Ex Parte Cohen

Board of Patent Appeals and Interferences

Mar 23, 2007

10685377 (B.P.A.I. Mar. 23, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL COHEN
____________

Appeal 2006-3264
Application 10/685,377
Technology Center 3600
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Decided: March 23, 2007
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Before TERRY J. OWENS, STUART S. LEVY, and ROBERT E. NAPPI,
Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant appeals from a rejection of claims 1-14, which are all
of the pending claims.
THE INVENTION
The Appellant claims a modular armored vehicle system. Claim 1 is
illustrative:
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1. A modular armored vehicle system comprising an armored
combat vehicle chassis having a plurality of openings and a plurality
of composite armor plates for absorbing and dissipating kinetic energy
from high velocity, armor-piercing projectiles, each of said plates
being adapted for attachment to said chassis and sized to cover at least
one of said openings wherein each of said plates comprises a single
layer of bodies which are directly bound and retained in plate form by
a solidified material wherein a majority of each of said bodies is in
direct contact with at least four adjacent bodies, wherein the solidified
material and the plate are elastic and wherein said bodies have a
specific gravity of at least 2.4 and are made of a ceramic material.

THE REFERENCES
Ferguson US 4,131,053 Dec. 26, 1978
Middione US 6,082,240 Jul. 4, 2000
Cohen (Cohen ‘781) US 6,289,781 B1 Sep. 18, 2001
Cohen (Cohen ‘075) US 6,575,075 B2 Jun. 10, 2003
Slater GB 2 277 141 A Oct. 19, 1994

THE REJECTIONS
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 1-9 over Cohen ‘781 in view of Middione; claims 10, 13, and 14 over
Cohen ‘781 in view of Middione and Cohen ‘075; and claims 10-12 over
Cohen ‘781 in view of Middione and either Ferguson or Slator.

OPINION
We affirm the aforementioned rejections.
The Appellant separately argues only the broadest independent claim,
i.e., claim 1, and its dependent claim 5 (Br. 14-26). Although additional
references are applied to dependent claims 10-13 and independent claim 14,
the Appellant does not provide a substantive argument as to the separate
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patentability of those claims. We therefore limit our discussion to claims 1
and 5. See 37 C.F.R. § 41.37(c)(1)(vii) (2004).
Claim 1
Cohen ‘781 discloses “an armored plate which may be worn to
provide the user with lightweight ballistic protection” (Cohen ‘781, col. 1, ll.
11-13) and “armored plates for providing ballistic protection for light and
heavy mobile equipment and vehicles against high-speed projectiles or
fragments” (Cohen ‘781, col. 1, ll. 13-16). Each plate comprises
a single internal layer of pellets which are directly bound and retained
in plate form by a solidified material such that the pellets are bound in
a plurality of adjacent rows, characterized in that the pellets have a
specific gravity of at least 2 and are made of a material selected from
the group consisting of glass, sintered refractory material, ceramic
material which does not contain aluminum oxide and ceramic material
having an aluminum oxide content of not more than 80%, the majority
of the pellets each having at least one axis of at least 3 mm length and
are bound by said solidified material in said single internal layer of
adjacent rows such that each of a majority of said pellets is in direct
contact with at least 4 adjacent pellets in the same layer to provide
mutual lateral confinement therebetween, said pellets each have a
substantially regular geometric form and said solidified material and
said plate are elastic. [Cohen ‘781, col. 3, l. 66 – col. 4, l. 15.]
* * *
The solidified material can be any suitable material which
retains elasticity upon hardening at the thickness used, such as
aluminum, epoxy, a thermoplastic polymer such as polycarbonate, or
a thermoset plastic, thereby allowing curvature of the plate without
cracking to match curved surfaces to be protected, including body
surfaces, as well as elastic reaction of the plate to incoming projectiles
to allow increased contact force between adjacent pellets at the point
of impact. [Cohen ‘781, col. 4, ll. 41-49.]

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The height and diameter of the pellets depend upon the size of the projectiles
whose penetration is to be prevented; the longer the projectile, the greater
the height and diameter of the pellets (Cohen ‘781, col. 6, ll. 43-59).
Middione discloses clamps for attaching armor panels to vehicle hulls
(Middione, col. 1, ll. 42-52).
The Appellant argues that Cohen does not suggest that the armored
plate may be attached to an armored vehicle chassis to cover an opening
therein (Br. 17; Reply Br. 2-3). A chassis for a manned, armored vehicle
necessarily has openings for people and materials to get in and out of the
vehicle. As with other parts of the vehicle, the opening must be protected by
an armored panel against projectiles. The armored panel must be sized to
cover the opening because if the armored panel is smaller than the opening,
the portion of the opening’s cover not protected by the armored panel will be
exposed to a strike by a projectile. As for the argument that the Cohen ‘781
panel is not adapted for attachment to a chassis, the Appellant’s claims do
not require direct attachment of the armored plate to the chassis.1 Thus, the
Appellant’s claims encompass attaching the Cohen ‘781 armored panel to
any surface, such as a door cover, that is attached to the chassis.

1 During patent prosecution, claims are to be given their broadest reasonable
interpretation consistent with the Specification, as the claim language would
have been read by one of ordinary skill in the art in view of the specification.
See In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989);
In re Sneed, 710 F.2d 1544, 1548, 218 USPQ 385, 388 (Fed. Cir. 1983).
The Appellant’s Specification does not limit “attachment” to direct
attachment. The Specification merely shows holes (14, fig. 2) for “securing
said panel to an opening in said vehicle chassis” (p. 11). The direct
attachment shown in the Appellant’s figures 3 and 4 added by amendment
(filed Nov. 11, 2004) clearly is not supported by the Appellant’s original
disclosure.
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For the above reasons we are not convinced of reversible error in the
Examiner’s rejection of claim 1. Accordingly, we affirm the rejection of
that claim and claims 2-4 and 6-14 that stand or fall therewith.
Claim 5
Claim 5 depends from claim 1 and requires “a plurality of
interchangeable plates, a first plurality of said plates having pellets sized to
absorb and dissipate kinetic energy from high velocity armor-piercing 12.7
mm – 14.5 mm projectiles, a second plurality of said plates having pellets
sized to absorb and dissipate kinetic energy from high velocity armor-
piercing 14.5 – 30 mm projectiles, and a third plurality of said plates having
pellets sized to absorb and dissipate kinetic energy from high velocity
armor-piercing projectiles over 30 mm.”
The Appellant argues that “[s]uch interchangeable armor plates is not
disclosed or hinted at in the references” (Br. 21). Cohen ‘781 discloses that
9.5 mm to 30 mm projectiles can be dealt with by using panels having
pellets with varied heights and diameters, and by using multilayered panels
(Cohen ‘781, col. 6, ll. 43-59). That disclosure would have fairly suggested,
to one of ordinary skill in the art, making interchangeable plates that have
the same size for protecting a particular armored vehicle part of a given size,
such as a door, but have different pellet heights and diameters, such that a
choice can be made of one of those plates, or multiple plates in multilayer
form, to provide the level of protection needed for a particular projectile
size.
We therefore affirm the rejection of claim 5.
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Other Matter
The Examiner objected to the Appellant’s drawings as not showing
every feature of the claimed invention (office action mailed Aug. 20, 2004).
In response the appellant added figures 3 and 4 and a discussion of those
figures in the Specification (Amendment filed Nov. 11, 2004). The
Examiner objected to the drawings and the Specification under
35 U.S.C. § 132 as introducing new matter into the disclosure (Final
Rejection mailed Dec. 17, 2004). The Appellant argues that “this issue of
new matter affects the patentability of the claims and is therefore properly
before this Honorable Board” (Br. 5).
As stated in Manual of Patent Examining Procedure § 608.04(c)(8th
ed., rev. 3, Aug. 2005):
Where the new matter is confined to amendments to the
specification, review of the examiner’s requirement for cancellation is
by way of petition. But where the alleged new matter is introduced
into or affects the claims, thus necessitating their rejection on this
ground, the question becomes an appealable one, and should not be
considered on petition even though that new matter has been
introduced into the specification also.

The claims on appeal are the original claims. The description of
figures 3 and 4 added to the Specification by amendment does affect the
scope of any claim term by, for example, defining a term, but, rather, merely
describes an embodiment. That description, therefore, does not affect the
scope of the claims. Hence, the Examiner was correct in not rejecting the
claims under 35 U.S.C. § 112, first paragraph. Because there is no new
matter rejection of the claims, the corresponding objection to the
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Specification is not before us on appeal. That objection and the Examiner’s
refusal to enter figures 3 and 4 are petitionable issues.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1-9 over Cohen ‘781
in view of Middione, claims 10, 13 and 14 over Cohen ‘781 in view of
Middione and Cohen ‘075, and claims 10-12 over Cohen ‘781 in view of
Middione and either Ferguson or Slator, are 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) (2006).
AFFIRMED

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