Appeal No. 2006-1669 Page 7
Application No. 10/476,257
respect to claim 1, as these details relate to the control system for controlling operation of the
control surface, which is not recited in claim 1, and not to the control surface itself. It is well
established that limitations not appearing in the claims cannot be relied upon for patentability.
In re Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982).
For the reasons set forth above, we arrive at the same conclusion reached by the examiner
that the subject matter recited in claim 1 is anticipated by Allen. We therefore sustain the
rejection of claim 1, as well as claims 2-7, 11-15, 20, 21, 23, 25 and 26, which stand or fall with
claim 1, as being anticipated by Allen.
With respect to the rejection of claims 8-10 and 16-18 as being unpatentable over Allen
in view of Lavelle, the focus of the appellant’s argument appears to be that, as neither Allen nor
Lavelle is directed to a “winglet” as used in the appellant’s claims, they cannot disclose or render
obvious the appellant’s invention (brief, pp. 14-15; reply brief, p. 10). As discussed above, the
winglets are found in the primary reference to Allen. As for the appellant’s contention that there
is no suggestion or motivation provided by the references for the modification proposed by the
examiner, we note, at the outset, that the appellant’s query as to why one of ordinary skill in the
art would ignore the teaching or Lavelle and adopt the folding wing tip teaching of Allen instead
(brief, p. 14) appears to mischaracterize the modification proposed by the examiner. We
understand the examiner’s position to be that it would have been obvious to provide a passage or
slot in the winglet 12 or 14 of Allen from a lower surface to an upper surface thereof that can be
opened to permit passage of air therethrough for decreasing the distance required for landing
(answer, p. 5). We find such motivation in Lavelle’s teaching that it was well known in the art at
the time of the appellant’s invention to replace or supplement the usual ailerons with controlled
wing slots so that the entire length of the trailing edge of the wing could be used for landing
flaps. We thus sustain the rejection of claims 8-10 and 16-18 as being unpatentable over Allen
in view of Lavelle.
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