Ex Parte Hunn

Board of Patent Appeals and Interferences

Nov 21, 2008

11347526 (B.P.A.I. Nov. 21, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
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3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
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7
Ex parte DAVID L. HUNN 8
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10
Appeal 2008-4571 11
Application 11/347,526 12
Technology Center 3600 13
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Decided: November 21, 2008 16
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18
Before WILLIAM F. PATE, III, JENNIFER D. BAHR and DANIEL S. 19
SONG, Administrative Patent Judges. 20
21
SONG, Administrative Patent Judge. 22
DECISION ON APPEAL 23
24
STATEMENT OF THE CASE 25
The Appellant appeals under 35 U.S.C. § 134 (2002) from a Final 26
Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b) 27
(2002). 28
The Appellant claims an armor device for protecting vehicles such as 29
tanks and personnel carriers from ballistic projectiles like bullets. 30
Appeal 2008-4571
Application 11/347,526

Independent claim 1 reads as follows: 1
1. An armor, comprising: 2
a projectile entry sheet; 3
a spall liner; 4
a core disposed between the projectile entry sheet and the 5
spall liner, the core comprising: 6
a polymeric matrix; and 7
a plurality of ceramic rods disposed in the 8
polymeric matrix; and 9
a first shock dissipation layer disposed between the 10
projectile entry sheet and the core. 11
12
Independent claim 17 is also directed to an armor device with a 13
projectile entry sheet and a second, viscoelastic, shock dissipation layer 14
between the spall liner and the core. Independent claim 18 is directed to a 15
method for disposing the various layers of an armor device, including the 16
projectile entry sheet. 17
The prior art relied upon by the Examiner in rejecting the claims is: 18
Vogelesang 4,836,084 Jun. 6, 1989 19
Lucuta 6,912,944 B2 Jul. 5, 2005 20
The Examiner rejected claims 1-8, 11, 12, 15, 16 and 18-20 under 35 21
U.S.C. § 102(b) as lacking novelty over Lucuta. 22
The Examiner rejected claims 9, 10, 13, 14 and 17 under 35 U.S.C. 23
§ 103(a) as unpatentable over Lucuta and Vogelesang. 24
25
We REVERSE. 26
27
Appeal 2008-4571
Application 11/347,526

3
ISSUE 1
The primary issue raised in the present appeal is whether the recited 2
limitation “a projectile entry sheet” is met by the backing layer of Lucuta 3
upon “flipping over” (i.e., reversing the orientation of) Lucuta’s armor. 4
5
PRINCIPLES OF LAW 6
“A claim is anticipated only if each and every element as set forth in 7
the claim is found, either expressly or inherently described, in a single prior 8
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 9
628, 631 (Fed. Cir. 1987). “These elements must be arranged as in the claim 10
under review.” In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). In other 11
words, there must be no difference between the claimed invention and the 12
reference disclosure, as viewed by a person of ordinary skill in the field of 13
the invention. Scripps Clinic & Research Found. v. Genentech Inc., 927 14
F.2d 1565, 1576 (Fed. Cir. 1991). Analysis of whether a claim is patentable 15
over the prior art under 35 U.S.C. § 102 begins with a determination of the 16
scope of the claim. We determine the scope of the claims in patent 17
applications not solely on the basis of the claim language, but upon giving 18
claims their broadest reasonable construction in light of the specification as 19
it would be interpreted by one of ordinary skill in the art. In re Prater, 415 20
F.2d 1393, 1395-96 (CCPA 1969); In re Am. Acad. of Sci. Tech. Ctr., 367 21
F.3d 1359, 1364 (Fed. Cir. 2004). The properly interpreted claim must then 22
be compared with the prior art. 23
24
Appeal 2008-4571
Application 11/347,526

4
ANALYSIS 1
Claims 1-8, 11, 12, 15, 16 and 18-20 2
The Examiner rejected these claims as lacking novelty contending that 3
Lucuta discloses each and every limitation recited in these claims when 4
Lucuta’s armor is “flipped over” so that the orientation of the various layers 5
of the armor are reversed (Ans. 3-8 and 12-14). In particular, the Examiner 6
asserts that the armor of Lucuta can be reversed in orientation so that the 7
backing 1616 (fig. 16) constitutes the recited “projectile entry sheet” of 8
independent claims 1 and 181 (Ans. 3, 7 and 8). The Examiner states there is 9
no claimed structural difference between the armor of Lucuta and the 10
Appellant’s armor, and that the limitation “‘projectile entry sheet’ merely 11
implies a functional recitation regarding the manner in which the apparatus 12
is deployed” (Ans. 12-14). 13
The Appellant contends that the mere fact that the armor of Lucuta 14
must be reversed in orientation (i.e., flipped over) in order to satisfy the 15
claim limitations is sufficient to preclude a finding of anticipation (App. Br 16
14). In addition, the Appellant also argues that because the projectile entry 17
sheet of Lucuta is the front spall layer (instead of the backing as applied by 18
the Examiner), Lucuta does not disclose the various layers in the relationship 19
recited in the claims (App. Br. 14). Moreover, the Appellant contends that if 20
the orientation of the armor in Lucuta is reversed, the described armor must 21
be used in an unknown way (App. Br. 14). Furthermore, the Appellant also 22

1 Claim 18, line 6 recites “the face sheet,” but proper antecedent basis was
not established for this limitation. The recited face sheet appears to refer to
“a projectile entry sheet” recited in line 5. This error in claim 18 should be
corrected in any further prosecution.
Appeal 2008-4571
Application 11/347,526

5
contends that Lucuta’s nodes are not “rods” recited in the rejected claims 1
(App. Br. 14). 2
Preliminarily, we disagree with the Examiner’s claim construction 3
that “projectile entry” merely implies a functional recitation. While the 4
Examiner is correct that “projectile entry” does imply functionality of the 5
sheet, functional limitations must also be considered. See In re Swinehart, 6
439 F.2d 210, 212 (CCPA 1971) (holding that there is nothing intrinsically 7
wrong with the use of functional language in drafting patent claims). More 8
significantly, the actual claim language “a projectile entry sheet” is a 9
positively recited structural limitation which imparts a directional 10
requirement to the claimed layers of the armor. One of ordinary skill in the 11
armor art would understand the claims as reciting a structural sheet that 12
receives the projectile as it enters the armor device. 13
In comparing the claim limitation “a projectile entry sheet” with the 14
armor device of Lucuta, it is evident that Lucuta does not set forth each and 15
every element of the rejected claims. Firstly, the front spall layer 1612 of 16
Lucuta clearly corresponds to the recited projectile entry sheet of claim 1. 17
The various portions of Lucuta identified by the Appellant describe that the 18
front spall layer 1612 of Lucuta’s armor receives the projectile as the 19
projectile enters the armor (Ans. 12 and 13). Indeed, the Examiner does not 20
contest the fact that Lucuta describes an armor device in which the projectile 21
enters through the front spall layer 1612. 22
Nonetheless, the Examiner asserts that there is no structural difference 23
between the claimed armor and Lucuta’s armor, and that the only difference 24
is in the manner the armor is deployed which is overcome by flipping over 25
Appeal 2008-4571
Application 11/347,526

6
Lucuta’s armor (Ans. 12-14). However, when the orientation of the armor 1
device of Lucuta is reversed (i.e., flipped over) as applied by the Examiner, 2
the backing 1616 of Lucuta does not satisfy the “projectile entry sheet” 3
limitation because the directional requirement imposed by this limitation is 4
absent in the Lucuta disclosure. In other words, the Examiner has not 5
established that Lucuta describes an armor device which can be used in a 6
reversible manner. 7
Moreover, we are not convinced that one of ordinary skill in the art 8
would recognize that the armor device of Lucuta can be used in a reversible 9
manner. In this regard, the Appellant’s argument that the armor of Lucuta 10
must be used in an unknown way if the layers of the armor are reversed 11
(App. Br. 14) is persuasive. In particular, as pointed out by the Appellant on 12
page 13 of the Appeal Brief, Lucata specifically describes the nodes on the 13
front (entry) surface of the ceramic base of ceramic component 1110 to 14
deflect or change the angle of the impacted projectile and retard the passage 15
of the projectile through the ceramic component (col. 13, ll. 1-11). It is not 16
apparent that such nodes would have the same deflective effect if disposed 17
on the rear (exit) surface of the ceramic component. As such, on this record, 18
we cannot find that a person of ordinary skill in the art would reasonably 19
consider the armor of Lucata as capable of use in the reversed orientation 20
necessary to construe backing layer 1616 to be a projectile entry sheet, as 21
required to meet claim 1. 22
With respect to Lucuta’s nodes, Lucuta specifically describes that the 23
shape of the nodes can be varied and may be cylindrical (col. 3, ll. 20-22; 24
Appeal 2008-4571
Application 11/347,526

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col. 7, ll. 5-9; Ans. 14). Thus, the Appellant’s argument that Lucuta does 1
not describe the claimed “rods” of the rejected claims is not persuasive. 2
In view of the above, we find that because the front spall layer 1612 3
of Lucuta corresponds to the recited “projectile entry sheet” of the rejected 4
claims, Lucuta, as applied by the Examiner, does not describe a first shock 5
dissipation layer disposed between the projectile entry sheet and the core as 6
recited in the rejected claims. We also find that if the armor device of 7
Lucuta is “flipped over,” the backing 1616 of Lucuta does not satisfy the 8
“projectile entry sheet” limitation recited in the rejected claims. 9
Therefore, because Lucuta does not describe each and every element 10
as set forth in the rejected independent claims 1 and 18, we find that the 11
Examiner erred in rejecting claims 1 and 18 as lacking novelty over Lucuta. 12
In addition, for the same reasons discussed supra, we also find that the 13
Examiner erred in rejecting claims 2-8, 11, 12, 15, 16, 19 and 20 (that 14
ultimately depend from independent claims 1 or 18) as lacking novelty over 15
Lucuta. 16
17
Claims 9, 10, 13, 14 and 17 18
The Examiner rejected claims 9, 10, 13, 14 and 17 as unpatentable 19
over Lucuta and Vogelesang (Ans. 8-11). However, the Examiner’s 20
application of Vogelesang does not remedy the deficiencies of Lucuta 21
discussed supra. Therefore, we find that the Examiner also erred in 22
rejecting these claims. 23
24
Appeal 2008-4571
Application 11/347,526

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CONCLUSIONS 1
1. The Examiner erred in rejecting claims 1-8, 11, 12, 15, 16 and 2
18-20 under 35 U.S.C. § 102(b) as lacking novelty over Lucuta. 3
2. The Examiner erred in rejecting claims 9, 10, 13, 14 and 17 4
under 35 U.S.C. § 103(a) as unpatentable over Lucuta and Vogelesang. 5
6
ORDER 7
The Examiner’s rejections of claims 1-20 are REVERSED. 8
9
REVERSED 10
11
12
13
Appeal 2008-4571
Application 11/347,526

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