10093885 (B.P.A.I. Jul. 19, 2010)

Ex Parte Wagstaff

Board of Patent Appeals and InterferencesJul 19, 2010

10093885 (B.P.A.I. Jul. 19, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DOUGLAS C. WAGSTAFF ____________ Appeal 2009-013482 Application 10/093,885 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, JEFFREY T. SMITH, and BEVERLY A. FRANKLIN, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL1 This is an appeal from the final rejection of claims 11-20. Claims 11 and 16 are illustrative: 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-013482 Application 10/093,885 2 11. An intermediate material for a propellant composition, the intermediate material being in powder form and comprising from 90 to 99 weight percent of a particulate energetic crystalline material and from 1 to 10 weight percent of an energetic plasticiser material, the energetic plasticiser material substantially coating the individual particles of the energetic crystalline material. 16. An intermediate material as claimed in claim 11 which also comprises a binder. The Examiner relies upon the following references in the rejection of the appealed claims: Spaeth 1,932,050 Oct. 24, 1933 Benziger 3,778,319 Dec. 11, 1973 Lampert 3,984,264 Oct. 5, 1976 Rothenstein 4,163,681 Aug. 7, 1979 Manning 5,567,912 Oct. 22, 1996 Lee 6,217,799 B1 Apr. 17, 2001 Appellant’s claimed invention is directed to a composition comprising a particulate energetic crystalline material that is coated with an energetic plasticiser, such as trimethylanol ethane trinitrate (TMETN). The composition is in powder form and may be used in a propellant composition. Appealed claims 16-20 stand rejected under 35 U.S.C. § 112, second paragraph. All the appealed claims stand rejection under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as being unpatentable over either of Manning, Lee or Lampert. In addition, claims 11-20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lee in view of Rothenstein, Benziger and Spaeth. Appeal 2009-013482 Application 10/093,885 3 We have thoroughly reviewed each of Appellant’s arguments for patentability. However, we are in complete agreement with the Examiner that the claimed subject matter is unpatentable over the cited prior art. Accordingly, we will sustain the Examiner’s prior art rejections for essentially those reasons expressed in the Answer. We will not, however, sustain the Examiner’s § 112, second paragraph rejection. We consider first the Examiner’s §102/§ 103 rejections. We agree with the Examiner that each of Manning, Lee and Lampert discloses a composition that comprises the presently claimed particulate energetic crystalline material coated with energetic plasterciser material. Although Appellant contends that “[t]he Examiner has failed to identify any prior art reference in which the “energetic plasticizer material” substantially coats the “individual particles of the energetic crystalline material” (Prin. Br. 21, first para.), the Examiner has specifically cited disclosures in each of the three references which provide such a teaching. In particular, Manning expressly discloses “a high energy composition in which crystalline heterocyclic nitramine powder is coated with a combination of cellulose ester binder and an energetic plasticizer” (col. 3, ll. 40-43). Also, Lee specifically discloses “CL-20 granules coated with at least non-energetic binder and plasticizer” (col. 2, ll. 32-33). In addition, Lampert discloses a coating process for providing a plasticiser on particulate energetic crystalline material wherein the product is a uniformly coated free-flowing powder (see col. 2, ll. 37-56). Hence, we find no merit in Appellant’s argument. We are also not persuaded by Appellant’s argument that Manning and Lee are directed to explosive compositions and not propellant compositions. As pointed out by the Examiner, the claim recitation “for a propellant Appeal 2009-013482 Application 10/093,885 4 composition” is a statement of intended use that does not further define the claimed composition in any way which distinguishes it from the prior art composition. Appellant has not refuted the Examiner’s position that the claimed composition, which is characterized as an intermediate, can be used to make both propellant and explosive compositions, and we do not subscribe to Appellant’s argument that “Appellant’s claim is limited to the propellant composition intermediate material” (Prin. Br. 17, last para.). The claimed composition, powdered energetic crystalline material coated with energetic plasticiser, does not undergo a metamorphosis simply because it is used to prepare a propellant rather than an explosive. As for the § 103 rejection of claims 11-20 over Lee in view of Rothenstein, Benziger and Spaeth, it follows that we will sustain this rejection inasmuch as we concur with the Examiner that the claimed subject matter is unpatentable over Lee, taken alone. We will not sustain the Examiner’s § 112, second paragraph rejection of claims 16-20 because claim 16 adds a binder to the composition of claim 11. We disagree with the Examiner that claim 16 does not further limit the composition of claim 11 insofar as it further limits the composition by including a binder therein. While the Examiner finds that some of the appealed claims are internally inconsistent with Appellant’s arguments, we are satisfied that one of ordinary skill in the art would readily understand that claim 16 defines a composition that comprises the coated energetic crystalline material of claim 11 and a binder, regardless of its intended use. As a final point, with respect to the § 103 rejections, we note that Appellants bases no argument upon objective evidence of nonobviousness, such as unexpected results. Appeal 2009-013482 Application 10/093,885 5 In conclusion, based on the foregoing, the Examiner’s decision rejecting the appealed claims 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)(1)(v). AFFIRMED kmm NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203