Federal Circuit: No Safety Net for Fleming

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

Hoyt Fleming is a patent attorney, and former Chief Patent Counsel for Micron.  He is also an inventor and builder (he has personally built three airplanes).  His U.S. Patent No. RE47,474 is pretty cool:  it claims a “whole-aircraft ballistic parachute, which includes a rocket, that is coupled to the fuselage of the aircraft.” In response to a deployment request, the system first “commands the autopilot to increase aircraft pitch” and then deploys the ballistic parachute.

Fleming sent a copy of his pending patent application to Cirrus who apparently then released a new aircraft embodying his patented design.  Fleming began negotiations on a license, but Cirrus filed a declaratory judgment action for non-infringement and also filed two IPR petitions.  This is an appeal from the first IPR — finding the challenged claims unpatentable as obvious.

On appeal, the Federal Circuit has affirmed both the obviousness determination and the Board’s denial of Fleming’s motion to amend several claims.

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

  • It is well known that: aircraft autopilots are programmable; can perform flight maneuvers and deploy a parachute.
  • It is also well known certain maneuvers should be performed prior to deploying a whole-aircraft parachute — such as increasing altitude and stabilizing the attitude;
  • But, everyone agrees that the prior art does not specifically teach “commanding an autopilot to perform the claimed flight maneuvers of increasing pitch, reducing roll, or changing attitude upon receipt of a parachute deployment request.”

The Board concluded that a person of ordinary skill in the art would be motivated to reprogram the autopilot to take Fleming’s proposed actions prior to releasing the parachute in order to improve safety outcomes.

Note here that the motivation for combining here is improved safety.  Fleming noted that the prior art cautioned against the use of autopilot in certain certain emergency situations because it was unsafe.  The PTAB rejected that argument and the Federal Circuit affirmed on appeal: “the Board correctly explained that the obviousness inquiry does not require that the prior art combination is the “preferred, or the most desirable” configuration.”  The court noted that caution against autopilot use did not necessarily extend to all aircraft — such as unmanned aircraft.  “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.” Slip Op.

Fleming also argued copying – that Cirrus had copied his invention – and that copying is a strong indicia of nonobviousness.  The Board concluded that Fleming had not proven that Cirrus copied:

  • Fleming repeatedly provided copies of his patent application and argued that Cirrus incorporated that disclosed material into its product and also its own patent application.
  • However, the Board found the evidence lacking because he did not provide “any meaningful infringement analysis.”  On appeal, the Federal Circuit affirmed that conclusion

Obviousness affirmed.


43 thoughts on “Federal Circuit: No Safety Net for Fleming

  1. 7

    “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.”

    This is like saying a claim to a robot that uses a fire extinguisher to put out a fire is non-obvious because the prior art warns not to use a class A extinguisher on a class B fire.

    This argument of course cannot be made for a claim to a robot that uses a class A extinguisher to put out a class A fire because that warning does not apply.

    Under Fleming’s argument, the broader claim is non-obvious where the narrower claim is obvious. But the broad claim still compasses the narrow claim!

    So he is effectively asking to be rewarded for his idea because it encompassed bad embodiments without mitigating those bad embodiments.

  2. 6

    Another instance of where a judicial procedure to construe the invention could be helpful. Does PHOSITA work more with autopilots or parachutes or flight dynamics? Does PHOSITA arts need to be focused on light aircraft, or does skill with any parachute arrested body apply?

    Is the invention best characterized as a better parachute system or a better autopilot or a new or better combination of autopilot and parachute?

    Eligibility wise, it appears to be just another information invention (species “Do it on a computer”).

    Is the result of the method only an item of information? Yes

    Does the utility of the information arise in a human mind? No, the information is used by the autopilot to lower chute loads. Should be eligible.


    The Apollo command module, designed in the early ’60’s, used an autopilot to establish the correct attitude to deploy the ballistic parachute system just before shutting down the reaction control system. Would those designers have been PHOSITA?

    link to scribd.com

    1. 6.1

      Is the result of the method only an item of information? Yes


      FYI: RE47,474 claim 1 (emphasis added):

      1. A method performed by an aircraft, the aircraft including a whole-aircraft ballistic parachute that is coupled to the aircraft, the method comprising:

      receiving, from an aircraft occupant, a whole-aircraft ballistic parachute deployment request; then based upon the receipt of the ballistic parachute deployment request, both performing an action and also deploying the whole-aircraft ballistic parachute.

  3. 5

    Seriously though, the “inventor” being a patent attorney is a big red flag and a signal that, more likely than not, some BS is about to put to paper.

    1. 5.1

      Agreed, as a general rule. I would not pretend to know enough about this particular art field to say whether this patent is nonsense.

    2. 5.2

      “the “inventor” being a patent attorney is a big red flag”

      One of the biggest of them all.

      1. 5.2.1

        Mileage may vary, but according to his bio:

        Mr. Fleming is a named inventor on 38 United States Patents.

        • J.D., Southern Methodist University, 1994
        • M.S.M.E., Southern Methodist University, 1991
        • B.E.M.E., Vanderbilt University, 1986

        Technology expertise
        Mr. Fleming possesses a strong technical background. He has performed engineering work on numerous projects including embedded computer systems, video systems, computer displays, GPS systems, active noise cancellation systems, avionics and infrared tracking systems.

        After serving as an intern in Vanderbilt University’s Computer Department and as an engineer for General Motors in the mid-1980s, Fleming joined Texas Instruments Inc. There he worked as an engineer from 1986 to 1991.


          You’re right that mileage may vary, and the bio indicates that Mr. Fleming’s tech background and experience is impressive, but a patent attorney naming themselves as an inventor in an application they prepared is always going to be a red flag to me.
          I’ve been part of a team in several different legal matters where the patent attorney included themselves as a named inventor. Those cases ranged from a misunderstanding of the contribution required to be a named inventor to an outright attempt to steal the technology.


            Sounds like your experience has focused on IMPROPER instances (only).

            Maybe you want to check that bias, eh?


              When most people hear the sounds of galloping hooves in the distance coming towards them, they expect to see a horse.
              Apparently, when you hear the sounds of galloping hooves coming towards you, you’re expecting a zebra. That’s very optimistic of you. While it’s within the realm of possibility, it’s also highly unlikely.
              For me, when I see a patent attorney add themselves as a joint inventor, it’s not a bias, but a rebuttable presumption the patent attorney shouldn’t be listed as a joint inventor. That’s the pessimist in me. Now, situations where the patent attorney is also the sole inventor is a horse of a different color. I’ve seen pro se inventors draft their own applications but never encountered a situation where a patent attorney drafted their own application to protect something they invented.


                Funny you are with your hypo of galloping hooves.

                I merely checked (easy enough to do) BEFORE making an
                as to whether or not those were horses or zebras.

                May I recommend that you do the same?

                1. Not sure how your reply of “rebuttable presumption” attaches to my admonition of you doing a little legwork of your own prior to you indulging in your bias.

                  You do not get to act as if such a bias deserves ANY presumption.

                2. May i recommend you buy yourself some Coopertone lotion because you just got burned by ipguy, anon.
                  My admonition to you is that you cease your obvious bias of acting like a self-important so-and-so.

                3. Ah, my friend with the obsess10n over my posts as reflected in you choice of moniker,

                  You are as off in your view of “being burned” as you are so often in your view of patent law.

                  In our exchange, i clearly have the better position than ipguy — unless of course by “better” you think it to be to wantonly make errors of judgment and jump to @$$umptions rather than easily and quickly informing oneself.

                  I do NOT doubt that such may well be your “choice,” but THAT choice only the more shows that I have the better position.

                4. … and what exactly is a bias of “ting like a self-important so-and-so“…?

                  You may well not like the fact that I am most nearly ALWAYS correct in what I say, and you may well not like the fact that I choose to post with the certainty that comes from being most nearly ALWAYS correct, but choosing to post based on your feelings is almost guaranteed to not be sufficient – AND feed me yet another opportunity to grab a better position.

                5. You are obsessed with getting in the last word, anon. Prove me wrong and don’t make any further replies. Prove me right and you’ve been PWND.

                6. As I have dis-abused others of this paltry attempt at “logic,” (notably my pal with the ever-shifting Historical Pseudonyms), it is NOT about having a “last word.”

                  It is about having a last AND best word.

                  As is evidenced in our current exchange, I have the best word.

                  You are attempting to “PWN” with YOUR attempt at merely having a last word.

                  Your attempt is as stillborn as is your grasp of my exchange with ipguy.


            … by the way, while not personally experiencing what you remark upon, I have worked with attorneys who have relayed such stories — more as a type of “don’t do this” lesson.

            On the flip side, I have also (personally) worked on applications for other attorneys who are (legit) inventors, and who followed the adage of, “an attorney that represents himself has a f001 for a client.”

            This was certainly not for the usual reason of lacking competency in a different area of law, but was more of a realization that I could add the desired value.


              ” by the way, while not personally experiencing what you remark upon”

              You have been very fortunate. One of the worst examples I’ve experienced was an attorney who, after adding his name as an inventor to an application, hoodwinked other inventors into assigning the application to an LLC that the attorney formed and controlled.


                That is horrible – how did the State ethics committee let that one escape notice?

  4. 4

    >It is also well known certain maneuvers should be performed prior to deploying a whole-aircraft parachute — such as increasing altitude and stabilizing the attitude;

    That sounds factually wrong; the point of pitch request (imho) is to slow the airplane so you don’t rip the parachute to shreds. That is, you’re not trying to “stabilize altitude,” you’re trying to increase it.

    But I’m not sure where to pigeon-hole the error, doctrinally. Evidence it’s not “well known”? Hindsight reasoning?? Failure to provide a proper rationale to combine???

    1. 4.1

      You’re trying to increase it i.e., stall the plane out. Something the autopilot normally avoids at all cost.

    2. 4.2

      “That is, you’re not trying to “stabilize altitude,” you’re trying to increase it.”

      It seems to me that if you’re experiencing decreasing altitude, then stabilizing altitude would be a step toward slowing the plane.

      1. 4.2.2

        I doubt the system ever stabilizes altitude. It probably goes directly from the stall into free fall. After that, it’s skydiving-as-usual (rocket fires, the parachute deploys, plane slowly descends).


          I understood a maneuver to “stabilize altitude” to include trying to decrease the rate of loss of altitude, which would decrease speed, which would be beneficial for the parachute, right?

          In any case, it appears that it may have been difficult for Felming to advance your argument, as his disclosure appears to describe the processor commanding the plane to fly level as a pre-activation command to facilitate parachute deployment.


            The typical way of decreasing the rate of loss of altitude is increasing speed.

            Again Ben – know your limitations.

  5. 3

    He had tried to substitute amended claims, but: “The
    Board determined the proposed amended claims lacked
    written description and were indefinite.”

  6. 2

    I’ll do you one better – not only is this obvious, it’s a pretty clear judicial exception. Not only was it known that, e.g., increasing pitch decreases speed, but even if it wasn’t known that’s exactly the kind of e=mc^2 natural law that the supreme court expressly was against. The claim is directed to improving the chute deployment by using the automated pilot to increase the pitch (therefore slowing the plane), and the autopilot was conventionally capable of increasing the pitch. It’s not an invention to have a pilot apply the natural law, so its not an invention to have the computer apply the natural law when there’s no implementation problem. It’s “do it on a computer.”

    1. 2.1

      Very much agreed. Especially the way the OP characterizes things in the third bullet — “commanding an autopilot” to do things it already knows how to do is exceedingly abstract. Of course, this being an IPR context, 101 wasn’t an available consideration.

      Something tells me society is none the worse for this patent being extinguished, nor is there any concern about insufficient incentive for so-called “inventors” to dump these kinds of abstract ideas on the USPTO.

    2. 2.2

      You’ve done one worse – attempting to conflate eligibility and getting it wrong to boot.

      The use of ‘natural laws’ — the application of natural laws IS the very thing that patent law is intended to protect.

      It is simply WR0NG to conflate “doing what could already be done” IN AN APPLICATION with somehow being abstract.


      Shame on you for joining Random in this error.

  7. 1

    . . . and yet another inventor robbed blind.

    What a surprise.

    Is America a great place to innovate, or what.

    1. 1.1

      The patentee did not file this one ex-U.S., so it is hard to know whether other jurisdictions would have treated the patent differently.


              The other drug you are probably thinking of is notorious for not making the Bolivian patent office particularly hard.


                Fair enough. But I bet that particular drug was consumed in copious quantities by the “inventor” here when he was drafting those claims.

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