Patent RE47,474 E
`actions required by the claims. Id. at 22 (citing Ex. 1003 ¶¶ 158–164). Such
`actions are said to include “decreasing the air speed of the aircraft,”
`“increasing the altitude of the aircraft above the ground,” “changing the
`attitude of the aircraft,” “activating an [emergency locator transmitter
`“ELT”] to transmit a signal,” and “automatically trigger[ing] whole aircraft
`parachute deployment based on either airspeed or a timeout feature using a
`programmable electronic microprocessor.” Id. at 22–23 (citing various
`portions of James and Hoffmann).
`Patent Owner does not dispute that many of the features required by
`claim 95, such as a fuselage, parachute, action interface, engine, sensors,
`memories, and processors, are found in the prior art. Claim 95, however,
`includes the recitation of “machine readable instructions” that pertain to
`limitations (a)–(e), which are a focus of Patent Owner’s challenge to
`Petitioner’s unpatentability ground. Those limitations are reproduced below:
`wherein the machine readable-instructions include the
`actions comprising:
`(a) performing a first evaluation that produces a first
`output;
`(b) based at least upon the first output being in a first state,
`then commanding deployment of the whole-aircraft ballistic
`parachute;
`(c) based at least upon the first output being in a second
`state, then:
`(i) commanding a reduction in engine power;
`
`(ii) commanding a climb; and
`
`(iii) commanding a decrease in aircraft roll;
`
`(d) after commanding the reduction in engine power, then
`performing a second evaluation that produces a second output;
`(e) based at least upon the second output being in a first
`state, then, commanding deployment of the whole-aircraft
`ballistic parachute.
`Ex. 1001, 41:45–62.
`
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`Although claim 95 does not specify a particular “first output” or first
`and second “state[s],” both parties contend that an example of such output
`may be an aircraft’s “airspeed,” and the first and second states may be
`“airspeed below a threshold” and “airspeed above a threshold.” See, e.g.,
`PO Resp. 11; Pet. 44–47.11 With respect to actions (a) and (b), Petitioner
`submits that “it would have been obvious to a POSA to incorporate the
`teachings of the POH and Hoffmann of deploying the parachute only if the
`airspeed, altitude, and/or attitude of an aircraft is in a condition for safe
`parachute deployment, into the pre-programmed and user-defined ‘deploy
`parachute’ function of James, to provide for safe and logical parachute
`deployment.” Pet. 47 (citing Ex. 1003 ¶ 253); see id. at 44–47 (citing
`Ex. 1003 ¶¶ 246–253). Petitioner takes a similar position with respect to
`steps (c)–(e). See Pet. 48–55 (citing Ex. 1003 ¶¶ 254–283). Petitioner also
`maintains that James’s switches and programmed software routines
`associated with its automated parachute deployment are “customizable” and
`that such customization would be implemented in the manner that accounts
`for the claims of the ’474 patent, specifically the above-noted actions. See,
`e.g., Pet. 15, 22, 36, 39, 46, 48, 49, 51, 57, and 68.
`In effect, and stated generally, Petitioner and Mr. Hoffmann take the
`position that the teachings of POH, James, and Hoffmann convey that an
`
`
`11 We discern that none of the challenged claims expressly recites any
`specific first outputs or first and second states. We also note that, as
`discussed more thoroughly below, the parties dispute whether the claims,
`specifically claim 95, require that a “first evaluation” be limited to the output
`of a singular flight parameter, e.g., only airspeed, or whether the “first
`evaluation” may result in an output that includes a combination of multiple
`parameters, e.g., airspeed, altitude, and attitude.
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`autopilot may act to, among other possible actions, evaluate whether various
`flight parameters of an aircraft’s flight (e.g., air speed, altitude, or attitude)
`are at threshold levels, and: (1) if so, deploy the parachute; (2) if not,
`command other actions for the aircraft such as reduce engine power, climb,
`and decrease aircraft roll; and (3) perform rechecking of the flight
`parameters after reducing engine power to determine whether parachute
`deployment is now appropriate.
`a) Element “(c)”
`Patent Owner presents arguments challenging the proposed ground
`that centers on element “(c)” of claim 95. PO Resp. 36–39. Element (c)
`recites:
` (c) based at least upon the first output being in a second state, then:
`(i) commanding a reduction in engine power;
`(ii) commanding a climb; and
`(iii) commanding a decrease in aircraft roll[.]
`Ex. 1001, 41:52–56.
`
`By way of context, the noted “first output” is determined as a
`part of element (a) which requires the performance of a “first
`evaluation that produces a first output.” Patent Owner asserts that
`element (c) requires that the three command actions (i), (ii), and (iii)
`be “based upon the output of the same evaluation” whereas, according
`to Patent Owner, the Petition addr