Ex parte Smirnov

• Decision Date: 14 June 2021
• Docket Number: Application 15/313,Appeal 2021-000215,085
• Parties: Ex parte ANDREI VLADIMIROVITCH SMIRNOV and MICHAEL ANDREW SMIRNOFF Technology Center 3600
• Court: United States Patent and Trademark Office. United States Patent and Trademark Office, Patent Trial and Appeal Board

Ex parte ANDREI VLADIMIROVITCH SMIRNOV and MICHAEL ANDREW SMIRNOFF Technology Center 3600

Appeal 2021-000215

Application 15/313, 085

United States Patent and Trademark Office, Patent Trial and Appeal Board

June 14, 2021

FILING DATE 11/21/2016

Before CARL M. DeFRANCO, BRANDON J. WARNER, and MICHAEL L. WOODS, Administrative Patent Judges.

DECISION ON APPEAL

WOODS, ADMINISTRATIVE PATENT JUDGE

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant, ^[1] proceeding pro se, appeals from the Examiner's decision to reject claim 5. See, generally, Second Appeal Br.^[2] We have jurisdiction under 35 U.S.C. § 6(b).

We AFFIRM.

CLAIMED SUBJECT MATTER

The Specification describes the invention as relating "to the field of unmanned flying vehicles in general and micro-areal [sic] vehicles in particular." Spec. ¶ 1. Claim 5 is the sole claim pending and is reproduced, below:

5. A method of enabling autonomous flight capability for a small aerial vehicle, comprising

(a) providing an autonomous aerial vehicle equipped with a plurality of wings in a number greater than four

(b) arranging a coordinated wing flapping whereby tip positions of all said wings at each time form a wave-like pattern

(c) making the fuselage of said autonomous aerial vehicle comprising joined winged sections, each section having at least one pair of said wings

(d) changing angle between each pair of said joined winged sections which amounts to flexing the body of said autonomous aerial vehicle during the flight, thereby increasing the maneuverability of said autonomous aerial vehicle.

Appeal Br. 9.

REFERENCES

The prior art relied upon by the Examiner is:

Name	Reference	Date
Narobe	US 1, 189, 612	Jul 4, 1916
Pietrek	US 2011/0121129 A1	May 26, 2011

REJECTIONS

The following rejections are before us on appeal:

Claim Rejected	35 U.S.C. §	Reference(s)/Basis
5	112(b)	Indefinite
5	102(a)(1)	Narobe
5	103	Narobe, Pietrek

OPINION

1. Proposed Amendments to Claim 5

Appellant filed a First Appeal Brief along with an Amendment seeking to amend the Specification and claim 5. See Amendment 7-10, 15 (dated March 12, 2019) ("Amendment"); see also First Appeal Br. 7 (dated March 12, 2019) ("First Appeal Br." or "First Appeal Brief). In a subsequent Advisory Action, the Examiner denied entry of the Amendment and the First Appeal Brief. See Adv. Act. (dated March 29, 2019).

Appellant filed a Second Appeal Brief on April 6, 2019 ("Second Appeal Br." or "Second Appeal Brief). Our decision considers Appellant's arguments presented in the Second Appeal Brief.

2. Objection to Specification

The Examiner objected to and did not enter a substitute specification for failing to comply with our Rules. See Final Act. 2 (citing 37 C.F.R. § 1.125(b), (c)).

Appellant appeals the Examiner's objection to the Specification. See Second Appeal Br. 2 ("we would appreciate the courtesy of this committee if such replacement is allowed").

We decline to review the Examiner's objection to the substitute specification, as this objection should be decided by the Director on petition, rather than by the Board on appeal. See MPEP §§ 706.01, 1201.

3. Indefinite Rejection

The Examiner rejects claim 5 as indefinite, "not[ing] numerous issues." Final Act. 3.

First, the Examiner cites to the MPEP and rejects the claim for failing to use "a" or "an" when describing a...