Ex Parte Krone et al

Patent Trial and Appeal Board

Dec 9, 2014

12378672 (P.T.A.B. Dec. 9, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/378,672 02/18/2009 Uwe Krone 302671-00003 6650
10037 7590 12/09/2014
ECKERT SEAMANS CHERIN & MELLOTT, LLC
U.S. STEEL TOWER
600 GRANT STREET
PITTSBURGH, PA 15219-2788
EXAMINER
FELTON, AILEEN BAKER
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
12/09/2014 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 UWE KRONE, KLAUS MOELLER, and KAI BALLENTIN
____________

Appeal 2013-004865
Application 12/378,6721
Technology Center 1700
____________

Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
CHRISTOPHER M. KAISER, Administrative Patent Judges.

KAISER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the decision of the
Examiner finally rejecting claims 1 and 3–6 (“Final Rej.”). An oral hearing
was held on December 2, 2014. We have jurisdiction under 35 U.S.C.
§ 6(b). We reverse.

OPINION
Appellants’ invention “relates to a pyrotechnic smoke kit for
generating a smoke screen.” Spec. 1. In particular, the object of Appellants’

1 According to Appellants, the real party in interest is Rheinmetall Waffe
Munition GmbH. Appeal Br. 2.
Appeal 2013-004865
Application 12/378,672

2
invention “is to improve the known smoke kit so that it is efficient to an
optimum degree even after a longer storage time.” Id. at 2.
Claim 1, reproduced below, is representative of the appealed subject
matter:
1. In a pyrotechnic smoke kit for generating a smoke
screen comprising a composition mixture of a light-metal
powder as a metallic reduction agent, potassium nitrate and,
optionally, potassium perchlorate as the main oxidation agent
and at least one carbonate as an additional auxiliary oxidation
agent, as well as substances splitting off nitrogen and at least
one sublimable or evaporable non-toxic smoke-forming
substance,
the improvement wherein said composition includes
dicarboxylic acids selected from the group consisting of
aliphatic and aromatic dicarboxylic acids as a stabilizer, having
a percent by weight share in the range of from 0.1 to 5%, for
inhibiting the formation of gaseous ammonia.
Appeal Br. 17 (paragraphing added).
The Examiner rejected claims 1 and 3–6 under 35 U.S.C. § 103(a) as
obvious over the combination of Krone,2 Gast,3 and Yamato.4 Final Rej. 2.
Appellants argue that this rejection was in error because there is no reason a
person of ordinary skill in the art would have looked to Gast for a stabilizer
for the smoke-generating mixture disclosed in Krone. Appeal Br. 9–15.
There is no dispute that Krone teaches most of the limitations of
Appellants’ claims or that Gast teaches the use of terephthalic acid, an
aromatic dicarboxylic acid, as a stabilizer for a pyrotechnic mixture, as
recited in Appellants’ claim 1. Indeed, claim 1, which is recited in Jepson

2 Krone, US 4,968,365, issued Nov. 6, 1990.
3 Gast et al., US 2004/0108031 A1, published June 10, 2004.
4 Yamato et al., US 6,682,616 B1, issued Jan. 27, 2004.
Appeal 2013-004865
Application 12/378,672

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format, is an improvement over Krone. The issue is whether a person of
ordinary skill in the art, when attempting to solve the problem Appellants
identified with the device of Krone, would have looked to Gast as a source
of information on stabilizers for the mixture used in Krone. The Examiner
argues that this question should be answered in the affirmative, but, on this
record, we disagree.
Both Appellants and Gast describe terephthalic acid as a “stabilizer.”
Spec. 3 (“a stabilizer from the group of the aliphatic and/or aromatic
dicarboxylic acids”); Gast ¶ 26 (“Examples of stabilizers . . . [include]
terephthalic acid”). But there is not sufficient evidence of record to establish
that both Appellants and Gast mean the same thing when referring to a
“stabilizer.” Appellants explain what they mean by “stabilizer” in their
Specification: without a “stabilizer,” the metal in the mixture of Krone
“reacts with water that is present as residual humidity,” forming hydrogen,
which “reduces the nitrate in the smoke kit to gaseous ammonia which
weakens the structure of a smoke body,” Spec. 2, but with a “stabilizer,”
“solid ammonium salts are formed” instead, causing less change in volume
than the formation of gaseous ammonia and therefore not causing as much
damage to “the structure of the smoke kit,” id. at 3. Accordingly, the
“stabilizer” of Appellants’ claims is a substance that reduces mechanical
stresses on the body containing the mixture by inhibiting the formation of
ammonia. In Gast, the Examiner has not directed us to any evidence that
teaches a similar purpose for the “stabilizer.” While Gast teaches that its
mixture, including a “stabilizer,” “withstands a heat aging at 110° C. for at
least 400 hours,” Gast ¶ 21, it does not teach what the consequences of such
“heat aging” are, with or without the “stabilizer.”
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Application 12/378,672

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This lack of evidence for a similar purpose for the “stabilizer” in Gast
and the “stabilizer” in Appellants’ claims might be overcome if the mixtures
in Gast and in Appellants’ claims were otherwise similar. But the mixtures
are not similar. While Appellants’ claims recite a “light-metal powder” as a
reduction agent, Appeal Br. 17, Gast teaches the use of nitroguanidine, an
organic compound, Gast ¶ 16. Moreover, Gast’s mixture includes additional
components, such as a “burn-up stabilizer” and a “slag former/slag trap,”
that are not present in Appellants’ claims. Id. ¶ 19. The Examiner has not
identified evidence suggesting that a person of ordinary skill in the art would
have considered the Gast mixture and Appellants’ mixture so similar as to
expect similar stabilization results from the inclusion of a dicarboxylic acid.
Without such evidence, we do not agree with the Examiner that a
person of ordinary skill in the art would have looked to Gast as a source of
information about ingredients that would stabilize the mixture of Krone.
Accordingly, we reverse the Examiner’s rejection.

ORDER
The Examiner’s rejection of claims 1 and 3–6 under 35 U.S.C.
§ 103(a) as obvious over the combination of Krone, Gast, and Yamato is
reversed.
REVERSED

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