Ex Parte 7,778,005 et al

Patent Trial and Appeal Board

Sep 6, 2013

95001622 (P.T.A.B. Sep. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
95/001,622 05/16/2011 7,778,005 101.01731 1295
20191 7590 09/09/2013
DAVID KIEWIT
5901 THIRD ST SOUTH
ST PETERSBURG, FL 33705
EXAMINER
NGUYEN, LINH M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
09/09/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
______________

TASER INTERNATIONAL, INC.,
Third Party Requester and Appellant

v.

KARBON ARMS, INC.,
Patent Owner and Respondent
______________

Appeal 2013-006630
Reexamination Control No. 95/001,622
United States Patent 7,778,005 B2
Technology Center 3900
______________

Before JOHN C. MARTIN, HOWARD B. BLANKENSHIP, and
BRUCE R. WINSOR, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL
Requester TASER International, Inc., (hereinafter “Requester”)
appeals under 35 U.S.C. §§ 134(c) and 315(b) from the Examiner’s
determination not to adopt any of the proposed rejections of the amended
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and new claims for U.S. Patent 7,778,005 B2, which issued on August 17,
2010, to Thomas Saliga.
1
Patent Owner and Respondent Karbon Arms, Inc.,
(hereinafter “Patent Owner”) is a party to this appeal pursuant to 35 U.S.C.
§ 315(a)(2).
We have jurisdiction under 35 U.S.C. §§ 6, 134, and 315.
We AFFIRM.

I. STATEMENT OF THE CASE
A. The Invention Described in the Saliga Patent
The invention described in U.S. Patent 7,778,005 B2 (hereinafter
“Saliga”) relates to electric disabling devices commonly referred to as stun-
guns, stun-batons, or the like for delivering an incapacitating, but less than
lethal, sequence of electric shocks to a person. Saliga 1:10-13.
Figure 1 of Saliga is reproduced below.

1
Based on Application 11/746,952, filed May 10, 2007.
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Figure 1 is schematic exploded view of a disabling device or stun-gun 10 in
accordance with Saliga’s invention. Id. at 3:38-39; 4:20-21. A preferred
embodiment of the invention includes projectile electrodes 18 and fixed 19
electrodes. Id. at 4:38-40. The projectile electrodes when fired will trail fine
wires 22 behind them to keep them electrically connected to a power
electronics portion 24 of the stun-gun. Id. at 4:26-32.
Figure 2 of Saliga is reproduced below.
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Figure 2 is a schematic of the power electronics portion 24 of an
embodiment of a stun-gun having only fixed electrodes 19 (i.e., having no
projectile electrodes 18). Id. at 4:47-49. Safety switch 13 when enabled
connects a battery pack 12 to a DC-DC supply 30 that charges a battery pack
34. Id. at 4:26-27; 5:4-5. The output voltage of DC-DC supply 30 can be,
for example, 100 volts DC. Id. at 5:2-3. A controller 28 is responsive to
activation of a trigger (i.e., switch) 14 to close a controllable semiconductor
switch 32, which discharges capacitor bank 34 by sending current pulses
through the primary winding of a transformer 36. Id. at 4:51-56.
Transformer 36 is preferably a 55:1 step-up transformer. Id. at 5:38.
The claim language at issue in this appeal is directed to the format of
the output pulses generated by the transformer. Specifically, each of
independent claims 1 and 4 recites “caus[ing] a plurality of pulses of current
to flow from the capacitor through the primary winding of the transformer
during an interval having a selected duration of at least ten microseconds but
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not more than one millisecond.” Claims App., Req. Br.
2
28-29 (underlining
omitted). As explained below, Saliga’s circuitry can generate a “Max-
Spark” waveform followed by a “Nerv-Lok” waveform. The claim language
at issue is directed to the “Nerv-Lok” waveform.
Saliga explains that the circuit schematically depicted in Figure 2 and
the alternative circuit depicted in Figure 4 (reproduced and discussed below)
each “may be recognized as a flyback circuit that, when operated in pulsed
mode, provides two drastically different sorts of outputs depending on the
impedance across the output electrodes 18, 19.” Id. at 5:57-61. In one
limiting case, the output electrodes 18 are separated by a high impedance,
such as an air gap. Id. at 5:61-63. In the other limiting case, a relatively low
resistance, provided by the tissue of a target 40 (Fig. 1), is connected
between the two output electrodes. Id. at 5:63-65.
In preferred embodiments, recognizing that it is likely that the output
electrodes do not initially have good electrical contact with the target, “the
controller is programmed to open and close the switch in succession to
generate a string of high-voltage pulses as depicted in Figures 3a and 5a.”
Id. at 6:31-35. Figure 3a is reproduced below.

2
Requester’s “Appeal Brief in Inter Partes Reexamination,” filed July 9,
2012.
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Figure 3a is a schematic depiction of a train of pulses of output voltage of
the circuit of Figure 2 when an initial air gap (i.e., high impedance) is
present between at least one electrode and a target. Id. at 3:44-47. The
initially generated, “string of high-voltage pulses” mentioned above
comprise the “Max-Spark” waveform. Id. at 6:45-46. These pulses are
created by repeatedly closing the controllable switch 32 for ten
microseconds and then opening it for twenty to forty microseconds. Id. at
6:38-40. Each pulse has a peak value of 55-65 kV, as indicated by the VARC
line in Figure 3a (id. at 6:35-38), which represents the arc-over voltage. Id.
at 6:60-62. In a particular preferred embodiment, this “Max-Spark” high-
spark energy waveform is generated for 0.1 to 0.25 seconds (i.e., 100
milliseconds to 250 milliseconds). Id. at 6:44-46. Thus, duration values in
this range are well outside of the claimed range of “at least ten microseconds
but not more than one millisecond.”
Saliga’s Figure 4 is reproduced below.
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Figure 4 is a schematic of power electronics portion 24 of a preferred stun-
gun (id. at 4:47-50), i.e., a stun-gun having fixed electrodes 19 and projectile
electrodes 18. In this type of stun gun, a parasitic load capacitance 44
between earth ground 46 and either one of the wires can absorb enough of
the high voltage output pulses to prevent an arcing voltage from developing
at electrodes 18. Id. at 6:49-52. This can occur, for example, when one or
both of the trailing wires lie on damp ground or pavement. Id. at 6:52-54.
High voltage diodes 48 are therefore provided in the transformer output
circuit in order to ensure that an arcing voltage is obtained. Id. at 6:55-57.
In the particular preferred embodiment depicted in Figure 4, three 10kV
diodes are connected in each leg of the output circuit. Id. at 6:57-60. “This
arrangement permits successive output pulses to repeatedly charge the load
capacitance 44, 46 [sic; only 44] until the designed 55 kV arc-over voltage is
attained.” Id. at 6:60-62.
The flyback circuits of Figures 2 and 4 both behave considerably
differently when a relatively low impedance, such as the 1000 ohms or so
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offered by a typical target 40, is connected across the electrodes 18 or 19.
Id. at 7:4-7. Under this condition and in a particular preferred embodiment,
a 100 volt DC supply and a 55:1 step-up transformer may generate a
potential of only about 2 kV across the projectile electrodes, with the
balance of the nominal 5.5 kV being lost to parasitic resistance of the
windings and electrode leads. Id. at 7:12-17. Pulses of this type are
depicted in Figure 3b, reproduced below. Id. at 7:17-18.

Figure 3b is a schematic depiction of a several pulses of output voltage as a
function of time when both electrodes have contacted a target. Id. at 3:46-
48.
The controller 28 is therefore programmed to generate a “Nerv-Lok”
waveform after an initial period of applying the above-noted “Max-Spark”
waveform. Specifically:
In a preferred embodiment, during a time period in which
a low impedance situation is believed to persist (e.g., after an
initial high spark [i.e., Max-Spark] energy period of
approximately 0.1 to 0.25 sec), the controller is programmed to
open and close the switch 32 in rapid succession to generate a
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pulse group with a duration T1 of about 350 microseconds, a
pulse-group separation T2 of 4 milliseconds, and a group
repetition period of about 50 milliseconds, as generally depicted
in FIGS. 3a, 5a, 5b. In a particular preferred embodiment, a
first pulse group of five to fifteen pulses spans a period of 300
to 400 µsec. This is followed, after a pause of about 4 msec by
a second group of five to fifteen pulses. The second group is
followed by a somewhat longer delay of 50-100 msec to allow
the capacitor to fully recharge, following which the first
group/second group sequence is repeated.
Id. at 7:19-33 (emphasis added). Saliga further explains:
Pulse [group] durations of 150-500 microseconds are optimal
for activating the nerves that control skeletal muscles and for
causing involuntary cramping. A pulse-group repetition rate of
4 milliseconds assures that the cramping voltage is re-applied
just as the effects of the previous pulse are dissipating. A pulse
train of this sort is referred to as a “Nerv-Lok” waveform.
Id. at 7:36-42 (emphasis added).
As noted above, the duration T1 of each pulse group of the “Nerv-
Lok” waveform is between 300 and 400 microseconds, such as about 350
microseconds. All of these duration values fall within the range of “at least
ten microseconds but not more than one millisecond,” recited in independent
claims 1 and 4.

B. The Prior Examination Proceeding
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At the time of the June 25, 2009, Final Office Action (hereinafter
“Final Action”) during examination of the ’952 Application, which issued as
the Saliga patent, the application included only independent claims 1, 4, and
19 and dependent claims 3 and 6. Amendment filed February 27, 2009, at 2-
4. Claims 1 and 4 were rejected under 35 U.S.C. § 103(a) for obviousness
over Watkins
3
in view of Smith,
4
claim 3 was rejected for obviousness over
Watkins, Smith, and Keely,
5
and claim 19 was rejected for obviousness over
Watkins in view of Keely. Final Action 2, 5 and 6.
6

A Request for Continued Examination (RCE) filed on September 20,
2009, was accompanied by amendments that, inter alia, canceled
independent claim 4 and amended independent claims 1 and 19 to
additionally recite series-connected high voltage diodes in the output circuit
of the secondary winding of the transformer.
The Notice of Allowance and Issue Fee(s) Due, mailed April 23,
2010, was accompanied by a Notice of Allowability that includes the
following statement of reasons for allowance:
Regarding independent claim 1 and 19, the prior art of record
neither shows nor suggest an electric disabling device,
comprising an output circuit comprising two legs connectable
through the target, each leg respectively connected between one

3
Watkins, et al., US 6,999,295 B2, issued February 14, 2006.
4
Smith, US 2007/0097592 A1, published May 3, 2007.
5
Keely, et al., US 2006/0292528 A1, published December 28, 2006.
6
The statement of the rejection of claim 19 at page 6 of the Final Action
misidentifies it as claim 3.
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of the two ends of the secondary winding of the transformer and
a respective one of the electrodes, each leg comprising a
plurality of series-connected high voltage diodes, the two legs,
when connected through the target, having a breakdown voltage
in excess of a selected arc-over voltage; in combination with the
other claimed limitations as recited in claims 1 and 19.
Notice of Allowability 2.
The Saliga patent issued with claims 1-5, of which independent claims
1 and 4 correspond to application claims 1 and 19.

C. This Reexamination Proceeding
The “Request for Inter Partes Reexamination Under 35 U.S.C. §311”
(hereinafter “Request”), filed May 16, 2011, does not rely on any of
Watkins, Smith, and Keely. Instead, the Request proposes eight different
rejections of claims 1-5 (all of the claims) under 35 U.S.C. § 103(a) based on
Brundula,
7
Farnsworth,
8
Schriener,
9
Nemtyshkin,
10
and Coakley.
11
Request
12, Table 2. Brundula is the primary reference in Proposed Rejection Nos.
1-6, and Nemtyshkin is the primary reference in Proposed Rejection Nos. 7
and 8.

7
Brundula, et al., Patent Application Publication US 2007/0081292 A1,
published April 12, 2007.
8
Farnsworth, U.S. Patent 3,562,623, issued February 9, 1971.
9
Schreiner, U.S. Patent 3,886,434, issued May 27, 1975.
10
Nemtyshkin, et al., US 7,692,915 B1, issued April 6, 2010.
11
Coakley, et al., U.S. Patent 5,625,525, issued April 29, 1997.
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As support for the proposed rejections, the Request also relies (id. at
7, 9) on a “First Declaration of Magne Nerheim” and a “Second Declaration
of Magne Nerheim” (hereinafter “First Nerheim Declaration” and “Second
Nerheim Declaration”). “Evidence Appendix” to Req. Br.
In a nonfinal Office action mailed June 23, 2011, the Examiner (at 3-
6) rejected claims 1-5 under 35 U.S.C. § 103(a) on all eight of the proposed
grounds.
On August 19, 2011, Patent Owner responded by filing an untitled
paper (hereinafter “Patent Owner Response to Nonfinal Action,” cited as
“P.O. Resp.”), which amended original patent claim 1 by changing the
phrase “an interval of at least ten microseconds but not more than one
millisecond” to read “an interval having a selected duration of at least ten
microseconds but not more than one millisecond” and amended independent
claim 4 to likewise recite “an interval having a selected duration of at least
ten microseconds but not more than one millisecond.” P.O. Resp. 3-4 (pages
not numbered). New dependent claims 6 and 7 were also added. Id. at 5.
In a “Response Under 37 CFR §1.947 with Prior Art Under MPEP
2666.05” (hereinafter “Requester’s Comments”), filed on September 17,
2011, Requester: (i) proposed rejections of claims 1-7 under 35 U.S.C. §
112, first paragraph, as lacking written description support (Req. Comments
2-6);
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(ii) cited T’Prina
12
to show that “waveforms that have several alternating
amplitude portions both positive and negative that would be understood by a
person of ordinary skill in the art as a pulse group having a pulse group
duration” (id. at 6); and (iii) asserted that “[a]utomatic selection of a pulse
duration and/or pulse group duration was known prior to the priority date of
the subject patent to Saliga,” citing Smith and Brundula. Id. at 6-7.
In an Action Closing Prosecution (ACP) mailed on December 2, 2011,
the Examiner declined (at 3) to enter the proposed § 112 rejections and
withdrew (at 3-5) all of the § 103(a) rejections for the reasons given (at 7-
12) in the “Remarks” section. The ACP also includes a “Statement of
Reasons for Patentability and/or Confirmation” stating:
The closest prior art fails to disclose or fairly suggest:
An electric disabling device for immobilizing a human or
animal target having a semiconductor switch, which causes a
plurality of pulses of current to flow from the capacitor through
the primary winding of the transformer during an interval
having a selected duration of at least ten microseconds but not
more than one millisecond, in combination with the remaining
limitations, as called for in independent claims 1 and 4;
dependent claims 2-3 and 5-7 are also patentable due to at least
their dependencies from claim 1 and claim 4, respectively.
Id. at 6.

12
Stun-Guns, An Independent Report, pages 1-25 (T’Prina Technology
1994).
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The Right of Appeal Notice (RAN), mailed April 27, 2012, adheres
(at 3-5) to the positions stated in the ACP and (at 6) repeats the “Statement
of Reasons for Patentability and/or Confirmation” from the ACP. However,
the RAN does not repeat the “Remarks” section of the ACP, which is
therefore cited below in our discussion of the Examiner’s remarks.
Requester filed a Notice of Appeal on May 10, 2012, and the above-
mentioned “Appeal Brief in Inter Partes Reexamination” on July 9, 2012.
Patent Owner on August 1, 2012, filed a “Reply [sic; Respondent]
Brief in Inter Partes Reexamination” (hereinafter “P.O. Br.”).
The Examiner’s Answer, mailed February 6, 2013, incorporates the
RAN by reference without providing any additional analysis.
No rebuttal brief was filed by Requester or Patent Owner.

D. The Claims on Appeal
The independent claims are amended claims 1 and 4. Claim 1 as
amended by the Patent Owner Response to Nonfinal Action reads as
follows:
1. (amended) An electric disabling device for
immobilizing a human or animal target, the device comprising:
at least two electrodes positionable at spaced apart
contact points adjacent the target;
a transformer having a primary winding and a secondary
winding;
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a capacitor electrically connected to the primary winding
of the transformer;
a DC power supply operable to charge the capacitor; and
a semiconductor switch directly electrically connected to
the primary winding, and controllable by a control circuit to
repeatedly switch between a conducting state and a non-
conducting state so as to cause a plurality of pulses of current to
flow from the capacitor through the primary winding of the
transformer during an interval having a selected duration of at
least ten microseconds but not more than one millisecond; and
an output circuit comprising two legs connectable
through the target, each leg respectively connected between one
of the two ends of the secondary winding of the transformer and
a respective one of the electrodes, each leg comprising a
plurality of series-connected high voltage diodes, the two legs,
when connected through the target, having a breakdown voltage
in excess of a selected arc-over voltage.
Claims App. (Req. Br. 28). Claim 4 more particularly recites an insulated
gate bipolar transistor switch connected to the primary winding:
4. (amended) An electric disabling device for
immobilizing a human or animal target, the device comprising:
at least two electrodes positionable at spaced apart points
adjacent the target;
a transformer having a primary winding and a secondary
winding;
a capacitor electrically connected to the primary winding
of the transformer;
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a DC power supply operable to charge the capacitor; and
an insulated gate bipolar transistor switch directly
electrically connected to the primary winding, and controllable
by a control circuit to repeatedly switch between a conducting
and a non-conducting state so as to cause a plurality of pulses of
current to flow from the capacitor through the primary winding
of the transformer during an interval having a selected duration
of at least ten microseconds but not more than one millisecond;
wherein the two ends of the secondary winding are
electrically connectable through the target by a series string of
high voltage diodes, the series string characterized by a
breakdown voltage in excess of a selected arc-over voltage.
Id. at 28.

D. The Proposed Rejections Whose Non-Entry is Challenged in this
Appeal
13

1. Claims 1, 4, 6, and 7 under 35 U.S.C. § 112, first paragraph
(written description requirement).
2. Claims 1 and 4 under 35 U.S.C. § 103(a) for obviousness over
Brundula, Coakley, and Farnsworth (“Proposed Rejection No. 1,” discussed
at Request 12). Coakley is discussed in paragraphs 2-7 of the Second
Nerheim Declaration.
3. Claims 1 and 4 under § 103(a) for obviousness over Brundula,
Coakley, and Schreiner (“Proposed Rejection No. 3,” Request 31).
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4. Claims 1 and 4 under § 103(a) for obviousness over Brundula,
Coakley, and Nemtyshkin (“Proposed Rejection No. 5,” Request 42).

II. DISCUSSION
A. The Proposed § 112, First Paragraph, Rejection
1. Independent Claims 1 and 4
Requester argues (Req. Br. 11-13) that Saliga fails to provide written
description support for the recited “interval having a selected duration of at
least ten microseconds but not more than one millisecond” recited in
amended claim 1 and for the identical claim language in claim 4.
Requester’s arguments are directed to the recited range of “at least ten
microseconds but not more than one millisecond” (which also appears in
original claim 1) rather than to the insertion of the phrase “having a selected
duration.” Specifically, in response to Patent Owner’s citation (P.O. Resp.
2) of various passages in the Saliga Specification as providing support for
the amended claims, Requester argues:
The cited text provides no teaching of an interval having a
“selected duration” nor a “duration of at least 10 microseconds
and not more than one millisecond.” BACKGROUND OF
THE INVENTION includes: “Physiological studies of the
effects of electrical impulses on nerves that control skeletal
muscles indicate that a pulse needs to last longer than about 150
microseconds to be efficient at ‘firing’ the nerve tissue, which
is critical for causing cramping or immobilization.” Id. at col. 1

13
Req. Br. 3, section VI.
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lines 57-61. This passage of the ’005 patent teaches away from
an interval of several pulses, the interval “having a selected
duration” of 10 microseconds. The pulse lasting longer than
“about 150 microseconds” makes the claimed interval
impossible by two orders of magnitude.
Req. Br. 12. Requester contends that for this reason Saliga fails to provide
support for the recited range in the amended claims or the original claims.
See id. (“Regardless of the failure of the original claim language to meet the
requirements of 35 USC 112, (such failure this Re-Ex Applicant has not
brought to issue) the claim amendments must meet the requirements of
37 CFR 1.530(e), which they do not.”).
The Examiner correctly declined to enter the proposed § 112 rejection
because the recited range of “at least ten microseconds but not more than
one millisecond” appears in original claim 1:
Requester argues, starting at page 2, that there is no
sufficient support for the claimed range of 10-1000
microseconds and as such all pending claims fail to meet or lack
written description under 35 U.S.C. § 112. Such issues as to
originally claimed subject matter are not properly raised or
addressed in reexamination. For originally claimed subject
matter, issues under 35 U.S.C. § 112 are not within the scope of
reexamination and will not be considered (See 37 CFR 1.906c).
ACP 11-12 (emphasis added). 37 C.F.R. § 1.906 reads in relevant part as
follows:

§ 1.906 Scope of reexamination in inter partes
reexamination proceeding.
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(a) Claims in an inter partes reexamination proceeding
will be examined on the basis of patents or printed publications
and, with respect to subject matter added or deleted in the
reexamination proceeding, on the basis of the requirements of
35 U.S.C. 112.
. . . .
(c) Issues other than those indicated in paragraphs (a) and
(b) of this section will not be resolved in an inter partes
reexamination proceeding. . . . .

This prohibition is discussed as follows in M.P.E.P. § 2658(II) (rev. 9, Aug.
2012):
14

II. COMPLIANCE WITH 35 U.S.C. 112
Where new or amended claims are presented or where
any part of the disclosure is amended, the claims of the
reexamination proceeding are to be examined for compliance
with 35 U.S.C. 112. See MPEP § 2258 for a discussion of the
examination in a reexamination proceeding based upon
35 U.S.C. 112>, which discussion applies to inter partes
reexamination in the same way it applies to ex parte
reexamination<.
M.P.E.P § 2258(II) (rev. 9, Aug. 2012)
15
reads in relevant part as follows:
“If a limitation that appears in an existing patent claim also appears in a
claim

14
This version of the M.P.E.P. includes § 2658(II) as amended in revision 7
(July 2008).
15
This version of the M.P.E.P. includes § 2258(II) as amended in revision 7
(July 2008).
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newly presented in a reexamination proceeding, that limitation cannot be
examined as to 35 U.S.C. 112.” This bar applies in the present appeal even
assuming for the sake of argument it can be shown that the ’952 application
as filed fails to provide written description support for the recited range in
original patent claim 1.
The Examiner’s determination not reject the claims under § 112, first
paragraph, as lacking for support for the recited range is therefore sustained.

2. Dependent Claims 6 and 7
Each of the new dependent claims 6 and 7 recites, inter alia, a “pause
of approximately four milliseconds” between successive intervals of a
plurality of intervals. Claims App., Br. 29-30. As support for these claims,
Patent Owner (P.O. Br. 4-5) cites the following description in Saliga:
It is an object of the invention to tailor the energy
delivery sequence of a stun device, such as a stun gun, to more
thoroughly incapacitate nerve tissue while delivering less total
energy than is the case with prior art stun devices. . . .
[B]ecause nerve tissue has a recovery period (depolarization
and refractory period) of approximately 4 milliseconds,
preferred embodiments of the invention deliver a plurality of
energy pulse groups having an interval of about 4 milliseconds
between pulse groups.
Saliga 1:66-2:9 (emphasis added).
Requester argues:
[T]he limitation in both claims 6 and 7 “each of the plurality of
intervals is followed by a pause of approximately four
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milliseconds” introduces ambiguity. The specification includes
the language “about four milliseconds,” but that too lacks
specificity, leading to a claim that is ambiguous, and not
supported by the specification so that the public is on notice of
the metes and bounds of the patentee’s monopoly.
Req. Br. 13. In our view, the above-quoted column 2, by equating “about
four milliseconds” and “approximately four milliseconds,” establishes
written description support for the recited “pause of approximately four
milliseconds.”
Requester’s above argument that the term “approximately” makes the
claims ambiguous is an argument for unpatentability under 35 U.S.C. § 112,
second paragraph. This argument is entitled to no consideration because it
amounts to a new ground of rejection proposed for the first time in
Requester’s Brief, and Requester has not demonstrated that this new ground
of rejection is entitled to consideration pursuant to 37 C.F.R.
§ 41.67(c)(1)(vi), which reads in relevant part as follows:
§ 41.67 Appellant’s Brief
. . . .
(vi) Issues to be reviewed on appeal. A concise
statement of each issue presented for review. No new ground
of rejection can be proposed by a third party requester
appellant, unless such ground was withdrawn by the examiner
during the prosecution of the proceeding, and the third party
requester has not yet had an opportunity to propose it as a third
party requester proposed ground of rejection.
37 C.F.R. § 41.67(c)(i)(vi) (2012).

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3. Conclusion
Requester has not persuaded us of error in the Examiner’s
determination not to enter Requester’s proposed rejection of claims 1, 4, 6,
and 7 under § 112, first paragraph, written description requirement.

B. The Proposed § 103(a) Rejection Based on Brundula, Coakley, and
Farnsworth (Proposed Rejection No. 1)
Requester relies on Brundula for claimed features other than the
recited time interval (for which Coakley is cited).
Brundula’s invention is an apparatus that produces contractions in
skeletal muscles of a target to impede locomotion by the target. Brundula
[0011].
Figure 5 of Brundula is reproduced below.
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Figure 5 is a front perspective view of a gun implementation of Brundula’s
invention.
Figure 1 is reproduced below.
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Figure 1 is a functional block diagram of an electronic weapon system 100
according to various aspects of Brundula’s invention. Id. at [0022], [0041].
Electronic weapon system 100 includes launch device 102
cooperating with a set (or plurality) of cartridges 104. Id. at [0041]. Launch
device 102 includes, inter alia, processing circuits 130 and a deployment
unit control 140 having a launch control function 144 and a stimulus signal
generator 146. Id. at [0042]. Stimulus signal generator 146 includes a
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circuit for generating a stimulus signal for passing a current through tissue of
the target for pain compliance and/or for interfering with operation of
skeletal muscles by the target. Id. at [0055]. Any conventional stimulus
signal may be used. Id. “For example, stimulus signal generator 146 in one
implementation may deliver about 5 seconds of 19 pulses per second, each
pulse transferring about 100 microcoulombs of charge through the tissue in
about 100 microseconds.” Id.
Brundula’s Figure 4C is reproduced below.

Figure 4C shows signal definition diagrams for signals at terminals or
electrodes of the system of Figure 1. Id. at [0025]. A compliance signal
group (e.g., 442) includes a plurality of compliance signals. Id. at [0124].
Requester makes the following argument regarding the duration of
Brundula’s compliance signals:
Pulses can have a variety of patterns: “The stimulate control,
when operated, may initiate another delivery of one or more
stimulus signals for a local stun function via terminals of the
launch device 102 (not shown) or via a contactor 118 of a
cartridge 105.” Brundula, ¶[0045]. It may be desirable to
extend a duration of pulses or decrease the pulse interval
duration: “In suitable applications, the extension may be
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negative so as to effect a decrease in the duration of an
identified or predetermined stage of the stimulus signal.” Id. at
¶[0090].
Req. Br. 16 (emphasis altered). The meaning of the phrase “predetermined
stage of the stimulus signal” in the above-quoted paragraph is apparent from
the following additional information in Brundula.
Figure 2A of Brundula is reproduced below.

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Figure 2A is a state diagram for various operator interfaces and
processes each supporting an operator interface of the system of Figure 1.
Id. at [0023]. Controls sensed by processing circuits 130 (Fig. 1) include
safety (on/off), trigger (set/release), stimulate (set/release), and warn
(set/release). Id. at [0075]. In response to detecting the trigger control set,
operator interface 200 advances from the armed state to launch state 208,
immediately launching one or more electrodes from one or more cartridges
as specified by the configuration of the electronic weapon system prior to
entering launch state 208. Id. at [0081]. If the trigger control is promptly
released, operator interface 200 advances from launch state 208 to run state
209. Id. If not (e.g., a suitable period lapses and the trigger control is not
released), then operator interface 200 advances from launch state 208 to
stretch state 210. Id.
The phrase “predetermined stage of the stimulus signal” in paragraph
[0090], quoted above and relied on by Requester, apparently can refer to a
strike stage or a hold stage:
As a first example, force against a target to gain compliance
may be relatively greater than force against a client to maintain
compliance. A stimulus signal suitable in this first example
may include a strike stage followed by any number of hold
stages. The energy expense of a hold stage may be less than that
for a strike stage. . . . [T]he duration of a stage may be subject
to adjustment by the operator during the stage.
Brundula [0088]. Regarding the duration of a stage, Brundula further
explains:
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[T]he duration of a stage may be extended in stretch state 210
[Fig. 2A] from an initial duration up to a maximum duration if
the trigger control is not released. The initial duration may be a
factory setting, a user-configurable setting, or a recent stretched
duration. . . . An operator desiring to extend a stage for
example 25 seconds, may watch the display advance up from
perhaps 5 seconds to 25 seconds and then release the trigger
control.
Id. at [0089].
In view of the above, we find that although paragraph [0090] states
that “the extension may be negative so as to effect a decrease in the duration
of an identified or predetermined stage of the stimulus signal,” Brundula
does not describe or suggest making a strike stage or hold stage short enough
to fall within the claimed range.
However, as pointed out by Requester, Brundula describes a
transformer, which is required by the claims. Req. Br. 15. Figure 8A of
Brundula is reproduced below.

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Figure 8A shows a simplified electrical model of a store and discharge
function (800) coupled by a deployment unit to a target for a remote stun
function. Id. at [0151]. A primary circuit 802 includes a capacitance CA of
a store function coupled via a switch SWA to the primary of a step-up
transformer model TD. Id.
Before leaving Brundula, we note, as does Patent Owner (P.O. Br. 6),
that Brundula’s trigger control can take the form of a manually operated
switch:
[0136] Trigger control 506 . . . may be implemented as a two
position rotary lever pivoted on an axis within body 501 and
equipped with a spring return to imitate the feel of a
conventional pistol. The movable portion of trigger control 506
may include a magnet for activation of a reed relay within body
501, so that detection of the position of the lever may be
accomplished without compromising a hermetic seal of body
501. An operator squeezes the trigger lever into handle 502 to
set the control and releases the trigger lever to release the
control.
Brundula [0136].
We turn now to Coakley, which is relied on by Requester to show the
obviousness of using a pulse group having a duration falling within the
claimed range.
16

16
It is not necessary to show the obviousness of using durations throughout
the claimed range. See Titanium Metals Corp. v. Banner, 778 F.2d 775, 782
(Fed. Cir. 1985) “[W]hen, as by a recitation of ranges or otherwise, a claim
covers several compositions, the claim is anticipated if one of them is in the
(Continued on next page.)
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Coakley’s invention relates to a portable electromagnetic stun device
and method. Coakley, title. Figure 1 of Coakley is reproduced below.

Figure 1 is a side view of a pistol-type housing suitable for use with the
Coakley’s invention. Id. at 2:51-52. Reservoir 22 contains a conductive
fluid under pressure that is ejected as a stream when trigger 24 is depressed.
Id. at 3:15-20. Current source 18 provides “an alternating current of at least
1 milliampere and having a frequency of at least 500 kHz, e.g., 1 MHz.” Id.
at 3:13, 22-24. “When a trigger 24 is depressed, the fluid under pressure is
released into the fluid conduit, thereby electrically coupling the fluid to the
current source.” Id. at 3:17-20.

prior art.” (Internal quotations omitted).
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Requester relies on the Second Nerheim Declaration to explain
Coakley’s operation. Mr. Nerheim is Vice President of Research and
Development for TASER International, Inc. (Requester). 2d Nerheim Decl.
para. 1. Mr. Nerheim testified, inter alia, that Coakley “includes” a
transformer:
1. . . I am aware of all research, design, engineering,
manufacturing, quality assurance, and testing of TASER
products since before 2000 to present. TASER electronic
control device (“ECD”) products include the model 34000,
model M26, and model X26 ECDs.
2. I have analyzed the stun device disclosed in US Patent
5,625,515 to Coakley filed July 11, 1994. Coakley discloses a
device that discharges a conductive fluid stream toward a
human or animal target and supplies a current at a high voltage
through the conductive fluid to stun the target. My
understanding of high voltage circuits, for example circuits
used in ECDs to stun targets, leads me to believe that the device
disclosed by Coakley includes: (1) a source powered by a
battery that provides energy for an AC signal in the range of
500KHz - 1Mhz; and (2) a transformer that multiplies the
relatively low voltage provided by the battery (e.g. less than
100 volts) to provide an output voltage in the range of 15 kV -
120 kV.
Id. at paras. 1-2 (emphasis altered). In order to establish inherency, the
extrinsic evidence “must make clear that the missing descriptive matter is
necessarily present in the thing described in the reference, and that it would
be so recognized by persons of ordinary skill.” In re Robertson, 169 F.3d
743, 745 (Fed. Cir. 1999) (citation omitted).

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Patent Owner, as proof that Coakley’s circuitry does not necessarily
include a transformer, cites Battochi U.S. Patent 5,103,366, which Coakley
(at 1:45-47) has incorporated by reference. P.O. Br. 7.
17
Coakley
characterizes Battochi as describing a pistol-like weapon that contains two
reservoirs of conductive fluid that are coupled to respective outputs of a d.c.
current supply that is capable of delivering a stunning current. Coakley
1:45-51. Battochi does not mention a transformer. Instead, Battochi
explains that “[i]t is a further object of this invention to provide new and
improved electric stun guns which utilize electrically conductive liquid
wherein the high voltage is induced by alternating point contact closures
and a coil or magnetos.” Battochi 2:22-26 (emphasis added). Neither
Requester nor Mr. Nerheim has explained why Coakley’s current source 18
cannot take this form, which has not been shown to include a transformer.
We therefore agree with Patent Owner and the Examiner (ACP 7) that Mr.
Nerheim’s testimony fails to demonstrate that Coakley inherently employs a
transformer.
18
However, as noted above, Brundula’s Figure 8A shows a
transformer connected in the claimed manner.

17
Battochi was initially cited as support for this argument in the Patent
Owner Response to Nonfinal Action (at 6).
18
Requester argues that the Examiner is relying on personal knowledge to
contradict Mr. Nerheim’s testimony that Coakley includes a transformer and
that such reliance requires a supporting declaration by the Examiner under
37 C.F.R. § 1.104(d)(2). Req. Br. 27. No such declaration is necessary.
The Examiner’s position is supported by the Battochi patent, which is cited
(Continued on next page.)
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We turn now to Mr. Nerheim’s testimony about the pulses generated
by Coakley. One undisputed factual assertion is that Coakley generates a
series of pulses only while the trigger is being depressed. See 2d Nerheim
Decl. para. 7 (“Coakley’s disclosure teaches or implies that the current is
provided by the transformer as long as the trigger is activated to discharge
the conductive fluid (col. 3, line 17 - 25).”). Another undisputed factual
assertion is that “a current pulse must be provided . . . every 1 - 2
microseconds to produce an AC signal in the secondary winding having a
frequency of between 500 kHz and 1 MHz. Each half sine wave of an AC
signal is a pulse.” Id.
This brings us to the principal question before us, which is whether it
would have been obvious to limit the duration of Coakley’s pulse train to a
value falling within the claimed range. Before addressing this question, we
note that Requester initially (i.e., in the Request) argued that the claim
language can be read on an initial portion of Coakley’s pulse train (i.e.,
without regard to the length of the entire pulse train):
As discussed in the Second Declaration of Nerheim,
Coakley discloses providing a pulse of current through a
primary winding of a transformer every 1 - 2 microseconds. A
period of 10 microseconds would include 5 to 10 pulses.
Coakley inherently discloses, inter alia:
• “so as to cause a plurality of pulses of current to
flow from the capacitor through the primary
winding of the transformer during an interval of at

in Coakley and relied on by Patent Owner.
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least ten microseconds but not more than one
millisecond”.
Request 18. In response, Patent Owner argued: “Coakley provides a
plurality of pulses in ten microseconds; but Coakley neither teaches nor
implies that his string of pulses terminates in less than one millisecond.”
P.O. Resp. 7 (emphasis added). The Examiner agreed, stating: “Coakley
provides a plurality of pulses in ten microseconds; but neither discloses nor
implies that his string of pulses terminates in less than one millisecond.”
ACP 7 (emphasis added). Requester does not challenge the Examiner’s
interpretation. Instead, Requester quotes the Examiner’s above position and
adds: “Thus, the only part of the element of claims 1 and 4 cited by the
Examiner in [the] STATEMENT OF REASONS FOR PATENTABILITY
AND/OR CONFIRMATION that is not explicitly taught is the uppermost
duration of the interval (one millisecond).” Req. Br. 15.
Requester cites Mr. Nerheim’s testimony as support for the argument
that the claimed upper limit would have been obvious from the references.
Req. Br. This testimony reads as follows:
7. I further understand Coakley’s disclosure teaches or
implies that the current is provided by the transformer as long
as the trigger is activated to discharge the conductive fluid (col.
3, line[s] 17 - 25). Because the reaction time of a finger
pressing and releasing a trigger is in the range of milliseconds,
the circuit that provides current pulses to the primary winding
of a transformer will provide many current pulses to the
primary during a period in the range of 2 microseconds to
several milliseconds.
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2d Nerheim Declaration para. 7 (emphasis altered). We understand Mr.
Nerheim to be using the term “reaction time” to refer to the time it takes to
pull and then release the trigger, which he describes as being “in the range of
milliseconds” without explaining how many milliseconds. Our
understanding of his above-quoted statement that “a transformer will provide
many current pulses to the primary during a period in the range of 2
microseconds to several millisecond” is that Coakley will generate an
increasing plurality of pulses during a time period that includes (but is not
limited to) the claimed range, beginning with two pulses at the two-
microsecond mark. Therefore, we do not understand the value of “several
milliseconds” in this testimony to be referring to the length of the pulse train
or to the time it takes to pull and release the trigger. As a result, Mr.
Nerheim’s only testimony regarding the time it takes to pull and release
Coakley’s trigger (and thus the duration of the pulse train) is that it is “in the
range of milliseconds.” As noted by the Examiner, this stated duration
exceeds the claimed upper limit of one millisecond:
Nerheim (Item 7) argues that “Coakley’s disclosure
teaches or implies that the current is provided by the
transformer as long as the trigger is activated...” and further
argues that “the reaction time of a finger pressing and releasing
a trigger is in the range of milliseconds”. Thus Nerheim's
clearly states, at least for cases in which the trigger is held for
some perceptible time, that Coakley’s string of pulses extends
beyond the maximum specified time of one millisecond.
ACP 8 (emphasis added).
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The Examiner further found that the data presented in The Police
Marksman
19
shows “an average actual time to pull and release the trigger of
about 60 msec. Thus, a trigger-actuated apparatus would, even if the trigger
was released immediately rather than being held, generate pulses for about
60 times longer than the maximum time provided for in the claims.” ACP 8.

For the following reasons, we agree with the Examiner that the minimum
time interval described in The Police Marksman for pulling and releasing a
trigger far exceeds the upper claimed limit of one millisecond.
Graphs 1 and 2 of The Police Marksman 2 show the output signals
generated by a Glock training gun outfitted with a resistor that allowed the
researcher to break the trigger pull distance into 120 separate units. Id. at
27, col. 1. Graph 1 is reproduced below.

19
Lewinski, et al., Time to START Shooting? Time to STOP Shooting? The
TEMPE Study, The Police Marksman (“Reaction Times in Lethal Force
Encounters”), Vol. XXVIII, No. 5, pp. 26-29 (Sept./Oct. 2003), available at
http://www.forcescience.org/articles/tempestudy.pdf (last visited Aug. 23,
2013). A copy of this article was initially submitted with Patent Owner’s
Response to Nonfinal Action.
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Graph 1 represents the results of “Experiment #1,” in which officers were
instructed to pull the trigger once, as quickly as they could, in response to
the turning on of a specific green light. Id. at 27, col. 2. The two positive
peaks or spikes identify when the light was turned on and off, respectively.
Id. The grid at the bottom of the bottom the graph represents the passage of
time “in 100ths of a second.” Id. at 29, col. 1. Thus, each grid mark
represents 1/100 second or ten milliseconds. The flat line that follows the
first (i.e., “light on”) peak represents the “perception processing time.” Id. at
27, col. 2. The valley represents a trigger pull-and-release sequence. The
left side of the valley is the trigger being pulled, the bottom of the valley is
the trigger being held against the frame, and the right side of the valley is the
trigger being released. Id. “The average time for the mechanical action of
actually pulling the trigger was 6/100ths of a second [i.e., 60 milliseconds].
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This was the time it took to move the trigger from its normal resting position
to a position at the rear of the trigger guard.” Id.
Graph 2 at page 28 is reproduced below.

Graph 2 represents the results of “Experiment #2.” Id. at 28, col. 1. In this
experiment, “[w]hen the light came on the officer was to immediately and
repeatedly pull the trigger as quickly as he could, but he had to stop
immediately when the light went off.” Id. (emphasis added). The positive
spikes identifying when a light was turned on and off are located at about
grid values 7 and 107, respectively, indicating the light was on for about one
second. As shown by the first three valleys, “the officer pulled the trigger
three times when the light was on for one second.” Id. at 28, col. 2. The
Police Marksman does not give a value for the duration of a single trigger
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pull-and-release sequence. However, the width of the first valley (as
measured along the trigger position line labeled “100”) appears to run from
about grid value “36” to about “57,” which represents approximately 200
milliseconds. The second and third valleys each have durations about the
same as that of the first valley. Of this period of approximately 200
milliseconds, the first approximately sixty milliseconds correspond to the
trigger being pulled (i.e., the left side of the valley), the last approximately
sixty milliseconds correspond to release of the trigger (i.e., the right side of
the valley), and the remaining approximately eighty milliseconds correspond
to the trigger being held in the fully depressed position (i.e., the floor of the
valley).
Requester, responding to the Examiner’s reliance on The Police
Marksman, argues:
[T]he average time to repeatedly pull and release a trigger
measuring the time from the finger being in shooting position to
when the finger returns to shooting position is not the same as
the time it takes to close a switch and open it again. A firearm
can be fired on average once every 60 msec, but that is a
relatively long time compared to opening and closing a switch,
which can be characterized as the time from when the trigger is
fully compressed to when the trigger is not quite compressed (a
very small fraction of the distance a finger must travel to begin
pulling a trigger and return to firing position).
Req. Br. 15-16. This argument is unpersuasive. If, as proposed by
Requester, the trigger is used to operate a switch that is on only while the
trigger is fully compressed (i.e., the trigger position signal value is at or very
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near the valley floor), the switch will be on for a minimum of approximately
eighty milliseconds, which is eighty times more than the claimed upper limit
of one millisecond. As correctly noted by Patent Owner, “[t]he evidence
being discussed bears on human operation of a trigger mechanism; not on
electrical or electronic switching speeds.” P.O. Br. 5.
For the above reasons, Coakley does not describe or suggest
generating a plurality of current pulses during an interval as short as “several
milliseconds,” let alone an interval of no more than the claimed upper limit
of one millisecond. Furthermore, because Coakley has not been shown even
to be capable of manual operation with sufficient speed to produce a pulse
train having the recited duration, Coakley provides no support for
Requester’s argument that the recited duration is merely “an arbitrary design
choice.” See Req. Br. 16 (“None of the Examiner, Patent Owner, or the
disclosure includes any reason why the uppermost duration of the interval is
anything other than an arbitrary design choice.”). Req. Br. 16.
Requester does not alternatively rely on Farnsworth for such a
teaching. Instead, Farnsworth (described in the First Nerheim Declaration)
is relied on for a teaching of using a series-connected high voltage diodes in
the transformer output circuit. Request 21 (citing 1st Nerheim Decl.); Req.
Br. 20.
We therefore sustain the Examiner’s determination not to enter
Requester’s proposed rejection of claims 1 and 4 for obviousness over
Brundula, Coakley, and Farnsworth.
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C. The Proposed § 103(a) Rejections Based on Brundula, Coakley, and
Schreiner and Based on Brundula, Coakley, and Nemtyshkin
For the above reasons, we likewise sustain the Examiner’s
determination not to enter Requester’s proposed rejection of claims 1 and 4
for obviousness over Brundula, Coakley, and Schreiner (Request 31) and the
proposed rejection of these claims for obviousness over Brundula, Coakley,
and Nemtyshkin. Id. at 42. Schreiner and Nemtyshkin are relied on in these
proposed rejections merely for the recited series-connected diodes. Req. Br.
23, 25.

D. Requester’s New Proposed Rejections
Requester’s Brief proposes new grounds of rejection under 35 U.S.C.
§ 103(a), which are entitled to no consideration because they have not been
shown to satisfy 37 C.F.R. § 41.67(c)(1)(vi) (2012).
The first such ground (Req. Br. 15-21) is that the claimed range would
have been obvious over Brundula, Coakley, and Farnsworth further
considered in view of the following statement in Saliga’s “Background of
the Invention,” which Requester characterizes as an “AAPA [applicant’s
admitted prior art] observation” (id. at 19): “Physiological studies of the
effects of electrical impulses on nerves that control skeletal muscles indicate
that a pulse needs to last longer than about 150 microseconds to be efficient
at ‘firing’ the nerve tissue, which is critical for causing cramping or
immobilization.” Saliga 1:57-61. Requester proposes similar new grounds
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of rejection based on Brundula, Coakley, and Schreiner (Req. Br. 22-24) and
based on Brundula, Coakley, and Nemtyshkin. Id. at 24-26.

III. DECISION
We sustain the Examiner’s determination not to enter any of the
following proposed rejections:
1. Claims 1, 4, 6, and 7 under 35 U.S.C. § 112, first paragraph
(written description requirement);
2. Claims 1 and 4 under 35 U.S.C. § 103(a) for obviousness over
Brundula, Coakley, Farnsworth;
3. Claims 1 and 4 under § 103(a) for obviousness over Brundula,
Coakley, and Schreiner; and
4. Claims 1 and 4 under § 103(a) for obviousness over Brundula,
Coakley, and Nemtyshkin.
The Examiner’s decision not to reject any of claims 1, 4, 6, and 7 is
therefore affirmed.

AFFIRMED

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For Patent Owner:

DAVID KIEWIT
5901 THIRD ST SOUTH
ST PETERSBURG, FL 33705

For Third Party Requester:

TASER INTERNATIONAL, INC.
17800 NORTH 85th STREET
SCOTTSDALE, AZ 85255-9603

lb