Ex Parte Dau et al

Patent Trial and Appeal Board

Jun 28, 2013

12313982 (P.T.A.B. Jun. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte OLE DAU, ALFONS SACKARNDT,
UWE NADERHOFF, MICHAEL SCHWENZER,
RALF AUMUND-KOPP, MANFRED THAPE,
SEBASTIAN MUNZNER, and MARTIN RYBOL
____________________

Appeal 2011-006282
Application 12/313,982
Technology Center 3600
____________________

Before: MICHAEL C. ASTORINO, BENJAMIN D. M. WOOD, and
JOHN W. MORRISON, Administrative Patent Judges.

WOOD, Administrative Patent Judge.

DECISION ON APPEAL

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Application 12/313,982

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
8. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The invention is directed to a projectile for battlefield illumination.
Sole independent claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A projectile for illuminating a ground surface or
body or water, comprising:
a body;
flare bodies integrated in the body, wherein the
flare bodies are eccentrically arranged inside the
body;
an expulsion charge;
a projectile fuse;
a projectile base;
brake systems for the individual flare bodies;
at least one delay element per flare body; and
filler elements arranged to form an elongate central
channel extending axially in the projectile and
between the flare bodies so as to direct gases from the
expulsion charge to the at least one delay element of
the flare body to ignite the delay element.

REFERENCES
Ziegenfuss
Paulus
Altenau
Peretz
US 1,003,082
US 1,891,172
US 5,076,171
US 5,175,390
Sep. 12, 1911
Dec. 13, 1932
Dec. 31, 1991
Dec. 29, 1992
Appeal 2011-006282
Application 12/313,982

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REJECTIONS
Claims 1-6 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Altenau and Ziegenfuss. Ans. 4.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Altenau, Ziegenfuss, and Peretz. Ans. 5.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Altenau, Ziegenfuss, Peretz, and Paulus. Ans. 5.
ANALYSIS
Claims 1-6 – Obviousness – Altenau and Ziegenfuss
Appellants argue claims 1-6 as a group. App. Br. 5-7. We select
claim 1 as representative, with claims 2-6 standing or falling with claim 1.
37 C.F.R. 41.37(c)(vii).
The Examiner found that Altenau discloses a projectile having claim
1’s structure except with pyrotechnic bodies instead of the claimed flare
bodies. Ans. 4. The Examiner then found that Ziegenfuss teaches a
projectile having flare bodies (F) eccentrically arranged inside the projectile,
each flare body having a brake system (a parachute) and at least one delay
element. Id. The Examiner concluded that “[a]ll 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 . . . yield[ing] predictable results to a skilled artisan at the time the
invention was made.” Id. at 4-5.
Appellants first argue that Altenau’s projectile differs structurally
from the claimed projectile because Altenau’s training munition ejects its
bomblets in a forward direction, whereas “[i]n the present invention [the]
flare bodies [are] ejected toward the bottom.” App. Br. 6. The Examiner
Appeal 2011-006282
Application 12/313,982

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disputes that the Altenau projectile ejects its sub-munitions in a forward
direction, stating that “Altenau clearly shows a projectile (10) having sub-
munitions (14) where the sub-munitions are ejected from the rear.” Ans. 6
(citing Altenau, col. 4, ll. 50-56).
This argument fails to convince us of Examiner error, however, for
two reasons. First, Appellants do not contend that claim 1 requires that the
claimed projectile eject its flare bodies from a rearward direction. Nor do
we discern such a requirement in claim 1. Unclaimed features cannot impart
patentability to claims. In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir.
1998). Second, even if claim 1 contained such a requirement, Appellants
have not provided sufficient evidence or persuasive argument to convince us
that the Examiner erred in finding that Altenau’s projectile fails to meet that
requirement.
Appellants next argue that Altenau does not teach igniting flare bodies
in a delayed fashion by a delay element, as claimed. App. Br. 6-7. But the
Examiner relies on Ziegenfuss, not on Altenau, to teach flare bodies with
delay elements, so this argument also does not convince us that the
Examiner’s rejection is in error.
For the above reasons, we sustain the Examiner’s rejection of claims
1-6 as obvious over Altenau and Ziegenfuss.
Claim 7 – Obviousness -- Altenau, Ziegenfuss, and Peretz
Appellants do not provide further arguments for the patentability of
claim 7, but rather state that claim 7 stands or falls with claim 1. App. Br. 7.
Accordingly, for the reasons stated above, we sustain the rejection of claim 7
as obvious over Altenau, Ziegenfuss, and Peretz.

Appeal 2011-006282
Application 12/313,982

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Claim 8 – Obviousness – Altenau, Ziegenfuss, Peretz, and Paulus
Appellants do not provide further arguments for the patentability of
claim 8, but rather state that claim 8 stands or falls with claim 1. App. Br. 7.
Accordingly, for the reasons stated above, we sustain the rejection of claim 8
as obvious over Altenau, Ziegenfuss, Peretz, and Paulus.
DECISION
For the above reasons, the Examiner’s rejection of claims 1-8 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)(iv).
AFFIRMED

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