Ex Parte Lucuta et alDownload PDFPatent Trial and Appeal BoardJun 17, 201311098122 (P.T.A.B. Jun. 17, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PETRU GRIGORIE LUCUTA, GILLES PAGEAU, and VLAD LUCUTA ____________ Appeal 2011-000660 Application 11/098,122 Technology Center 3600 ____________ Before NEAL E. ABRAMS, WILLIAM A. CAPP, and SCOTT A. DANIELS, Administrative Patent Judges. ABRAMS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Petru Gregorie Lucuta et al. (Appellants) seek our review under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 4, 5, 7-9 and 12-17. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-000660 Application 11/098,122 2 THE INVENTION The claimed invention is directed to a ceramic armour for protection of persons or vehicles. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. An armour for protection of persons or vehicles, said armour comprising a monolithic ceramic strike plate having a deflecting front surface, the deflecting front surface having a pattern of multiple nodes integrally formed thereon, each node being of a shape selected from the group of shapes consisting of: substantially hemispherically shaped, cylindrically shaped, and conically shaped. THE PRIOR ART The Examiner relied upon the following as evidence of unpatentability: Barnes US 4,876,941 Oct. 31, 1989 Benson US 5,175,975 Jan. 5, 1993 Vives US 5,221,807 Jun. 22, 1993 Figge US 6,200,664 B1 Mar. 13, 2001 THE REJECTIONS Claims 1, 4, 7, 9, 12 and 13 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Benson. Claims 14-17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Benson in view of Barnes. Claims 9, 12, 13 and 15-17 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Vives. Appeal 2011-000660 Application 11/098,122 3 Claims 1, 4, 5, 7, 8 and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Vives in view of Figge. OPINION Claims 1, 4, 7, 9, 12 and 13 – Anticipation Benson Appellants’ primary argument in opposition to this rejection is that “[t]he stated objective of Benson to provide a bendable panel, makes it clear that the ‘monolithic’ spacer sheets 62 of Benson must also be capable of bending” (Br. 8), and therefore element 62 fails to meet the requirement in claim 1 that it be “monolithic” in that “[i]t is clearly of the essence of monolithic ceramic armor plates and tiles that they resist bending to protect the user” (Br. 9). Appellants also argue that Benson does not disclose a deflecting front surface. Br. 10. The Examiner’s response is that Benson discloses in Figures 7-10 “embodiments where the device is not required to bend” (Ans. 6), that Benson explicitly teaches in column 7, lines 57-65 that the ceramic web is intended to be monolithic (Ans. 7), and that the Benson panel is intended to be used in space vehicles and thus “inherently protects against any encountered space debris” which is commonly encountered in space travel” (Ans. 7-8). Benson specifically states with regard to Figure 8 that element 62 is “monolithic” (Col. 7, ll. 59 and 63) which, in keeping with the definition accepted by Appellants, means that it is “cast as a single sheet” and “formed or composed of material without joints or seams” (Br. 9). Benson does focus upon providing an insulation panel that can be “formed in curves.” See, for example, Col. 6, l. 52. However, the disclosure also provides support for the conclusion that the invention is not limited to use in curved configurations. Benson’s panel 10 is described as being comprised of “two Appeal 2011-000660 Application 11/098,122 4 hard, but bendable metal wall sheets” (Abstract), “such as stainless steel or titanium . . . [which] are sufficiently hard or rigid so that they do not form around the spherical spacers, yet are bendable enough so the panel can be formed in curves”(Col. 6, ll. 48-53; emphasis added). It is stated with regard to the embodiment shown in Figures 7 and 8, that “after assembly, if it is desired to bend the panel 60 around a curve, which would break the glass web . . . the structural integrity and spacing between walls 12, 14 . . . will be maintained by the nodules 64” (Col. 8, ll. 2-7; emphasis added). These statements indicate that the panel is constructed in a non-curved configuration and, while it is capable of being bent to form a curve, such need not be the case. Moreover, in Figure 1 panel 10 has a curved central portion flanked by non-curved portions, and so when panel 10 is constructed in the form of the alternate embodiment shown in Figures 7 and 8, while element 62 is not “monolithic” in the curved central portion, it is “monolithic” in the non-curved portions. One of ordinary skill in the art thus is informed that the Benson panel is not limited to curved configurations, but also can be utilized in a non-curved configuration, wherein ceramic element 62 remains “monolithic.” Furthermore, from our perspective, in the non-curved configuration Benson’s ceramic panel 62 and nodes 64 comprise a “strike plate having a deflecting front surface.” For the reasons set forth supra, we are not persuaded by Appellants’ arguments that this rejection of claim 1 is in error, and therefore it is not sustained. Since Appellants have elected not to argue the patentability of claims 4, 7, 9, 12 and 13 separately from claim 1 (Br. 10-11), the rejection of these claims also is sustained. Appeal 2011-000660 Application 11/098,122 5 Claims 14-17 – Obviousness Benson in view of Barnes Claims 14-17 add to claims 1, 9, 12 and 13, respectively, the requirement that there be front and rear spall layers and that these layers and the armor plate are bonded together by an adhesive. Appellants argue that these claims are patentable for the reasons set forth against claim 1 et al., that neither reference discloses spall layers, and that securing the layers together with adhesive will render Benson unsuitable for its stated purpose. Br. 11-12. Appellants state that the spall layers “are provided to improve multi- hit capability.” Spec. 14, ll. 18-20. However, no argument has been set forth as to why Benson’s outer walls 12 and 14 do not comprise “spall layers,” even though they are positioned on both sides of the interior chamber within which ceramic element 62 is located in the embodiment shown in Figure 7 (Col. 6, ll. 31-32) and are of stainless steel or titanium (Col. 6, ll. 48-49). Benson discloses that the edges 18 of top sheet 12 and bottom sheet 14 are “sealed,” thus securing within element 62 and the spherical nodules attached thereto. Col. 7, ll. 63-66. As recited in claims 6 and 18, Barnes teaches securing together a metal substrate and a composite ceramic “by one or more of adhesive bonding, diffusion bonding, mechanical fastening, brazing welding, soldering or combinations thereof.” Appellants only argument with regard to this limitation is that “[s]ecuring the layers of Benson as suggested in Barnes will remove the vacuum . . . rendering Barnes unsuitable for its stated purpose.” Br. 12. However, claims 14-17 do not require that the elements be bonded together over the entirety of their surfaces. Therefore, bonding the Benson elements together at their edges by Appeal 2011-000660 Application 11/098,122 6 an adhesive would not destroy the vacuum, and Appellants’ argument on this point is not persuasive. This rejection of claims 14-17 is sustained. Claims 9, 12, 13 and 15-17 – Anticipation Vives Claim 9 requires, inter alia, a ceramic armor plate “having a deflecting front surface, the deflecting front surface having a pattern of multiple nodes integrally formed therein.” Appellants argue that these features are not disclosed in Vives. Br. 12-13. However, that is not the case. In the alternative embodiment shown in Figure 8, plate 14 is provided on its front surface with a plurality of upstanding pyramid-shaped nodes (unnumbered) which cause striking projectiles to “ricochet.” Col. 2, ll. 56- 60. This construction meets the terms of the claim. This rejection of claim 9 therefore is sustained, as is the like rejection of claims 12 and13, for which the Appellants have provided no separate argument. Claims 15-17 recite that the armor further comprises “front and rear spall layers” bonded to the ceramic armor plate. It is the Examiner’s position that Vives’ elements 11 and 12 constitute “front” and “rear” spall layers, even though they are positioned in juxtaposition to one another with both attached to the rear of the ceramic armor plate. The Examiner’s reasoning is that there is no requirement in the claims that the “front” spall layer be positioned in front of the ceramic armor plate, and therefore since element 12 is positioned in front of element 11, the conditions of the claim are satisfied, even though both actually are located behind the ceramic armor plate. Ans. 8. Appellants argue that “MPEP § 2111 specifically states that Appeal 2011-000660 Application 11/098,122 7 the claims ‘must be given their broadest reasonable interpretation consistent with the specification,’” which “must also be consistent with the interpretation that those skilled in the art would reach.” Br. 15. In the specification, Appellants have consistently described the “front spall layer” as being “bonded to the front surface of the ceramic plate (See, for example, Page 3, ll. 23 and 28-29; Page 8, ll. 2-3; Page 14, ll. 9-10), the purpose of the spall layers being “to improve multi-hit capability of the armour” (Page 14, ll. 18-20). This being the case, we agree with Appellants that the Examiner’s interpretation of the terminology “front spall layer” is not consistent with the specification and is not an interpretation that one of ordinary skill in the art would reach from a reading of the specification. Therefore, this rejection of claims 15-17 is not sustained. Claims 1, 4, 5, 7, 8 and 14 – Obviousness Vives in view of Figge Figge was cited for teaching that nodes can be “conically shaped; and/or of different sizes; and/or randomly distributed.” Ans. 6. Appellants’ argument in opposition to this rejection of claim 1 is that Vives fails to disclose armor having a “deflecting front surface,” a deficiency not cured by considering the teachings of Figge. Br. 15. However, in considering the rejection of claim 9, supra, we found that Vives discloses this feature, and therefore this rejection of claim 1 is sustained. In the absence of arguments from Appellants directed to claims 4, 5, 7 and 8, the rejection of those claims also is sustained. However, the rejection of claim 14, which recites front and rear spall members, is not sustained for the reasons set forth supra with regard to the Appeal 2011-000660 Application 11/098,122 8 rejection of this claim as being anticipated by Vives, since considering the teachings of Figge does not overcome the noted deficiency in Vives. . DECISION The rejection of claims 1, 4, 7, 9, 12 and 13 as being anticipated by Benson is affirmed. The rejection of claims 14-17 being unpatentable over Benson in view of Barnes is affirmed. The rejection of claims 9, 12 and 13 as being anticipated by Vives is affirmed. The rejection of claims 15-17 as being anticipated by Vives is reversed. The rejection of claims 1, 4, 5, 7 and 8 as being unpatentable over Vives in view of Figge is affirmed. The rejection of claim 14 as being unpatentable over Vives in view of Figge is reversed. A rejection of each of the claims having been affirmed, the decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Klh Copy with citationCopy as parenthetical citation