Ex Parte Benitsch

Board of Patent Appeals and Interferences

Mar 26, 2008

10988735 (B.P.A.I. Mar. 26, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte BODO BENITSCH
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Appeal 2008-0788
Application 10/988,735
Technology Center 3600
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Decided: March 26, 2008
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Before MURRIEL E. CRAWFORD, JENNIFER D. BAHR, and MICHAEL
W. O’NEILL, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 (2002) from a final rejection
of claims 1 and 2. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
Appellant’s invention is directed to an antiballistic layer for protecting
people and objects. (Specification 1.)
Claim 1 under appeal reads as follows:
Appeal 2008-0788
Application 10/988,735

1. An antiballistic layer, comprising:
at least one ceramic material;
a layer thickness;
a side intended to face toward an attack, said side intended
to face toward the attack having a continuous surface; and
a side intended to face away from the attack, said side
intended to face away from the attack having a segmented
surface composed of individual segments delimited by gaps,
said gaps having a depth between said segments being at least
0.15 mm less than said layer thickness.

The Examiner rejected claims 1 and 2 under 35 U.S.C. § 102(b) as
being anticipated by Snedeker.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Snedeker US 5,686,689 Nov. 11, 1997

Appellant contends that Snedeker does not disclose an antiballistic
layer side intended to face away from the attack having a segmented surface
composed of individual segments delimited by gaps.

ISSUE
The issue is whether the Appellant has shown that the Examiner erred
in finding that Snedeker discloses an antiballistic layer having a side
intended to face away from attack having a segmented surface composed of
individual segments delimited by gaps.
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Application 10/988,735

FINDINGS OF FACT
Snedeker discloses an antiballistic layer having a surface with
segments 24' (Figure 4). The segments are separated by a space which is
filled by ridges 20' (col. 3 ll. 8 to 10). The surface with segments is capable
of facing away from attack.
The ordinary and customary definition of the word “gap” is “a
separation in space.” (See http://www.merriam-webster.com/dictionary/gap).

PRINCIPLES OF LAW
To support a rejection of a claim under 35 U.S.C. § 102(b), it must be
shown that each element of the claim is found, either expressly described or
under principles of inherency, in a single prior art reference. See Kalman v.
Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed. Cir. 1983), cert. denied, 465
U.S. 1026 (1984).
The manner or method in which a machine is to be utilized is not
germane to the issue of patentability of the machine itself. In re Casey, 370
F.2d 576, 580 (CCPA 1967). A statement of intended use does not qualify
or distinguish the structural apparatus claimed over the reference. In re
Sinex, 309 F.2d 488, 492 (CCPA 1962).

ANALYSIS
We are not persuaded by the Appellant’s argument that Snedeker does
not disclose an antiballistic layer having a side with a segmented surface
intended to face away from the attack. As stated above, the intended use of
a device is not germane to the patentability of the device itself. In this
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Application 10/988,735

regard, as we found above, the Snedeker surface with the segments is
capable of facing away from attack.
We are also not persuaded by the Appellant’s argument that Snedeker
does not disclose that the segmented surface is composed of individual
segments that are delimited by gaps. In Appellant’s view the space between
the segments 24 are not gaps because the space is filled with grout.
However, the claims do not recite a non-filled gap between the segments but
rather simply a “gap.” As we found above, a gap is a separation in space.
Appellant agrees that a gap is a separation or space between two bodies
(Brief 9). There is clearly a separation in space between the segments 24 of
Snedeker. The separation in space exists even though the separation is filled
with grout, or with ridge 20’.
We are also not persuaded by the Appellant’s argument that ridges 20’
extend to a height beyond the thickness of the ceramic bodies 24’ (Brief 9).
Nothing in the claims excludes the possibility of other portions of the layer
extending outwardly beyond the recited segments or the recited ceramic
material.
Moreover, even if Appellant is correct that ridges 20' are not gaps
because they are not voids, we note that matrix block 12' and the ceramic
bodies 24' together comprise a layer. The top regions of ridges 20 which
extend above the tops of ceramic bodies 24' are segments. These segments
are separated by gaps which comprise the voided region above the tops of
the ceramic bodies 24'.

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Application 10/988,735

In view of the foregoing, we will sustain the Examiner’s rejection of
claims 1 and 2 under 35 U.S.C. § 102(b). The decision of the Examiner is
affirmed.

AFFIRMED

JRG

LERNER GREENBERG STEMER LLP
P O BOX 2480
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