Appeal No. 2006-1669 Page 6
Application No. 10/476,257
“winglet.” We find no error in the examiner’s determination that Allen’s winglet 12 or 14 is a
“winglet” as used in claim 1 on appeal.
The appellant (reply brief, p. 12) argues that the limitation “air flow control arrangement
thereon by means of which lift generated by the winglet can be varied” is a means-plus-function
recitation in accordance with 35 U.S.C. § 112, sixth paragraph, and that the structure described
in appellant’s specification corresponding to this means is the variety of control arrangements
(i.e., flaps, spoilers, trip device, doors and louvres) illustrated in Figures 5-11 (reply brief, p. 13).
Even accepting the appellant’s contention that the examiner has erred in refusing to interpret
this language as a means-plus-function recitation in accordance with 35 U.S.C. § 112, sixth
paragraph, the examiner’s ultimate conclusion that the aileron illustrated (but neither numbered
nor discussed) in Allen’s Figure 1 responds to this limitation is correct, as explained below.
While Allen does not specifically discuss ailerons on the wing or winglet of the inventive
aircraft, the depiction on the rear of the winglet 12 in Figure 1 has the appearance and location of
a classical aileron (see http://en.wikipedia.org/wiki/Aileron and http://www.aviation-
history.com/theory/flt_ctl.htm, copies attached hereto) and would have been recognized by one
of ordinary skill in the aircraft art at the time of appellant’s invention as such. Moreover, the
appellant does not dispute in either the brief or the reply brief that Allen’s winglet 12 or 14 has
an aileron thereon.
As is apparent from the appellant’s specification and as stated on page 13 of the
appellant’s reply brief, the structure described in appellant’s specification corresponding to the
air flow control arrangement is the control surface (i.e., flaps, spoilers, trip device, doors,
louvers) shown in Figures 5-11. An aileron is a control surface, a flap or spoiler in particular,
and is thus the structure described in the appellant’s specification corresponding to the recited
“air flow control arrangement.”
That Allen does not disclose how such aileron is controlled or indicate whether it is
moveable when the winglet 12 or 14 is in the folded or retracted position is of no relevance with
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