13214532 (P.T.A.B. Jun. 16, 2017)

Ex Parte Charlton

Patent Trial and Appeal BoardJun 16, 2017

13214532 (P.T.A.B. Jun. 16, 2017)

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. 13/214,532 08/22/2011 Eric F. Charlton 7134.3030.002, TA-01245 1523 16139 7590 Reising Ethington PC PO Box 4390 Troy, MI 48099-4390 06/20/2017 EXAMINER VALVIS, ALEXANDER M ART UNIT PAPER NUMBER 3752 NOTIFICATION DATE DELIVERY MODE 06/20/2017 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): j ones @ reising. com U S PTOmail @ reising. com USPTOmail@gmx.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIC F. CHARLTON Appeal 2015-0066601 Application 13/214,5322 Technology Center 3700 Before PHILIP J. HOFFMANN, JAMES A. WORTH, and KENNETH G. SCHOPFER, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of claims 1—6, 8—11, 24, and 25. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Our decision references Appellant’s Specification (“Spec.,” filed Aug. 22, 2011), Appeal Brief (“Appeal Br.,” filed Feb. 23, 2015), and Reply Brief (“Reply Br.,” filed July 6, 2015), as well as the Final Office Action (“Final Action,” mailed Sept. 15, 2014) and Examiner’s Answer (“Answer,” mailed May 5, 2015). 2 According to Appellant, “Lockheed Martin Corporation” is the real party in interest. Appeal Br. 2. Appeal 2015-006660 Application 13/214,532 According to Appellant, the “invention relates generally to the use of aircraft to deliver fire retardant to ground fires.” Spec. 11. Claim 1 is the only independent claim on appeal. Appeal Br., Claims App. We reproduce claim 1, below, as illustrative of the appealed claims.3 1. A fire retardant delivery apparatus for delivering fire retardant to a ground fire from an aircraft, the apparatus comprising: a dispenser casing configured to carry and dispense fire retardant and to be releasably carried by a delivering aircraft; a dispenser fuse carried by the dispenser casing and configured to actuate the dispenser casing to dispense the fire retardant; a plurality of fire retardant dispenser modules releasably carried by the dispenser casing, the dispenser fuse being configured to release the dispenser modules from the dispenser casing in response to one or more predetermined conditions, at least one dispenser module of the plurality of fire retardant dispenser modules carrying fire retardant and configured to release the retardant following release of the fire retardant dispenser modules from the dispenser casing; and the fire retardant delivery apparatus is ballistically matched to a cluster bomb unit comprising bomblets carrying explosive material rather than fire retardant, such that the fire retardant dispenser modules are deliverable to a desired ground target using a release envelope calculated for the cluster bomb unit by a weapons delivery computer of the delivering aircraft. Id. REJECTIONS AND PRIOR ART The Examiner rejects claims 1, 2, 6, 8—10, 24, and 25 under 35 U.S.C. § 103(a) as unpatentable over Regan (US 2007/0007021 Al, pub. Jan. 11, 2007) and Thomas (US 2005/0139363 Al, pub. June 30, 2005), and either We remove an extra period at the end of the claim. 2 3 Appeal 2015-006660 Application 13/214,532 Mutascio (US 6,779,463 B2, iss. Aug. 24, 2004), Brooks (US 6,672,220 B2, iss. Jan. 6, 2004), Farmer (US 4,638,736, iss. Jan. 27, 1987), or Pinson (US 4,455,943, iss. June 26, 1984). The Examiner rejects claims 3 and 4 under 35 U.S.C. § 103(a) as unpatentable over Regan, Thomas, and Blair (US 3,712,219, iss. Jan. 23, 1973), and either Mutascio, Brooks, Farmer, or Pinson. The Examiner rejects claim 5 under 35 U.S.C. § 103(a) as unpatentable over Regan, Thomas, Blair, and Sjobeck (US 8,695,847 B2, iss. Apr. 15, 2014), and either Mutascio, Brooks, Farmer, or Pinson. The Examiner rejects claim 11 under 35 U.S.C. § 103(a) as unpatentable over Regan, Thomas, and West (US 5,052,271, iss. Oct. 1, 1991), and either Mutascio, Brooks, Farmer, or Pinson. ANALYSIS As set forth above, independent claim 1 recites, among other recitations, that the fire retardant delivery apparatus is ballistically matched to a cluster bomb unit comprising bomblets carrying explosive material rather than fire retardant, such that the fire retardant dispenser modules are deliverable to a desired ground target using a release envelope calculated for the cluster bomb unit by a weapons delivery computer of the delivering aircraft. Appeal Br., Claims App. The Examiner relies on Regan to teach the claimed fire retardant delivery apparatus that is ballistically matched to a cluster bomb unit carrying explosive material. See, e.g., Final Action 2. Based on our review of the record, however, we conclude that the Examiner does not support adequately the finding that Regan teaches such a fire retardant delivery apparatus. See, e.g., Appeal Br. 8—10. 3 Appeal 2015-006660 Application 13/214,532 In particular, the Examiner relies on Regan’s paragraph 32 to support the rejection. See Answer 8. It is not clear to us, however, that this portion of Regan discusses a fire retardant delivery apparatus that is ballistically matched to a cluster bomb carrying explosive material, such that fire retardant dispenser modules in the apparatus are deliverable to a ground target using a release envelope calculated for the cluster bomb unit carrying explosive material, as is recited by claim 1. Although this portion of Regan does state that “each submunition is a small explosive-filled and or chemical-filled item designed for saturation of a large surface area upon detonation. The scope of the invention contemplates that each submunition may be antipersonnel (APERS), anti-materiel (AMAT), antitank (AT), dual- purpose (DP), incendiary, or chemical,” it is not clear that this portion is describing a submunition or anything else carrying fire retardant material which is ballistically matched to a cluster bomb carrying explosive material. Regan 132; see also Answer 8. The Examiner’s further reasoning and explanation also is not adequate to support the rejection. See, e.g., Answer 6—8. More specifically, the Examiner does not explain adequately why Regan teaches, or why it would have been obvious to modify Regan to provide, a fire retardant delivery apparatus that is ballistically matched to a cluster bomb carrying explosive material, such that fire retardant dispenser modules in the apparatus are deliverable to a ground target using a release envelope calculated for the cluster bomb unit carrying explosive material. Thus, based on the foregoing, we do not sustain the obviousness rejection of claim 1. Inasmuch as the Examiner does not establish adequately that any other reference remedies the above deficiency in the 4 Appeal 2015-006660 Application 13/214,532 rejection of claim 1, we also do not sustain the rejections of any of dependent claims 2—6, 8—11, 24, and 25. DECISION We REVERSE the Examiner’s rejection of claims 1—6, 8—11, 24, and 25. REVERSED 5