Ex Parte Hengstenberg

Board of Patent Appeals and Interferences

Mar 10, 2010

10795661 (B.P.A.I. Mar. 10, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ERIC HENGSTENBERG
____________

Appeal 2009-004598
Application 10/795,661
Technology Center 3600
____________

Decided: March 10, 2010
____________

Before: JENNIFER D. BAHR, JOHN C. KERINS, and MICHAEL W.
O'NEILL, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Eric Hengstenberg (Appellant) appeals under 35 U.S.C. § 134 (2002)
from the Examiner's decision rejecting claims 1-8 and 11-20. Claims 9 and
10 have been canceled. We have jurisdiction over this appeal under 35
U.S.C. § 6 (2002).

The Invention
Appellant's claimed invention is directed to a muzzleloading firearm
wherein the diameter of the combustion chamber is larger than the diameter
of the bore. Spec. 3, ll. 4-7.
Claim 1, reproduced below, is illustrative of the claimed invention.
1. An improved muzzleloading firearm
comprising:
(a) a bore having an interior of a first
diameter;
(b) a combustion chamber in fluid
communication with said bore, wherein said
combustion chamber is provided with an interior
of a second diameter, wherein said second
diameter is greater than said first diameter;
(c) a trigger;
(d) means for actuating a charge within said
combustion chamber upon actuation of said
trigger; and
(e) a threaded breech plug in communication
with said combustion chamber, wherein a majority
of said combustion chamber is located outside of
said breech plug.
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The Rejections
The Examiner relies upon the following as evidence of
unpatentability:
Schenkl US 21,802 Oct. 12, 1858
Mercer US 487,631 Dec. 6, 1892
Musser US 2,741,160 Apr. 10, 1956
Chapin US 4,232,468 Nov. 11, 1980
Olsen US 4,457,093 Jul. 3, 1984
Giangerelli US 4,519,157 May 28, 1985
Khoury US 5,443,542 Aug. 22, 1995

The Illustrated Book of Guns, 132-33 (David Miller ed., 2004).
Appellant seeks review of the Examiner's rejections under 35 U.S.C.
§ 102(b) of claims 1-7, 12-14, and 19 as anticipated by Musser and claims 1,
2, 7, 11, and 14 as anticipated by Mercer; and under 35 U.S.C. § 103(a) of
claims 1-7, 12-14, 19, and 20 as unpatentable over Schenkl and Chapin;
claims 1-4, 7, 12-14, and 19 as unpatentable over Giangerelli and Khoury or
Olsen; and claims 8, 11, and 15-18 as unpatentable over Giangerelli, Khoury
or Olsen, and The Illustrated Book of Guns (hereinafter Miller).

SUMMARY OF DECISION
We AFFIRM.

ISSUES
Claims 1 and 19, in relevant part, require a muzzleloading firearm
with a combustion chamber having a larger diameter than the bore. The
Examiner rejected these claims as anticipated by Musser's breech-loading
gun, noting that the "muzzleloading" language in the claims is not limiting
on the claims. Ans. 7-9. In addition, the Examiner rejected claim 1 as
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anticipated by Mercer's breech-loading gun, similarly noting that the
"muzzleloading" language in claim 1 is not limiting on the claim. Ans. 9-10.
For both of these rejections, Appellant argues that the Examiner has failed to
give proper weight to the preamble, which requires that the gun be a
muzzleloading firearm. Appeal Br. 6-11.
The Examiner rejected claim 1 as obvious in view of Schenkl's
muzzleloading firearm, combined with Chapin's description of a
muzzleloading firearm that has a larger combustion chamber than bore.
Ans. 4-5, 10-15. Appellant argues that Chapin's drawings are in error, in
that they do not actually intend to depict a combustion chamber larger than
the bore, and that Chapin teaches away from the present invention. Appeal
Br. 11-13. Appellant further argues that Chapin teaches away from the
claim limitations of claims 2, 12, and 13. Appeal Br. 13-14. Appellant does
not separately argue claims 3-7, 14, or 20. Appeal Br. 20.
The Examiner rejected claim 1 as obvious in view of Giangerelli's
black powder gun nipple, combined with Olsen's or Khoury's description of
a revolver having a larger combustion chamber than bore. Ans. 5-6, 15-17.
Appellant argues that Olsen and Khoury describe chambers for use with
cartridges that are not capable of being loaded through the muzzle, and thus
would not have provided one of ordinary skill in the art with reason to
modify a muzzleloaded firearm. Appeal Br. 20. Appellant further argues
that it would not have been obvious to incorporate a larger combustion
chamber, as taught in Khoury or Olsen, in a black powder rifle. Appeal Br.
21. Appellant does not separately argue claims 2-4, 7, 12-14, or 19. Appeal
Br. 22. Accordingly, these claims stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii) (2007).
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The Examiner rejected claims 8, 11, and 15-18 as obvious in view of
Giangerelli and Olsen or Khoury, as described above, combined with
Miller's description of a gun barrel of at least 5 inches in length and a
chamber of less than 4 inches in length. Ans. 6, 17. Appellant separately
argues this rejection, but relies on the arguments presented above. Appeal
Br. 22-23.
The issues presented in this appeal are as follows:
(1) Did the Examiner accord proper weight to the term "muzzleloading"
in the preambles of claims 1 and 19? Does the term "muzzleloading"
in the preamble of these claims further define the structure of the
firearm?
(2) Does the Examiner's proposed combination of Schenkl's
muzzleloading firearm and Chapin render obvious the subject matter
of claim 1? In particular, does Chapin actually describe a
muzzleloading firearm with a combustion chamber larger than the
bore, given that the written sections of Chapin do not explicitly
describe the need for a combustion chamber larger than the bore?
(3) Does the Examiner's articulated reason for modifying Giangerelli's
black-powder firearm by providing an expanded combustion chamber,
as depicted in Olsen or Khoury, have rational underpinning?

FACTS PERTINENT TO THE ISSUES
(FINDINGS-OF-FACT (FF))
FF1 Both Musser and Mercer describe breech-loading firearms. Musser,
col. 24, ll. 42-44; Mercer, p. 1, left col. ll. 12-19.
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FF2 Olsen teaches that it is "well known that the muzzle velocity and
energy of a bullet are directly related to the powder charge which
projects the bullet." Olsen, col. 1, ll. 9-11. Thus, Olsen teaches that
common practice is to increase case diameter relative to the bullet. Id.
at ll. 11-13. Chapin teaches that "double charges" of gun powder are
used "whenever the shooter needed more power or range." Chapin,
col. 5, ll. 3-5.
FF3 Chapin describes a plug that converts a breech-loading firearm to a
muzzleloading firearm. Col. 2, ll. 11-15. Figure 3 of Chapin depicts a
combustion chamber (breech 40) larger than the bore (note relative
size of ball 54). Figure 3 of Chapin is reproduced below:

Figure 3 depicts a breech-loading firearm converted into a
muzzleloading firearm, wherein the bore of the firearm is the same
size as the bullet 54, while the combustion chamber (breech 40 and
powder charge 50), located adjacent to the bullet 54, is larger in
diameter than the bullet. Col. 3, ll. 14-18. Figure 3 depicts a sloping,
converging wall connecting the larger combustion chamber with the
smaller bore. Therefore, Chapin's figure 3 unambiguously depicts a
combustion chamber larger in diameter than the bore.
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FF4 Schenkl describes a threaded breech plug for use in a smooth bore or
rifled muzzleloading firearm. P. 2, ll. 5-22, fig. 2. The plug has a
barrel B inside the existing firearm barrel. P. 1, l. 99 to p. 2, l. 5, fig.
1. Barrel B prevents a bullet from moving backward further in the
main barrel of the firearm, and further assists in piercing open a paper
cartridge. P. 2, ll. 39-51, fig. 4.
FF5 Giangerelli describes a muzzleloading firearm that utilizes a
particularly-shaped nipple to ignite the propellant. Col. 2, ll. 23-36.
Giangerelli teaches that the distance the nipple extends into the
powder provides reliability in ignition. Col. 4, ll. 47-52. The nipple is
shaped to pierce a paper cartridge. Col. 4, ll. 62-66; fig. 6. Thus, the
nipple acts as a rear stop to a muzzle-loaded bullet.

PRINCIPLES OF LAW
"[A] claim preamble has the import that the claim as a whole suggests
for it." Bell Commuc'ns Research, Inc. v. Vitalink Commuc'ns Corp.,
55 F.3d 615, 620 (Fed. Cir. 1995). "[I]f the claim preamble is 'necessary to
give life, meaning, and vitality' to the claim, then the claim preamble should
be construed as if in the balance of the claim." Pitney Bowes, Inc. v.
Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999); see also Kropa
v. Robie, 187 F.2d 150, 152 (CCPA 1951) (A preamble reciting "'An
abrasive article'" was deemed essential to point out the invention defined by
claims to an article comprising abrasive grains and a hardened binder and
the process of making it. The court stated "it is only by that phrase that it
can be known that the subject matter defined by the claims is comprised as
an abrasive article. Every union of substances capable inter alia of use as
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abrasive grains and a binder is not an 'abrasive article.'" Therefore, the
preamble served to further define the structure of the article produced.).
Anticipation is established only when a single prior art reference
discloses, expressly or under the principles of inherency, each and every
element of a claimed invention. RCA Corp. v. Applied Digital Data Sys.,
Inc., 730 F.2d 1440, 1444 (Fed. Cir. 1984). To establish anticipation, every
element and limitation of the claimed invention must be found in a single
prior art reference, arranged as in the claim. Karsten Mfg. Corp. v.
Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001).
Description via drawings and pictures can be relied upon alone as well
as by words to anticipate claimed subject matter if they clearly show the
structure claimed. In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). Patent
drawings not designated as being drawn to scale cannot be relied upon to
define precise proportions of elements if the specification is completely
silent on the issue. Hockerson-Halberstadt, Inc. v. Avia Group Int'l, 222
F.3d 951, 956 (Fed. Cir. 2000). That does not mean, however, "that things
patent drawings show clearly are to be disregarded." Mraz, 455 F.2d at
1072.

ANALYSIS
Issue (1) - Preamble of Claim 1
The preambles of claims 1 and 19 limit these claims to muzzleloading
firearms. A "muzzleloading firearm" operates in a unique fashion with
respect to other types of firearms, such as breech loaders, and thus is not a
mere statement of intended use. Cf., e.g., Catalina Mktg. Int’l, Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (a preamble is not
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limiting where a structurally complete apparatus is recited in the body of the
claim and the preamble merely states an intended use of the apparatus). The
fact that a firearm is a muzzleloader imparts certain restrictions as to the
structure of the firearm. See Pitney Bowes, Inc., 182 F.3d at 1305.
Specifically, the firearm must have structure which permits a bullet to be
loaded through the muzzle and fired by the firing structure of the firearm.
For example, as pointed out by Appellant, the bullet in a muzzleloader is
typically not "'crimped'" into a particular position, as the bullet is placed
down the bore of the firearm. See Spec. 1; cf. Musser, col. 6, ll. 53-58
(cartridge case is crimped in the breech-loading chamber), Mercer, fig. 1,
Olsen, fig. 2, Khoury, fig. 1 (noting each breech-loaded firearm utilizes a
cartridge with a rim for crimping). It is imperative that the bullet, once
loaded, be aligned such that it does not become trapped inside the firearm,
which would result in a dangerous condition. See, e.g, Appeal Br. 21-22.
Therefore, claims 1 and 19 are limited to those firearms that are
muzzleloading because the fact that the firearm is muzzleloading is essential
to point out the invention defined by claims. See, e.g., Kropa, 187 F.2d at
152. The Examiner’s dismissal of this limitation as being merely "the title
of the claim" (Ans. 7) is untenable.
The Examiner rejected claims 1 and 19 as anticipated by Musser and
claim 1 as anticipated by Mercer. Neither of these references, however,
describes a muzzleloading firearm. FF1; Ans. 7. Further, the Examiner has
not explained how either Musser's firearm or Mercer's firearm is inherently
capable of being muzzle loaded with a bullet, or other projectile, that could
then be fired by the firing structure of the firearm. Thus, the Examiner's
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rejections fail to establish that either Musser or Mercer describes, either
expressly or inherently, each and every claim element arranged as recited in
the claims.

Issue (2) - Schenkl and Chapin
The Examiner found that Schenkl describes a particular threaded
breech plug for a muzzleloading firearm as described in claim 1, but without
an expanded combustion chamber. Ans. 4-5, 10-15. However, the
Examiner found that Chapin describes a muzzleloading firearm with a
combustion chamber larger than the bore. Id. The Examiner concluded that
it would have been obvious to utilize a larger chamber in the firearm
described in Schenkl because a larger chamber allows for a larger propellant
charge, which is known to provide the desired benefit of extended projectile
range. Id.
Chapin teaches, as does the Olsen patent cited in other grounds of
rejection, that the more propellant (gun powder) used in firing a projectile,
the more force imparted onto the projectile, generally resulting in greater
distance traveled. See FF2. The Examiner's proposed combination of
Schenkl's breech plug, with Chapin's disclosure to have a combustion
chamber larger than the bore, would provide the predictable result of a
greater effective range of the firearm. Therefore, the Examiner's proposed
combination is based on rational underpinning because it merely seeks to
improve a known device using known methods to improve that device. See
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) ("if a technique has
been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
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using the technique is obvious unless its actual application is beyond his or
her skill.").
Appellant first argues that it would not have been obvious to
incorporate the breech plug of Schenkl into the gun of Chapin. Appeal Br.
11. However, the Examiner proposes to modify the muzzleloading firearm
of Schenkl with the expanded chamber of Chapin, not the other way around.
Thus, Appellant's argument is not directed to the Examiner's rationale.
Appellant next argues that Chapin does not actually describe, teach, or
suggest a combustion chamber larger in diameter than the bore, and that the
drawings depicting as much must be in error. Appeal Br. 11-13. However,
Chapin clearly and unambiguously depicts a combustion chamber larger
than the bore, in a muzzleloading firearm. See FF3. The converging
sidewall transition region depicted in Chapin’s figure 3 between the
combustion chamber and the bore belies any notion that the depiction of a
combustion chamber of larger diameter than the bore was unintended or in
error. Thus, Chapin’s figure 3 would have apprised one of ordinary skill in
the art of a muzzleloading firearm with a combustion chamber larger than
the bore.
Appellant argues that Chapin teaches away from a combustion
chamber larger than the bore. Appeal Br. 11-13. However, Chapin "does
not criticize, discredit, or otherwise discourage" a combustion chamber
larger than the bore for a muzzleloading firearm. See In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004) (prior art disclosure of more than one alternative
held not to constitute a teaching away from any of the alternatives, because
the disclosure "does not criticize, discredit, or otherwise discourage" the
claimed solution). While Chapin describes a shotgun shell in other figures
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(e.g., fig. 4), the Examiner relies on figure 3, which does not depict a
shotgun shell but a muzzle-loaded ball. See FF3.
Appellant further argues that Chapin teaches away from the
Examiner's proposed combination because such a combination would be
dangerous. Appeal Br. 12-13. However, Appellant is merely focusing on
the teachings of Chapin, without taking into consideration the Examiner's
combination, which includes the breech plug of Schenkl. See In re Merck &
Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures). As Appellant points
out, one of ordinary skill in the art would be aware of the safety dangers
from possible wedging of the projectile during firing. Appeal Br. 12. The
structure of Schenkl already prevents a bullet from moving rearward of a
particular, fixed point set by the length of the inner barrel B. FF4. Thus,
one of ordinary skill, enlarging the combustion chamber of Schenkl as
shown in Chapin, would be aware and concerned of this danger and
naturally account for it accordingly, such as by appropriately sizing the
barrel B of the breech plug. See KSR at 421 ("A person of ordinary skill is
also a person of ordinary creativity, not an automaton."). Appellant does not
present any evidence that the Examiner's proposed combination would
actually fail to operate as proposed, or that any such modification would be
outside the level of ordinary skill in the art. See In re Dillon, 919 F.2d 688,
692 (Fed. Cir. 1990) (If a prima facie case of obviousness is established, the
burden shifts to the applicant to come forward with arguments and/or
evidence to rebut the prima facie case); KSR at 418 ("the analysis need not
seek out precise teachings directed to the specific subject matter of the
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challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ").
Regarding claim 2, Appellant argues that Chapin teaches against
modifying a firearm to accommodate a threaded breech plug. Appeal Br. 13.
However, Schenkl already has a threaded breech plug. See FF4. Thus,
whether or not Chapin teaches threads for receiving the plug is not germane
to the combination proposed by the Examiner.
Regarding claims 12 and 13, Appellant argues that Chapin teaches
away from bore rifling. Appeal Br. 13-14. However, Schenkl describes
both smooth and rifled bores. See FF4. Thus, whether or not Chapin
teaches rifling is not germane to the combination proposed by the Examiner.

Issue (3) - Giangerelli and Khoury or Olsen
The Examiner found that Giangerelli describes the muzzleloading
firearm of claim 1, with the exception of a combustion chamber with a
diameter larger than the bore. Ans. 5. The Examiner found that Khoury and
Olsen describe a combustion chamber of a revolver that is greater in
diameter than the non-combustion portion of the barrel. Ans. 5-6. Thus, the
Examiner concluded that it would have been obvious to substitute Khoury or
Olsen's chamber/barrel configuration for Giangerelli's, in order to achieve
the known benefits of having a larger propellant charge. Id. In particular, a
larger propellant charge results in more energy being transferred to the
projectile. FF2.
Giangerelli describes a muzzleloading firearm that utilizes a
particularly shaped nipple to ignite the propellant. FF5. Olsen describes
that it is known in the art to increase the diameter of the case of a cartridge
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in order to increase the amount of propellant, to increase the energy
transferred to the projectile. See FF2. The Examiner proposed to modify
Giangerelli's muzzleloader to have a larger combustion chamber, such as
shown in Olsen. Ans. 6. The Examiner's reason for combining the
references is based on the rational underpinning that increasing the size of
the combustion chamber, such as shown in Olsen, would increase the
amount of propellant available to the projectile, creating the predictable
result of increased energy transfer to the projectile. See KSR, 550 U.S. at
417.
Appellant argues that Gianagerelli does not describe a trigger or a
means for actuating a charge. Appeal Br. 20-21. The Examiner found that
such features are not described in Giangerelli, but are inherent to a firearm.
Ans. 4, 15. Further, the Examiner provided some reasoning to support this
finding. Ans. 15. Once the PTO establishes a prima facie case of
anticipation based on inherency, the burden shifts to the applicant to prove
that the prior art does not possess the characteristic at issue. See In re King,
801 F.2d 1324, 1327 (Fed. Cir. 1986). This is the case whether the rejection
is based on inherency under 35 U.S.C. § 102, prima facie obviousness under
35 U.S.C. § 103, or both jointly or alternatively. See In re Best, 562 F.2d
1252, 1255 (CCPA 1977). Appellant does not challenge the Examiner's
finding of inherency, much less the technical reasoning in support thereof,
and thus has not discharged that burden.
Appellant argues that Khoury and Olsen are breech-loading firearms
that utilize cartridges not capable of being loaded through the muzzle, such
that there is no teaching or suggestion in the prior art to incorporate a larger
combustion chamber to a black powder rifle. Appeal Br. 20-21. In general,
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however, a greater amount of propellant will impart more energy onto the
projectile as compared with a lesser amount of propellant. See FF2; Ans. 6.
While Olsen and Khoury apply this principle to cartridge-fired weapons, this
does not mean that one of ordinary skill would ignore this knowledge with
respect to similar weapons.
When a work is available in one field of endeavor,
design incentives and other market forces can
prompt variations of it, either in the same field or a
different one. If a person of ordinary skill can
implement a predictable variation, § 103 likely
bars its patentability. For the same reason, if a
technique has been used to improve one device,
and a person of ordinary skill in the art would
recognize that it would improve similar devices in
the same way, using the technique is obvious
unless its actual application is beyond his or her
skill.

KSR, 550 U.S. at 417. Appellant does not present any evidence that such
knowledge would be outside the level of ordinary skill in the art. See In re
Dillon, 919 F.2d at 692 (if a prima facie case of obviousness is established,
the burden shifts to the applicant to come forward with arguments and/or
evidence to rebut the prima facie case).
Appellant argues that the prior art teaches away from the Examiner's
proposed combination. Appeal Br. 21-22. However, Appellant merely
identifies a known safety issue in the design of muzzleloading firearms. As
discussed in Issue (2) above, such knowledge is available to one of ordinary
skill in the art contemplating the prior art. The Examiner found that stops
are commonly used to prevent the bullet from misplacement. Ans. 16.
Appellant has not challenged this finding. Giangerelli's nipple is such a
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stop, which operates similar to the way the Schenkl breech plug operates.
See FF4; FF5. Thus, one of ordinary skill in the art, modifying Giangerelli's
firearm to increase the size of the combustion chamber to increase the range
of the weapon, as described in Khoury and Olsen, would understand the
safety issue as well as the known potential solutions to the issue. See KSR at
418 ("the analysis need not seek out precise teachings directed to the specific
subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ"), 421 ("A person of ordinary skill is also a person of ordinary
creativity, not an automaton.").
Appellant relies on similar arguments in discussing the Examiner's
rejections of claims 8, 11 and 15-18. Appeal Br. 22-23. These arguments
are unpersuasive for the reasons discussed above.

CONCLUSIONS
(1) Claim 1 requires a muzzleloading firearm. The Examiner did not give
proper weight to the preamble of claim 1. As such, we do not sustain
the Examiner's rejection under § 102(b) of claims 1-7, 12-14, and 19
as anticipated by Musser, or of claims 1, 2, 7, 11, and 14 as
anticipated by Mercer.
(2) The Examiner did not err in finding that Chapin describes a
muzzleloading firearm with a combustion chamber larger than the
bore. Consequently, the Examiner did not err in concluding that the
combination of Schenkl's muzzleloading firearm with Chapin renders
obvious the subject matter of claim 1. Likewise, the Examiner did not
err in the rejections of claims 2, 12, or 13. Therefore, we sustain the
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Examiner's rejection of claims 1-7, 12-14, 19, and 20 as unpatentable
over Schenkl and Chapin.
(3) The Examiner's articulated reason for modifying Giangerelli's black-
powder firearm by providing an expanded combustion chamber, as
depicted in Olsen or Khoury, has rational underpinning. Thus, the
Examiner did not err in concluding that Giangerelli and either Olsen
or Khoury render obvious the subject matter of claim 1. Likewise, the
Examiner did not err in the rejections of claims 8, 11, and 15-18 as
unpatentable over Giangerelli, Khoury or Olsen, and Miller.
Therefore, we sustain the Examiner's rejections of claims 1-4, 7, 12-
14, and 19 as unpatentable over Giangerelli and Khoury or Olsen and
of claims 8, 11, and 15-18 as unpatentable over Giangerelli, Khoury
or Olsen, and Miller.

DECISION
The Examiner's decision is affirmed as to claims 1-8 and 11-20.
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) (2007).

AFFRIMED

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hh

Brett J. Trout, P.C.
516 Walnut Street
Des Moines, IA 50309