Ex Parte Davison

Board of Patent Appeals and Interferences

Nov 24, 2010

10843765 (B.P.A.I. Nov. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte DAVID DAVISON
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Appeal 2010-009596
Application 10/843,765
Technology Center 1700
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Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2010-009596
Application 10/843,765

A. Introduction2, 3
David Davison (“Appellant”) timely appeals under 35 U.S.C. § 134(a)
from the final rejection4 of claims 13-30, which are all of the pending
claims. We have jurisdiction under 35 U.S.C. § 6. We AFFIRM.
The subject matter on appeal relates to inert high explosive systems
that are said to be safer than prior art explosive systems in that the inventive
explosives, when resting on a sheet metal support, will not detonate when
struck with a metal hammer, nor when held in an open air wood fire for
fifteen minutes. (Spec. 6, ll. 1-7.) Instead, the explosive system requires
application of a current of at least 1.0 KJ/gAl in less than 100 milliseconds
to be activated, i.e., to be able to detonate a chemical explosive. (Id. at 7,
ll. 2-6.) The composition is broadly described as comprising aluminum
metal or other conductors, preferably as fine powders, thin films, or wires
(id. at 13, ll. 19-21), that can be burst by a pulsed electrical current (id. at 9,
ll. 2-4). The composition additionally comprises a highly halogenated

2 Application 10/843,765, Inert Initiator and Explosive Device,
filed 12 May 2004, claiming the benefit of provisional application
60/470,048, which was filed 13 May 2003. The specification is referred to
as the “765 Specification,” and is cited as “Spec.” The real party in interest
is listed as Shock Transients, Inc. (Appeal Brief, filed 20 March 2009
(“Br.”), 3.)
3 Appeal 2009-015284, in application 10/844,174 (which claims the benefit
of the same provisional application), is closely related to this appeal. The
disputed issues are substantially the same. Moreover, the specifications are
largely the same, the primary difference being that the 765 Specification
includes descriptions of initiators.
4 Office action mailed 18 November 2008 (“Final Rejection”; cited as
“FR”).
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Application 10/843,765

polymer moiety (HHPM) and a reduced (or non-) halogenated polymer
moiety (RHPM). According to the 765 Specification, the metal-polymer
composites take the place of conventional electrically activated explosives.
The halogens, especially fluorine (as well as oxygen and certain other
species), are said to be provided upon decomposition of the polymers as
oxidizing materials that assist the activation process. (Spec. 13, ll. 6-9.)
More specifically, polytetrafluoroethylene (“PTFE,” sold by DuPont as
Teflon®), Kevlar® [aromatic polyamides, sold by DuPont], and polyethers
are said to be suitable polymeric materials. (Id. at ll. 10-11.) In the words of
the 765 Specification, “mixtures, solutions, emulsions or dispersions of such
materials may be used to provide the oxidizing materials at the elevated
temperatures brought on by the pulsed detonation signal and/or the initial
reaction brought on by the pulsed signal.” (Id. at ll. 12-14.) Such
compositions are said to be especially useful as “initiators” for other
explosive compositions. (Id. at 6, l. 10.)
Representative Claim 13 reads:
13. An inert explosive system comprising
a high pressure producing aluminum composition and
a mixture of at least two polymeric materials,
a first polymeric material comprising a backbone
with at least 25% by weight halogen atoms bonded
thereto and
a second polymeric material comprising a
backbone with less then [sic: than] 15% by weight
halogen atoms bonded thereto,
which system can be activated with at least an electrical
pulse of at least 1.0KJ/gAl in less than 100 milliseconds.
(Claims App., Br. 25; indentation and paragraphing added.)
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Application 10/843,765

(Independent claim 17 is similar to claim 13 but adds a “wherein”
clause that recites the intended use of the claimed inert explosive system as
an initiator for an unspecified separate explosive composition.)
The Examiner has maintained the following grounds of rejection:5
A. Claims 13-17 stand rejected under 35 U.S.C. § 112(1) as
lacking enablement for the second polymer to include up
to 15% halogen.
B. Claims 13-30 stand rejected under 35 U.S.C. § 102(b) in view
of Davison.6
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
The Appellant bears the procedural burden of showing harmful error
in the Examiner’s rejections. See, e.g., Shinseki v. Sanders, 129 S.Ct. 1696,
1706 (2009) (citations omitted) (“Lower court cases make clear that courts
have correlated review of ordinary administrative proceedings to appellate
review of civil cases in this respect. . . . [T]he party seeking reversal
normally must explain why the erroneous ruling caused harm.”) See also,
In re Chapman, 595 F.3d 1330, 1338 (Fed. Cir. 2010) (discussing the role of
harmless error in appeals from decisions of the Board of Patent Appeals and
Interferences (“Board”)). Arguments not timely made have been waived.

5 Examiner’s Answer mailed 16 June 2009 (“Ans.”). Several additional
rejections under 35 U.S.C. §§ 112(1) and (2) have been withdrawn by the
Examiner. (Ans. 2-4.)
6 David K. Davison and Richard F. Johnson, Electrically Activated, Metal-
Fueled Explosive Device, U.S. Patent 5,859,383 (1999).
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Appeal 2010-009596
Application 10/843,765

37 C.F.R. § 41.37(c)(1)(vii) (second sentence); see also In re Hyatt, 211
F.3d 1367, 1373 (Fed. Cir. 2000) (an argument not first raised in the brief to
the Board is waived on appeal)
Enablement is a question of law based on factual findings regarding
issues such as the nature of the art, the level of skill in the art. The critical
question is whether undue experimentation would have been required on the
part of a person having ordinary skill in the art to make and use the claimed
invention. See, e.g., Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342,
1360 (Fed. Cir. 1998) and In re Wands, 858 F.2d 731, 735, 736-37 (Fed.
Cir. 1988) (listing several important factors). The prior art timely cited by
Appellant and provided in the evidence appendix indicates that low-halogen
content polymers such as those recited in claim 7 were known to those
skilled in the art. On the other hand, the Examiner has failed to come
forward with substantial credible evidence that the ordinary polymer chemist
would have required undue experimentation to provide such polymers.
Accordingly, we REVERSE.
To be anticipatory, a reference must describe, either expressly or
inherently, each and every claim limitation, arranged or combined as
required by the claimed invention, and enable one of skill in the art to
practice an embodiment of the claimed invention without undue
experimentation. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). It is
well-settled that a description of a small genus may provide a description of
the individual members of the genus such that anticipation lies. In re
Schaumann, 572 F.2d 312, 316-17 (CCPA 1978).
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Application 10/843,765

In the present case, Davison, which is the work, in part, of the present
inventor (Br. 16, last para), teaches conductive reactive masses comprising
aluminum or other metals and an oxidizing material. (Davison, col. 5,
ll. 34-40.) The aluminum may be provided as a mesh of wires. (Id.
at ll. 59-61.) Davison teaches that the wires “may be insulated with an
oxidizing covering (e.g., polytetrafluoroethylene, Kevlar™, polyethers, or
other polymers which provide large amounts of oxidizing moieties when
heated or vaporized).” (Id. at col. 6, ll. 6-9.) Davison explains the function
of these materials in language highly reminiscent of the present specification
at col. 6, ll. 22-52, cited by the Examiner (FR 4; Ans. 4-5.) In particular,
Davison teaches that “mixtures, solutions, emulsions or dispersions of such
materials may be used to provide the oxidizing materials” (id. at ll. 31-32)
and that “[t]he oxidizing material may be comprise [sic] more than one
material.” (Id. at ll. 36-37.)
Appellant’s characterization of the “entire material disclosure on the
presence of oxidizing materials” as being in the section quoted in the Brief
at 17 (Br. 17, ll. 1-2) is somewhat myopic, as it does not include all of the
cites provided supra. As it is not credible that Appellant is not fully aware
of the entire contents of Davison, because it is his own work and because it
has been of record in this application for some time, no prejudice arises from
our pointing out the additional disclosure. Davison names three specific
polymers, PTFE, Kevlar®, and polyethers as suitable oxidizing materials to
wrap around wires, and further teaches that mixtures of such materials can
be used. PTFE has, as Appellant demonstrates (Spec. 8, ll. 24-28) (and as
any beginning chemistry student could show independently), a fluorine
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Application 10/843,765

content of about 76% by weight, well above the “at least 25% by weight”
required of the first polymeric material recited in claim 13. Kevlar®
(aromatic polyamide) and polyethers are substantially halogen free in their
most common embodiments, as indicated by the absence of halogen-labels
in their common names. Thus, Kevlar® and polyethers meet the “less
than 15% by weight halogen” requirement of the second polymeric material
recited in claim 13. Accordingly, we have no difficulty finding that
Davison, in describing a small genus of explosives, describes aluminum
wires embedded in “a mixture of at least two polymeric materials,” one of
which is highly halogenated, as recited in claim 13. Appellant has not
disputed any other limitations of claim 13.
We conclude that the preponderance of the evidence shows that
claim 13 is anticipated by Davison.
Appellant has not raised arguments for the patentability of any other
claim on appeal.7 Accordingly, all claims stand or fall with claim 13.
C. Order
We REVERSE the rejection of claims 13-17 stand rejected under
35 U.S.C. § 112(1) as lacking enablement.

7 The argument regarding claim 32 (Br. 19) is irrelevant because there is no
claim 32 in the application, and because there appears to be no claim reciting
a pressure level that must be achieved. The arguments for patentability in
the Brief at 20-23 are set in the context of a response to a nonfinal office
action mailed 21 February 2007. (Br. 20, l. 3). We decline to search
arguments not in compliance with 37 C.F.R. § 41.37(c)(1)(vii) (2007) for
points that might apply against the Examiner’s present position as expressed
in the Final Rejection mailed 18 November 2008 and in the Answer.
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Application 10/843,765

We AFFIRM the rejection of claims 13-30 stand rejected under
35 U.S.C. § 102(b) in view of Davison.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

tc

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