Ex Parte Burns

Board of Patent Appeals and Interferences

Mar 31, 2010

11096887 (B.P.A.I. Mar. 31, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte SEAN P. BURNS
____________________

Appeal 2009-008836
Application 11/096,887
Technology Center 3600
____________________

Decided: March 31, 2010
____________________

Before LINDA E. HORNER, KEN B. BARRETT, and
FRED A. SILVERBERG, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Sean P. Burns (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s decision rejecting claims 1, 2, 5-15, and 20. An oral hearing
was held on March 11, 2010. We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2009-008836
Application 11/096,887

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SUMMARY OF THE DECISION
We REVERSE.

THE INVENTION
Appellant’s claimed invention pertains to a vehicle airbag inflator
using a gas generant tablet. Spec. 1. Claim 1, reproduced below, is
representative of the subject matter on appeal.
1. A gas generant tablet comprising:
a body portion having a first end, a second end, and a
longitudinal axis;
a first projection extending from the first end in a first
direction, at least a portion of the first projection extending
non-orthogonally with respect to the longitudinal axis;
a second projection extending from the second end in a
second direction generally opposite the first direction, at least a
portion of the second projection extending non-orthogonally
with respect to the longitudinal axis; and
a land portion extending from a periphery of the body
portion toward the longitudinal axis to substantially
circumscribe at least one of the first projection and the second
projection,
wherein at least one of the first projection and the second
projection is substantially spherical.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Hock US 5,368,329 Nov. 29, 1994
Smith US 5,682,013 Oct. 28, 1997

Appeal 2009-008836
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Before us for review is the Examiner’s rejection of claims 1, 2, 5-15,
and 20 under 35 U.S.C. § 103(a) as being unpatentable over Hock and
Smith.

ISSUE
The Examiner found that Hock discloses Appellant’s gas generant
tablet except for the substantially spherical projections. Ans. 3. The
Examiner found that Smith teaches a gas generant tablet with projections
being substantially spherical for the purpose of controlling burn rate. Id.
The Examiner concluded that:
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to modify Hock to include at
least one of the first projection and the second projection being
substantially spherical as taught by Smith in order to control the
burn rate.
Id. Appellant contends that Smith does not disclose that burn rate is related
to the shape, and that the Examiner has not provided a rationale why one
would combine the references. App. Br. 13; Reply Br. 4-5, 7. Thus, the
issue on appeal is whether the Examiner failed to articulate reasoning with
some rational underpinning to support the conclusion that it would have
been obvious to combine the teachings of Hock and Smith.

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. Smith discloses that, in some vehicle air bag applications, it is
desirable to have a dual gas output rate effect. Smith, col. 3, l. 66 – col. 4,
l. 8. To that end, Smith teaches a composite body 1 with a burn inhibitor
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Application 11/096,887

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layer 3 on a gas generant body part 2. Id., col. 4, ll. 9-13; figs. 1, 2. Smith
explains that, as the inhibitor layer burns away, the baseline generant
underneath is progressively exposed. Id., col. 4, ll. 58-60. The newly
exposed generant burning surface proportionally increases the rate of gas
output, thereby creating the dual rate effect. Id., col. 4, ll. 60-62. The timing
of the rate change is a function of the rate of erosion of the inhibitor layer.
Id., col. 4, ll. 63-64.
2. Smith’s figures depict embodiments having a washer-shaped
generant wafer disc (Fig. 1) and a pellet or tablet shaped generant body (Fig.
2). Smith, col. 3, ll. 56-59. The embodiment of Figure 2 has a rounded top
and bottom surface. Smith states that the overall shape of the gas generant
body is not critical and can be virtually any shape. Id., col. 5, ll. 57-59.

PRINCIPLES OF LAW
Rejections based on 35 U.S.C. § 103 must rest on a factual basis. In
making such a rejection, the examiner has the initial duty of supplying the
requisite factual basis and may not, because of doubts that the invention is
patentable, resort to speculation, unfounded assumptions, or hindsight
reconstruction to supply deficiencies in the factual basis. In re Warner, 379
F.2d 1011, 1017 (CCPA 1967). Additionally, the analysis supporting an
obviousness rejection should contain articulated reasoning with some
rational underpinning. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(citations omitted) (cited approvingly in KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007)).
Appeal 2009-008836
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ANALYSIS
Independent claims 1, 11, and 20 recite a gas generant tablet having a
substantially spherical projection. The remaining claims on appeal depend
directly or indirectly from one of these independent claims.
The Examiner maintains that one of ordinary skill in the art would
have modified Hock’s gas generant tablets to have Smith’s rounded shape in
order to control the burn rate. Ans. 3. The Examiner offers, as a rationale to
support the conclusion of obviousness, the statement:
All 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.
Ans. 3-4. (emphasis added). Appellant particularly takes issue with the
“respective functions” aspect of the Examiner’s proffered rationale, asserting
that Smith does not disclose any function for the rounded portion of the
tablet. See App. Br. 12.
While Smith does disclose an embodiment having a rounded shape,
Smith also discloses a washer-shaped wafer disc, and teaches that the gas
generant body shape is not critical. Fact 2. Rather, Smith’s disclosure
focuses on the function of the burn inhibitor layer to create a dual gas output
rate effect. See Fact 1. The Examiner does not direct our attention to any
portion of Smith that discloses the function of the rounded shape or that the
shape is for the purpose of controlling burn rate. Cf. Ans. 3 (citing Smith,
col. 3, l. 66 – col. 4, l. 8, which does not associate the shape with the burn
rate). In response to Appellant’s assertion that Smith’s dual-stage burn rate
is provided solely by the burn inhibitor layer, the Examiner states that “the
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[combustion propagation controlling] function could certainly have been
provided at least in part by the rounded shape as well.” Ans. 7 (emphasis
added). The Examiner further speculates that Smith does not disclose the
function of the shape because Smith did not realize that shape affects
combustion propagation or because the effect of the shape was so well
known that it did not need to be disclosed in a patent application. Id.
The Examiner also appears to assert that the combustion propagation
controlling function is inherent in the rounded shape “because nowhere
within Smith is the shape found to be other than substantially spherical.”
Ans. 8. However, Smith discloses the washer-shaped wafer in addition to
the rounded shape, Fact 2, and thus we cannot find that the rounded shape
inherently functions to control combustion propagation.
Obviousness rejections cannot be based on speculation or unfounded
assumptions. Because the Examiner’s articulated reason to combine the
references lacks a rational, fact-based underpinning, we are constrained to
reverse the rejection of claims 1, 2, 5-15, and 20 as obvious over Hock and
Smith.

CONCLUSION
The Examiner has failed to articulate reasoning with some rational
underpinning to support the conclusion that it would have been obvious to
combine the teachings of Hock and Smith.

Appeal 2009-008836
Application 11/096,887

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DECISION
The decision of the Examiner to reject claims 1, 2, 5-15, and 20 is
reversed.

REVERSED

mls

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