Hoyt Augustus Fleming v. Cirrus Design Corporation

United States Court of Appeals
for the Federal Circuit
______________________
HOYT AUGUSTUS FLEMING,
Appellant
v.
CIRRUS DESIGN CORPORATION,
Appellee
______________________
2021-1561
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2019-
01566.
______________________
Decided: March 10, 2022
______________________
MICHAEL S. D OWLER, Park, Vaughan, Fleming & Dow-
ler LLP, Houston, TX, argued for appellant.
K EVIN P. WAGNER, Faegre Drinker Biddle & Reath
LLP, Minneapolis, MN, argued for appellee. Also repre-
sented by VICTOR P. J ONAS ; J OEL SAYRES , JD SCHNEIDER ,
Denver, CO.
______________________
Before L OURIE, H UGHES , and STOLL , Circuit Judges.
STOLL , Circuit Judge.
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FLEMING v. CIRRUS DESIGN CORP . 2
Hoyt Augustus Fleming appeals the Patent Trial and
Appeal Board’s final written decision determining that the
challenged claims of U.S. Patent No. RE47,474 are un-
patentable as obvious. Mr. Fleming also appeals the
Board’s denial of his motion to amend certain claims. The
Board determined the proposed amended claims lacked
written description and were indefinite. We affirm the
Board’s obviousness determination and its denial of
Mr. Fleming’s motion to amend.
BACKGROUND
I
The ’474 patent describes ballistic parachute systems
on aircraft. ’474 patent, Abstract; id. col. 1 ll. 1–30. The
specification explains that ballistic parachutes use a rocket
to quickly deploy a parachute, slowing the fall of a crashing
aircraft. See, e.g., id. at col. 1 ll. 37–47. The chief benefit
of a ballistic parachute is its speed in deploying a potential
life-saving measure that slows the aircraft’s descent. Not
surprisingly, a ballistic parachute is most successful in
slowing the descent of a failing aircraft when it can become
fully inflated and functional. See id. at col. 1 ll. 46–47.
As the specification explains, it takes time for a ballis-
tic parachute to fully inflate and begin stabilizing an air-
craft. A higher aircraft altitude upon deployment of the
parachute means there is more time for the parachute to
deploy and slow the aircraft. Id. at col. 10 ll. 1–13. Even
with a high deployment altitude, however, full stabilization
can only be achieved if the parachute is deployed properly.
See id. at col. 10 ll. 14–59. For example, if the parachute is
deployed when the aircraft is upside down, the parachute
is more likely to become tangled and nonfunctional. Id. at
col. 10 ll. 44–52. And if the aircraft is moving too quickly,
the parachute may simply rip away from the aircraft rather
than inflating. See, e.g., id. at col. 10 ll. 14–30. The speci-
fication discloses that it is preferred to reach key operating
parameters—like certain speed, altitude, and pitch—
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FLEMING v. CIRRUS DESIGN CORP . 3
before (or, if time requires, while) deploying a ballistic par-
achute. See id. at col. 9 l. 61–col. 10 l. 59.
The ’474 patent is directed to a subset of these systems,
termed “intelligent ballistic parachute systems.” Id. Title,
Abstract (emphasis added). The specification explains that
the disclosed intelligent ballistic parachute system is capa-
ble of performing pre-activation and post-activation ac-
tions, i.e., actions taking place before or after the ballistic
parachute is activated. Id. at col. 9 l. 61–col. 13 l. 38. Such
pre- and post-activation actions may include instructing
the aircraft to: (1) turn or increase altitude, id. at col. 11
ll. 43–46; (2) fly at a level attitude, id. at col. 11 ll. 47–49;
(3) reduce speed, id. at col. 11 ll. 20–33; or (4) enable or dis-
able “reefing control,” which controls the inflation time of
the parachute, id. at col. 8 l. 63–col. 9 l. 2. These actions
are intended to help the aircraft reach desired operating
parameters for deploying a ballistic parachute without the
direct involvement of a pilot. Id. at col. 11 ll. 6–56.
Specifically, the ’474 patent discloses that, upon receiv-
ing a parachute activation request from an “activation in-
terface,” “one or more processors” determine whether a pre-
activation action must be performed before deploying the
parachute. Id. at col. 54 ll. 24, 29, 40–46; see also id.
at col. 9 l. 61–col. 11 l. 56, Fig. 14. If so, the processors com-
mand performance of the pre-activation action. Id.
at col. 11 ll. 50–56; see also, e.g., id. at col. 54 ll. 40–52. The
processors may also command performance of a post-acti-
vation action. Id. at col. 11 ll. 57–59.
Although not claimed, the ’474 patent written descrip-
tion also contemplates the optional inclusion of an “intelli-
gence override interface.” Id. at col. 8 ll. 36–39, 50–62.
This interface allows an aircraft occupant to manually by-
pass the processor-controlled operations to immediately de-
ploy the parachute, for example by pulling a pull-handle or
pressing a button. Id. at col. 8 ll. 50–62.
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FLEMING v. CIRRUS DESIGN CORP . 4
The original claims of the ’474 patent at issue in this
appeal are claims 137–139. Claim 137 is representative:
137. An aircraft, the aircraft including:
a fuselage;
a whole-aircraft ballistic parachute, which includes
a rocket, that is coupled to the fuselage of the air-
craft,
an activation interface,
a pitch sensor,
an autopilot,
one or more memories having machine-readable in-
structions stored thereon, and
one or more processors, each of the one or more pro-
cessors configured to read and execute a portion of
the machine-readable instructions;
wherein at least one of the one or more processors
is coupled to the activation interface, at least one of
the one or more processors is coupled to the pitch
sensor, at least one of the one or more processors is
coupled to the autopilot, at least one of the one or
more processors is coupled to the rocket, at least
one of the one or more processors is coupled to the
one or more memories;
the aircraft configured to perform a method com-
prising:
receiving, by the activation interface, a whole-air-
craft ballistic parachute deployment request from
an occupant of the aircraft; then based upon the re-
ceipt of the whole-aircraft ballistic parachute de-
ployment request by the activation interface, both
performing an action and also deploying the whole-
aircraft ballistic parachute;
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FLEMING v. CIRRUS DESIGN CORP . 5
wherein the machine readable-instructions include
the action comprising:
based at least upon the receipt of the whole-aircraft
ballistic parachute deployment request, command
the autopilot to increase aircraft pitch.
Id. at col. 54 ll. 20–51. Claims 138 and 139 are identical
except for the final phrase describing the action to be taken
upon receipt of the parachute deployment request. In
claim 138, the autopilot is commanded to “reduce aircraft
roll,” and in claim 139 it is commanded to “change the atti-
tude of the aircraft.” Id. at col. 54 l. 52–col. 55 l. 17, col. 55
l. 18–col. 56 l. 25.
II
In its final written decision, the Board determined that
claims 137–139 of the ’474 patent would have been obvious
over a combination of Cirrus Design’s Pilot Operation
Handbook for the SR22, Revision A7, (Oct. 10, 2003)
(“POH”) and U.S. Patent No. 6,460,810 (“James”). Cirrus
Design Corp. v. Fleming, No. IPR2019-01566, 2021 WL
54778, at *8–13 (P.T.A.B. Jan. 6, 2021) (Decision). Because
Mr. Fleming challenges the Board’s findings regarding
POH and James, we discuss each reference below.
A
POH is a pilot’s operating handbook that “familiar-
ize[s] operators with the Cirrus Design SR22 airplane” and
is intended to be always carried in the aircraft. J.A. 1658,
1664. Among other things, POH describes the operation of
the Cirrus Airframe Parachute System (CAPS), a ballistic
parachute system installed on the Cirrus SR22 airplane.
The parachute system is activated by an aircraft occupant
“[p]ulling the activation T-handle.” J.A. 1937.
POH explains that a pilot should take certain factors
into consideration before activating the system and deploy-
ing the parachute. For example, POH suggests that the
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FLEMING v. CIRRUS DESIGN CORP . 6
parachute “should be activated from a wings-level, upright
attitude if at all possible.” J.A. 2125. POH also teaches
that “the chances of a successful deployment increase with
altitude.” J.A. 2125. Phrased differently, POH also ex-
presses that higher aircraft altitudes provide “enhanced
safety margins for parachute recoveries.” J.A. 1729. Con-
versely, POH lists “adverse external factors” that can neg-
atively impact activation and “may result in severe injury
or death to the occupants,” including “high deployment
speed, low altitude, rough terrain or high wind conditions.”
J.A. 1730.
B
James is titled “Semiautonomous Flight Director” and
describes a “device for programming industry standard au-
topilots” to allow “for the safe operation of any aircraft by
an unskilled pilot.” James, Abstract. The purpose of
James’s system is to “significantly reduc[e] a skilled pilot’s
work load and/or eliminat[e] or supplant[] the piloting
skills normally required to fly” an aircraft. Id. at col. 6
ll. 23–28. James describes that its system can be used with
“any manned or unmanned helicopter or aircraft equipped
with an autopilot.” Id.
James’s device includes various switches, including a
“sixth switch,” described as a “switch to provide an ‘emer-
gency shutdown/deploy parachute/activate visual, audible
and radio frequency beacons’ command function logic sig-
nal.” Id. at col. 10 ll. 14–19. James also explains that,
upon “receiv[ing] a flight status back from the aircraft’s au-
topilot [indicating] that the aircraft has encountered a neg-
ative flight maneuver,” its “preprogrammed SFD
[Semiautonomous Flight Director] action may automati-
cally initiate an emergency shut down procedure.” Id. at
col. 18 ll. 28–33. This procedure can include, for example,
“shutting off all engines, terminating all flight functions,
deploying an emergency recovery parachute and activating
any locating beacons.” Id. at col. 18 ll. 33–41.
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FLEMING v. CIRRUS DESIGN CORP . 7
III
Cirrus Design Corp. petitioned for inter partes review
of claims 2, 3, 8, 10, 15, 132, and 135–139 of the ’474 patent.
Decision, 2021 WL 54778, at *1. During the proceeding,
Mr. Fleming filed a motion to amend (and then a revised
motion), seeking to replace claims 2, 3, 8, 10, 15, and 132
with proposed substitute claims 140–145, and separately
to replace claims 137–139 with proposed substitute claims
146–148 contingent on a finding that claims 137–139 are
invalid. Id. Because the motion to amend was not contin-
gent on a determination of unpatentability for the replace-
ment of claims 2, 3, 8, 10, 15, and 132, those original claims
were effectively cancelled and the Board determined that
they were “no longer part of” the proceeding. Id. at *1 n.6.
A
The Board first addressed Cirrus’s proposed obvious-
ness ground—the combination of POH and James.
Mr. Fleming did not dispute that it was well known in
the art that aircraft autopilots are programmable and can
perform flight maneuvers and deploy a parachute. Id.
at *8–9. Mr. Fleming argued, however, that neither POH
nor James disclosed an autopilot performing flight maneu-
vers and deploying a parachute upon the aircraft’s receipt
of a parachute deployment request.
The Board disagreed, determining that claims 137–139
were unpatentable as obvious over the combination of POH
and James. Id. at *8–13. The Board explained that James
discloses (1) that its Semiautonomous Flight Director can
“automatically initiate an emergency shut down proce-
dure” upon receiving a negative flight status, id. at *8 (cit-
ing James col. 18 ll. 28–41), and (2) that its “sixth switch”
“provide[s] an ‘emergency shutdown/deploy parachute/acti-
vate visual, audible and radio frequency beacons’ command
function logic signal.’” Id. (citing James col. 10 ll. 14–19).
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FLEMING v. CIRRUS DESIGN CORP . 8
Put another way, the Board explained, James discloses
that in response to a request to deploy a parachute, an air-
craft may automatically initiate shut down procedures, in-
cluding deploying a parachute. Id. at *8. Specifically, the
Board found that James discloses the use of an autopilot to
take certain actions in an emergency situation, including
for example “shutting off all engines, terminating all flight
functions, [and] deploying an emergency recovery para-
chute.” Id. (citing James col. 18 ll. 28–41). The Board
found that James describes that these actions may also in-
clude, for example, “slow[ing] the aircraft to landing speed
and maintain[ing] a slow steady landing descent.” Id. (cit-
ing James col. 17 ll. 24–25).
The Board found that the ordinarily skilled artisan,
seeking to implement James’s semiautonomous flight di-
rector on the Cirrus SR22, would have looked to POH for
instructions regarding “actions to be taken based on a de-
cision to deploy a whole-aircraft ballistic parachute.” Id.
at *10. Because POH describes that a ballistic parachute
system performs best at certain flight parameters, e.g., in-
creased altitude and level attitude, the Board, relying on
expert testimony, found that the skilled artisan would have
recognized it is desirable to tailor James’s system in view
of those parameters. Id. at *10–11. The resulting aircraft
would, upon the receipt of a parachute deployment request,
perform certain flight maneuvers to maximize the chances
of a successful parachute deployment, for example adjust-
ing altitude, attitude, and pitch. Id. Accordingly, the
Board determined that claim 137, which requires that an
autopilot “facilitate[s] or engage[s] the actions of flight ma-
neuvering and parachute deployment ‘based at least upon
the receipt of the whole-aircraft ballistic parachute deploy-
ment request,’” would have been obvious over the combina-
tion of POH and James. Id. at *8–11. Because it found the
prior art also discloses an autopilot reducing aircraft roll
and changing aircraft attitude, the Board determined that
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FLEMING v. CIRRUS DESIGN CORP . 9
claims 138 and 139 would have similarly been obvious. Id.
at *13.
Mr. Fleming argued that objective indicia of non-obvi-
ousness, namely copying, compelled a determination that
the challenged claims would not have been obvious. Both
Mr. Fleming and Cirrus submitted evidence on this point.
The Board, considering the record as a whole, found that
Mr. Fleming had not adequately shown evidence of copy-
ing.
B
The Board further found that Mr. Fleming’s proposed
amended claims did not meet the statutory and regulatory
requirements for patentability because they lacked written
description support and thus constituted new matter.
Each of the proposed amended claims includes, or de-
pends from a claim that includes, the following clause1:
wherein the aircraft is configured to select, using
at least a portion of the distributed process system,
a procedure from two procedures, comprising:
(i) a first procedure that uses the autopilot
to increase aircraft altitude if aircraft air-
speed is greater than a reference airspeed,
and
(ii) a second procedure that does not use the
autopilot to increase aircraft altitude if
1 Proposed substitute claims 140 and 142–145 use
the phrase “configured to select.” Proposed substitute
claims 141 and 147 use the phrase “capable of selecting.”
Proposed substitute claim 146 uses the phrase “configured
to selectively activate.” Proposed substitute claim 148 uses
the phrase “capable of selectively activating.”
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FLEMING v. CIRRUS DESIGN CORP . 10
aircraft airspeed is greater than the refer-
ence airspeed;
wherein the aircraft is configured to activate, using
the at least a portion of the distributed processing
system and based upon a pull of the pull handle,
the selected procedure but not the unselected pro-
cedure.
J.A. 7743. The Board and the parties referred to these
clauses as the “Procedural Selection Limitations.” Mr.
Fleming argued that the original patent application lead-
ing to the ’474 patent (U.S. Patent Application
No. 12/368,911), as well as the originally granted patent
before reissue (U.S. Patent No. 8,100,365), provided writ-
ten description support for the Procedural Selection Limi-
tations.
In its decision, the Board considered and discussed
each of Mr. Fleming’s citations to the written description.
In each case, the Board found that the cited portions did
not disclose the limitations of the proposed amended
claims. Accordingly, the Board found that the proposed
amended claims lacked written description support and
were thus unpatentable. The Board also held the proposed
amended claims unpatentable as indefinite.
Mr. Fleming appeals. We have jurisdiction under
35 U.S.C. § 1295(a)(4)(A).
D ISCUSSION
On appeal, Mr. Fleming argues that the Board erred in
determining that the challenged claims are unpatentable
and in denying his motion to amend. We address his argu-
ments in turn.
I
We begin with obviousness. We review the Board’s le-
gal conclusions de novo and its factual findings for substan-
tial evidence. Univ. of Strathclyde v. Clear-Vu Lighting
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FLEMING v. CIRRUS DESIGN CORP . 11
LLC, 17 F.4th 155, 160 (Fed. Cir. 2021). “The substantial
evidence standard asks ‘whether a reasonable fact finder
could have arrived at the agency’s decision,’ and ‘involves
examination of the record as a whole, taking into account
evidence that both justifies and detracts from the agency’s
decision.’” OSI Pharms., LLC v. Apotex, Inc., 939 F.3d
1375, 1381–82 (Fed. Cir. 2019) (quoting In re Gartside,
203 F.3d 1305, 1312 (Fed. Cir. 2000)).
Obviousness is a legal question based on underlying
findings of fact. Strathclyde, 17 F.4th at 160. A claim is
unpatentable as obvious “if the differences between the
subject matter sought to be patented and the prior art are
such that the subject matter as a whole would have been
obvious at the time the invention was made to a person
having ordinary skill in the art.” 35 U.S.C. § 103. The in-
quiries of whether the prior art discloses a claim limitation,
whether a skilled artisan would have been motivated to
modify or combine teachings in the prior art, and whether
she would have had a reasonable expectation of success in
doing so are questions of fact, reviewed for substantial evi-
dence. Strathclyde, 17 F.4th at 160. The existence and
weight assigned to any objective indicia of nonobviousness
are factual considerations that we review for substantial
evidence. Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366,
1372–73 (Fed. Cir. 2019).
On appeal, Mr. Fleming challenges the Board’s obvi-
ousness determination, arguing that none of the prior art
discloses commanding an aircraft’s autopilot to increase
pitch, reduce roll, or change attitude based on the aircraft’s
receipt of a parachute deployment request, as required by
claims 137–139. He also argues that the prior art teaches
away from the claimed invention in the ’474 patent and
that the combination of POH and James would be unsafe.
We address each argument in turn.
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FLEMING v. CIRRUS DESIGN CORP . 12
A
We begin with Mr. Fleming’s argument that the pro-
posed combination does not teach the claimed autopilot op-
erations. We disagree. The Board, in reaching its
obviousness determination, acknowledged that neither
POH nor James specifically taught commanding an auto-
pilot to perform the claimed flight maneuvers of increasing
pitch, reducing roll, or changing attitude upon receipt of a
parachute deployment request. The Board nevertheless
found that one of ordinary skill in the art would have been
motivated to program James’s autopilot system to perform
these flight maneuvers upon receipt of a parachute deploy-
ment request because they are suggested by POH in order
to achieve safe and beneficial deployment of a ballistic par-
achute.
The Board’s finding is supported by substantial evi-
dence. First, the parties do not dispute that it was well
known that aircraft autopilots are programmable to per-
form certain actions, for example increasing aircraft pitch
and deploying a parachute. Further, as the Board correctly
explained, James discloses that upon receiving a signal,
“an aircraft may automatically initiate shut down proce-
dures, including deploying an emergency parachute.” De-
cision, 2021 WL 54778, at *8. And James also discloses, as
found by the Board, that an autopilot is capable of perform-
ing certain flight maneuvers on an aircraft, such as
“slow[ing] the aircraft to landing speed and maintain[ing]
a slow steady landing descent.” Id. (citing James col. 17
ll. 24–25). Further, POH emphasizes that these standard
autopilot maneuvers—slowing aircraft speed, maintaining
a steady attitude, and changing aircraft pitch—should
preferably be completed before deploying an emergency
parachute. J.A. 1729–32, 2123–28. This evidence amply
supports the Board’s finding that a person of ordinary skill
would have been motivated to program James’ autopilot in
view of POH so that, upon the receipt of a parachute de-
ployment request, James’ autopilot would seek to ensure
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FLEMING v. CIRRUS DESIGN CORP . 13
safety by following POH’s guidance for safe parachute de-
ployment, including changing the aircraft’s pitch, reducing
aircraft roll, and/or achieving a level attitude as needed.
That the proposed combination of James and POH—
rather than one of the individual references—discloses the
disputed claim limitations does not defeat the Board’s con-
clusion of obviousness. In this case, it is sufficient that a
person of ordinary skill in the art would have been moti-
vated to combine the prior art in a way such that the com-
bination discloses the claim limitations. See Randall Mfg.
v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013) (citing KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415–22 (2007)).
Mr. Fleming argues that our decision in Arendi
S.A.R.L. v. Apple Inc, 832 F.3d 1355 (Fed. Cir. 2016)—
where we criticized the Board for relying on common sense
to supply a missing claim limitation—compels a conclusion
of nonobviousness. Appellant’s Br. 44–60. We are unper-
suaded. When considering obviousness of a claimed inven-
tion, the Supreme Court has emphasized that the “person
of ordinary skill is also a person of ordinary creativity, not
an automaton.” KSR, 550 U.S. at 421. Since KSR, we have
explained that it is appropriate to consider the knowledge,
creativity, and common sense of a skilled artisan in an ob-
viousness determination. Randall Mfg., 733 F.3d at 1362.
While we have cautioned against the misuse of these con-
siderations—for example, we have held that they cannot be
used “as a wholesale substitute for reasoned analysis and
evidentiary support,” Arendi, 832 F.3d at 1362—we have
continued to approach the obviousness inquiry with the
flexibility required by KSR. See id. at 1361 (“[W]e do con-
sider common sense, common wisdom, and common
knowledge in analyzing obviousness.”).
The Board’s conclusion, that the ordinarily skilled ar-
tisan would program James’s autonomous system to per-
form the claimed flight maneuvers as suggested by POH,
is thus the result of a faithful application of our law on
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FLEMING v. CIRRUS DESIGN CORP . 14
obviousness, including KSR’s directive to consider the cre-
ativity of the ordinarily skilled artisan. We see no error in
the Board’s conclusion on this point.
B
We now consider Mr. Fleming’s argument that the
prior art teaches away from the claimed invention. Specif-
ically, Mr. Fleming argues that the prior art cautioned that
autopilots should not be used in certain emergency situa-
tions where a ballistic parachute may be needed. The
Board considered this argument and found that the prior
art did not teach away. As we explain below, the Board’s
fact finding is supported by substantial evidence.
Mr. Fleming cites various passages from the asserted
prior art indicating that the use of an autopilot is not ad-
vised in certain flight situations—for example upon takeoff
and landing or when the aircraft is below a certain alti-
tude—that encompass the circumstances in which a whole
aircraft parachute is likely to be needed. Appellant’s Br. 53
(citing J.A. 2022–23). According to Mr. Fleming, the prior
art thus teaches away from using an autopilot upon receipt
of a parachute deployment request. But a reasonable fact-
finder could nonetheless conclude that the prior art does
not suggest to the skilled artisan that an autopilot should
never be used in any emergency situation for any aircraft,
as Mr. Fleming contended. For example, James discloses
that the continuous use of an autopilot is of particular ben-
efit for unmanned aerial vehicles. James col. 1 l. 65–col. 2
l. 13. POH discloses that the use of the ballistic parachute
system “would be appropriate” in the event of pilot incapac-
itation, suggesting use of an autopilot to deploy the ballistic
parachute system. J.A. 1730. And, as the Board noted, the
challenged claims do not require any safety features. De-
cision, 2021 WL 54778, at *10. Substantial evidence thus
supports the Board’s finding that the prior art does not
teach away from the claimed invention.
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FLEMING v. CIRRUS DESIGN CORP . 15
Mr. Fleming also contends that the Board ignored his
argument that a skilled artisan would have been dissuaded
from making the proposed combination because using
James’s autopilot would be unsafe in many emergency sit-
uations. Appellant’s Br. 56–60. To be clear, the Board did
not ignore this argument. See Decision, 2021 WL 54778
at *10 (addressing Mr. Fleming’s argument “that the com-
bination is unsafe”). In addressing this exact argument,
the Board correctly explained that the obviousness inquiry
does not require that the prior art combination is the “pre-
ferred, or the most desirable” configuration. Id. (quoting
In re Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004)); see also
Bayer Healthcare Pharms., Inc. v. Watson Pharms., Inc.,
713 F.3d 1369, 1376 (Fed. Cir. 2013). That the prior art
cautioned pilots not to use an autopilot in some emergency
situations on some aircraft does not mean that the skilled
artisan would have been dissuaded from doing so in all
emergency situations on all aircraft. The Board’s finding
that Mr. Fleming’s “unsafe” argument fails is thus sup-
ported by substantial evidence.
C
Finally, we consider Mr. Fleming’s argument that the
Board did not appropriately consider objective indicia of
non-obviousness, namely copying. We disagree. Although
evidence of copying must, if presented, be considered in the
obviousness analysis, “[n]ot every . . . product that argua-
bly falls within the scope of a patent is evidence of copying.
Otherwise[,] every infringement suit would automatically
confirm the nonobviousness of [a] patent.” Iron Grip Bar-
bell Co. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir.
2004). The Board properly considered the evidence for and
against copying and found that Mr. Fleming had not suffi-
ciently shown that Cirrus copied his alleged invention. De-
cision, 2021 WL 54778, at *11–12. This finding is
supported by substantial evidence.
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FLEMING v. CIRRUS DESIGN CORP . 16
Mr. Fleming introduced his own declaration to the
Board as evidence of copying. In his declaration, Mr. Flem-
ing alleged that he repeatedly provided to Cirrus copies of
the patent application that would eventually become the
’474 patent and that Cirrus incorporated disclosed mate-
rial into its Vision Jet and its own patent application. At-
tached to the declaration were copies of the letters Mr.
Fleming sent to Cirrus. Although Mr. Fleming’s declara-
tion indicates that he subjectively believes that claims of
Cirrus’s patent application mirror those of the ’474 patent,
his evidence does not provide “any meaningful infringe-
ment analysis in connection with a product of” Cirrus, as
the Board correctly noted. Decision, 2021 WL 54778,
at *12.
For its part, Cirrus presented evidence more directly
tied to the Cirrus product identified by Mr. Fleming, in-
cluding a declaration from its Chief Engineer testifying
that Cirrus’s parachute system was independently devel-
oped. Cirrus also identified limitations of the ’474 patent
claims that were not found in its parachute system. Fi-
nally, Cirrus noted that its own patent application included
limitations different from those in the ’474 patent claims.
After considering all the evidence on the question of
copying, the Board was entitled to find that Mr. Fleming’s
evidence did not establish that Cirrus copied his alleged in-
vention, particularly in light of the contrary evidence intro-
duced by Cirrus.
* * *
We thus affirm the Board’s determination that claims
137–139 of the ’474 patent are unpatentable because they
would have been obvious over the combination of POH and
James.
II
We move now to Mr. Fleming’s proposed amended
claims. The Board denied Mr. Fleming’s motion to amend
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FLEMING v. CIRRUS DESIGN CORP . 17
after concluding that the claims lacked sufficient written
description and were indefinite. Mr. Fleming challenges
the Board’s denial of his motion to amend. For the reasons
below, we conclude that substantial evidence supports the
Board’s finding that the proposed amended claims are un-
supported by the written description. We therefore need
not address Mr. Fleming’s arguments regarding indefinite-
ness.
We review the Board’s decision to deny a motion to
amend under the Administrative Procedure Act, and we
may set aside the Board’s action if it is “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); Bosch Auto. Serv. Sols.,
LLC v. Matal, 878 F.3d 1027, 1039 (Fed. Cir. 2017). The
Board abuses its discretion if, among other things, its con-
clusion rests on a clearly erroneous finding of fact. Intelli-
gent Bio-Sys. v. Illumina Cambridge, Ltd., 821 F.3d 1359,
1367 (Fed. Cir. 2016).
Whether a claim satisfies the written description re-
quirement is a question of fact. Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc).
A claim has met the written description requirement of
35 U.S.C. § 112 if it “clearly allow[s] persons of ordinary
skill in the art to recognize that the inventor invented what
is claimed.” Id. at 1351 (quoting Vas-Cath Inc. v. Mahur-
kar, 935 F.2d 1555, 1563 (Fed. Cir. 1991)). Said otherwise,
the application’s disclosure must “reasonably convey[] to
those skilled in the art that the inventor had possession of
the claimed subject matter as of the filing date.” Id.
As discussed above, the proposed amended claims all
include, or depend on claims which include, the Procedural
Selection Limitations. On appeal, Mr. Fleming challenges
the Board’s construction of certain portions of these
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FLEMING v. CIRRUS DESIGN CORP . 18
limitations.2 We need not consider Mr. Fleming’s proposed
construction, however, because substantial evidence sup-
ports the Board’s finding of lack of written description un-
der either Mr. Fleming’s or the Board’s construction.
The proposed amended claims require that “the air-
craft is configured to select, using at least a portion of the
distributed processing system, a procedure from two proce-
dures . . . wherein the aircraft is configured to activate, us-
ing the at least a portion of the distributed processing
system and based upon a pull of the pull handle, the se-
lected procedure but not the unselected procedure.”
J.A. 7743. Thus, the claims require that the aircraft use at
least a portion of the distributed processing system to se-
lect one of two procedures. The claims further require that
the aircraft may activate—again using at least a portion of
the distributed processing system and based on an occu-
pant pulling the pull handle—the selected procedure. In
other words, the proposed amended claims require that the
aircraft itself be capable of automatically performing cer-
tain functions. The parties do not specifically dispute this
construction of this portion of the Procedural Selection
Limitations.
2 Specifically, Mr. Fleming’s claim construction ar-
guments focus on the portion of the Procedural Selection
Limitations listing the available procedures: “(i) a first pro-
cedure that uses the autopilot to increase aircraft altitude
if aircraft airspeed is greater than a reference airspeed,
and (ii) a second procedure that does not use the autopilot
to increase aircraft altitude if air-craft airspeed is greater
than the reference airspeed.” J.A. 7743. Mr. Fleming con-
tends that “(1) the aircraft’s configuration for a processor-
based selection between two procedures is not dependent
on the aircraft’s airspeed, and (2) the second procedure
does not require increasing altitude.” Appellant’s Br. 20.
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FLEMING v. CIRRUS DESIGN CORP . 19
The Board found that the portions of the specification
cited by Mr. Fleming do not provide support for this claim
requirement. For example, Mr. Fleming relied on a pas-
sage from the ’911 application disclosing an “intelligence
override interface,” which can be used to immediately de-
ploy a parachute. Decision, 2021 WL 54778, at *16 (citing
’911 application p. 12 l. 15–p. 13 l. 2). But this passage dis-
closes only that the “intelligence override” can be manually
triggered by an aircraft occupant, for example by pulling a
pull-handle or pressing a button. ’911 application p. 12
ll. 19–21 (describing a “conventional pull-handle that acti-
vates the deployment of the ballistic parachute”). Indeed,
Mr. Fleming appears to agree that the “intelligence over-
ride” feature requires manual selection. See Appellant’s
Br. 13 (“It allows the aircraft occupant to dismiss (or over-
ride) . . . .”); id. at 14 (“[T]o give the aircraft occupant the
option . . . .”). The Board reasonably found that this disclo-
sure of manual selection by an aircraft occupant does not
adequately support the processor-based selection required
by the proposed amended claims.
Further, this passage describes that the “intelligence
override interface” “immediately activates the deployment
of the ballistic parachute [] regardless of whether the pro-
cessor [] determines that one or more actions need to be
performed before” activation. ’911 application p. 12
ll. 25–28. In other words, the disclosed interface immedi-
ately deploys the parachute upon manual activation of the
intelligence override—disregarding the processor. The
Board thus reasonably found that this passage does not
disclose an aircraft that is configured to activate a selected
procedure using a processor, as required by the proposed
amended claims.
Mr. Fleming cited additional portions of the ’911 appli-
cation’s disclosure to the Board as allegedly supporting the
proposed amended claims. See Decision, 2021 WL 54778,
at *16–18. The Board, upon considering each of these ex-
cerpts, found that they similarly did not support the
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FLEMING v. CIRRUS DESIGN CORP . 20
processor-based selection of one of two procedures as re-
quired by the proposed amended claims.
On appeal, Mr. Fleming does not specifically challenge
any of the Board’s findings regarding these passages in the
’911 application. Rather, he contends that “the ’474 patent
specification clearly describes” the aircraft contemplated
by the proposed amended claims, and thus that “every
identified basis for the Board’s findings regarding . . . writ-
ten description falls away.” Appellant’s Br. 31. We disa-
gree. Because Mr. Fleming pointed to no passage in the
specification that supports the aircraft activation require-
ments of the proposed amended claims, we conclude that
substantial evidence supports the Board’s finding of lack of
written description and therefore that the Board did not
abuse its discretion in denying Mr. Fleming’s motion to
amend.
Because we affirm the Board’s finding that the pro-
posed amended claims were not supported by written de-
scription, we do not address whether the Board erred in
determining that the claims are indefinite.
CONCLUSION
We have considered Mr. Fleming’s remaining argu-
ments but do not find them persuasive. For the foregoing
reasons, we affirm the Board’s final written decision.
AFFIRMED
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