Ex Parte Ligard

Board of Patent Appeals and Interferences

Jul 29, 2010

10980414 (B.P.A.I. Jul. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte THOR H. LIGARD
____________________

Appeal 2009-003448
Application 10/980,414
Technology Center 3600
____________________

Before WILLIAM F. PATE, III, MICHAEL W. O’NEILL, and KEN B.
BARRETT, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge BARRETT

Opinion Concurring filed by Administrative Patent Judge O’NEILL
BARRETT, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown in the PTOL-90A cover letter attached to this decision.

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STATEMENT OF THE CASE
Thor H. Ligard (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s decision rejecting claims 1, 2, 5, 8-11, 13, 15-19, 25, and 26.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
Appellant’s claimed invention pertains to locks for plugging gun
barrels for deterring the unauthorized use or the inadvertent or accidental
discharge of a gun. Spec. 1:2-5; 2:8-9. Claim 1, reproduced below, is
representative of the subject matter on appeal.
1. A gun barrel lock comprising:
a first plug insertable in a longitudinal direction into a
chamber end of the gun barrel, said first plug being adapted to
impinge during motion in said direction against a portion of the
barrel so as to stop travel of said first plug into said barrel;
a second plug insertable in an opposite longitudinal
direction into a muzzle end of the gun barrel, said second plug
being adapted to impinge during motion in said opposite
direction against a portion of the barrel so as to stop travel of
said second plug into said barrel;
a linkage fixed at one end to one of said plugs for
extension to and adapted at another end for engagement with
another of said plugs whereby said impingement of each said
plug prevents removal of the other of said plugs from the barrel;
and
means for locking said linkage to said another of said
plugs to prevent unauthorized disengagement of said another of
said plugs from said linkage.
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THE REJECTION
Before us for review is the Examiner’s rejection of claims 1, 2, 5, 8-
11, 13, 15-19, 25, and 26 under 35 U.S.C. § 102(b) as being anticipated by
Lane (US 6,796,071 B2, issued Sept. 28, 2004).

OPINION
Independent Claims 1 and 16 and Their Dependent Claims
Claims 1 and 16 recite “means for locking said linkage to said another
of said plugs to prevent unauthorized disengagement of said another of said
plugs from said linkage.” Appellant contends the Examiner erred in finding
that Lane discloses this feature. App. Br. 9 (claim 1); id. at 10 (referencing
for claim 16 the reasons set forth with respect to claim 1).
The Examiner found: “A means for locking the device in the barrel of
the gun further comprises a key 8 [of Lane].” Ans. 3; see also id. at 7.
However, the claim’s recited function is locking the linkage to a plug, not
locking the device in the barrel. The Examiner did not find that Lane’s key
performs the function of locking the linkage to a plug or that the key is
capable of performing that function. Lane discloses a firearm lock 6 that is
inserted into the muzzle of the gun as an integral unit. Lane, col. 1, ll. 32-
37; col. 2, l. 45. Operation of Lane’s key 8 expands lugs 13 near the
chamber end of the lock, thereby preventing the withdrawal of the lock. Id.,
col. 2, ll. 32-41. Thus, it appears that Lane’s elements found to be the plugs
(elements 12, 13, and 34 found to be the first plug, and 72 found to the
second plug, Ans. 3) are at least attached, if not locked, to the element 10
(found to be the linkage) independently of the key. Therefore, we cannot
find by a preponderance of the evidence that Lane’s key either performs or is
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capable of performing the recited function. As such, we cannot sustain the
rejection of claims 1 and 16, or of their respective dependent claims 2, 5, 8-
11, 13, 15, and 17-19, as anticipated by Lane.

Independent Claim 25 and Dependent Claim 26
Claim 25 recites a first plug (the chamber end plug) “having a lock
cylinder …, said lock cylinder having a locking member seat in an in-bore
end thereof.” Appellant contends that Lane lacks the claimed first plug, and
specifically asserts that the Examiner has failed to identify in Lane the
recited locking member seat. App. Br. 11. We are unable to locate in the
Final Rejection or the Answer a finding by the Examiner directed to the
locking member seat feature of claim 25. See Final Rej. 4; Ans. 3, 7-8.
Thus, we cannot sustain the rejection of claim 25, or of its dependent claim
26, as anticipated by Lane.

DECISION
The decision of the Examiner to reject claims 1, 2, 5, 8-11, 13, 15-19,
25, and 26 is reversed.
REVERSED

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O’NEILL, Administrative Patent Judge, concurring.
I agree with the result reached by my colleagues. I would like to
separately present my views on the Examiner’s claim interpretation and the
disposition of this case.
Claim 1 recites, in part, “means for locking said linkage to said
another of said plugs to prevent unauthorized disengagement of said another
of said plugs from said linkage.”
The Patent Act provides explicit guidance for interpreting claim
elements in means-plus-function terms. See 35 U.S.C. § 112, sixth
paragraph. The sixth paragraph of 35 U.S.C. § 112 has just as much
application during proceedings before the U.S. Patent and Trademark Office
as it does in court cases for infringement matters. In re Donaldson Co., 16
F.3d 1189, 1193 (Fed. Cir. 1994) (en banc). Thus, the PTO may not
disregard the structure disclosed in a specification that corresponds to the
means-plus-function language when rendering a patentability determination
of a claim. In other words, the “broadest reasonable interpretation” an
examiner may give means-plus-function claim language is limited to that
which is statutorily mandated by 35 U.S.C. § 112, sixth paragraph.
When a claim uses the term “means” to describe a limitation, a
presumption inheres that the inventor used the term to invoke § 112, sixth
paragraph. See Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1375 (Fed.
Cir. 2003). “This presumption can be rebutted when the claim, in addition
to the functional language, recites structure sufficient to perform the claimed
function in its entirety.” Id.
Here, structure sufficient to perform the claimed “means for locking”
is absent from the claim language. The claim language only recites a
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function of locking a linkage to a plug to prevent unauthorized
disengagement of the plug from the linkage. Accordingly, the presumption
of invoking § 112, sixth paragraph has not been rebutted and this claimed
feature needs to be interpreted under this section of § 112.
The Examiner appears to be interpreting the “means for locking said
linkage to said another of said plugs to prevent unauthorized disengagement
of said another of said plugs from said linkage” as a key. Ans. 3.
In the Appeal Brief, Appellant identifies the means for locking as
elements 73, 77. App. Br. 4. Appellant argues the means for locking
includes element 48. App. Br. 9. Appellant argues that the claimed means
for locking is for locking the linkage to the other plug and not to the barrel.
Id. Appellant argues Lane’s “key” 8 rotatably expands the lugs 13 to lock
Lane’s device into the barrel. Id. Thus, Lane’s “key” 8 does not perform
the claimed function.
The Specification discloses element 73 is a pin that extends
diametrically through the shaft 71 at one of the shaft’s ends. At the other
end of shaft 71 is a square tube 74 that slides on one end of a square rod 75
in order to telescope the linkage 34. A lock cylinder 76 operable by a key 77
is fixed to the other end of the square rod 75. In operation, key 77 turns
linkage 34 and its locking member 73. Spec. 9. As locking member 73 is
rotated, it is shifted out of alignment with the diametric slot 49 such that the
linkage 34 cannot be disengaged from the chamber plug 32. Spec. 10-11.
The Examiner’s broadest reasonable interpretation of “means for
locking” appears to disregard the structure disclosed in the Specification
corresponding to such language. The corresponding structure in Appellant’s
Specification for the “means for locking” is more than a key. This structure
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includes not only a key, but a pin extending diametrically through a shaft, a
square tube that slides on a square rod, and a lock cylinder fixed to the
square rod as has been disclosed in the Specification. The Examiner’s
interpretation disregards these additional structures within the Appellant’s
Specification.
Moreover, the Examiner’s application of Lane to the claimed “means
for locking” is in error because Lane’s “key” element does not perform the
identical function specified in the claim, viz., locking a linkage to one plug
to prevent unauthorized disengagement of the plug from the linkage.
Instead, as argued by Appellant, Lane’s “key” 8 locks the device into the
barrel by expanding the lugs 13.
Accordingly, the Examiner’s decision to reject the claimed invention
should be reversed because the Examiner’s broadest reasonable
interpretation disregards the structure disclosed in the Specification
corresponding to the means-plus-function language. Further, the Examiner’s
decision to reject the claimed invention should be reversed because the
structure in Lane that the Examiner found to anticipate this means-plus-
function language is not the same as, or has not been shown to be equivalent
to, the structure described in the Specification that corresponds to the
claimed means-plus-function language.

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Application 10/980,414

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