Ex Parte Salzeder

Board of Patent Appeals and Interferences

Sep 26, 2002

09018790 (B.P.A.I. Sep. 26, 2002)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 26
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte RUDOLF SALZEDER
____________
Appeal No. 2002-1766
Application No. 09/018,790
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ON BRIEF
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Before COHEN, STAAB, and CRAWFORD, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 20 to
30, 32, 33, 34 and 36 to 42, which are all of the claims pending in this application.
Claims 1 to 19, 31, and 35 have been cancelled.
The appellant's invention relates to a camouflage means including at least one
releasable active material in at least one container to interrupt the line of sight as well
as a camouflage procedure to use this camouflage means (specification, p. 1). A copy
of the claims under appeal is set forth in the appendix to the appellant's brief.
The prior art
Appeal No. 2002-1766
Application No. 09/018,790
Page 2
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Jacobsen et al. (Jacobsen) 4,391,197 Jul. 5, 1983
Brown 4,471,683 Sep. 18, 1984
The rejection
Claims 20 to 30, 32, 33, 34 and 36-42 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Jacobsen in view of Brown.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the final
rejection (Paper No. 11, mailed June 1, 1999) and the answer (Paper No. 22, mailed
April 18, 2000) for the examiner's complete reasoning in support of the rejection, and to
the brief (Paper No. 19, filed January 3, 2000) and reply brief (Paper No.23, filed June
19, 2000) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
The examiner has rejected the pending claims under 35 U.S.C. § 103. We
initially note that we have evaluated this rejection on the basis of the following
Appeal No. 2002-1766
Application No. 09/018,790
Page 3
guidelines provided by our reviewing court: The examiner bears the initial burden of
presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532,
28 USPQ2d 1955, 1956 (Fed. Cir. 1993), which is established when the teachings of
the prior art itself would appear to have suggested the claimed subject matter to one of
ordinary skill in the art. See In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529, 1531
(Fed. Cir. 1993). This is not to say, however, that the claimed invention must expressly
be suggested in any one or all of the references, rather, the test for obviousness is what
the combined teachings of the references would have suggested to one of ordinary skill
in the art. See Cable Elec. Prods. v. Genmark, Inc., 770 F.2d 1015, 1025, 226 USPQ
881, 886-87 (Fed. Cir. 1985). A conclusion of obviousness may be made from common
knowledge and common sense of the person of ordinary skill in the art without any
specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385,
1390, 163 USPQ 545, 549 (CCPA 1969). Skill is presumed on the part of the artisan,
rather than the lack thereof. See In re Sovish, 769 F.2d 738, 742-43, 226 USPQ 771,
774 (Fed. Cir. 1985). Insofar as the references themselves are concerned, we are
bound to consider the disclosure of each for what it fairly teaches one of ordinary skill in
the art, including not only the specific teachings, but also the inference which one of
ordinary skill in the art would reasonably have been expected to draw therefrom. See
In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966); In re Preda, 401 F.2d
825, 826, 159 USPQ 342, 344 (CCPA 1968).
Appeal No. 2002-1766
Application No. 09/018,790
Page 4
In support of this rejection, the examiner states:
Jacobsen et al[.] teach both a method of camouflaging and a
camouflage device. It contains a smoke munition which is
actuated by an electrical circuit connected to a battery[.]
Brown teaches the remote actuation of target acquisition
displays, laser means for locking on a target, and activation
of and delivery of said laser-guided multiple weapons to the
targets acquired. [Final rejection at page 2.]
Noting that remotely activating the smoke cartridge will aid in camouflaging or protecting
the pilot, the examiner concludes:
It would [have been] obvious to an artisan desiring to protect
the pilot . . . to remotely activate in the manner of Brown the
smoke cartridge of Jacobsen. [Final rejection at pages 2 to
3.]
The appellant argues that activation in Jacobsen occurs while the device is in motion in
contrast to the presently claimed invention wherein the active material is activated while
the device is at rest.
The Jacobson disclosure states:
The ignited smoke elements are fired from said tube with a
very large velocity. [Col. 2, lines 14-15.] [Emphasis added.]
Appeal No. 2002-1766
Application No. 09/018,790
Page 5
Jacobson also discloses that the jet of flame will simultaneously ignite the smoke
elements and throw them apart. As such, it is a reasonable inference to conclude from
the Jacobson disclosure that the smoke elements are ignited while at rest and
thereafter discharged through the tube. In addition, Brown discloses that the weapon
system therein disclosed can be adapted for use on a tower (col. 5, lines 22 to 25)
thereby providing further suggestion for ignition by remote control while the system is at
rest.
In view of the foregoing, we will sustain the examiner’s rejection of claim 20. We
will also sustain the rejection as it is directed to claims 21 to 30 and claims 32 to 34
which stand or fall with claim 20 (brief at page 4).
In regard to claim 36, appellant argues that the prior art does not disclose
deployment from a land transport vehicle. The examiner has not discussed this
limitation in the answer or the final rejection. In addition, neither Brown nor Jacobson
discloses a land transport vehicle. Therefore, we will not sustain this rejection as it is
directed to claim 36 and claims 37 to 42 dependent therefrom.
Remand
This application is remanded to the examiner for a determination to whether the
invention as recited in the claims is anticipated and/or rendered obvious in view of
remotely detonated bombs which are described in the prior art.
Appeal No. 2002-1766
Application No. 09/018,790
Page 6
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).

AFFIRMED-IN-PART/ REMANDED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
MEC:hh