Ex parte LENKO et al.

Board of Patent Appeals and Interferences

Mar 31, 1998

07853221 (B.P.A.I. Mar. 31, 1998)

Application for patent filed March 16, 1992.1
1
Paper No. 31
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte DANIEL S. LENKO
AND THOMAS P. FREDERICK
______________
Appeal No. 96-0939
Application 07/853,2211
_______________
ON BRIEF
_______________
Before MEISTER, FRANKFORT, and PATE, Administrative Patent
Judges.
PATE, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the examiner’s refusal to allow
claims 10 through 15 as amended after final rejection. Of the
Appeal No. 96-0939
Application 07/853,221
2
other claims in the application, claims 1 through 9 are
subject to a restriction requirement and stand as withdrawn
from consideration. Claim 16, the only other remaining claim
in the application, has been indicated as allowable on page 7
of the examiner’s answer.
The claimed invention is directed to a military-type hand
emplaced ordnance. With reference to Figure 1, the ordnance
comprises an explosive charge 12 and a detonator 14 contained
in an ordnance housing 18. For safety considerations, the
detonator 14 is separated from the booster 16 by a rotatable
blocking disc element 32. The rotatable blocking disc element
has a throughbore or aperture 60 (Figure 2) which aligns the
detonator with the booster 16 when the ordnance is armed. A
drive module 42 is provided to rotate the blocking disc.
Rotation of the blocking disc is also prevented by a latch
means 36, the inward movement of which actuates switch 28 to
energize the drive module to rotate the disc. As shown in
Figure 4, the drive module comprises a stepper motor 70
controlled by a crystal pulse generator.
Appeal No. 96-0939
Application 07/853,221
3
Claim 10 is illustrative of the subject matter on appeal
and reads as follows
10. A safety arming device for ordnance having an
explosive charge and a detonator, comprising a blocking disc
displaceable between safe and armed positions, a drive module
connected to the blocking disc, latch means engageable with
the blocking disc for holding the same in the safe position
and control means for limiting operation of the drive module
in response to release of the latch means from the blocking
disc to regulate displacement of the blocking disc from the
safe position to the armed position.
The sole rejection before us is a rejection under 35
U.S.C. § 112, second paragraph. The examiner has rejected
claims 10 through 15 under 35 U.S.C. § 112, second paragraph,
as indefinite for failing to particularly point out and
distinctly claim the subject matter which applicants regard as
the invention. The examiner states the rejection thusly:
In claim 10, lines 7-8, use of the phrase “in
response to release of the latch means” makes the
claim indefinite as to what is intended to be in
response to release of the latch means. Is the
control means intended to be operating in response
to release of the latch means? If the control means
for limiting operation of the drive module is
intended to act in response to release of the latch
means (38), it is not seen as to how this is
possible. The latch means (38) is responsible for
activating the control means of the blocking disc.
The means for limiting operation of the control
Appeal No. 96-0939
Application 07/853,221
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means of the blocking disc or deactivating the
control means of the blocking disc is the movement
of blocking disc 32 to the armed position in
combination with the presence of switch element 26
in contact with cam actuator 30. This is not in
response to release of the latch means 38 as claimed
in claim 10.
In claim 10, lines 8-9, use of the phrase “to
regulate displacement of the blocking disc” makes
the claim indefinite as to what is intended to
regulate displacement of the blocking disc. Is the
driving module intended to regulate displacement of
the blocking disc? What structure is responsible
for each of these functions is unclear as presently
claimed.
(Examiner’s Answer, page 4-5).
We will consider the examiner’s two grounds of rejection
against
claims 10 through 15 seriatim.
In the rejection the examiner indicates that the phrase
“in response to release of the latch means” in lines 7 and 8
of claim 10 renders the claim indefinite, since it is unclear
as to what is intended to be operated in response to the
release of the latch means.
The test of whether a claim complies with Section 112,
second paragraph, is
whether the claim language, when read by a
person of ordinary skill in the art in
light of the specification, describes the
Appeal No. 96-0939
Application 07/853,221
5
subject matter with sufficient precision
that the bounds of the claimed subject
matter
are distinct.
In re Merat, 519 F.2d 1390, 1396, 186 USPQ 471, 476 (CCPA
1975).
The examiner states that the expression “in response to
release of the latch means” makes the claim indefinite. The
examiner further questions whether the control means can be
described as intended to start operating by release of the
latch means.
We will not affirm the 35 U.S.C. § 112, second paragraph,
rejection on this ground. It is clear to us that the phrase
in question “in response to release of the latch means” along
with the preceding expression “control means for limiting
operation of the drive module” clearly and with particularity
demarks the
limit of the claimed invention. We note that the control
means limits the operation of the drive module in the sense
that the drive module is limited to operation when and only
Appeal No. 96-0939
Application 07/853,221
The fact that we of necessity had to construe exactly what structure2
“to regulate displacement of the blocking disc” should be imputed to is itself
evidence of indefiniteness.
6
when the latch means is released. Thus, it can be seen that
the control means as claimed in claim 10 comprises the
switches and electronics as outlined in Figure 4 for limiting
the operation of the drive module 42 shown in dashed lines in
that figure. The control means corresponds to the switches
and electronics in this figure (and their equivalents).
With respect to the examiner’s second grounds of
indefiniteness of claim 10, the examiner points to the
expression “to regulate displacement of the blocking disc.”
By its position in the claim, we are of the view that this
limitation refers back to the control means and further limits
the control means. However, it is clear to us that the means2
for regulating displacement of the blocking disc is the
crystal controlled pulse generator, the stepper motor, and the
reduction gearing. See Figure 4, dashed line box 42. These
mechanisms rotate the blocking disc in a regular manner
according to the times specified by the crystal controlled
pulse generator. Inasmuch
Appeal No. 96-0939
Application 07/853,221
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as we have interpreted claim 10 as requiring the expression
“to regulate displacement of the blocking disc” to be a
function of the control means and not the drive module, and we
have construed the disclosure as stating that the drive module
regulates displacement of the blocking disc, we are in
agreement that claim 10 is misdescriptive in this respect.
Accordingly, we agree with the examiner that claim 10 fails to
particularly point out the structure of the invention as
disclosed. Therefore, we will affirm the rejection of claims
10 through 15.
As an additional matter, we note that the examiner has
stated that the phrase “the motor” in claim 15 lacks an
antecedent basis. In our view, the expression “the motor”
clearly refers to the stepper motor in the preceding claims.
While this fact might bear correction, we are not of the view
that it renders the claim indefinite. As noted above, the art
rejection of claim 16 has been withdrawn by the examiner’s
answer. Thus, the rejection of claims 10 through 15 under 35
U.S.C. § 112, second paragraph, is the only rejection before
us, and this rejection has been affirmed.
Appeal No. 96-0939
Application 07/853,221
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Appeal No. 96-0939
Application 07/853,221
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED

James M. Meister )
Administrative Patent Judge )
)
)
)
Charles E. Frankfort ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
William F. Pate, III )
Administrative Patent Judge )
Appeal No. 96-0939
Application 07/853,221
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