10261879 (B.P.A.I. Aug. 23, 2010)

Ex Parte Barbee et al

Board of Patent Appeals and InterferencesAug 23, 2010

10261879 (B.P.A.I. Aug. 23, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES _______________ Ex parte TROY W. BARBEE, JR, RANDALL L. SIMPSON, ALEXANDER E. GASH, and JOE H. SATCHER, JR. ______________ Appeal 2009-009075 Application 10/261,879 Technology Center 1700 _______________ Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and CHARLES F. WARREN, Administrative Patent Judges. WARREN, Administrative Patent Judge. DECISION ON APPEAL1 Applicants appeal to the Board from the decision of the Primary Examiner finally rejecting claims 1-5 and 12-17 in the Office Action mailed November 28, 2007. 35 U.S.C. §§ 6 and 134(a) (2002); 37 C.F.R. 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-009075 Application 10/261,879 § 41.31(a) (2008). We reverse the decision of the Primary Examiner. Claim 1 illustrates Appellants’ invention of a composition, and is representative of the claims on appeal:2,3 1. A composition comprising: an energetic multilayer structure; and an energetic booster material coated onto one end or one side of said multilayer structure, wherein said energetic booster material is a sol-gel nanostructured energetic material and comprises a binder. Appellants request review of the ground of rejection under 35 U.S.C. § 103(a) advanced on appeal by the Examiner: claims 1-5 and 12-17 over Weihs (US 2002/0182436 A1) in view of Baldi US 4,880,483), Simpson,4 Gash,5 and Tilloston.6 App. Br. 3; Ans. 3. Opinion We agree with Appellants’ position that the Examiner erred in not considering the limitation in claim 1 for a sol-gel nanostructured energetic booster material which comprises a binder. Br. 3-4. In this respect, we agree with Appellants that none of the references show a sol-gel 2 We considered the Brief filed July 28, 2008, as modified by the Brief filed September 8, 2008. 3 The Claim Appendix to the Brief is in error with respect to claim 1. Thus, we copied claim 1 as it stands in the Amendment filed September 7, 2007. 4 “Nanostructured Energetic Materials Derived from Sol-Gel Chemistry,” Int. Annu. Conf. ICT (31st Energetic Materials). Karlsruhe, Germany, June 27-30, 2000. 5 “Making Nanostructured Pyrotechnics in a Beaker,” Proc. 27th Int. Pyrotech. Semin. Grand Junction, CO, July 15-21, 2000. pp. 41-53. 6 “Nanostructured Energetic Materials Using Sol-Gel Methodologies,” J. Non-Cryst. Solids 2001, 285. pp. 338-345. 2 Appeal 2009-009075 Application 10/261,879 nanostructured energetic booster material which comprises a binder. Br. 4. Indeed, the Examiner does not provide a scientific explanation or evidence establishing that one of ordinary skill in the art would have been led by Baldi’s disclosure of a zirconium-Fe O mixture containing a binder to include a binder in the sol-gel nanostructured materials in Simpson, Gash, and Tilloston. Ans. 3 and 4. 2 3 Accordingly, in the absence of a prima facie case of obviousness, we reverse the ground of rejection of the appealed claims under 35 U.S.C. § 103(a). The Primary Examiner’s decision is reversed. REVERSED tc ANN M. LEE ASSISTANT LABORATORY COUNSEL LAWRENCE LIVERMORE NATIONAL LABORATORY P.O. BOX 808, L-703 LIVERMORE, CA 94551 3