Ex Parte Gamache et al

Patent Trial and Appeal Board

Mar 20, 2017

13506376 (P.T.A.B. Mar. 20, 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.
13/506,376 03/09/2012 Raymond M. Gamache Navy Case 101504 8466
23501 7590 03/20/2017
NAVAL SURFACE WARFARE CENTER
OFFICE OF COUNSEL CODE C7
17632 DAHLGREN ROAD
SUITE 158
DAHLGREN, VA 22448-5110
EXAMINER
LEE, BENJAMIN P
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
03/20/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAYMOND M. GAMACHE and
C. MICHAEL ROLAND
Appeal 2015-004596
Application 13/506,376
Technology Center 3600
Before: CHARLES N. GREENHUT, JILL D. HILL, and
THOMAS F. SMEGAL, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s Final
rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-004596
Application 13/506,376
CLAIMED SUBJECT MATTER
The claims are directed to a body armor of ceramic ball embedded
polymer. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1 A body armor composite material for protecting a wearer from
small-arms projectiles and shrapnel, said material comprising:
a flexible liner that confomls to a portion of the wearer
and elastically deforms in response to application of mechanical
force;
a polymer binder disposed on said flexible liner, said
binder constituting a foam from the group consisting of polyurea,
polyurethane and rubber; and
a plurality of ceramic solids embedded within said
polymer binder, said plurality arranged in a single-layer pattern
substantially parallel to said liner.
REJECTIONS
I. Claims 1—3, 6—10, 12 and 13 are rejected under 35 U.S.C. § 103(a)1 as
being unpatentable over Cohen (U.S. Patent 6,112,635, iss. Sept. 5, 2000,
hereinafter “Cohen ’635”) and Cook et al. (U.S. Patent 4,179,979, iss.
Dec. 25, 1979, hereinafter “Cook”).
II. Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cohen ’635, Cook and Cohen (U.S. Patent 6,575,075
B2, iss. June 10, 2003, hereinafter “Cohen ’075”).
III. Claims 14—16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cohen ’635, Cook and Lucuta et al. (U.S. Patent
6,912,944 B2, iss. July 5, 2005, hereinafter “Lucuta”).
1 The statutory basis of this rejection was incorrectly identified as 102(b) in
the Final Action.
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Application 13/506,376
IV. Claim 11 is rejected under 35 U.S.C. § 103(a) as being unpatentable over
Cohen ’635.
V. Claims 17—19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cohen ’635, Howland and Cook.
VI. Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable over
Cohen ’635, Howland and Cohen ’075.
OPINION
With regard to the first rejection, the issue raised by Appellants is the
absence of flexibility in the Examiner’s proposed combination. App. Br. 7—
8. Appellants acknowledge the flexibility of panel layer 30, but argue that
such flexibility would be negated by the inclusion of thermoplastic panel 28.
App. Br. 10. It is noted that this argument is not commensurate in scope
with claim 1 because claim 1 does not expressly require flexibility in the
overall composite, just the liner. In any case, and to the extent such a
requirement is implied by the recitation of “[a] body armor composite
material,” or some other claim language, the Examiner correctly determined
that Cohen ’635 is reasonably regarded as disclosing flexible embodiments
of a composite armor panel. Ans. 12—13 (citing Cohen ’635 col. 2,11. 32—
42, col. 3,11. 1—8). Knowing the particular material 16 used to form the
outer panel 28 in Cohen ’635 is not (App. Br. 7—8; see also Reply Br. 2), in
and of itself, sufficient to determine its rigidity. The portion of Cohen ’635
cited by the Examiner (col. 3,11. 1—8) discusses elasticity retention upon
hardening “at the thickness used .... thereby allowing curvature of the
plate.” Ans. 13. The pellets 18 themselves occupy a substantial thickness,
and thus are likely to contribute significantly to the ultimate characteristics
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Application 13/506,376
of, the pellet-containing layer 28. Appellants’ assertion that this layer is
ultimately rigid directly contravenes the express teachings of Cohen ’635:
“a majority of each of said pellets is in direct contact with at least 4 adjacent
pellets, and said solidified material and said [composite] plate are elastic.”
See col. 2,11. 46—59. Furthermore, in rejecting claim 1 the Examiner
proposed to replace the material 16 of Cohen ’635 with a foam as taught by
Cook. Final Act. 7 (citing Cook col. 3,11. 18-40). In the section cited, Cook
expressly states that such foam may be flexible. Id. col. 3,11. 32—33. Thus,
we are not apprised of any deficiencies in Cohen ’635 or the combination of
Cohen ’635 and Cook which must be compensated for to support the
Examiner’s rejections. See App. Br. 8—9 (the only argument set forth
regarding rejections II—IV and VI).
Regarding claim 17 (Rejection V), Appellants additionally argue that
the Examiner proposed “combination would not teach or suggest Appellants’
features [], particularly regarding the fiber that selectively wraps around the
ceramic solid to produce the protective balls in the binder.” App. Br. 9. The
Examiner made specific findings regarding this limitation, which Appellants
do not address. See Final Act. 9 (citing Howland col. 7,11. 7—22). “[37
C.F.R. § 41.37(c)(l)(iv) requires] more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.” In re Lovin 652
F.3d 1349, 1357 (Fed. Cir. 2011). Accordingly we are not apprised of
Examiner error in rejecting claim 17 or those claims argued based only on
dependency therefrom.
DECISION
The Examiner’s rejections are affirmed.
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Appeal 2015-004596
Application 13/506,376
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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