Ex Parte Blau et al

Patent Trial and Appeal Board

Nov 28, 2016

13457996 (P.T.A.B. Nov. 28, 2016)

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.
13/457,996 04/27/2012 Reed J. Blau 2507-7589.1US(22164-US.04 4351
60794 7590 11/30/2016
TRASKBRITT, P.C./ ORBITAL ATK, INC.
P.O. BOX 2550
SALT LAKE CITY, UT 84110
EXAMINER
MCDONOUGH, JAMES E
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
11/30/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
U S PTOMail @ traskbritt .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte REED J. BLAU, LISA S. LIU,
RONALD L. HANSEN, and RICHARD AMES
Appeal 2014-004324
Application 13/457,996
Technology Center 1700
Before CHUNG K. PAK, JAMES C. HOUSEL, and MONTE T. SQUIRE,
Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision finally rejecting claims 1—5, 9—11, 19—21,3 24—27, 29—
1 Our decision refers to Appellants’ Appeal Brief (Appeal Br.) filed
September 18, 2013, the Examiner’s Answer (Ans.) delivered November 21,
2013, and Appellants’ Reply Brief (Reply Br.) filed January 15, 2014.
2 According to Appellants, the real party in interest is Alliant Techsystems
Inc. Appeal Br. 4.
3 Although the Examiner’s statement of rejection omits claim 21, we note
that the body of the rejection specifically addresses this claim (see Ans. 5).
In addition, Appellants acknowledge that claim 21 stands rejected (see
Appeal 2014-004324
Application 13/457,996
33, and 35—37* * 4 under 35 U.S.C. § 103(a) as unpatentable over Freeman5 in
view of Blau,6 and as applied to claims 6—8 and 28, further evidenced by
Pyrocreations.7 We have jurisdiction over the appeal under 35 U.S.C.
§ 6(b).
We AFFIRM.
STATEMENT OF THE CASE
The invention relates to a non-lethal, payload device and a method for
delivering improved flash, noise, and pressure variances to incapacitate
and/or distract one or more subjects. Spec. 13. Such non-lethal devices,
commonly referred to as “flash-bangs,” produce a flash of light and noise
(bang) of sufficient intensity to temporarily overwhelm a person’s visual and
auditory senses thereby incapacitating the person. Id. at 14. Appellants
disclose that it is desired to improve the incapacitating characteristics of
such devices, such as reduced lethality or injury, flashes which impair the
visual sense for a longer period of time, and bangs that shock without
causing permanent auditory damage. Id. at ]f IE
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
Appeal Br. 5 and 7). Thus, we hold the Examiner’s omission to be harmless
error.
4 Pending claims 12—18 and 34 have been withdrawn from consideration and
are not before us on appeal.
5 Freeman, US 3,760,729, issued September 25, 1973.
6 Blau et al., US 2005/0115721 Al, published June 2, 2005 (“Blau”).
7 http://www.pyrocreations.com/colored_stars, last accessed October 18,
2016. We note that Appellants do not challenge the prior art status of this
website and its content.
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Application 13/457,996
1. A device for producing illuminance, comprising:
an igniter/activator within a device casing, the
igniter/activator having a flame temperature greater than 2000
K;
an initiation device contacting the igniter/activator; and
an illuminant within the device casing, the device casing
configured to produce non-lethal shrapnel upon activation of
the igniter/activator and the illuminant.
Method claim 12, the remaining independent claim on appeal, is directed to
a method of producing a diversionary flash from a device similar to claim 1,
by igniting the igniter/activator to heat and disperse the illuminant into a
cloud of illuminant and air, followed by activating the cloud to produce the
flash.
Appellants do not argue the claims separately, but instead focus on the
limitations of claim 1. Accordingly, we similarly limit our discussion below
to claim 1; the remaining claims on appeal stand or fall with claim 1.
ANALYSIS
The dispositive issue before us on appeal is whether Appellants have
identified reversible error in determining that the device resulting from the
Examiner’s proposed combination is “configured to produce non-lethal
shrapnel upon activation of the igniter/activator and illuminant.” On this
record, we answer this question in the negative and, therefore, will sustain
the Examiner’s rejection.
The Examiner finds, without dispute, Freeman teaches a device for an
illuminant comprising a case with a hole for receiving a primer charge
(igniter/activator) for igniting the illuminant, wherein the illuminant may be
powdered magnesium. Ans. 2. However, the Examiner acknowledges
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Application 13/457,996
Freeman fails to teach the primer or igniter/activator has a flame temperature
above 2000°K. Id. Nonetheless, the Examiner finds, again without dispute,
Blau teaches igniters for pyrotechnic compositions, wherein the igniters can
contain a well-known composition, B/KNO3, containing 15—30% boron and
70-85% potassium nitrate; a composition, Mg/SrNOy or mixtures thereof.
Id. at 3. The Examiner further finds, that, although Freeman and Blau are
silent regarding the flame temperature of the igniter/activator, since Blau’s
composition is the same as Appellants’, it is reasonable to expect Blau’s
composition’s properties to be the same as Appellants’, including a flame
temperature above 2000°K. Id. The Examiner concludes it would have been
obvious to modify Freeman’s device to include an igniter/activator
composition including B/KNO3, Mg/SrNCE, or mixtures thereof with a
reasonable expectation of success. Id.
The Examiner further finds use of the Ml 16A1 simulator case is a
well-known case for pyrotechnics which would not be expected to produce
lethal shrapnel, and its use in Freeman’s related device for igniting
illuminant would have been an obvious choice of design. Id. Alternately,
the Examiner finds that because Freeman’s cap would remain intact upon
rupture at the weld, shrapnel produced would be expected to be non-lethal.
Id.
Appellants contend that Freeman and Blau, alone or in combination,
fail to teach, suggest, or otherwise render obvious a device casing
“configured to produce non-lethal shrapnel upon activation of the
igniter/activator and the illuminant.” Appeal Br. 10. According to
Appellants, Freeman’s cap and case would be lethal shrapnel upon
separation during use and operation of the cartridge. Id. at 11. Appellants
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Application 13/457,996
assert this is so because Freeman’s cap and case are made from hard, rigid
materials. Id. Appellants further argue that Freeman’s launched case would
itself be lethal upon being launched. Id. at 11—12. Finally, Appellants urge
that because Freeman’s device is designed to be launched into the air to
about 225—275 feet, Freeman is not concerned with the lethality of the
device upon activation of the igniter and illuminant. Id. at 13—14.
We do not find Appellants’ arguments persuasive of reversible error
in the Examiner’s obviousness rejection of claim 1. Initially, we note a
dispute arose in this appeal with regard to the construction of the term,
“shrapnel,” as used in the claims. Compare Ans. 8 with Reply Br. 4—6.
Without belaboring the point, we agree with Appellants that the broadest
reasonable interpretation of “shrapnel,” consistent with the Specification, is
“fragments of a bomb, shell, or other object thrown out by an explosion.”
See Reply Br. 4—6. Nevertheless, such a construction does not support
reversible error in the Examiner’s rejection. We note the Examiner finds
Appellants’ admitted prior art, the Ml 16A1 casing, is a known non-lethal
casing for use in pyrotechnic devices whose use in Freeman’s device is an
obvious design choice. Appellants do not dispute this finding. Thus,
regardless of the merits of Appellants’ argument that Freeman’s cap and
case would be lethal shrapnel, Appellants have not disputed the Examiner’s
alternative position that it would have been obvious to use the Ml 16A1
casing with the Freeman illuminant and the Blau igniter/activator.
Indeed, given the Ml 16A1 device includes an igniter/activator, an
illuminant, and a casing configured to produce non-lethal shrapnel upon
activation, we have no difficulty concluding that it would have been obvious
to have substituted Blau’s igniter/activator and Freeman’s illuminant in the
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Ml 16A1 device as well-known alternatives in this art with a reasonable
expectation of success. In re Droge, 695 F.3d 1334, 1338 (Fed. Cir. 2012);
In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988) (“For obviousness
under § 103, all that is required is a reasonable expectation of success.”).
Accordingly, Appellants have not identified reversible error in the
Examiner’s rejection.
We note that in order to sustain the rejection, specific reliance on
Appellants’ admitted prior art, the Ml 16A1 device, is required. As the
Examiner’s statement of rejection does not include reference to Appellants’
admitted prior art, we restate the Examiner’s rejection as based on a
combination of Appellants’ admitted prior art, the Ml 16A1 device, Blau,
and Freeman. However, Appellants have had opportunity to challenge the
Examiner’s findings and reliance on the Ml 16A1 device (see Final Act. 4;
Ans. 3—4), but failed to do so.8
8 In addition, we note that the prior art references must be evaluated, taking
into account, inter alia, “the background knowledge possessed by a person
having ordinary skill in the art,” and “the inference and creative steps that a
person of ordinary skill in the art would employ.” KSR Int 7 Co. v. Teleflex,
Inc., 550 U.S. 398, 418 (2007); see also In re Paulsen, 30 F.3d 1475, 1480
(Fed. Cir. 1994) (“[A] prior art reference must be ‘considered together with
the knowledge of one of ordinary skill in the pertinent art.’”) (quoting In re
Samour, 571 F.2d 559, 562 (CCPA 1978)). The knowledge attributable to
one of ordinary skill in the art includes what was admittedly known in the art
by Appellants at the time of the invention. Constant v. Advanced Micro-
Devices Inc., 848 F.2d 1560, 1570 (Fed. Cir. 1988) (“A statement in a patent
that something is in the prior art is binding on the applicant and patentee for
determining anticipation and obviousness.”); In reFout, 675 F.2d 297, 301,
213 USPQ 532, 536 (CCPA 1982) (“[i]t is not unfair or contrary to the
policy of the patent system that appellants’ invention be judged on
obviousness against their actual contribution to the art”) (footnote omitted).
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Application 13/457,996
CONCLUSION
The Examiner’s rejections of claims 1—5, 9-11, 19-21, 24—27, 29—33,
and 35—37 under 35 U.S.C. § 103(a) as unpatentable over the combination of
Appellants’ admitted prior art, the Ml 16A1 device, Blau, and Freeman, and
of claims 6—8 and 28 adding Pyrocreations, are sustained.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Answer, the decision of the Examiner rejecting claims 1—11, 19—21,
24—33, and 35—37 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
7