10988735 (B.P.A.I. Feb. 1, 2011)

Ex Parte Benitsch

Board of Patent Appeals and InterferencesFeb 1, 2011

10988735 (B.P.A.I. Feb. 1, 2011)

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. 10/988,735 11/15/2004 Bodo Benitsch SGL 03/25 3471 24131 7590 02/02/2011 LERNER GREENBERG STEMER LLP P O BOX 2480 HOLLYWOOD, FL 33022-2480 EXAMINER WEBER, JONATHAN C ART UNIT PAPER NUMBER 3641 MAIL DATE DELIVERY MODE 02/02/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte BODO BENITSCH ____________ Appeal 2010-000371 Application 10/988,735 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, JENNIFER D. BAHR, and STEVEN D.A. MCCARTHY, Administrative Patent Judges. CRAWFORD, Administrative Patent Judge. DECISION ON APPEAL1 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 2010-000371 Application 10/988,735 2 STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final decision rejecting claims 1 and 2. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND Appellant’s invention is directed to an antiballistic layer for protecting people and objects (Spec. 1). Claim 1 is illustrative: 1. An antiballistic layer, comprising: at least one ceramic material having an attack side with a continuous surface configured to face toward an attack and effective to withstand a multi-hit ballistic attack; a layer thickness; and said ceramic material having a side opposite said attack side, said side having a segmented surface opposite said continuous surface, said 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. Appellant appeals the following rejection: Claims 1 and 2 under 35 U.S.C. § 103(a) as unpatentable over Lucuta (WO 03/010484 A1, pub. Feb. 6, 2003). Appeal 2010-000371 Application 10/988,735 3 ISSUE Did the Examiner err in rejecting the claims because Lucuta does not disclose an antiballistic layer with a continuous surface configured to face toward attack and that is effective to withstand a multi-hit ballistic attack? FACTUAL FINDINGS We adopt the Examiner’s findings as our own. (Ans. 3 to 4). Additional findings of fact may appear in the analysis that follows. ANALYSIS We are not persuaded of error on the part of the Examiner by Appellant's argument that Lucuta does not disclose an antiballistic layer with a continuous surface configured to face toward an attack. We agree with the Examiner that this argument relates to the intended use of the antiballistic layer. 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). We are not persuaded of error on the part of the Examiner by Appellant's argument that Lucuta does not disclose that the antiballistic layer is effective to withstand a multi-hit ballistic attack. We agree with the Examiner that all that is required by the claim language is that the ceramic layer of Lucuta have the ability to withstand a multi-hit ballistic attack. Notably, the claim does not specify the direction from which the multi-hit ballistic attack is received. Lucuta discloses that the ceramic system therein disclosed provides improved ballistic performance and multi-hit capacity (Lucuta 20:19-20). Appeal 2010-000371 Application 10/988,735 4 We find that the ceramic layer of Lucuta is effective to withstand a multi-hit ballistic attack. In view of the foregoing, we will sustain the rejection of the Examiner. DECISION We affirm the Examiner’s § 103(a) rejection of claims 1 and 2. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1). AFFIRMED hh LERNER GREENBERG STEMER, LLP P.O. BOX 2480 HOLLYWOOD, FL 33022-2480