Ex Parte Kapeles et al

Board of Patent Appeals and Interferences

Oct 7, 2008

10674047 (B.P.A.I. Oct. 7, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DEFENSE TECHNOLOGY CORPORATION OF AMERICA

Appeal 2008-3569
Application 10/674,047
Technology Center 3600
____________

Decided: October 7, 2008
____________

Before FRED E. McKELVEY, Senior Administrative Patent Judge, and
RICHARD E. SCHAFER and RICHARD TORCZON, Administrative
Patent Judges.

Opinion filed by TORCZON, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Claims 14, 16, 18-23, 25-30, and 32 stand rejected under 35 U.S.C.
§ 103 (Ans. at 3-8). The appellant, Defense Technology Corporation of
America, a subsidiary of Armor Holdings, Inc. (Defense Technology), seeks
review under 35 U.S.C. § 134. We AFFIRM.

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The examiner relies upon the following prior art in rejecting the
claims (Ans. at 3):
Barr et al. ('824) 3,911,824 14 Oct. 1975
Barr ('038) 3,865,038 11 Feb. 1975
Klein 2004/0069177 A1 15 Apr. 2004

Claims 14, 16, 18-23, 25-30, and 32 are before us.
Claims 14 and 27 are independent claims.
Claims 16, 18-23, and 25-26 depend directly or indirectly from
independent claim 14.
Claims 28-30 and 32 depend from independent claim 27.
The examiner held that the subject matter of claims 14, 16, 18-23,
and 25-30 would have been obvious in view of Barr '824 and Klein (Ans. 3).
The examiner also held that the subject matter of claims 27 and 32
would have been obvious in view of Barr '824, Barr '038, and Klein (Ans.
at 6).
In presenting its arguments on appeal, Defense Technology discusses
only claims 14 and 27 in connection with the rejection based on Barr '824
and Klein. Accordingly, we treat independent claim 14 and its dependent
claims 16, 18-23, and 25-26 as a group that stands or falls with claim 14.
37 C.F.R. § 41.37(c)(1)(vii).
In presenting its arguments on appeal, Defense Technology discusses
only claim 27 in connection with the rejection based on Barr '824, Barr '038
and Klein. Accordingly, we treat independent claim 27 and its dependent
claims 28-30 and 32 as a group that stands or falls with claim 27. 37 C.F.R.
§ 41.37(c)(1)(vii).
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THE CLAIMED INVENTION
The claimed invention relates to non-lethal munition (Spec. at 1, l. 5).
We reproduce from the specification Defense Technology's Figure 2 below:

Figure 2 depicts a cross-section view of
Defense Technology's non-lethal munition.

We select claim 14 as representative of the group of claims 16, 18-23,
and 25-26. We reproduce claim 14 from the Appeal Brief claim appendix
(drawing numerals and specification citation added) (Br. at 24):
A non-lethal impact munition comprising:
a projectile comprising a projectile nose 30 and a
projectile base 20, said projectile separably joined to a
propulsion shell 10 comprising propulsion means 13 to separate
[Spec. at 8, ll. 10-13] said projectile from said propulsion
shell 10;
said projectile nose 30 composed of a frangible, rigid,
polymer foam material characterized in that said projectile
nose 30 is crushed upon impact with a target in a manner that
absorbs and dissipates energy of impact, said projectile nose 30
comprising a cavity 33;
wherein said projectile nose 30 has a rounded forward
end 31 and a cylindrical wall 32, said cylindrical wall being
thinner than said forward end, such that said thinner cylindrical
wall 32 breaks prior to said forward end 31 upon impact to
absorb and dissipate energy.
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Defense Technology's Principal Arguments
Defense Technology and the examiner have a different interpretation
of what constitutes a projectile nose and a projectile base within the scope of
claim 14 (Br. at 15 and Ans. at 8). Defense Technology contends that the
cited references do not describe a thinner cylinder wall that will break prior
to the forward nose upon impact as required in claim 14 (Br. at 15).
Claim 27 describes a non-lethal munition like the invention of
claim 14, but having additional limitations of a rear plug wall, a forward
wall, a rearward extending annular insertion flange, and a propulsion cavity.
According to Defense Technology, the examiner erred because the cited
references do not describe these additional limitations (Br. at 16-17 and Br.
at 19).
Defense Technology argues that the there is no suggestion or
motivation to combine the references that were used to reject the claims (Br.
at 17).
Finally, Defense Technology urges that the combination of references
used by the examiner will not result in a functional device (Br. at 19).
Issue
(1) Has Defense Technology shown that the examiner erred in
rejecting the claims 14, 16, 18-23, and 25-30 as being directed to subject
matter that would have been obvious in view of Barr '824 and Klein?

(2) Has Defense Technology shown that the examiner erred in
rejecting the claims 27 and 32 as being directed to subject matter that would
have been obvious in view of Barr '824, Barr '038, and Klein?
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Findings of Fact
1. The invention disclosed in the Barr '824 patent is ammunition
designed to rupture upon impact resulting in a low lethal hazard to target
personnel (Barr '824, col. 1, ll. 38-46).
2. The ammunition in Barr '824 has a projectile 51 that is preferably
formed from sections that include a base housing 55 and a nose section 53 that
are made from the same soft elastic material (Barr '824, col. 3, ll. 24-29, and
Barr '824 FIG. 1, shown below).

Barr '824 Figure 1 is a side view of a cartridge.

3. In Barr '824, the base housing 55 and the nose section 53 together
form a cavity 57 that stores a payload P, which will disperse upon impact with
a target (Barr '824, col. 3, ll. 41-47).
4. Barr '824 describes a projectile 51 that has a cavity 57 with weak
zones at the corners 55a, which are easily ruptured on impact and enable
dispersal of the payload P (Barr '824, col. 3, ll. 54-59, and Barr '824 FIG 3,
below).
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Barr '824 Figure 3 depicts a longitudinal section
of the base housing portion of the projectile.

5. Barr '824 discloses that when the weapon is fired the frangible
cup 25 ruptures and sufficient pressure builds up within the cup 25 through
burning of the propellant 26 such that the pusher disc 41, the sabots 31, and
the projectile 51 are propelled from the barrel of the weapon (Barr '824, col. 2,
ll. 21-29).
6. Barr '824 discloses that upon firing the weapon sufficient
pressure buildup because the propellant 26 is being burned and the gases then
pass through the port 23a and into an enlarged interior chamber (Barr '824,
col. 2, ll. 21-29).
7. Barr '824's base housing 55 connects with the side walls to form a
cavity, which has a thick rear wall 55r and a thin wall thickness at the
corners 55a (Barr '824, col. 4, ll. 1-7).
8. Barr '824 discloses that the cartridge is crimped at the forward
end of the case against the annular surface 31b (Barr '824, col. 2, l. 65 to
col. 3, l. 1).
9. The Klein published application discloses non-lethal ammunition
(Klein at 0001).
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10. Klein's ammunition has a nose 18 preferably made from
styrofoam material (Klein at 0050 and Klein FIG. 2 below).

Klein Figure 2 depicts a cross-sectional view of the ammunition.

11. Klein discloses that upon impact the nose 18 will be breached
and the chemical agent 28 within the cavity 20 will be dispersed (Klein
at 0050).
12. The Barr '038 patent discloses ammunition projectiles that will
rupture upon impact (Barr '038, col. 1, ll. 3-9).
13. Barr '038 discloses a base section 31 that has a rifling band 35
(Barr '038, col. 2, ll. 41-43, and Barr '038 FIG. 1, shown below).

Barr '038 Figure 1 depicts a longitudinal section view of the projectile.

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14. Barr '038 discloses that the projectile 11 is mounted in, and fired
from, a conventional cartridge having ignitable propellant (Barr '038, col. 3,
ll. 7-11).
15. According to Defense Technology, a difference between the
claimed invention and Barr '824 is that the claimed invention has a thinner
cylindrical wall that breaks on impact, prior to the breaking of the forward end
of the projectile (Br. at 15-16).
16. Another difference between the claimed invention and Barr '824
according to Defense Technology is that Barr '824 does not describe a rear
plug wall, a forward wall, a rearward extending annular insertion flange, and a
combined projectile and shell cavity as required in claim 27 (Br. at 16-17).
17. Another difference between the claimed invention and Barr '038
according to Defense Technology is that Barr '038 does not describe a rear
plug wall, a rearward extending annular insertion flange, and a projectile
cavity as required in claim 27 (Br. at 19).
18. It would be readily apparent to one of ordinary skill in the art that
non-lethal ammunition provides a relatively low hazard to targeted personnel.
Principles of Law
Pending claims must be interpreted as broadly as their terms
reasonably allow. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004). Claim language is to be read in light of the specification as
a person of ordinary skill in the art would interpret it. Id. An applicant
seeking a narrower construction must either show why the broader
construction is unreasonable or amend the claim to state expressly the scope
intended. In re Morris, 127 F.3d 1048, 1057 (Fed. Cir. 1997).
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In analyzing obviousness, the scope and content of the prior art must
be determined, the difference between the prior art and the claim
ascertained, and the ordinary level of skill in the art resolved. Graham v.
John Deere Co., 383 U.S. 1, 17 (1966). Many factors are relevant to
whether teachings are properly combined, such as (1) the field of inquiry,
(2) the subject matter of the references, (3) the extent to which they are in
the same or related fields of technology, (4) the nature of the advance made
by the applicant, and (5) the maturity and congestion of the field. In re
Johnston, 435 F.3d 1381, 1385 (Fed. Cir. 2006).
Attorney's arguments in a brief cannot take the place of evidence.
In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
Analysis
Rejection of claims 14 and 27 in view of Barr '824 and Klein
Claim 14
Our analysis starts with claim construction. Defense Technology (Br.
at 15) and the examiner (Ans. at 8) have different interpretations of what
satisfies the "projectile nose" limitation. We give the contested limitation,
its broadest reasonable interpretation in view of the specification. Defense
Technology has not directed us to a definition of "projectile nose" in its
specification. In the Appeal Brief, Defense Technology argues that the
examiner erred in combining Barr '824's nose section 53, the base
housing 55, and the cavity 57 to satisfy the projectile nose limitation (Br.
at 15). Defense Technology urges that projectile nose should be interpreted
to include only Barr '824's nose section 53. The examiner explains that the
projectile nose limitation may also be satisfied by three parts that include
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Barr '824's nose section 53, the base housing 55, and the cavity 57 for the
payload P (Ans. at 3-4). Moreover, Defense Technology's claim 14 states
that the "projectile nose has a rounded forward end and a cylindrical wall”
(Br. at 24). Similar to the claimed invention, Barr '824 has a forward nose
section 53, base housing 55 (cylinder wall), and a cavity 57 that receives the
payload P (Findings 2 and 3). The examiner's interpretation that the nose
section 53, the base housing 55, and the cavity 57 in Barr '824 satisfies the
limitation, projectile nose, is reasonable. Defense Technology has not met
its burden of showing that the examiner erred.
Next, we give the contested limitation, projectile base, its broadest
reasonable interpretation. Claim 14 requires a projectile that includes a
projectile base and a projectile nose (Br. at 24). Defense Technology argues
that Barr' 824's base housing 55 satisfies the projectile base limitation (Br.
at 15). Defense Technology's argument is based on its interpretation that the
projectile nose includes only the nose section 53 in Barr '824 (Br. at 15). As
we concluded above, however, the combination of Barr '824's nose
section 53, the base housing 55, and the cavity 57 satisfies the projectile
nose limitation. According to the examiner, Barr '824's sabots 31 and pusher
disc 41 satisfy the claim limitation "projectile base" (Ans. at 9, middle
figure, an annotated version of Barr '824 Figure 2). Barr '824 describes that
the sabots 31 and the pusher disc 41 are connected to the projectile 51 and
are propelled together from the barrel of the weapon (Finding 5). Defense
Technology has not met its burden of showing that the examiner erred in
using Barr '824's sabots 31 and pusher disc 41 to satisfy the projectile base
limitation.
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Defense Technology argues that the claim limitation requiring a
projectile nose having a thinner cylindrical wall "such that the thinner
cylindrical wall breaks prior to the forward end upon impact" is not met in
Barr '824 (Br. at 15). We understand the examiner to hold that Barr '824's
weaker corner wall sections 55a satisfy this limitation (Ans. at 10). The
weaker wall sections 55a occur at the corners of the cavity 57 in Barr '824
(Finding 4). The entire cylindrical wall does not have the same thickness in
Barr '824 (Finding 7). Taking the broadest reasonable interpretation, we
conclude that Barr '824's thin corners 55a satisfy the thinner cylinder wall
limitation in claim 14.
Defense Technology argues that substituting the frangible nose 18
taught by Klein with the nose section 53 in Barr '824 would not result in a
functional device (Br. at 16). Defense Technology states that the nose
section 53 would not act as a piston causing the base house 55 to rupture
along one or more of its corners (Br. at 16). Defense Technology argues that
without rupture of the base housing 55 dispersal of the payload P would be
minimal (Br. at 16). Barr '824 describes the use of corners 55a that form
weak zones that are easily ruptured on target impact (Findings 4 and 7).
Defense Technology has the burden of producing evidence to support its
argument that the combination of Klein's frangible nose 18 with the Barr
'824 projectile 51 would result in a device that would not function. Defense
Technology has not supplied any evidence in the record on appeal to support
its argument (Br. at 28). Therefore, Defense Technology has not met its
burden of showing that the examiner erred.
Defense Technology argues there is no suggestion or motivation to
combine Klein with Barr '824 (Br. at 17). We find that all the references
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used by the examiner deal with non-lethal ammunition (Findings 1 and 9).
The goal of non-lethal ammunition is to deliver a payload while causing
minimal damage to any person hit by the projectile (Finding 18). A person
of ordinary skill in the art would have immediately recognized the benefit of
using a frangible foam nose bullet that breaks upon impact, as taught by
Klein (Findings 9-11). Defense Technology’s claimed invention is in the
same field of inquiry as the cited prior art. We conclude that Defense
Technology has not shown that the examiner erred in combining the cited
references.
Claim 27
In addition to the requirements of claim 14, Claim 27 adds the
limitation "a rear plug wall joined to a cylindrical wall" (Br. at 26). Defense
Technology argues that this limitation is not described in Barr '824 (Br.
at 16). We give the contested limitation, a rear plug wall joined to a cylinder
wall, its broadest reasonable interpretation in view of the specification.
Defense Technology has not directed us to a specific definition of a rear plug
wall. The examiner explains that the rear plug wall limitation is met by Barr
'824's rear wall of the projectile nose (Ans. at 9, lower figure, an annotated
version of Barr '824 Figure 3). Barr '824 describes a thick rear wall
section 55r (rear plug wall) that is connected to thin side walls (cylindrical
wall) (Finding 7). The examiner's interpretation, that Barr '824's rear wall of
the projectile nose satisfies requirement for a rear plug wall joined to a
cylinder wall, is reasonable. Defense Technology has not met its burden of
showing that the examiner erred.
Defense Technology argues that Barr '824 does not satisfy the claim
limitation "a forward wall joined to a cylindrical wall to define a projectile
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cavity and a rearward extending annular insertion flange" as required in
claim 27 (Br. at 17). The examiner explains that Barr '824's pusher disc 41
(forward wall), annular surface 31b (rearwardly extending annular insertion
flange), and the enlarged interior chamber (shell cavity combined with
projectile cavity) satisfy the claim limitation (Ans. at 9, middle figure, an
annotated version of Barr '824 Figure 2 that is not numbered as Figure 2).
We give the contested limitations together—the forward wall 21, the
rearward extending annular insertion flange 25, and the shell cavity 15
combined with the projectile cavity 23—their broadest reasonable
interpretation. In claim 27, the projectile base's forward wall is joined to
cylindrical wall such that the combination defines the projectile cavity (Br.
at 26). In Barr '824, when the weapon is fired the propellant gases enter into
an interior chamber (cavity) and then propel the pusher disc 41, the sabots
31, and projectile nose together from the barrel of the weapon (Finding 5).
Barr '824's pusher disc 41 defines the forward end of the enlarged interior
chamber where sufficient pressure builds up to propel the projectile 51
(Findings 6). Claim 27 requires that the rearwardly extending annular
insertion flange receives the shell rim (Br. at 26). Barr '824's annular
surface 31b is similar to the rearwardly extending annular insertion
flange 25 because the cartridge is crimped at the forward end of the case
against the annular surface 31b (Finding 8). Defense Technology's claim 27
requires that the shell cavity and the projectile cavity are combined to form a
single cavity (Br. at 26). Barr '824 describes an enlarged interior chamber
where sufficient pressure builds up to propel the projectile (Finding 6). The
examiner's rationale—that Barr '824's pusher disc 41 (forward wall), annular
surface 31b (rearward extending annular insertion flange), and the enlarged
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interior chamber (shell cavity combined with projectile cavity) satisfies the
claim limitation—is reasonable. Defense Technology has not met its burden
of showing that the examiner erred.
Rejection of claim 27 in view of Barr '824, Barr '038, and Klein
Defense Technology argues that Barr '038 does not describe a rear
plug wall, a rearward extending annular insertion flange, and a projectile
cavity as required in claim 27 (Br. at 19). The examiner explains that
Barr '038 describes a forward wall (rear plug wall) (Ans. at 11 shown on
annotated Barr '038 FIG. 1) and a rearward extending annular insertion
flange (Ans. at 11 shown on annotated Barr '038 FIG. 1) that satisfies the
claim requirements. Barr '038 does not disclose a particular propulsion shell
(Ans. at 7). Barr '038 discloses that the projectile 11 can be mounted in, and
fired from, a conventional cartridge having ignitable propellant in the
cartridge (Finding 14). The examiner goes on to explain that even though
Barr '038 does not disclose a projectile cavity as required in claim 27,
Barr '824 does (Ans. at 7). The examiner indicates that Barr '824 has a
combined shell cavity and projectile cavity (Ans. at 9 annotated Barr '824
FIG. 1). The examiner's rationale, that Barr '038's base section 31 and
rifling band 35 satisfies the claim limitation of having a rear plug wall and
rearward extending annular insertion flange 25, is reasonable (Finding 13).
Additionally as we discussed above, Barr '824 describes a rear wall 55r (rear
plug wall), an annular surface 31b (rearward extending annular insertion
flange), and an enlarged interior chamber (shell cavity combined with
projectile cavity) that satisfies the limitations (Findings 6-8). We conclude
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that the combination of Barr '038 and Barr '824 satisfies the above
limitations in claim 27.
Defense Technology argues there is no suggestion, or motivation, to
combine Klein with the Barr '824 and Barr '038 references (Br. at 19). All
the references used by the examiner deal with non-lethal ammunition
(Findings 1, 9, and 12). As we previously stated, the goal of non-lethal
ammunition is to deliver the payload while causing minimal damage to any
person hit by the projectile (Finding 18). Defense Technology’s claimed
invention is in the same field of inquiry as the cited prior art. The ease of
breaking up of a frangible foam projectile and the desire to have a non-lethal
projectile that would not injure any targeted person would inspire a person
of ordinary skill in the art to look to the related teachings of Klein, Barr '824,
and Barr '038 to appreciate what they teach individually and together
(Findings 1, 9-12, and 18). We conclude that Defense Technology has not
shown that the examiner erred in combining the cited references.
Finally, Defense Technology argues that the combination of Barr '824,
Barr '038, and Klein would not result in a functional device (Br. at 19). Our
previous discussion above applies equally here—Defense Technology has
not supplied evidence to show that the combination will not function (Br.
at 28). Barr '824, Barr '038, and Klein all disclose non-lethal projectiles that
disperse a payload upon impact (Findings 3, 11, and 12). We conclude that
Defense Technology has not shown that the examiner erred.
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CONCLUSION
Defense Technology has failed to show that the examiner erred in
rejecting the claims over the prior art. Consequently, the rejection of all the
pending claims under 35 U.S.C. § 103 is —
AFFIRMED

ack

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