Federal Circuit: No Safety Net for Fleming

Fleming v. Cirrus Design and style (Fed. Cir. 2022)

Hoyt Fleming is a patent legal professional, and previous Chief Patent Counsel for Micron.  He is also an inventor and builder (he has individually developed a few airplanes).  His U.S. Patent No. RE47,474 is fairly cool:  it statements a &#8220total-plane ballistic parachute, which consists of a rocket, that is coupled to the fuselage of the plane.&#8221 In reaction to a deployment request, the system initially &#8220instructions the autopilot to maximize plane pitch&#8221 and then deploys the ballistic parachute.

Fleming despatched a copy of his pending patent application to Cirrus who evidently then produced a new aircraft embodying his patented style.  Fleming began negotiations on a license, but Cirrus submitted a declaratory judgment motion for non-infringement and also submitted two IPR petitions.  This is an attractiveness from the initially IPR &#8212 acquiring the challenged claims unpatentable as noticeable.

On charm, the Federal Circuit has affirmed each the obviousness willpower and the Board&#8217s denial of Fleming&#8217s motion to amend numerous statements.

The Federal Circuit spells-out the crux of the obviousness situation as follows:

• It is perfectly recognised that: aircraft autopilots are programmable can complete flight maneuvers and deploy a parachute.
• It is also nicely recognized specific maneuvers should really be performed prior to deploying a full-plane parachute &#8212 these types of as raising altitude and stabilizing the mindset
• But, all people agrees that the prior art does not precisely educate &#8220commanding an autopilot to carry out the claimed flight maneuvers of escalating pitch, lowering roll, or changing perspective on receipt of a parachute deployment ask for.&#8221

The Board concluded that a person of common ability in the art would be determined to reprogram the autopilot to consider Fleming&#8217s proposed actions prior to releasing the parachute in order to enhance security outcomes.

Note here that the motivation for combining listed here is improved protection.  Fleming famous that the prior art cautioned towards the use of autopilot in particular sure crisis predicaments simply because it was unsafe.  The PTAB turned down that argument and the Federal Circuit affirmed on attractiveness: &#8220the Board effectively explained that the obviousness inquiry does not have to have that the prior artwork mix is the “preferred, or the most desirable” configuration.&#8221  The courtroom famous that warning versus autopilot use did not always increase to all aircraft &#8212 these types of as unmanned aircraft.  &#8220That the prior art cautioned pilots not to use an autopilot in some unexpected emergency scenarios on some plane does not imply that the qualified artisan would have been dissuaded from carrying out so in all unexpected emergency circumstances on all aircraft.&#8221 Slip Op.

Fleming also argued copying &#8211 that Cirrus had copied his invention &#8211 and that copying is a potent indicia of nonobviousness.  The Board concluded that Fleming experienced not proven that Cirrus copied:

• Fleming consistently offered copies of his patent application and argued that Cirrus incorporated that disclosed materials into its merchandise and also its own patent software.
• Nevertheless, the Board observed the proof lacking because he did not supply &#8220any meaningful infringement analysis.&#8221  On attractiveness, the Federal Circuit affirmed that summary

Obviousness affirmed.