Ex Parte Gethings et al

Board of Patent Appeals and Interferences

Dec 23, 2004

08160835 (B.P.A.I. Dec. 23, 2004)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 24
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte BERNARD C. GETHINGS, DENNIS J. FLYNN
and JOHN A. APPLETON
____________
Appeal No. 2004-2121
Application No. 08/160,835
____________
HEARD: December 9, 2004
____________
Before FRANKFORT, STAAB, and MCQUADE, 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 10, all of the claims pending in
this application.
Appellants' invention relates to a munition which can be
used with great effectiveness against hard targets such as
hardened aircraft shelters, bridge piers, aircraft runways, and
the like. Unlike general purpose bombs which in the past have
been designed to penetrate a target by virtue of their kinetic
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energy, the munition of appellants' invention comprises in
combination, a "general purpose bomb" (1) having a weight of not
less than 300 pounds and a penetrator warhead (2) mounted in
front of the general purpose bomb and comprising a forwardly-
directed shaped charge with a caliber of at least 90% of the
caliber of the general purpose bomb. A copy of representative
claim 1, as found in Appendix A of appellants' brief, is attached
to this decision.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Muller 3,732,816 May 15, 1973
Kintish et al. 3,750,582 Aug. 7, 1973
(Kintish)
Davis 4,063,512 Dec. 20, 1977
Chaumeau et al. 4,714,022 Dec. 22, 1987
(Chaumeau)
Kellner 4,967,666 Nov. 6, 1990
Brauer et al. 5,098,487 Mar. 24, 1992
(Brauer)
Claims 1 through 5 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Davis or Kellner.
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Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Davis or Kellner as applied to claim 1 above,
and further in view of Chaumeau.
Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Davis or Kellner as applied to claim 1
above, and further in view of Muller.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Davis or Kellner as applied to claim 1 above,
and further in view of Kintish.
Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Davis or Kellner as applied to claim 1 above,
and further in view of Brauer.
Rather than reiterate the examiner's full commentary
regarding the above-noted rejections and the conflicting
viewpoints advanced by the examiner and appellants regarding
those rejections, we make reference to the examiner's answer
(Paper No. 14, mailed May 3, 1996) for the examiner's reasoning
in support of the rejections, and to appellants' brief (Paper No.
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Application No. 08/160,835
4
11, filed October 6, 1995) and reply brief (Paper No. 16, filed
July 1, 1996) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellants' specification and claims, to
the applied prior art references, and to the respective positions
articulated by appellants and the examiner. As a consequence of
our review, we have made the determinations which follow.
In the rejection of claims 1 through 5 under 35 U.S.C.
§ 103(a) it is the examiner's view that both Davis and Kellner
disclose a munition which comprises in combination, a general
purpose bomb (7, 8 of Davis and 3 of Kellner) and a penetrator
warhead (13 of Davis and 2 of Kellner) mounted in front of the
general purpose bomb and comprising a forwardly-directed shaped
charge, with the caliber of the penetrator warhead being at least
90% of the caliber of the general purpose bomb. Although the
examiner did not articulate any differences between the munitions
of Davis and Kellner and appellants' munition defined in claims 1
through 5 on appeal, we note that the examiner has indicated on
page 4 of the answer that
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It would have been obvious to one skilled in the art at
the time the invention was made to employ a general
purpose bomb having a weight not less than 300 pounds
in either the Davis munition or the Kellner et al
munition and to vary the caliber of the penetrator
warheads and the masses of the penetrator warheads and
the munitions in the Davis munition and the Kellner et
al munition to achieve an optimum result, see In re
Aller, 105 USPQ 233 (CCPA 1955) see In re Aller, 105
USPQ 233 (CCPA 1955) and In re Reese, 129 USPQ 402
(CCPA 1961).
Davis discloses an armor penetrating, tandem charge
projectile for penetrating a fairly thick armored vessel, wherein
the projectile includes a hardened penetrator body (8) containing
a heavy charge of explosive material and a shaped charge
explosive head (13) mounted forwardly of the hardened penetrator
body. As noted in column 1 of that patent, the objective therein
is to
provide an improved method and structure by which an
internal blasting charge is caused to be driven in its
entirety through fairly heavy armor to obtain the
maximum blasting effects within the area projected by
the armor. This object is attained in brief by
producing, not only an opening in the armor at the area
of impact but also spaced cuts or gashes radiating from
the opening which weaken the metal for a considerable
distance away from the opening as will allow the metal
segments between the cuts to be bent inwardly when
forced by the pressure of the main portion of the
projectile. Thus, the initial opening is caused to be
greatly enlarged, sufficient to allow the main casing
which carries the full internal blasting charge
completely to enter and pass through the armor.
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Kellner discloses a tandem charge warhead to be used against
fortified or armored targets which, in particular, can be used to
damage runways, roadway pavements, bunker walls, or the like
(col. 1, lines 7-16). Kellner's warhead includes a hollow charge
(2) provided in the front and a follow-up projectile (3)
constructed as an explosive projectile or a solid projectile
(col. 2, lines 54-57). The objective in Kellner is to provide a
time sequence for the ignition of the forward hollow charge (2)
and the propellant charge (5) of the follow-up projectile so that
it is guaranteed that the desired target direction of the follow-
up projectile with respect to the bored/broken hole in the target
wall formed by detonation of the hollow charge is maintained. To
that end, the patentee mandates that the propellant charge of the
follow-up projectile be ignited first and that the forward hollow
charge be initiated only after the follow-up projectile has been
put in motion.
Appellants argue that both Davis and Kellner are related to
relatively small caliber projectiles used for armor piercing and
ground penetration, and that these patents do not address
penetrator bombs of the type dealt with by appellants, wherein a
"general purpose bomb," like that defined on page 3 of
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appellants' specification, having a shaped charge penetrator
warhead mounted in front of the bomb is used against hard targets
such as hardened aircraft shelters, bridge piers, aircraft
runways, and the like. As for the examiner's assertion that it
would have been obvious to one of ordinary skill in the art at
the time of appellants' invention to employ a general purpose
bomb having a weight of not less than 300 pounds in the
projectile of either Davis or Kellner, appellants note that what
might work at one size in the field of armor piercing projectiles
would not necessarily work in the penetrator bomb field if merely
scaled up to a size like that defined in the claims on appeal.
Appellants also point out that the examiner has provided no
evidence indicating any benefit to be derived from utilizing a
shaped charge in combination with a general purpose bomb.
We agree with appellants, and for that reason will not
sustain the examiner's rejection of claims 1 through 5 under
35 U.S.C. § 103(a) as being unpatentable over Davis or Kellner.
We have additionally reviewed the patents to Chaumeau,
Muller, Kintish and Brauer applied by the examiner in rejections
of dependent claims 6 through 10 under 35 U.S.C. § 103(a), but
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find nothing therein which overcomes or provides for the
deficiencies we have identified above with regard to the basic
patents to Davis and Kellner. Accordingly, the examiner's
rejections of dependent claims 6 through 10 will likewise not be
sustained.
It follows from the foregoing that the decision of the
examiner rejecting claims 1 through 10 of the present application
is reversed.
In addition, this application is being remanded to the
examiner under the authority provided by 37 CFR § 41.50(a)(1) to
have the examiner determine whether a rejection of any of the
appealed claims would be appropriate based on British Patent
Specification 1,605,340 to Manfred Held (published January 2,
1992) and cited by appellants in an Information Disclosure
statement filed January 18, 1995 (Paper No. 8). Unlike the Davis
and Kellner patents relied upon by the examiner above, Held
discloses a penetrator bomb having two explosive charges
positioned in axial succession with an intermediate gap
therebetween, wherein the front explosive charge (5), which is
arranged to detonate first, is a lined hollow charge and the rear
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explosive charge (6), arranged to be detonated after the hollow
charge, is an integral part of a shell or general purpose bomb
meant to pass through an aperture formed in the target by the
hollow charge. Held discusses many of the same problems
mentioned by appellants on pages 1a and 2 of their specification.
Looking to Figure 1 of Held, it is also apparent that the caliber
of the penetrator warhead or hollow charge (5) is at least 90% of
the caliber of the general purpose bomb/shell (6). The objective
in Held is to provide a bomb that creates lasting damage to
targets, such a runways and road surfaces, as the spike of the
hollow charge penetrates concrete slabs, while the general
purpose bomb or shell (6), passing through the aperture formed by
the hollow charge, penetrates to deform the concrete slabs with
the high pressure of the explosive charge, dislocating the
concrete slabs from the foundation in the process.
Although Held does not mention the specific size of the
general purpose bomb/shell (6) therein, the examiner should
determine if the purpose specifically set forth in Held of
deforming the large concrete slabs making up a runway or road
surface and dislocating the concrete slabs from their foundation
with the high pressure of the explosive charge (page 1, col. 1,
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lines 35-49), would have made it obvious to one of ordinary skill
in the art at the time of appellants' invention to utilize a
general purpose bomb/shell (6) having a weight of not less than
300 pounds in the penetrator bomb of Held. If the examiner
should determine that a rejection of independent claim 1 is
appropriate, then the examiner should also consider rejections of
dependent claims 2 through 10 relying on prior art references
such as Chaumeau, Muller, Kintish and Brauer.
REVERSED and REMANDED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN P. MCQUADE )
Administrative Patent Judge )
CEF/lbg
Appeal No. 2004-2121
Application No. 08/160,835
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