Ex Parte Rastegar et al

Patent Trial and Appeal Board

Sep 28, 2016

12794763 (P.T.A.B. Sep. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121794,763
79998 7590
Thomas Spinelli, Esq.
14 Mystic Lane
Northprot, NY 11768
06/06/2010
09/28/2016
FIRST NAMED INVENTOR
J ahangir S. Rastegar
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
10075 9588
EXAMINER
MORGAN, DERRICK R
ART UNIT PAPER NUMBER
3641
MAILDATE DELIVERY MODE
09/28/2016 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 and RICHARD T. MURRAY
Appeal2015-001378
Application 12/794,763
Technology Center 3600
Before EDWARD A. BROWN, BENJAMIN D.M. WOOD, and
FREDERICK C. LANEY, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Jahangir S. Rastegar and Richard T. Murray (Appellants) appeal
under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-8
and 11. 1 Appeal Br. 7. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellants' disclosure "relates generally to inertial igniters for
thermal batteries or other pyrotechnic type initiated devices for munitions,
such as rockets, with low setback accelerations and equipped with safety
1 Claims 9 and 10 have been cancelled, and claims 12 and 13 have been
withdrawn. Appeal Br. 13-14 (Claims App.).
Appeal 2015-001378
Application 12/794,763
pins." Spec. 1. Claim 1, reproduced below, illustrates the claimed subject
matter on appeal:
1. An inertial igniter comprising:
a mass element;
a base element;
a spring element connecting the mass element and the base
element; and
a safety member removably disposed between the mass
element and the base element for preventing relative movement
between the mass element and the base element to prevent
accidental initiation of the inertial igniter;
wherein the spring element is a bellows and the bellows is
sealed to both the mass element and base element to form a
sealed enclosure between the mass element and base element.
Appeal Br. 13 (Claims App.).
REJECTIONS
The following rejections under 35 U.S.C. § 103(a) are before us for
review: 2
I. Claims 1, 2, 4--8, and 11 are rejected as unpatentable over
Manzolini (US 1,780,624, issued Nov. 4, 1930), Michel (US 2008/0011179
Al, published Jan. 17, 2008), and Robinet (US 5,355,803, issued Oct. 18,
1994).
II. Claim 3 is rejected as unpatentable over Manzolini, Michel,
Robinet, and Applicants' Admitted Prior Art ("AAP A").
III. Claim 3 is rejected as unpatentable over Manzolini, Michel,
Robinet, and Rastegar (US 7,587,980 B2, issued Sept. 15, 2009).
2 The rejections of claims 1, 2, 4--7, and 11 as unpatentable over Newell (US
1,292,505, issued Jan. 28, 1919), Michel, and Robinet, and claim 3 as
unpatentable over Newell, Michel, Robinet, AAPA, and Rastegar, have been
withdrawn. Ans. 9.
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Application 12/794,763
IV. Claims 1, 2, 4--8, and 11 are rejected as unpatentable over
Councilman (US 1,481,635, issued Jan. 22, 1924), Michel, and Robinet.
V. Claim 3 is rejected as unpatentable over Councilman, Michel,
Robinet, AAP A, and Rastegar.
ANALYSIS
Rejection I
Appellants present separate argument for patentability only for claim
1. Appeal Br. 9-11. Accordingly, we select claim 1 as representative of the
group, and dependent claims 2, 4--8, and 11 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds Manzolini discloses a mass element (top portion
of igniter), a base element, and spring element 12 (Final Act. 2 (citing
Manzolini, Fig. 3)), but does not disclose that spring element 12 is a bellows
forming a seal between the mass element and base element (id. at 2-3). The
Examiner finds Michel discloses a delay housing biased in a safe position by
a stored energy device, which can be a coil spring or a bellows. Id. at 3.
The Examiner determines this illustrates the known equivalence of a spring
and a bellows in the art. Id. The Examiner also finds Robinet discloses a
bellows 31, used in an igniter, to form a seal between two contact surfaces
10 and 16. Id.
The Examiner determines applying Robinet's teaching of a bellows
seal to Manzolini, as modified by Michel's bellows structure, would provide
a seal between the mass element and base element. Id. The Examiner
concludes it would have been obvious to modify Manzolini in view of
Michel and Robinet "to provide a biasing element which prevents foreign
particles from interfering with the operation of the igniter as well as properly
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Application 12/794,763
sealing the pyrotechnic material such that potentially loose material does not
become lodged or pinched in another part of the igniter and cause a
premature initiation." Id.
Appellants contend the claimed inertial igniter is "configured to be
both hermetically sealed and prevent ignition under no-fire conditions with a
simple construction." Appeal Br. 9 (bolding and underlining omitted).
According to Appellants, the Examiner has used impermissible hindsight in
rejecting claim 1 "because the above problems in the art were not known,
the possible approaches to solving the problem were not known or finite, and
the solution was not predictable." Id. at 10. 3 Appellants contend the
inventors "recognized and solved problems with the inertial igniters of the
prior art, problems that the prior art did not recognize and a problem that
was not solved for almost 8 decades." Id. Appellants assert, regarding the
Examiner's stated rationale, such problems were not appreciated by the art
until filing of the present application. Id. Appellants also contend:
If the advantages made by the inertial igniter of claim 1
were routine and relatively easy, the record would undoubtedly
have shown that some ordinary artisan would have achieved this
invention within a reasonable time after the primary references
entered the prior art. Instead the claimed invention of claim 1
does not appear for almost 8 decades (in a fictitious combination)
after such primary references entered the prior art!
Id. Appellants assert although Manzolini has been publically available for
such time, there is no evidence anyone sought to improve Manzolini with the
claimed bellows. Id. at 10-11.4 Thus, Appellants assert, "the elapsed time
3 Appellants appear to cite to Leo Pharmaceutical Products, Ltd. v. Rea, 726
F.3d 1346, 1356-57 (Fed. Circ. 2013). Id.
4 Appellants appear to cite to Leo Pharmaceutical at page 1354.
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Application 12/794,763
between the prior art and the present application's filing date evinces that the
inertial igniter of claim 1 was not obvious." Id. at 11. 5
Appellants further assert that "Leo Pharma is a more recent case and
at the Federal Circuit, and as such has precedential value over In re Wright,
and overrules the same in as much as it is inconsistent with In re Wright."
Id.
Appellants' contentions are not persuasive. Although Leo
Pharmaceutical is a more recent decision than In re Wright and is from the
Court of Appeals for the Federal Circuit, Appellants' suggestion that Leo
Pharmaceutical overruled In re Wright is incorrect. Subsequent to Leo
Pharmaceutical, the Federal Circuit decided Nike, Inc. v. Addidas, AG, 812
F.3d 1326 (2016). In Nike, the Federal Circuit explains the following about
its decision in Leo Pharmaceutical:
[O]ur decision in Leo Pharmaceutical is entirely consistent with
established precedent that "[ t ]he mere age of the references is not
persuasive of the unobviousness of the combination of their
teachings, absent evidence that, notwithstanding knowledge of
the references, the art tried and failed to solve the problem." In
re Wright, 569 F.2d 1124, 1127 (CCPA 1977); see also Iron Grip
Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir.
2004) ("Absent a showing of long-felt need or the failure of
others, the mere passage of time without the claimed invention is
not evidence of nonobviousness.").
Nike, 812 F.3d at 1338 (underlining added). According to Nike, Leo
Pharmaceutical "is entirely consistent" with Wright. As such, Nike makes
clear that Leo Pharmaceutical did not overrule Wright.
Although Manzolini issued in 1930, Appellants provide no persuasive
evidence to show, between that date and the filing date of the present
5 Appellants appear to cite to Leo Pharmaceutical at page 1356.
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application, "the art tried and failed to solve the problem" that they assert
was solved by the claimed inertial igniter, or to show a "long-felt need." See
Nike, 812 F.3d at 1338.
Also, the Examiner finds Michel teaches use of a bellows (see Michel
i-f 37; Fig. 3), and Robinet teaches an igniter plug including bellows seal 31
(see Robinet, col. 5, 11. 56-59; Fig. 6). Robinet's bellows seal 31 surrounds
pyrotechnic module 5. See Robinet, Fig. 6. Appellants do not apprise us of
any error in the Examiner's findings in regard to Michel and Robinet, or in
the Examiner's rationale of providing a bellows seal in Manzolini to
function as a biasing element, as well as seal pyrotechnic material, as
recognized in the art.
Appellants contend the combination would result in an inoperable
device, stating Manzolini discloses "a locking element that goes through the
device." Appeal Br. 11. Appellants appear to refer to safety pin 10 shown
in Figures 1 and 2 of Manzolini. In response, the Examiner explains the
rejection does not rely on the embodiment shown in Figures 1 and 2 of
Manzolini, but relies on the embodiment shown in Figures 3 and 4. Ans. 11.
The Examiner further explains locking element 19 shown in Figures 3 and 4
does not pass through the spring element and would not disturb the seal
created by the combination. Id. Appellants do not apprise us of any error in
these findings.
For the above reasons, we sustain the rejection of claims 1, 2, 4--8,
and 11 as unpatentable over Manzolini, Michel, and Robinet.
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Re} ections II and III
Appellants do not present separate argument for patentability for
claim 3. Accordingly, we sustain the rejection of claim 3 as unpatentable
over Manzolini, Michel, Robinet, and AAP A, and the rejection of claim 3 as
unpatentable over Manzolini, Michel, Robinet, and Rastegar.
Re} ections IV and V
Appellants do not specifically address the Examiner's findings or
reasoning for Rejection IV. Appeal Br. 9--12. Rather, Appellants state
"[s]imilar arguments [as to those made in relation to Manzolini] can be made
with regard to Councilman .... " Id. at 11. Accordingly, for reasons similar
to those discussed above for Rejection I, we sustain the rejection of claims 1,
2, 4--8, and 11 as unpatentable over Councilman, Michel, and Robinet.
For the same reasons, we also sustain the rejection of claim 3 as
unpatentable over Councilman, Michel, Robinet, AAP A, and Rastegar.
DECISION
We affirm the rejections of claims 1-8 and 11.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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