Ex Parte BurnsDownload PDFBoard of Patent Appeals and InterferencesMar 31, 201011096887 (B.P.A.I. Mar. 31, 2010) Copy Citation 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 2 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 Application 11/096,887 3 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 Appeal 2009-008836 Application 11/096,887 4 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 Application 11/096,887 5 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 Appeal 2009-008836 Application 11/096,887 6 [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 7 DECISION The decision of the Examiner to reject claims 1, 2, 5-15, and 20 is reversed. REVERSED mls L.C. BEGIN & ASSOCIATES, PLLC PMB 403 510 HIGHLAND AVENUE MILFORD, MI 48381 Copy with citationCopy as parenthetical citation