10746601 (B.P.A.I. Sep. 22, 2009)

Ex Parte Mei et al

Board of Patent Appeals and InterferencesSep 22, 2009

10746601 (B.P.A.I. Sep. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte GEORGE C. MEI and JAMES W. PICKETT ________________ Appeal 2009-003617 Application 10/746,601 Technology Center 1700 ________________ Decided: September 22, 2009 ________________ Before EDWARD C. KIMLIN, TERRY J. OWENS, and PETER F. KRATZ, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-18, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2009-003617 Application 10/746,601 2 The Invention The Appellants claim a priming composition for explosives. Claim 1 is illustrative: 1. A lead-free, non-toxic priming composition, comprising: 20- 40 wt % of a dinitrobenzofuroxan salt; 2-10 wt % of a sensitizer; 0-30 wt % of an oxidizer; and 48-70 wt % of an abrasive wherein all weight percents are based on the total weight of said composition. The References Carter 5,538,569 Jul. 23, 1996 Erickson 5,993,577 Nov. 30, 1999 The Rejection Claims 1-18 stand rejected under 35 U.S.C. § 103 over Carter in view of Erickson. OPINION We affirm the Examiner’s rejection. Issue Have the Appellants shown reversible error in the Examiner’s determination that the applied references would have rendered prima facie obvious, to one of ordinary skill in the art, a composition comprising a dinitrobenzofuroxan salt and 48-70 wt% of an abrasive? Findings of Fact Carter discloses a primer composition comprising 25-55 wt% potassium dinitrobenzofuroxan (KDNBF) and 10-45 wt% friction agent such as ground glass (col. 3, ll. 25-26; col. 6, ll. 23-27; 49-57). Carter teaches that “[a] high glass content is important with single explosive primers made from DNBF salts” (col. 5, ll. 6-8). Carter excludes tetrazene sensitizer from the composition to reduce fume emission (col. 7, ll. 34-36), and teaches that Appeal 2009-003617 Application 10/746,601 3 “[b]allistic performance in some circumstances may be weak possibly due to an effective reduction in explosive content from 45% (40% KDNBF, 5% tetrazene) in composition A to 40% KDNBF only” (col. 4, ll. 29-33). Erickson discloses a primer composition comprising 25-35 wt% diazodinitrophenol (DDNP) and 46-60 wt% glass abrasive (col. 2, ll. 30-48). Erickson believes “that the high percentage of ground glass effectively enhances the sensitivity of the DDNP” (col. 2, ll. 11-12). Analysis The Appellants argue that Carter discloses that the 10-45% friction agent range is the acceptable range (col. 6, ll. 49-54), and that there is nothing in Carter to motivate one of ordinary skill in the art to use an amount of friction agent above the indicated 45% maximum amount (Br. 6). The Appellants point out that Carter’s preferred amount of friction agent is 35%, and argue that by “[a] high glass content” (Carter, col. 5, ll. 6-7), Carter means less than 45% (Br. 6, Reply Br. 3).1 The Appellants argue that increasing Carter’s glass content to Erickson’s preferred 57% could weaken ballistic performance (Reply Br. 3). Although Carter discloses that 10-45% friction agent amounts are acceptable (col. 6, ll. 49-54), Carter does not indicate that those are the only effective amounts. Carter indicates that only 40% glass powder friction agent is needed to provide zero misfires (Table 1, Composition L). However, Carter indicates that as the glass powder content increases from 15% to 40%, the mean fire height (H) decreases from 8.07 inches to 6.22 inches (Table 1, Compositions I-L). Thus, it appears that Carter would have 1 The page numbers of the Reply Brief are not numbered. Reply Brief page numbers cited herein have been provided by the Board. Appeal 2009-003617 Application 10/746,601 4 led one of ordinary skill in the art who desired a lower mean fire height to use glass powder contents somewhat higher than 40%, such as the Appellants’ 48%, provided that the explosive content is adequate at the increased glass content. Carter’s acceptable friction agent range is for a composition that excludes tetrazene to reduce fume emission (col. 7, ll. 34- 36). Carter, however, discloses that adding 5% tetrazene to 40% KDNBF increases the explosive content (col. 4, ll. 19-23). Thus, Carter would have led one of ordinary skill in the art, through no more than ordinary creativity, who did not require fume reduction, to use a combination of a higher amount of friction agent than that used by Carter, such as the Appellants’ 48%, in combination with tetrazene to compensate for any decrease in explosive content that may result from the use of more friction agent. See KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (In making an obviousness determination one “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ”). The Appellants argue that Erickson’s disclosure that Carter’s KDNBF has insufficient sensitivity for rim-fire priming compositions is a teaching away from the use of KDNBF (Br. 7). That argument is not persuasive in view of Carter’s disclosure that KDNBF is suitable for use in a priming composition (col. 6, ll. 49-59). The Appellants argue that Carter’s KDNBF may require a different amount of frictional component than Erickson’s DDNP because KDNBF has energetic bonds constrained in a ring, and the frictional component must cause those bonds to break apart and release nitric oxide from the parent molecule (Br. 8, Reply Br. 2). Appeal 2009-003617 Application 10/746,601 5 If Carter’s KDNBF requires additional frictional effect to break bonds in a ring, then it appears that more, rather than less, friction agent would be proper for Carter’s KDNBF. Conclusion of Law The Appellants have not shown reversible error in the Examiner’s determination that the applied references would have rendered prima facie obvious, to one of ordinary skill in the art, a composition comprising a dinitrobenzofuroxan salt and 48-70 wt% of an abrasive. DECISION/ORDER The rejection of claims 1-18 under 35 U.S.C. § 103 over Carter in view of Erickson is affirmed. It is ordered that the Examiner’s decision 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). AFFIRMED kmm HARNESS, DICKEY, & PIERCE, P.L.C. 7700 Bonhomme, Suite 400 St. Louis, MO 63105