Ex Parte 7194960 et al

Board of Patent Appeals and Interferences

Jun 29, 2010

90008731 (B.P.A.I. Jun. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PepperBall Technologies, Inc.,
Appellant
____________

Appeal 2010-004091
Reexamination Control 90/008,731
Patent 7,194,960 B21
Technology Center 3900
____________

Decided: June 30, 2010
____________

Before RICHARD E. SCHAFER, JEFFREY B. ROBERTSON, and
DANIEL S. SONG, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL

1 The patent under reexamination (hereinafter the “‘960 Patent”) issued to
Edward J. Vasel, Scott C. Nunan, Gregory A. Niederhaus, and Peter G.
Coakley on March 27, 2007 from Application 10/866,031 filed on June 10,
2004, which is said to be a continuation of Application 09/289,258, filed on
April 9, 1999, now United States Patent 6,393,992, which is the subject of
Reexamination Control 90/008,728 (Appeal No. 2010-003789).
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PepperBall Technologies, Inc., the owner of the ‘960 Patent under
reexamination, appeals under 35 U.S.C. §§ 134(b) and 306 from a final
rejection of claims 1-28 (Appeal Brief filed August 21, 2009, hereinafter
“Br.,” at 4; Final Office Action mailed November 7, 2008).2 We have
jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM.

STATEMENT OF THE CASE
This reexamination proceeding arose from a third-party request for ex
parte reexamination, filed by Security with Advanced Technology, Inc.
(Request for Ex Parte Reexamination, filed August 15, 2007). As indicated
above, the current appeal is related to Appeal No. 2010-003789,
Reexamination Control 90/008,728, United States Patent 6,393,992 B1
which is decided concurrently with the present appeal. We also understand
that the ‘960 Patent was the subject of litigation styled PepperBall Techs.,
Inc. v. Sec. with Advanced Tech., Inc. et al., in the U.S. District Court for the
Southern District of California, Civil Action No. 07 CV 0672 JAH (POR),
which has subsequently settled and the case dismissed. (Br. 3.)
The ‘960 Patent states that the invention involves a non-lethal
projectile system, including a non-lethal projectile that delivers an inhibiting
substance to a target. (Col. 1, ll. 17-48.)

2 See Patent Assignment Abstract of Title, Reel 016793, Frame 0958, which
was entered into the record of this proceeding as “Title Report” on July 6,
2007.
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Claims 1, 3, 4, and 23 on appeal read as follows:
1. A system comprising:
a frangible projectile to be impacted with a target where
the frangible projectile is adapted to be launched such that a
propellant gas acts directly on the frangible projectile to propel
and launch the frangible projectile without an intermediary
between the frangible projectile and the propellant gas and
where an ignitable substance is not used in launching the
frangible projectile;
the frangible projectile comprising a rigid frangible shell
having a thickness and a volume formed within, wherein the
rigid frangible shell ruptures upon impact with the target; and
a substance contained within the volume; wherein the
substance comprises a powdered inhibiting substance, wherein
upon impact with the target the rigid frangible shell ruptures,
omnidirectionally dispersing the powdered inhibiting substance
proximate to the target into a cloud; and
wherein the powdered inhibiting substance comprises
nonivamide.

3. The system of claim 1 wherein the rigid frangible
shell [further comprises a material selected from the group
consisting of polymers and plastics] is generally spheroid such
that the frangible projectile is a generally spheroid frangible
projectile.

4. The system of claim [1] 3 wherein the rigid frangible
shell [further comprises at least one structurally weakening
feature] is configured to rupture upon impact where the
omnidirectional dispersion of the powdered inhibiting
substance into the cloud results from the rupturing of the rigid
frangible shell so that the cloud has a length that is greater than
a size of an adult human head within a time of a human target
reflexively reacting to being impacted by the frangible
projectile.
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23. The system of claim 1, wherein the frangible
projectile is launched independent of one or more other
projectiles such that only the frangible projectile is launched at
a time targeted at the target.
(Claims App’x, Br. 331, 332, 335.)

The Examiner relied upon the following as evidence of
unpatentability (Examiner’s Answer mailed October 1, 2009, hereinafter
“Ans.,” 3-4):
Fogelgren 3,921,614 Nov. 25, 1975
Flatau 3,951,070 Apr. 20, 1976
Honigsbaum 4,976,202 Dec. 11, 1990
Grinberg 5,009,164 Apr. 23, 1991
Smith 5,018,450 May 28, 1991
Luxton 5,035,183 July 30, 1991
Kotsiopoulos 5,254,379 Oct. 19, 1993
[Kotsiopoulos ‘379]
Carbone 5,361,700 Nov. 8, 1994
Kotsiopoulos 5,639,526 June 17, 1997
[Kotsiopoulos ‘526]
Fedida 5,821,450 Oct. 13, 1998
Vasel 5,965,839 Oct. 12, 1999

Admitted Prior Art, Response to January Office Action, filed in prosecution
of U.S. Patent 5,965,830, a parent application to the ‘962 Patent.

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PACHYDERM, No. 20, 1995, including the article Osborn, F.V. and L.E.L.
Rasmussen, Evidence for the Effectiveness of an Oleo-Resin Capsicum
Aerosol as a Repellent against Wild Elephants in Zimbabwe.

PACHYDERM, No. 21, 1996.

PACHYDERM, No. 20, 1995.

Appellant relied on certain parts of the following (Br. 337-338):
Ex. 9.1: Decl. of Eric P. Wenaas dated December 8, 2008.
Ex. 9.2: Decl. of Edward J. Vasel (hereinafter Vasel2
Declaration) dated December 8, 2008.
Ex. 9.3: Decl. of Craig L. Beery dated July 14, 2001.
Ex. 9.4: Decl. of Roger E. Behrendt dated July 17, 2001.
Ex. 9.5: Decl. of Charlie Campe dated July 15, 2001.
Ex. 9.6: Decl. of Charles S. Heal dated June 19, 1998.
Ex. 9.7: Decl. of Charles N. Mills dated July 16, 2001.
Ex. 9.8: Decl. of Edward J. Vasel (hereinafter the Vasel1
Declaration), dated July 17, 2001.
Ex. 9.9: Decl. of Michael R. Wagg dated July 17, 2001.
Ex. 9.10: Exhibit A: Collection of magazine/journal articles.
Ex. 9.11: Exhibit B: Collection of newspaper articles.
Ex. 9.12: Exhibit C: Excerpt of Testimony given by Dr. Paul
Freedenberg to the Senate Banking Committee dated February 7, 2001.

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The Examiner rejected claims 1-28 as follows:
I. Claims 4, 26, and 28 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement;
II. Claims 23-25 under 35 U.S.C. § 112, second paragraph, as
being indefinite;
III. Claims 1, 3-8, 10-21, and 26-28 under 35 U.S.C. § 102(b) as
anticipated by Honigsbaum;
IV. Claims 1, 3-8, 10-21, and 26-28 under 35 U.S.C. § 103(a) as
unpatentable over Honigsbaum in view of APA;
V. Claims 1-4, 6, 7, 9-11, 13-21, 26, and 28 under 35 U.S.C. §
103(a) as unpatentable over Flatau in view of Fedida or APA,
as evidenced by Osborn;
VI. Claims 5 and 12, under 35 U.S.C. § 103(a) as unpatentable over
Flatau in view of Fedida or APA, further in view of Grinberg;
VII. Claims 1-28 under 35 U.S.C. § 103(a) as unpatentable over
Luxton in view of Fedida or APA, as further evidenced by
Osborn; and
VIII. Claims 1-28 under 35 U.S.C. § 103(a) as unpatentable over
Kotsiopoulos in view of Fedida, with further evidence by
Carbone, Flatau.

35 U.S.C. § 112, First Paragraph Rejection
The Examiner found that claims 4, 26, and 28 fail to comply with the
written description requirement because there is no support in the
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Specification for relating the length of the dispersion cloud to human
reaction time. (Ans. 4-5.)
Appellant contends that support for the claim limitations can be found
in Figures 25-27 and column 26, lines 46-51. (Br. 20-23, fn. 16.) Appellant
also argues that the reaction time between individuals is consistent, such that
one skilled in the art would fully understand the metes and bounds of the
claims. (Br. 21.)
Thus, a first issue on appeal is: does the ‘960 Patent convey, with
reasonable clarity, to those skilled in the art that as of the filing date, that
Appellant was in possession of the relationship between the size of the cloud
of the radially dispersed powdered inhibiting substance and the reflex time
of a human target?

FINDINGS OF FACT (“FF”)
1. Figures 25-27 from the ‘960 Patent are reproduced below:

Figures 25-27 represent a sequence of profile views of a target 5000,
which is impacted by a projectile system 600 (fig. 25). Upon impact, the
projectile system 600 ruptures, dispersing the contents 5004 in a radial,
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cloud-like manner (fig. 26) causing the target’s head to be surrounded by
the dispersing cloud (fig. 27). (Col. 26, ll. 40-61.)
2. The ‘960 Patent states:
[a]bout simultaneously with dispersal of the contents 5004 of
the capsule, the target 5000 begins to hunch towards the point
of impact of the capsule on his/her body . . . [and] such
movement is a natural reaction for people when they are hit by
something with such force. Within a matter of seconds, and as
illustrated in FIG. 27, the target’s head 5002 is essentially
surrounded by the dispersing cloud of inhibiting and/or marking
substance 5004.
(Col. 26, ll. 49-61.)
3. The ‘960 Patent states that in testing the projectile system
utilizing a wall above a stall in which a target is hiding, “the
individual could not escape the effects of the inhibiting
substance and was well incapacitated thereby.” (Col. 29, ll. 24-
26.)

PRINCIPLES OF LAW
35 U.S.C. § 112, first paragraph states that “[t]he specification shall
contain a written description of the invention.”
In order to satisfy the written description requirement, the
disclosure as originally filed does not have to provide in haec
verba support for the claimed subject matter at issue. See
Fujikawa v. Wattanasin, 93 F.3d 1559, 1570, 39 USPQ2d 1895,
1904 (Fed. Cir. 1996). Nonetheless, the disclosure must …
convey with reasonable clarity to those skilled in the art that …
[the inventor] was in possession of the invention. Vas-Cath
Inc. v. Mahurkar, 935 F.2d 1555, 1563-64, 19 USPQ2d 1111,
1117 (Fed. Cir. 1991). Put another way, one skilled in the art,
reading the original disclosure, must immediately discern the
limitation at issue in the claims. Waldemar Link GmbH & Co.
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v. Osteonics Corp., 32 F.3d 556, 558, 31 UPSQ2d 1855, 1857
(Fed. Cir. 1994). That inquiry is a factual one and must be
assessed on a case-by-case basis. See Vas-Cath, 935 F.2d at
1561, 19 USPQ2d at 1116.

Purdue Pharm. L.P. v. Faulding, Inc., 230 F.3d 1320, 1323-24 (Fed. Cir.
2000).

ANALYSIS
Initially, we note that claims 4 and 26 relate only to the size of the
cloud with respect to a human target reflex reaction time. Claims 4 and 26
do not require the cloud to be in contact with any particular part of a human
target. In contrast, claim 28 requires the cloud to contact a human target’s
face. Nevertheless, we agree with the Examiner that the ‘960 Patent, while
supporting that the cloud dispersion occurs in a matter of seconds, does not
reasonably convey that Appellant was in possession of the relationship
between the cloud dispersion size and the reflex reaction time of a human
target. (Ans. 19.)
Specifically, Figures 25-27, and the corresponding description thereof,
describe impact of a projectile and rupture where the target hunches toward
the point of impact “about simultaneously” with the dispersal of the
contents. (FF 1-2.) While Figures 26 and 27 depict cloud-like dispersions
5004 of the projectile contents, it is unclear from the drawings whether the
cloud is of the recited sizes in a time frame that corresponds to the reflex
reaction recited in the claim. That is, it cannot be discerned from Figures 25
and 26 and the description thereof whether the reflex reaction of the target
occurs prior to the cloud reaching the recited sizes.
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Appellant additionally contends that Figures 25-27 and the
corresponding description thereof provide support for the recited
relationship because the reflexive reaction time reacting to impact from a
projectile “is consistent between individuals.” (Br. 21-22.) Yet, Appellant
has not presented any evidence as to what such reflexive reaction times
correspond to in units of absolute time. Therefore, we are not persuaded that
the ‘960 Patent provides support for the general relationship between reflex
reaction time and cloud size recited in the claims.
Moreover, Appellant’s reliance on the testing disclosed in the ‘960
Patent for support is misplaced. The testing was conducted in a bathroom
stall where the individual was hiding and where the projectile was fired at
the wall above the stall. (FF 3.) Thus, that an individual could not escape
the effects of the inhibiting substance in such a confined space is not
sufficient to show that Appellant was in possession of the relationship
between cloud size and reflexive reaction time recited in the claims.

35 U.S.C. § 112, Second Paragraph Rejection
The Examiner determined that claims 23-25 are indefinite because the
claims do not recite sufficient structure to support the claimed methodology.
(Ans. 5.)
Appellant contends that the functional language recited in claims 23-
25 defines the structure of the projectile, and distinguishes the claimed
system over prior art systems that require launching with multiple
projectiles. (Br. 33-35.)
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Thus, a second issue on appeal is: does the functional language
“wherein the frangible projectile is launched independent of one or more
other projectiles” limit the structure of the projectile with a reasonable
degree of clarity and particularity such that one skilled in the art would fully
appreciate and understand the metes and bounds of claim 23?

PRINCIPLES OF LAW
The test for definiteness under 35 U.S.C. §112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted).
“[T]here is no support . . . for the proposition, put forward here, that
‘functional’ language, in and of itself, renders a claim improper.” In re
Swinehart, 439 F.2d 210, 213 (CCPA 1971).

ANALYSIS
The Examiner’s rejection of claims 23-25 reads in its entirety
“[c]laims 23-25 are indefinite in that they lack structure to support the
claimed methodology. These limitations are better suited to method of use
claims.” (Ans. 5.)
While we agree with the Examiner that the recited limitations may be
“better suited” for method claims, we agree with Appellant that claims 23-25
are not purely functional, but impart structure to the projectile system to
where the projectile is readily launched individually. (Br. 33-34.) As stated
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by Appellant, such structure “must be sufficiently strong to allow individual
loading and launched individually as claimed, while still being frangible so
as to rupture upon impact with a target to omnidirectionally disperse.” (Br.
33-35.) The Examiner’s rejection does not discuss why the recited
limitations fail to define the structure of the projectile such that one of
ordinary skill in the art would not understand what is claimed in light of the
Specification. Accordingly, we do not sustain the Examiner’s rejection of
claims 23-25.

35 U.S.C. §§ 102, 103 Rejections
Rejections based on Honigsbaum and Luxton (Rejections III, IV,
and VII)
Independent claims 1, 8, and 17 on appeal recite that “an ignitable
substance is not used in launching the frangible projectile” and that “the
rigid frangible shell ruptures, omnidirectionally dispersing the powdered
inhibiting substance proximate to the target into a cloud.” Regarding these
limitations, the Examiner found that Honigsbaum’s capsules would be
inherently capable of being launched in the manner claimed because the
capsules must withstand an initial impact of a grenade explosion. (Ans. 23-
24.) The Examiner also stated:
As to the combination with admitted prior art Kotsiopoulos, it is
argued that the [sic] Kotisopoulos is not capable of, nor capable
of being modified to allow the Honigsbaum capsules to break.
The Examiner disagrees because it is not technically
impossible. Furthermore, it certainly would have been within
the scope of routine experimentation to those having ordinary
skill in the art at the time of the invention to have altered the
shell thickness when launching with different velocity
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launching mechanisms in order to ensure breakage upon impact
at a given velocity.
(Ans. 30.)
With respect to Luxton, the Examiner stated that launching the
projectile where an ignitable substance is not used “has no bearing on the
structure of the projectile set forth in the system . . . [because] in order to
meet this limitation, the Luxton projectile only need be capable of being
launched without an ignitable substance.” (Ans. 40.) The Examiner also
stated that “there is nothing to prevent launch from an equivalent force from
a non-ignitable launch mechanism. Such modification is certainly
technically feasible which renders the Luxton projectile capable of the
claimed intended use.” (Ans. 42.) The Examiner further stated: “[w]ithin
the art: frangible projectiles were known, compressed launchers for
launching them were known . . . . The resultant combination yielding the
claimed invention as established would not have been non-obvious as argued
despite the particular launch or projectile requirements of Luxton alone.”
(Ans. 42-43.)
Appellant contends that Honigsbaum teaches away from and does not
enable projectiles launched without an ignitable substance and that rupture
upon impact with a target. (Br. 44, 46, 49, 71-72.)
Appellant contends that Luxton does not disclose all of the limitations
of the recited system, and instead teaches away from a frangible projectile
that ruptures when launched without an ignitable substance to
omnidirectionally disperse the powdered inhibiting substance, as claimed.
(Br. 208.) Specifically, Appellant argues that Luxton discloses projectiles
that are fired from standard firearms, and hence does not suggest a projectile
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that is launched without the use of an ignitable substance. (Br. 209-210.)
Appellant further argues that the Examiner has not sufficiently supported the
position that Luxton’s projectiles are “capable of” being launched without an
ignitable substance while also being capable of rupturing on impact as
recited in the claims. (Br. 218.)
Accordingly a third issue on appeal is:
Did the Examiner err in determining that Honigsbaum’s and Luxton’s
projectiles would be inherently capable of launching without an ignitable
substance and rupturing upon impact with a target radially dispersing the
powdered inhibiting substance proximate to the target in a cloud?

FINDINGS OF FACT (“FF”)
4. Honigsbaum discloses grenades with igniters and propelling
charges comprising frangible spheroid capsules including
irritants. (Col. 1, ll. 59-68; col. 3, ll. 53-63; col. 6, ll. 17-30.)
5. Luxton discloses “a new form of nonlethal projectile and
cartridge casing, adapted for use in firearms.” (Col. 1, ll. 5-9;
col. 4, ll. 1-3.)
6. Luxton discloses that problems for producing frangible
projectiles for real firearms include providing a projectile with
“sufficient strength to withstand the stress of feeding and firing
in a firearm yet frangible enough to break upon impact even
upon an unrigid surface.” (Col. 1, ll. 18-27.)
7. Inventors Edward Vasel and Eric P. Wenaas declared:
I have performed, oversaw others and directed others to
test launch numerous balls with varying thicknesses
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using the primer from a shotgun shell - which has
scientifically less energy than the black powder
envisioned in the Honigsbaum patent. These tests have
repeatedly demonstrated that even two balls will not
survive an explosive launch from a barrel with a primer -
the minimum energy possible in a detonation . . . .
Further testing was performed in attempts to try and
make the shell survive the primer launch by using
wadding and sabots to cushion the projectiles as
suggested in the Honigsbaum patent without avail.
Based on these extensive tests it has definitively been
concluded that for projectiles that are thin enough to
break when impacting an individual at a kinetic energy of
less than 25 ft-lbs (e.g., 400 ft/sec with 3 gram projectiles
a minimum mass for sufficient powder effect), an
explosive launch of two or more projectiles to velocities
greater than 250 ft/sec (the minimum velocity for the
specific projectiles selected to break against clothing) is
not possible even with cushioning positioned about the
projectiles at the time of launch.
(Vasel2 Decl., ¶ 10; Wenaas Decl., ¶ 10.)

8. Inventor Edward Vasel and Eric P. Wenaas declared that a
standard paintball gun, such as those disclosed in Kotsiopoulos
‘379 operates at a maximum pressure of approximately 850 psi,
while a standard shotgun shell generates a launch pressure of
8000 psi. (Vasel2 Decl., ¶ 11D; Wenaas Decl., ¶ 11D.)

PRINCIPLES OF LAW
“[W]hen the PTO shows sound basis for believing that the products of
the applicant and the prior art are the same, the applicant has the burden of
showing that they are not.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990)
(citing In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986); In re Ludtke, 441
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F.2d 660, 664 (CCPA 1971)). “‘[T]he PTO can require an applicant to
prove that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product . . . . Whether the rejection is based on
‘inherency’ under 35 U.S.C. 102, on ‘prima facie obviousness’ under 35
U.S.C. 103, jointly or alternatively, the burden of proof is the same . . .
[footnote omitted].’” In re Fitzgerald, 619 F.2d 67, 70 (CCPA 1980)
(quoting In re Best, 562 F.2d 1252, 1255 (CCPA 1977)).
The Examiner “bears the initial burden, on review of prior art or on
any other ground, of presenting a prima facie case of unpatentability.” In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR Int’l. Co. v. Teleflex,
Inc., 550 U.S. 398, 416 (2007). The Supreme Court further explained,
“[w]hen a work is available in one field of endeavor, design incentives and
other market forces can prompt variations of it, either in the same field or a
different one. If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability.” Id. at 417. However, the Court
went on to state, “a patent composed of several elements is not proved
obvious merely by demonstrating that each of its elements was,
independently, known in the prior art.” Id. at 418. The Court further
explained that “[a]lthough common sense directs one to look with care at a
patent application that claims as innovation the combination of two known
devices according to their established functions, it can be important to
identify a reason that would have prompted a person of ordinary skill in the
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relevant field to combine the elements in the way the claimed new invention
does.” Id.

ANALYSIS
We agree with Appellant that the Examiner has not provided
sufficient support for the proposition that “it is technically feasible to
generate enough force with a compressed air launching mechanism to effect
rupture of the projectiles on impact.” (Ans. 30; 42.) Appellant has provided
declaration evidence to support the position that frangible projectiles used in
conventional firearms, such as in Honigsbaum, require a thicker shell to
survive launch with an ignitable substance. (FF 7.) In addition, Appellant
has provided evidence that projectiles having the required thicknesses
disclosed for launching would not rupture when fired from a standard gas
launcher, such as those described in Kotsiopoulos, based on the differences
in launch pressure between a standard paintball gun and a standard shotgun
shell. (FF 8.) Similar analysis applies to the Examiner's rejection based on
Luxton.
Accordingly, the Examiner has not provided sufficient basis for the
proposition that Honigsbaum’s or Luxton’s projectiles would be capable of
both being launched without the use of an ignitable substance and also
rupturing upon impact with the target as required by the claims. In addition,
the Examiner does not set forth any sufficient rationale as to how the
secondary references remedy the deficiencies in Honigsbaum or Luxton.
Although the Examiner states in the rejection, based on Luxton, that each of
the recited elements is independently known in the art, the Examiner does
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not provide sufficient reasoning to explain why the independent teachings of
the prior art would have been combined in the manner disclosed by
Appellant. KSR, 550 U.S. at 418. Therefore, we do not sustain the
Examiner’s rejections of the claims using Honigsbaum or Luxton as the base
reference.

Rejections based on Flatau (Rejections V and VI)
In addition to the requirements discussed above, independent claims
1, 8, and 17 on appeal also require that the frangible projectile be launched
“without an intermediary.” The Examiner acknowledges that Flatau requires
the use of either a traditional sabot or a “captured sabot” intermediary, where
when a captured sabot is used, it is retained by the launcher and does not
leave the barrel of the firearm. (Ans. 33-34.) The Examiner stated that any
compression in the barrel would directly affect the projectile, which is
inherently capable of launch without an intermediary, if the projectile were
oriented orthogonal to the way it is used in Flatau. (Ans. 33-34.)
Appellant contends that the combination of Flatau, Fedida or APA, as
evidenced by PACHYDERM, No. 20, 1995 (Osborn), does not disclose all
of the limitations of the claims. (Br. 127.) Specifically, Appellant argues
that the combination requires the use of an intermediary to transfer the
propulsion force to the airfoil ring, and therefore teaches away from the
recited system. (Br. 127-128.) In addition, Appellant contends that Flatau
requires the use of an ignitable substance to launch the ring airfoil, and that
gas launchers would be ineffective to launch Flatau’s ring airfoil as they
would not be able to impart the necessary spin or velocity needed to achieve
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the specified launch distances and cause rupture of the ring airfoil upon
contact with the target. (Br. 129-131.)
Thus, a further issue on appeal is:
Did the Examiner err in determining that Flatau’s ring airfoil is
inherently capable of being launched without an intermediary or that
replacing Flatau’s ring airfoil with a spheroid projectile would have been
obvious to one of ordinary skill in the art?

FINDINGS OF FACT (“FF”)
9. Flatau discloses a non-lethal ring airfoil projectile for use in
pacifying or dispersing unruly persons. (Col. 1, ll. 12-15.)
10. Flatau discloses:
It may be noted that mechanical launch means such as a
rifle and adapter 7 (FIG. 2) are capable of imparting spin
in excess of 2,000 rpms, normally 4,000-6,000 rpms.
Spin stressing the wing wall offers several safety
features. The ring wing material can be made strong
enough for safe handling, even mishandling without
rupture. Also, in the event any ring airfoil projectile does
land without rupture and payload release and is then
hurled back by a rioter, it will not normally rupture or
fragment upon impact (for lack of prestressing through
spin).
(Col. 3, ll. 33-46.)
11. Flatau discloses a sabot, which is used in launching the ring
airfoil and separates from the ring airfoil in flight, or a captured
sabot that is retained by the launcher during launch of the ring
airfoil. (Col. 6, ll. 24-40; Figs. 3 and 8.)
12. Flatau discloses:
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The smooth low drag airfoil shaping minimizes velocity
decay and spin decay of the projectile in flight
conserving the launch-imparted kinetic energy and
centrifugal forces . . . . The high tangential velocity of the
individual payload particles (due to the high spin rate of
the projectile) disperses the payload into a cloud in the
target area upon release from the ruptured projectile.
(Col. 6, l. 50 – col. 7, l. 1.)
13. Flatau discloses:
The low drag, flat trajectory due to lift, and
accuracy of the ring airfoil projectile enables it to be
aimed and fired at a point target from a distance so that
only that amount of payload needed to expose a point
target to the effects of the payload agent need be
delivered thereto. This eliminates the necessity to
contaminate a large area in order to assure that a point
target is exposed to the payload agent. For example, the
ring airfoil projectile can be fired into a window from
about 100 meters or to hit a specific individual at 30-50
meters.
(Col. 7, ll. 2-12.)

PRINCIPLES OF LAW
Combinations of references that render a prior art device inoperable,
or that fundamentally change the manner of operation of the device, have not
previously supported a finding of obviousness. See In re Ratti, 270 F.2d
810, 813 (CCPA 1959) (“This suggested combination of references would
require a substantial reconstruction and redesign of the elements shown [in
the prior art] as well as a change in the basic principles under which [the
prior art] construction was designed to operate.”); In re Gordon, 733 F.2d
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900, 902 (Fed. Cir. 1984) (“the [prior art] apparatus … would be rendered
inoperable for its intended purpose.”).

ANALYSIS
Flatau’s invention is directed to non-lethal ring airfoil projectiles. (FF
9.) Flatau discloses the benefits of the ring airfoil achieved as a result of the
projectile shape and spin imparted by the launch mechanism, which includes
the use of a sabot, an intermediary. (FF 11.) Thus, Flatau does not disclose
that the ring airfoil is capable of being launched without an intermediary, as
claimed. We also agree with Appellant that the Examiner has failed to
provide a sufficient basis for concluding that if oriented orthogonally,
Flatau’s projectile is capable of being launched without an intermediary and
still provide the required spin and trajectory needed for the ring airfoil to
perform its intended function. (Br. 128-129.) Flatau’s ring airfoil was
designed to be launched in a specific manner and orientation to fulfill its
intended purpose. (FF 10-13.) There is no basis in this record to support the
Examiner’s position that when the orientation of the ring airfoil is changed,
it would still be capable of the flight and spin necessary to rupture upon
impact with a target, as intended.
In addition, the Examiner’s proposed modification of Flatau’s ring
airfoil to form spherical projectiles, because spherical projectiles are known,
fails to consider the effects of such modification on the launch of the
projectiles as related to Flatau’s disclosed benefits obtained therefrom. In
other words, by employing spherical projectiles instead of the ring airfoil
disclosed by Flatau, one of ordinary skill in the art would completely change
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the mode of operation of Flatau’s invention and would require substantial
redesign of Flatau’s invention to achieve the intended benefits. The
Examiner fails to identify a sufficient reason, other than with the benefit of
hindsight, to make the suggested modifications to Flatau. Therefore, we
cannot sustain the Examiner’s rejections of the claims using Flatau as the
base reference.

Rejection based on Kotsiopoulos ‘526 (Rejection VIII)
The Examiner found that Kotsiopoulos ‘526 discloses spheroid paint
ball projectiles launched from conventional gas paint ball guns for police
and military use, but that Kotsiopoulos ‘526 does not disclose the
nonivamide irritant. (Ans. 15.) The Examiner relies on Fedida, Carbone,
and Flatau to provide evidence that powdered pepper-based irritants were
well-known as payloads for non-lethal projectiles. (Ans. 15-16.) The
Examiner concluded that it would have been obvious to have substituted any
known pepper-based irritant for the irritant disclosed in Kotsiopoulos ‘526
“as a mere substitution of known functional equivalents, or alternatively in
order to incorporate the desired benefit of negligible persistence in clothing
so that police personal or other users of the weapon are not affected by the
irritant as taught by Fedida.” (Ans. 16.)
Appellant contends that neither Kotsiopoulos ‘526 nor Fedida
discloses how to incorporate powder into a spherical paint ball, and the
Appellant has presented Declaration evidence that demonstrates the
difficulties of such procedures. (Br. 258-259, 261-262.) Appellant argues
that one of ordinary skill in the art would have no expectation of success of
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the recited dispersion characteristics, but instead would have expected the
individual payload particles would clump and impact as a solid or
substantially without dispersion. (Br. 268.) Appellant also contends that the
Examiner does not adequately support the finding that the dispersion cloud
of claim 4 would inherently result. (Br. 275-276.)
Thus, an additional issue in this appeal is:
Did the Examiner err in concluding that a person of ordinary skill in
the art in view of Fedida, Carbone, and Flatau, would have found it obvious
to have incorporated powdered irritants into the spherical projectiles of
Kotsiopoulos ‘526?

FINDINGS OF FACT (“FF”)
14. Kotsiopoulos ‘526 describes an improved paint ball shell that
“readily fractures upon striking a victim with a greatly
decreased risk of physical harm to the victim.” (Col. 2, ll. 56-
59.)
15. Kotsiopoulos ‘526 discloses a paint ball shell comprised of a
thermoplastic linear polymer such as polystyrene. (Col. 3, ll. 6-
8.)
16. Kotsiopoulos ‘526 discloses that the paint ball shell “may be fill
[sic, filled] with other suitable components such as tear gas.”
(Col. 7, ll. 3-5.)
17. Fedida discloses irritant compositions including at least one
capsaicinoid, such as capsaicin. (Col. 3, ll. 7-10.)
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18. Fedida discloses that the composition may be provided as a
granulated powder, where “the advantage of using a powder
resides in the fact that when projected, the powder particles can
cover a large surface or volume in which the target persons or
animals are to be found.” (Col. 4, ll. 32-43.)
19. Fedida discloses that the granulated powder is encapsulated in
microspheres or capsules, “which can act as a charge for a
munition such as a grenade.” (Col. 4, ll. 59-61.)

PRINCIPLES OF LAW
In considering the question of obviousness, we are guided by the basic
principle that the question under 35 U.S.C. § 103 is not merely what the
references expressly teach, but what they would have suggested to one of
ordinary skill in the art at the time of the invention. See Merck & Co., Inc. v.
Biocraft Labs., Inc., 874 F.2d 804, 807-08 (Fed. Cir. 1989); In re Keller, 642
F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not . . . that the
claimed invention must be expressly suggested in any one or all of the
references.”). “For obviousness under § 103, all that is required is a
reasonable expectation of success.” In re O’Farrell, 853 F.2d 894, 903-04
(Fed. Cir. 1988) (citations omitted). “Under §103 . . . a reference need not
be enabled; it qualifies as prior art, regardless, for whatever is disclosed
therein.” Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1357
(Fed. Cir. 2003).
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The Board has “broad discretion as to the weight to give declarations
offered in the course of prosecution.” In re Am. Acad. of Sci. Tech. Center,
367 F.3d 1359, 1368 (Fed. Cir. 2004).

ANALYSIS
Appellant presents separate arguments for claims 1, 4, 8, 17, 26, and
28. However, Appellant’s arguments with respect to claims 4, 17, 26, and
28 are similar to arguments made for claims 1 and 8. Accordingly, we select
claim 1 as representative of Appellant’s arguments and make reference to
the other separately argued claims where appropriate, pursuant to 37 C.F.R.
§ 41.37(c)(1)(vii).
Upon careful review of Appellant’s arguments as well as the evidence
of record, we are unpersuaded that one of ordinary skill in the art would not
have been able to incorporate powdered irritants into the spherical
projectiles disclosed in Kotsiopoulos ‘526. As explained by the Examiner
and evidenced by at least Fedida, incorporation of powdered irritants into
spherical projectiles was known in the art. (Ans. 45-46; FF 18-19.)
Contrary to Appellant’s arguments (Br. 259), Fedida is not limited to use of
powder-filled capsules in grenades, but only lists grenades as an example of
a “munition.” (FF 19.) Therefore, Appellant’s argument is not persuasive.
Appellant’s arguments that the Wenaas and Vasel2 declarations
provide evidence that incorporation of powdered irritants into a generally
spheroid projectile “is not a trivial task” and that “months of undue
experimentation would be required” are not persuasive. (Br. 259.) The
Examiner acknowledges that filling spherical projectiles with a powder
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would have been more than a trivial task, but concluded that such a task
would have been performed by one of ordinary skill in the art with routine
experimentation. (See Ans. 45.) We agree with the Examiner's conclusion.
In addition, we agree with the Examiner that concerns, such as spilling of the
fill powder, the balance of the filled projectile, and the effect of the fill
material on launch and impact identified in the Wenaas and Vasel2
declarations would have involved engineering design issues known to one of
ordinary skill in the art. (Ans. 45.)
Regarding claims 4, 26, and 28, Fedida provides evidence that the
recited dispersion characteristics would have been inherent to the use of the
powder in the spherical projectile. (FF 18.) Indeed, Fedida discloses that
the benefit to using powder is the large surface or volume that is covered
when the powder particles are projected. (FF 18.) Thus, Appellant’s
argument that the dispersion characteristics recited in the claims are not
necessarily achieved is not persuasive. (Br. 275-277.) Accordingly,
Appellant has not sufficiently identified error in the Examiner’s reasoning.

Secondary Considerations
Appellant contends that the system recited in the claims has achieved
commercial success and fulfilled long-felt but unsolved needs, which
demonstrate that the recited system would not have been obvious over the
prior art of record. (Br. 280-281.)

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Long-Felt Need
Appellant argues that a long-felt need existed “for a non-lethal device
that is easy to use, that is easy to clean up, that minimizes the chance of
cross contaminations, and that can be used at different ranges without
effecting [sic] the accuracy and/or effectiveness of the device.” (Br. 283.)
As evidence of long-felt need, Appellant relies on the Mills, Wagg, Heal,
Beery and Campe declarations, as well as certain magazine, journal, and
newspaper articles. (Br. 283.) Appellant contends that the declarations
establish the aforementioned needs existed “for a long time in the law
enforcement field and numerous efforts were made for arriving at a product
that would address the need.” (Br. 284-285.) Appellant also argues that
TaserTM devices, chemical sprays, tear gas, beanbag shotgun, and
37mm/40mm kinetic projectile rounds did not satisfy the above needs. (Br.
285-288.) Appellant contends that the discussed needs are fulfilled due to
the advantages provided by the claimed invention. (Br. 291-295.)

Commercial Success
Appellant contends that the Wagg, Campe, Heal, Mills, Beery,
Behrendt, Vasel1, Vasel2, and Wenaas declarations provide evidence that
the recited system has achieved commercial success and that there is a direct
nexus between the claimed features of the system and the commercial
success. (Br. 303-304; 308-313.) Appellant further argues that the
commercial success is not due to extensive advertising or marketing efforts.
(Br. 314-321.) Appellant provides sales figures of PepperBall® products,
said to be embodiments of the recited system as well as sales figures of
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competitors as evidence of commercial success. (Br. 321-324.) Appellant
argues that there is a direct nexus between the commercial success and the
recited projectile “because the claimed projectile provides a significant
advantage to customers because it contains a powdered inhibiting substance
that is omnidirectionally dispersed into a cloud.” (Br. 327.)
Accordingly, an additional issue on appeal is:
Is the Appellant’s evidence of secondary considerations, particularly
Appellant’s evidence of long-felt need and commercial success, persuasive
to establish non-obviousness?

FINDINGS OF FACT (“FF”)
20. Flatau discloses that “the principal object of the present
invention is to provide a projectile containing a riot control
payload which will not cause lethal injury upon impact with the
human body due to kinetic energy even at the point blank
range.” (Col. 2, ll. 1-5.).
21. Flatau discloses that “[a]nother object of the present invention
is to provide a projectile containing a mob control payload,
capable of being launched accurately from a distance.” (Col. 2,
ll. 6-8.)
22. Fedida discloses that prior art gas incapacitating compositions
“impregnate and remain in the clothing of the target person or
the localities in which they are used. This causes problems to
police forces when a person is interviewed after such a gas has
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been used, since the police themselves may be inconvenienced
by the residual substance.” (Col. 1, ll. 8-24.)
23. Fedida discloses that the composition of the invention “is free
of secondary effects on persons exposed thereto, and which has
negligible persistence in clothing or in the environment.” (Col.
1, ll. 51-54.)
24. Inventor Edward Vasel and Eric P. Wenaas declared that the
Flatau ring foil did not provide a truly non-lethal weapon, target
to a specific individual that ensures minimal cross
contamination, is mainly limited to a specific suspect, and
cannot be loaded or launched quickly. (Vasel2 Decl., ¶ 70;
Wenaas Decl., ¶ 70.)
25. Roger E. Behrendt declared that he was the President and Chief
Executive Officer of Jaycor Tactical Systems, Inc. [the previous
assignee of the ‘960 Patent]. (Behrendt Decl., ¶ 1.)
26. Mr. Behrendt declared that he oversees product development,
sales and marketing of the PepperBall® system. (Behrendt
Decl., ¶ 3.)
27. The Behrendt Declaration states that the “red” projectiles sold
as part of the PepperBall® system “are the live inhibiting
rounds that contain powdered OC [oleoresin capsicum] (in
some versions, the red projectiles contain powdered capsaicin-
the active ingredient within OC) . . . [and] equate to about
$567,227 in sales for a total of about 27% of the gross sales
from August 2000 to May 2001.” (Behrendt Decl., ¶ 5.)
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28. The Behrendt Declaration states that the PepperBall® product
has been sold to “approximately 500 out of 35,000 law
enforcement agencies nationwide of about 1.4% of all the law
enforcement agencies in the United States” and that
“[c]ompeting products include OC aerosol spray canisters,
tasers, bean bag shotgun rounds and 37mm/40mm projectile
launchers that launch kinetic or chemical rounds. It is
estimated that tasers are also used in about 1% of the agencies.
We estimate that bean bag shotgun rounds and OC spray
canisters are each used in over 50% of the agencies
nationwide.” (Behrendt Decl., ¶ 7.)
29. Charlie Campe, a Sergeant with the San Diego Sheriff’s
Department declared “I can not state that the Pepperball product
would be non-lethal in all possible uses, but with proper usage
the Pepperball product appears non-lethal.” (Campe Decl., ¶ 1,
20.)

PRINCIPLES OF LAW
Once a prima facie case of obviousness has been established,
objective evidence of secondary considerations must be considered in
making an obviousness decision. See Stratoflex, Inc. v. Aeroquip Corp., 713
F.2d 1530, 1538-39 (Fed. Cir. 1983). Any initial obviousness determination
is reconsidered anew in view of the proffered evidence of nonobviousness.
See In re Rinehart, 531 F.2d 1048, 1052 (CCPA 1976); In re Eli Lilly & Co.,
902 F.2d 943, 945 (Fed. Cir. 1990); Ex Parte Quist, App. No. 2008-001183,
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at 10-11 (BPAI June 2, 2010) (Precedential) (available at
http://www.uspto.gov/ip/boards/bpai/decisions/prec/fd08001183.pdf).
The ultimate determination of whether a claimed invention would
have been obvious or non-obvious is a legal conclusion, which is made
based on considering and weighing all of the facts in evidence. See In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
A “nexus” must be established between the merits of the claimed
invention and the evidence of secondary considerations in order for the
evidence to be given substantial weight. See In re GPAC, Inc., 57 F.3d
1573, 1580 (Fed. Cir. 1995). The scope of the “objective evidence of non-
obviousness must be commensurate in scope with the claims which the
evidence is offered to support.” In re Tiffin, 448 F.2d 791, 792 (CCPA
1971); see also In re Peterson, 315 F.3d 1325, 1329-31 (Fed. Cir. 2003).
The objective evidence is not commensurate in scope (coextensive)
with the claimed subject matter if the claims are unreasonably broader in
scope than the scope of the objective evidence, e.g., if the product included
elements or features not recited in the claims which may be responsible for
the commercial success or praise. See Joy Techs., Inc. v. Manbeck, 751 F.
Supp. 225, 229-30 (D.D.C. 1990), aff'd, 959 F.2d 226 (Fed. Cir. 1992).

Long-Felt Need
Establishing long-felt need requires objective evidence showing
existence of a persistent problem recognized by those of ordinary skill in the
art for which a solution was not known. In re Gershon, 372 F.2d 535, 539
(CCPA 1967). In addition, the long-felt need must not have been satisfied
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by another before the invention by applicant. Newell Co. v. Kenney Mfg.
Co., 864 F.2d 757, 768 (Fed. Cir. 1988). Hence, the appellant must present
affidavits or other factual evidence of “a failure of others to provide a
feasible solution to [a] long-standing problem” and evidence “that experts
did not foresee” the solution claimed. See In re Piasecki, 745 F.2d 1468,
1475 (Fed. Cir. 1984). Finally, the invention must satisfy the long-felt need.
In re Cavanagh, 436 F.2d 491, 496 (CCPA 1971).

Commercial Success
If evidence of commercial success is relied upon, the Appellant must
offer proof “that the sales were a direct result of the unique characteristics of
the claimed invention – as opposed to other economic and commercial
factors unrelated to the quality of the patented subject matter.” In re Huang,
100 F.3d 135, 140 (Fed. Cir. 1996). The evidence must also demonstrate
commercial success in the relevant market. See Id. In addition, there must
be a nexus between the commercial success and merits of the claimed
invention. Cable Electric Prods., Inc. v. Genmark, Inc., 770 F.2d 1015,
1026 (Fed. Cir. 1985).

ANALYSIS
Long-Felt Need
We have carefully reviewed the Mills, Wagg, Heal, Beery and Campe
declarations, as well as the magazine, journal, and newspaper articles
submitted by Appellant. Considering the evidence as a whole, we agree
with the Examiner that Appellant has failed to establish that the alleged
long-felt need has not been solved by others, as best evidenced by Flatau and
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Fedida. (Ans. 48-49.) Flatau discloses a non-lethal device that is easy to use
and that can be used at different ranges without affecting the accuracy and/or
effectiveness of the device. (FF 20.) Fedida provides evidence that use of
irritant powders in projectiles provides the benefits of easy clean up and
minimal chance of cross-contamination. (FF 22-23.) Thus, the prior art
already had provided solutions to the long-felt needs identified by Appellant.
Moreover, the statements made in the Vasel2 and Wenaas Declarations that
Flatau’s ring airfoil is not non-lethal and does not have the ability to target a
specific individual (Vasel2 Decl., ¶ 70; Wenaas Decl., ¶ 70) contradict the
express purposes disclosed by Flatau. Flatau expressly states that the ring
airfoil is non-lethal even when fired at the human body at point blank range.
(FF 20.) Flatau also expressly states that the ring airfoil projectile can hit a
specific individual at 30-50 meters. (FF 13.) The Vasel2 and Wenaas
Declarations provide no persuasive factual evidence to support the opinions
expressed therein. Likewise, the Vasel2 and Wenaas Declarations provide
no supporting factual evidence regarding the loading and launch times of the
Flatau projectile system as compared to the claimed projectile system.
Accordingly, Appellant’s evidence of long-felt need is not persuasive.

Commercial Success
We are also unpersuaded by Appellant’s evidence of commercial
success. Specifically, Appellant has not established the required nexus
between the commercial success and the claimed invention. The recited
projectile system requires that the inhibiting substance be powdered
nonivamide. Appellant relies on sales of the “red” projectiles for
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establishing a nexus between the commercial success and the claimed
invention. (FF 27.) However, the Behrendt Declaration states that the “red”
projectiles contain oleoresin capsicum or “in some versions, the red
projectiles contain powdered capsaicin.” (FF 27.) Thus, Appellant fails to
provide definitive evidence that all of the sales relied on to establish the
commercial success were of projectiles having the recited inhibiting
substance.
Further, we disagree with Appellant that the PepperBall® products
should be viewed as a separate market due to the non-lethal nature of the
recited projectiles. Indeed, Appellant has provided declaration evidence that
competing products include less-lethal products such as OC aerosol spray
canisters, tasers, bean bag shotgun rounds and 37mm/40mm projectile
launchers that launch kinetic or chemical rounds. (FF 28.) Appellant states
that in this market, the PepperBall® product has been sold to about 1.4% of
all the law enforcement agencies in the United States, where tasers are used
in about 1% of the agencies, and bean bag shotgun rounds and OC spray
canisters are each used in over 50% of the agencies nationwide. (FF 28.) In
addition, Appellant's presented evidence does not establish that the
PepperBall® products are non-lethal in all cases. (FF 29.) Thus,
Appellant’s market share evidence is not persuasive in establishing non-
obviousness.

CONCLUSION
On this record, Appellant has failed to demonstrate any error in the
Examiner’s factual findings and conclusions that:
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(1) the ‘960 Patent fails to convey, with reasonable clarity, to those
skilled in the art that as of the filing date, that Appellant was in possession of
the recited relationship between the size of the cloud of the
omnidirectionally-dispersed powdered inhibiting substance and the reflex
time of a human target in claims 4, 26, and 28;
(2) a person of ordinary skill in the art, in view of Fedida, Carbone,
and Flatau, would have found it obvious to have incorporated powdered
irritants into the spherical projectiles of Kotsiopoulos ‘526; and
(3) Appellant’s evidence of secondary considerations, particularly
Appellant’s evidence of long-felt need and commercial success, are not
persuasive to establish non-obviousness.
On the other hand, Appellant has demonstrated error in the
Examiner’s factual findings and conclusions that:
(1) the functional language “wherein the projectile is launched
independent of one or more other projectiles” does not limit the structure of
the projectile with a reasonable degree of clarity and particularity such that
one skilled in the art would not fully appreciate and understand the metes
and bounds of claim 23;
(2) Honigsbaum’s and Luxton’s projectiles would be inherently
capable of launching without an ignitable substance and rupturing upon
impact with a target omnidirectionally dispersing the powdered inhibiting
substance proximate to the target in a cloud; and
(3) Flatau’s ring airfoil is inherently capable of being launched
without an intermediary or that replacing Flatau’s ring airfoil with a spheroid
projectile would have been obvious to one of ordinary skill in the art.
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DECISION
We affirm the Examiner’s decision to reject claims 4, 26, and 28
under 35 U.S.C. §112, first paragraph.
We affirm the Examiner’s decision to reject claims 1-28 under 35
U.S.C. § 103(a) under 35 U.S.C. § 103(a) as unpatentable over Kotsiopoulos
in view of Fedida, with further evidence by Carbone, Flatau.

We reverse, however, the Examiner’s decision to reject:
claims 23-25 under 35 U.S.C. §112, second paragraph;
claims 1, 3-8, 10-21, and 26-28 under 35 U.S.C. §102(b);
claims 1, 3-8, 10-21, and 26-28 under 35 U.S.C. § 103(a) as
unpatentable over Honigsbaum in view of APA;
claims 1-4, 6, 7, 9-11, 13-21, 26, and 28 under 35 U.S.C. § 103(a) as
unpatentable over Flatau in view of Fedida or APA, as evidenced by Osborn;
claims 5 and 12, under 35 U.S.C. § 103(a) as unpatentable over Flatau
in view of Fedida or APA, further in view of Grinberg; and
claims 1-28 under 35 U.S.C. § 103(a) as unpatentable over Luxton in
view of Fedida or APA, as further evidenced by Osborn.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

bim
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FOR PATENT OWNER:
PEPPERBALL TECHNOLOGIES, INC.
6142 NANCY RIDGE DRIVE
SUITE 101
SAN DIEGO, CA 92121

FOR THIRD-PARTY REQUESTER:
JAMES A. PINTO, ESQ.
BROWNSTEIN HYATT FARBER SCHRECK, P.C.
410 SEVENTEENTH STREET
DENVER, CO 80202