Ex Parte Beach et al

Patent Trial and Appeal Board

Feb 20, 2018

13835352 (P.T.A.B. Feb. 20, 2018)

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.
13/835,352 03/15/2013 Glenn J. Beach CYB-12202/03 7402
131270 7590 02/21/2018
BELZER PC
ATTN: John G. Posa
2905 Bull Street
Savannah, GA 31405
EXAMINER
HAYES, BRET C
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
02/21/2018 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
____________

Ex parte GLENN J. BEACH, JAMES BURKOWSKI,
AMANDA CHRISTIANA, TREVOR DAVEY, CHARLES J. JACOBUS,
JOSEPH LONG, GARY MOODY, and GARY SIEBERT
_____________

Appeal 2016-006232
Application 13/835,352
Technology Center 3600
____________

Before CHARLES N. GREENHUT, JILL D. HILL, and
THOMAS F. SMEGAL, Administrative Patent Judges.

SMEGAL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
rejections2 under 35 U.S.C. § 103(a) of claims 1–8, 12–15, 17, and 20 as
unpatentable over either Chung (US 7,610,858 B2, iss. Nov. 3, 2009 and
Mantel (US 4,475,435, iss. Oct. 9, 1984) or Mantel and Chung; of claim 9 as

1 Appellant identifies the real party in interest as Cybernet Systems
Corporation. Appeal Br. 1.
2 The Appeal is taken from the adverse decision of the Examiner as set forth
in the Final Office Action, dated May 12, 2015 (“Final Act.”). We note that
in the Advisory Action dated August 27, 2015, the Examiner withdrew the
rejections of claim 3 under 35 U.S.C. § 112, second paragraph, (Advisory
Act. 2) and of claim 1 under either 35 U.S.C. § 102(b) or 35 U.S.C. § 103(a)
over Chung. (Advisory Act. 5).
Appeal 2016-006232
Application 13/835,352

2
unpatentable over Mantel, Chung, and Attarwala (US 6,460,464 B1, iss. Oct.
8, 2002); of claims 16 and 18 as unpatentable over Mantel, Chung and
Nuetzman (US 2013/0180392 A1, pub. July 18, 2013); and of claim 19 as
unpatentable over Mantel, Chung, and Rennard (US 2003/0217665 A1, pub.
Nov. 27, 2003.3 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Claim 1, the only independent claim, is reproduced below and
illustrates the claimed subject matter.
1. A system for manufacturing polymer ammunition,
comprising:
a first feed station for delivery of lower case portions, each
lower case portion including a metal head end;
at least one subsequent feed station for delivery of upper
case portions each upper case portion having an open top end;
wherein one or both of the upper and lower case portions
are polymeric;
a case assembly station to receive the lower and upper case
portions and join the lower and upper case portions through
gluing or plastic welding;
a case feeder for receiving and conveying the assembled
cases;
a primer feed and insert station operative to receive
primers and the assembled cases, and insert one of the primers
onto the head end of each case through the open end of that case;
a propellant fill station operative to receive the primed
cases and propellant, and fill each case with the propellant
through the open end of that case to provide propellant-filled
cases;
a bullet feeder station operative to receive the propellant-
filled cases and bullets, and insert one of the bullets into open
end of each case, thereby closing off the open end thereof; and

3 Claims 10 and 11 were canceled in an amendment filed February 26, 2015.
Appeal 2016-006232
Application 13/835,352

3
a crimping station operative to attach each bullet to the
case into which that bullet was inserted and output assembled
rounds of ammunition.

App. Br. 11 (Claims Appendix).

ANALYSIS
Obviousness of Claims 1–8, 12–15, 17, and 20 over Chung and
Mantel
We are persuaded by Appellants’ arguments that the Examiner fails to
establish a prima facie showing of obviousness in rejecting claims 1–8, 12–
15, 17, and 20 over Chung and Mantel. See Appeal Br. 2–8; see also Reply
Br. 1–5.
In rejecting claim 1, the Examiner finds that “Chung fairly discloses
the cartridge case and its manufacture as well as certain other process steps
that can occur in-line or at another location [], except for positively
disclosing individual stations, feeders, and sensors,” as recited by claim 1.
Ans. 3. The Examiner then looks to Mantel for teaching “an in–line
progressive brass shell reloader 12,” including variations of the limitations
of claim 1 that are “well known in the art for the purpose of manufacturing
ammunition,” and reasons that it would have been obvious “to modify
Chung as taught by Mantel in order to manufacture ammunition.” Id. (citing
Mantel, col. 1, l. 47–col. 3, l. 49).
In particular, the Examiner finds that
[a]ll claimed elements were known in the prior art and one skilled
in the art could have combined the elements as claimed by known
methods with no change in their respective functions, and the
combination would have yielded predictable results to a skilled
artisan at the time the invention was made.”
Id. (emphasis added).
Appeal 2016-006232
Application 13/835,352

4
Appellant contends that while “Chung states that ‘the ammunition
cartridges [of Chung] may be assembled without modification of [existing]
production lines,’” “Chung gives no substantive details regarding the way in
which ‘existing production lines’ are arranged, and the Examiner makes no
comparisons between [Appellant’s] claim limitations and ‘existing
production lines.’” Appeal Br. 2. Appellant reasons that “[w]hile Chung
does specify the components used for assembly, Chung is silent regarding
how such components are actually assembled,” pointing out, inter alia,
while Appellant’s “claim 1 includes the limitation of a first feed station for
delivery of lower case portions,” that “[t]his is not disclosed or suggested by
Chung, and the Examiner has offered no evidence that ‘existing production
lines’ have a feed station for delivery of lower case portions.” Id. 3; Reply
Br. 1–3.
In response, the Examiner argues, inter alia, “Chung discloses [that]
‘polymeric cartridge casings should require little to no modification of
conventional ammunition manufacturing equipment and methods [to make
the casings],’” Ans. 9 (citing Chung, col. 1, ll. 63–65). The Examiner also
reasons that “Chung sufficiently obviates the claimed invention because
stations, etc., are well known in the art and would be normal to the
manufacturing process.” Id. at 10.
Regarding Mantel, which Appellant admits “is directed to a grass
shell casing reloader,” the Examiner contends that “this is exactly the kind
of equipment and method Chung discloses as being conventional and
requiring little to no modification to make the casings disclosed therein,”
reasoning that “[o]ne of ordinary skill in the art would recognize that, for
casings having more than a single shell piece, more than one such station
Appeal 2016-006232
Application 13/835,352

5
would be required, and that this would [] obviously fall within the ‘little to
no modification’ disclosed by Chung.” Id. at 10–11.
However we agree with Appellant that “the Examiner has largely
ignored Appellants' [claim] limitations regarding what functions the stations
perform,” and “has not made comprehensive comparisons between all of
[Appellant’s] claim limitations and the prior art to determine what those
imitations fairly convey to a person of ordinary skill in the pertinent art in
the context in which they are used.” Reply Br. 2–3. Claim 1 recites a first
feed station, a subsequent feed station, a case assembly station, a primer feed
and insert station, a propellant fill station, a bullet feeder station, and a
crimping station. While there may be some reasonableness in the
Examiner’s assertion that “conventional ammunition manufacturing
equipment and methods would inherently include separate stations, as
opposed to a single station for performing every necessary task, since this
well-known concept of mass production increases production,” the claim
more particularly recites specific stations for which the Examiner has not
provided a basis in fact and/or technical reasoning that supports the specific
claimed stations necessarily flowing from the teachings of the applied prior
art. See In re Rijckaert, 9 F.3d 1531, 1534 (Fed. Cir. 1993).
We therefore find that the Examiner’s legal conclusion of obviousness
is not supported by evidence and, thus, cannot stand. See In re Warner, 379
F.2d 1011, 1017 (CCPA 1967) (holding that “[t]he legal conclusion of
obviousness must be supported by facts. Where the legal conclusion is not
supported by facts it cannot stand.”).
For the foregoing reasons, we do not sustain the Examiner’s rejection
of claims 1–8, 12–15, 17, and 20 over Chung and Mantel. For the same
Appeal 2016-006232
Application 13/835,352

6
reasons, we do not sustain the further rejections of claims 1–8, 12–15, 17,
and 20 over Mantel and Chung.

Obviousness of claim 9 over Mantel, Chung, and Attarwala; of claims
16 and 18 over Mantel, Chung and Nuetzman; and of claim 19 as
unpatentable over Mantel, Chung, and Rennard
The Examiner’s rejections of claim 9 over Mantel, Chung, and
Attarwala; of claims 16 and 18 over Mantel, Chung and Nuetzman; and of
claim 19 over Mantel, Chung, and Rennard is based on the same
unsupported findings discussed above with respect to the disclosures of
Chung and Mantel. Final Act. 7–9. The addition of Attarwala, Nuetzman,
or Rennard does not remedy the deficiencies of Chung and Mantel, as
discussed supra.
Accordingly, we do not sustain the Examiner’s decisions rejecting
claim 9 over Mantel, Chung, and Attarwala; claims 16 and 18 over Mantel,
Chung and Nuetzman; and claim 19 as unpatentable over Mantel, Chung,
and Rennard.
DECISION
We reverse the Examiner’s rejections.

REVERSED