Ex parte Fogle

Board of Patent Appeals and Interferences

Jan 5, 1999

08815251 (B.P.A.I. Jan. 5, 1999)

Application for patent filed March 12, 1997. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte HOMER W. FOGLE, Jr.
____________
Appeal No. 98-2398
Application No. 08/815,2511
____________
ON BRIEF
____________
Before MEISTER, FRANKFORT, and STAAB, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 3, 11 through 13 and 16, which
Appeal No. 98-2398
Application No. 08/815,251
2
are all of the claims remaining in the application. Claims 4
through 10, 14, 15 and 17 have been canceled.
Appellant’s invention relates to an electrically
actuatable igniter (claim 11), an apparatus including an
inflator employing such an igniter (claim 1), and a method of
installing pyrotechnic material in an igniter (claim 16). As
disclosed, the inflator and igniter are used in an inflatable
vehicle occupant protection device such as an air bag system.
Independent claims 1, 11 and 16 are representative of the
subject matter on appeal and a copy of those claims appears in
the Appendix to appellant’s brief.
The sole prior art reference of record listed by the
examiner (answer, page 3) as relied upon in rejecting the
appealed claims is:
Duguet 5,544,585 Aug. 13,
1996
In addition, the examiner has relied upon what has been
characterized as an admission by appellant found on page 11 of
Appeal No. 98-2398
Application No. 08/815,251
3
the specification. That portion of the specification
indicates that:
[t]he resin binder and the pyrotechnic
material in the ignition droplet 46, as well as
the pyrotechnic material of the main pyrotechnic
charge 48, may comprise any suitable materials
known in the art. In the preferred embodiment
of the invention, the pyrotechnic material in
the ignition droplet 46 is KDNBF (potassium
dinitrobenzofuroxan) at about 80% by volume.
The resin binder in the preferred embodiment is
a single component (i.e., free of a catalyst
added for curing) epoxy based UV-curable
thermoset resin at about 20% by volume. More
specifically, the resin binder in the preferred
embodiment is EMCAST CHIPSHIELD No. 1462, a
blend of epoxy resin (CAS No. 2386-87-0), a
hydroxy oligomer compound, mixed sulfonium
compounds (CAS No. 109037-75-4 and No. 108-32-7)
and mineral fillers (to include CAS No. 67762-
90-7) which is available from Electronics
Materials, Inc. of Breckinridge, Colorado. The
supplier-recommended curing process for this
resin binder comprises ultraviolet irradiation
at 350 ± 30 nm at ambient temperature for 2.0
seconds, followed by a 20 minute dwell at
ambient temperature. The UV curing process can
be performed with any suitable apparatus known
in the art.
Claims 1 through 3, 11 through 13 and 16 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Duguet in
view of "applicant’s admission."
Appeal No. 98-2398
Application No. 08/815,251
4
Rather than reiterate the examiner's full statement of
the above-noted rejection and the conflicting viewpoints
advanced by the examiner and appellant regarding the
rejection, we make reference to the examiner's answer (Paper
No. 12, mailed
June 17, 1998) for the examiner's reasoning in support of the
rejection, and to appellant’s brief (Paper No. 11, filed
June 5, 1998) and reply brief (Paper No. 18, filed July 2,
1998) for appellant’s arguments thereagainst.

Appeal No. 98-2398
Application No. 08/815,251
5
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and claims,
to the applied prior art references, and to the respective
positions articulated by appellant and the examiner. As a
consequence of our review, we have made the determination that
the examiner’s position is not well founded and will therefore
not be sustained. Our reasons follow.
Like appellant, we note that independent claims 1 and 11
on appeal each recite "an ignition droplet adhering to said
ohmic heating element" of the igniter, while method claim 16
sets forth the steps of "depositing an ignition droplet on
said ohmic heating element in a fluid condition" and then
curing the resin binder of the droplet to cause the droplet to
adhere to the ohmic heating element. As explained in the
specification (page 10) and as can be clearly seen in
appellant’s drawing Figures 2 and 3, the "ignition droplet"
(46)
has the shape of a somewhat spherical segment
with a generally circular periphery centered on
Appeal No. 98-2398
Application No. 08/815,251
6
an axis 111, and with an arcuate radial profile
generally symmetrical about the axis 111.
With this understanding of what constitutes an
ignition "droplet," we look to Duguet and note that this
patent refers to a thermosensitive substance (104) that is
applied "in the form of a fine layer of an explosive varnish"
(col. 3, lines 57-61) that covers ohmic heating element or
resistive heating strip (110). In addition, Duguet indicates
(col. 3, lines 66+) that the explosive varnish is made by
mixing a "film-generating binder" (after it is put into
solution in an appropriate solvent) with the explosive
substance, with the mixture then being deposited on the
resistive flat strip (110). Thereafter, the varnish solvent
is evaporated so as to form an explosive "thin layer" (col. 4,
line 6) that is hard and that adheres well. In contrast to
the examiner’s position (answer, page 5) that "the element 104
disclosed in the Duguet reference is shown in Figure 1 in the
form of a ‘droplet’," we conclude, as appellant has (reply
brief, page 2), that the thin or fine layer of thermosensitive
substance (104) in Duguet is not shown, described, or
suggested as taking the form of the claimed "ignition droplet"
Appeal No. 98-2398
Application No. 08/815,251
7
set forth in appellant’s claims on appeal. Like appellant, we
view the small mounds of material at the top of each of the
pins (102, 103) in Figure 1 of Duguet as being merely metal
connections formed by soldering, welding or brazing of the
pins to the conductive pads (121, 122) as set forth in column
3, lines 28-40 of Duguet, with the thin layer of
thermosensitive substance (104) being represented by the bold
line extending entirely across the top of the printed circuit
therein, although it is only the resistive strip (110) that is
heated up by the Joule effect to ignite the explosive varnish
layer (col. 3, lines 39-40). Thus, since Duguet has no
"ignition droplet," for this reason alone, we would refuse to
sustain the examiner’s rejection of claims 1 through 3, 11
through 13 and 16 on appeal.
However, we also find ourselves in agreement with
appellant’s position that the examiner’s use of the
information set forth on page 11 of appellant’s specification
and the use of the references to Muller et al. and VanName et
al. (answer,
Appeal No. 98-2398
Application No. 08/815,251
As pointed out by the Court in In re Hoch, 428 F.2d2
1341, 1342 ,166 USPQ 406, 407 (CCPA 1970), where a reference
is relied upon to support a rejection, whether or not in a
minor capacity, there would appear to be no excuse for not
positively including the reference in the statement of the
rejection.
8
page 4) is based on the hindsight benefit of having first2
read appellant’s disclosure and not on any fair teaching or
suggestion found in the applied prior art and patents
themselves. Absent the disclosure of the present application,
it is our opinion that one of ordinary skill in the art would
not have been motivated by the teachings of the applied prior
art to modify the initiator of Duguet in the manner urged by
the examiner so as to arrive at the subject matter set forth
in appellant’s independent claims 1, 11 and 16 on appeal.
For the above reasons, the examiner's rejection of
appellant’s claims 1 through 3, 11 through 13 and 16 under
35 U.S.C. § 103 as being unpatentable over Duguet in view of
"applicant’s admission" will not be sustained, and the
decision of the examiner rejecting the above-noted pending
claims of the present application is reversed.
Appeal No. 98-2398
Application No. 08/815,251
9
REVERSED
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
CEF/sld
Appeal No. 98-2398
Application No. 08/815,251
10
Tarolli, Sundheim, Covell,
Tummino & Szabo
1111 Leader Bldg
Cleveland, OH 44114-1400
Shereece
Appeal No. 98-2398
Application No. 08/815,251
APJ FRANKFORT
APJ STAAB
APJ MEISTER
REVERSED
Prepared: September 24, 1999