Appeal No. 2003-0622 Page 7
Application No. 09/974,545
We agree with the appellant that at least the third of the above operations is not
disclosed or taught by Borthayre ’842. This is because Borthayre ‘842 specifically
teaches that control of the aircraft is taken over by the control tower, and therefore even
if Borthayre ‘842 were to be interpreted so broadly as to consider that the control tower
directs the flight of the aircraft by passing its control signals to the “robotic device”
through the aircraft’s autopilot, it still does not meet the requirement in claim 1 that the
autopilot is directed to do so by the same on-board module that senses the override
input and deactivates on-board control of flight systems and on-board control of the
autopilot.
Borthayre ‘842 therefore does not anticipate the subject matter recited in
independent claim 1, and we will not sustain the Section 102 rejection of claim 1 or, it
follows, of claims 2-4, 7, 135 and 17, which depend from claim 1 and are rejected on the
same basis.
We also will not sustain the alternative rejection of these claims as being
unpatentable over Borthayre ‘842 in view of Auto 737. Considering Borthayre ‘842 in
the light of 35 U.S.C. § 103(a) does not alter our conclusion that this reference fails to
disclose that the third of the claimed operations is performed by the on-board module,
as explained above. Auto 737 teaches that it was known in the art at the time of the
5 Borthayre ‘798 was listed on page 3 of the Answer as an applied reference. However, it was not
recited in any of the statements of rejection, but merely was mentioned on page 8 of the Answer as
disclosing a panic button as required in claims 13, 28 and 50. According to the examiner, it is the
equivalent of a reference referred to on page 1 of the translation of Borthayre ‘842.
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