Ex Parte Rastegar et al

Patent Trial and Appeal Board

Sep 24, 2013

11654289 (P.T.A.B. Sep. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/654,289 01/17/2007 Jahangir S. Rastegar 10037A3 7207
7590 09/25/2013
Jahangir S. Rastegar
111 West Main Street
Bayshore, NY 11706
EXAMINER
ABDOSH, SAMIR
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
09/25/2013 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 JAHANGIR S. RASTEGAR,
CARLOS M. PEREIRA, and RICHARD DRATLER
____________

Appeal 2011-011435
Application 11/654,289
Technology Center 3600
____________

Before JENNIFER D. BAHR, GAY ANN SPAHN, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
rejection of claims 1-4, 7-9, and 12-151 under 35 U.S.C. § 103(a) as
unpatentable over Rastegar (US 2003/0041767 A1, published Mar. 6, 2003)
and Gawlick (US 3,967,555, issued Jul. 6, 1976). We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 The Examiner withdrew the rejection as to dependent claims 5, 6, 10, and
11. Ans. 3.
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CLAIMED SUBJECT MATTER
The claimed subject matter relates “to power supplies for projectiles,
which generate power due to an acceleration of the projectile.” Spec. 1, ll.
19-21. Claim 1, reproduced below, is illustrative of the appealed subject
matter.
1. A system for use with a munition for detecting a
target impact of the munition, the system comprising:
a power supply having a mass-spring unit having an
elastic element with one end connected to a mass and a second
end connected to a piezoelectric material for generating power
from one or both of an axial and lateral vibration of the mass-
spring unit induced by the munition; and
a processor operatively connected to the power supply
for monitoring an output from the power supply and
determining if the munition has one or both axially and
laterally impacted a target based on the output.

OPINION
Independent claims 1 and 7
Appellants argue independent claims 1 and 7 as a group and we select
claim 1 as the representative claim to decide the appeal. See Br.7-8; see also
37 C.F.R. 41.37(C)(1)(vii) (2011). Therefore, claim 7 falls with claim 1.
The Examiner finds that:
Rastegar discloses a system for use with a munition for
detecting target impact of a munition comprising:
a power supply having a piezoelectric member (300)
having at least a portion thereof formed of a piezoelectric
material for generating an output power upon an impact and a
mass-spring unit (100/104) having a spring element (104)
attached to the piezoelectric material (300) and configured to
compress and/or elongate within a predetermined limit, the
mass-spring unit further having a mass (100) offset from the
piezoelectric material wherein the mass-spring unit is
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configured to vibrate within the predetermined limit upon the
acceleration of the apparatus, the vibration applying a cyclic
force to the piezoelectric member to generate an output power
from the piezoelectric member.
Ans. 4.
The Examiner also finds that “Rastegar fails to teach a processor
operatively connected to the power supply for monitoring the output of
such.” Id. To cure the deficiency of Rastegar, the Examiner turns to
Gawlick which is directed to “a piezoelectric fuzing mechanism” and “a
system/method for recovering an unexploded munition” and “a processor
(see Figure 1 for [control] circuit diagram) operatively connected to the
power supply for monitoring an output from the power supply and
determining if the munition has axially impacted a target based on the
output.” Ans. 4-5 (citing Gawlick, col. 4, ll. 1-18). The Examiner concludes
that it would have been obvious to one of ordinary skill in the art to
“combine the system taught by Rastegar to include the processor taught by
Gawlick for the purposes of providing Rastegar’s power supply with a
control circuit capable of receiving outputs from the power supply.” Ans. 5
(citing Gawlick, Abstr.). Appellants do not specifically challenge the
Examiner’s conclusion.
First, Appellants argue that the Examiner’s phraseology in the
modification statement that “it would have been within the realm of
obviousness” is applying an improper standard. Br. 7 (citing Final Rej. 4).
The Examiner responds that “the Examiner was not incorporating any new
or unknown standard by using the term ‘within the realm of obviousness,”
“[t]he meaning of the phrase was to simply state that the claimed limitation
was obvious based on the Examiner’s analysis,” and “[t]he phrasing of the
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term has no effect on the substance of the rejection.” Ans. 5. We agree with
the Examiner and are not persuaded of Examiner error based on Appellants’
first argument.
Second, Appellants argue that “both Rastegar and Gawlick are
directed to piezoelectric fuzing for projectiles (electrical generators for
producing power upon acceleration of the projectile during launch)” and
“[t]hus, neither Rastegar nor Gawlick teach or suggest detecting a target
impact of the munition.” Br. 7. The Examiner responds that:
While the utilities of the references may differ from those
of the Appellant’s invention, there is no reason to believe that
the structure taught by the combination of those references
would not be capable of performing the same intended function
of the Appellant’s design since the device does not stop
working after launch and will clearly continue to work at the
point of impact.
Ans. 5-6.
We agree with the Examiner. It is not required that either Rastegar or
Gawlick teach or suggest the claim language of “for detecting a target
impact of the munition.” See Br., Clms. App’x. The claim language of “for
detecting a target impact of the munition” is a recitation of intended use and
as such, the combination of references only needs to be capable of
performing the recited intended use. See In re Schreiber, 128 F.3d 1473,
1477 (Fed. Cir. 1997) (citations omitted) (Prior art patent disclosing conical
spout for open-ended containers, which contains all structural limitations
recited in application claims for conical dispensing top for popped popcorn,
anticipates application claims even though it does not address use of
disclosed structure to dispense popcorn, since recitation of new intended use
for old product does not make claim to that old product patentable, and since
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applicant's contention that claimed structure will be used to dispense
popcorn thus does not have patentable weight if structure is already known,
regardless of whether it has ever been used in any way in connection with
popcorn).
The Examiner has found that the structure of the combination of
Rastegar and Gawlick would be capable of performing the recited intend use
of being “for detecting a target impact of the munition.” Ans. 6. Appellants
have not replied to the Examiner’s finding by explaining why or producing
evidence that the structure of the combination of Rastegar and Gawlick is
not capable of performing the recited intended use. The Appellants’
attorney’s unsupported arguments are insufficient. They alone cannot take
the place of objective evidence in the record. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974). Thus, we are not persuaded of Examiner error by
Appellants’ second argument.
Third, Appellants note that “Rastegar teaches a mass/spring
piezoelectric generator that vibrates to generate electrical power upon a
launch acceleration”; however, “the mass-spring unit in claims 1 and 7
generate power upon an impact with a target.” Br. 7-8. Thus, Appellants
argue that “a mass-spring unit used for generating power upon an impact
with a target is not disclosed or suggested in the references,” and “there is no
teaching or suggestion in either Rastegar or Gawlick that the mass-spring
unit or processor is capable of such a use (contrary to the Examiner’s
arguments otherwise at page 4 of the Final Office Action).” Br. 8.
Claim 1 does not recite that either the mass-spring unit or the
processor is capable of use “for generating power upon impact with a
target.” See Br., Clms. App’x. Rather, the only recitation in claim 1 related
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to generating power is in the first paragraph in the body of the claim which
requires that the “power supply having a mass-spring unit having an elastic
element with one end connected to a mass and a second end connected to a
piezoelectric material” is “for generating power from one or both of an axial
and lateral vibration of the mass-spring unit induced by the munition.” Id.
As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362, 1369
(Fed. Cir. 1998), “the name of the game is the claim.” It is well established
that limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Moreover, even assuming arguendo that claim 1 did call for the mass-
spring unit or processor to be capable of generating power upon an impact
with a target, the Examiner finds that Rastegar discloses “a power supply
having a piezoelectric member (300) having at least a portion thereof formed
of a piezoelectric material for generating an output power upon an impact,”
and vibrations of the mass-spring unit 100/104 thereby “applying a cyclic
force to the piezoelectric member to generate an output power from the
piezoelectric member.” Ans. 4. Emphasis by italics added. Appellants have
failed to cogently explain why Rastegar is incapable of performing the
recited intended use. Thus, we are not persuaded of Examiner error by
Appellant’s third argument.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claim 7 which falls therewith, under 35 U.S.C. § 103(a) as
unpatentable over Rastegar and Gawlick.

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Dependent claims 2-4, 8, 9, and 12-15
Appellants argue that “[t]he Examiner has not rejected the remaining
dependent claims with enough specificity (the Examiner has not cited
specific features of the dependent claims with corresponding features of the
references) to specifically argue against such rejections,” and “[t]herefore,
the Appellants can only generally submit that the features of dependent
claims 2-4, . . . 8, 9, and 1[2]-15 are not disclosed or suggested in Rastegar
or Gawlick, individually or in any proper combination.” Br. 8-9.
The Examiner’s rejection specifically states that it is addressing
claims 2-4, 8, 9, and 12-15 (Ans. 4), and enough of the claim language of
these claims has been discussed in the Examiner’s rejection at pages 4-5 of
the Answer that Appellants could have argued more than just a general
statement that the features of those claims are not taught by the combination
of Rastegar and Gawlick. For instance, claim 3 requires that “the processor
determines a degree of hardness . . .” and the Examiner finds that “Gawlick
further teaches that the processor determines ‘a degree of hardness.’” Ans.
5. Thus, we are not persuaded by Appellant’s argument.
Accordingly, we sustain the Examiner’s rejection of claims 2-4, 7-9,
and 12-15 under 35 U.S.C. § 103(a) as unpatentable over Rastegar and
Gawlick.

DECISION
We affirm the Examiner’s decision to reject claims 1-4, 7-9, and 12-
15.
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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

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