Ulrich Bley et al.

Patent Trials and Appeals Board

Sep 22, 2020

11916346 - (D) (P.T.A.B. Sep. 22, 2020)

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.
11/916,346 12/05/2008 Ulrich Bley 20876-136008-US 4417
42798 7590 09/22/2020
FITCH, EVEN, TABIN & FLANNERY, LLP
120 South LaSalle Street, Suite 2100
Chicago, IL 60603-3406
EXAMINER
FELTON, AILEEN BAKER
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
09/22/2020 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 ULRICH BLEY, RAINER HAGEL, JULIA HAVLIK,
ALEKSEJ HOSCHENKO, and PETER SIMON LECHNER
Appeal 2019-006641
Application 11/916,346
Technology Center 1700
Before N. WHITNEY WILSON, BRIAN D. RANGE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s September 17, 2018 decision to reject claims 5, 7, 9, 11, 13, 15,
17, 23–34, 39–44, and 46–57 (“Non-Final Act.”). We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm in part.

1 We use the word Appellant to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Ruag
Ammotec GmbH (Appeal Br. 1).
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CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed to a pyrotechnic agent containing at
least one azotetrazolate, selected from the group consisting of
aminoguanidine-5,5'-azotetrazolate (AGATZ) and guanidine-5,5'-
azotetrazolate (GATZ) (Abstract, Spec. 2). The azotetrazole is mixed with
at least one additional additive, as specified in the claim. Among other
properties, the claimed pyrotechnic agent has a deflagration temperature2 in
a range from 165°C to 195°C. Claim 5, reproduced below, from the Claims
Appendix, is illustrative of the claimed subject matter:
5. A pyrotechnic agent consisting essentially of 20 to 50 wt.%
of at least one azotetrazolate component selected from the
group consisting of aminoguanidine-5,5'-azotetrazolate
(AGATZ) and guanidine-5,5'-azotetrazolate (GATZ), and 50 to
80 wt.% of at least one additive selected from the group
consisting of ammonium picrate, aminoguanidinium picrate,
guanidinium picrate, aminoguanidinium styphnate,
guanidinium styphnate, nitroguanidine, nitroaminoguanidine,
nitrotriazolone, derivatives of tetrazole and/or its salts,
nitraminotetrazole and/or its salts, aminoguanidine nitrate,
diaminoguanidine nitrate, triaminoguanidine nitrate, guanidine
nitrate, dicyandiamidine nitrate, diaminoguanidine
azotetrazolate, nitrates of alkali and/or alkaline-earth metals
and/or of ammonium, perchlorates of alkali and/or alkaline-
earth metals and/or of ammonium, peroxides of alkali and/or
alkaline-earth metals and/or of zinc, aluminium, titanium,
titanium hydride, boron, boron hydride, zirconium, zirconium
hydride, silicon, graphite, activated charcoal, carbon black,

2 Appellant states that “deflagration temperature” is the temperature at which
the degradation of a substance begins as a chemical chain reaction, while the
ignition temperature is the lowest temperature at which a combustible
substance when heated takes fire in air and continues to burn (Appeal Br.
10).

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cellulose and/or its derivatives, polyvinylbutyrals,
polynitropolyphenylene, polynitrophenyl ether, plexigum,
polyvinyl acetate and copolymers, hexogen, octogen,
nitrocellulose, ferrocene and/or its derivatives, acetonylacetates,
salicylates, carbonates, melamine, silicates, silica gels, and
boron nitride, wherein a deflagration temperature of the
pyrotechnic agent is in a range from 165°C to 195°C.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Williams et al. US 6,620,266 B1 September 16, 2003
Lundstrom et al. US 5,962,808 October 5, 1999

REJECTIONS
1. Claims 5, 7, 9, 11, 13, 15, 17, 23–34, 39–44, and 46–57 are
rejected under 35 U.S.C. §103(a) as unpatentable over Williams and
Lundstrom.
2. Claims 46–52 are rejected under 35 U.S.C. § 112, first
paragraph as failing to comply with the written description requirement on
the grounds that the claimed absence of a coating or nitro complex is not
supported by the Specification.
DISCUSSION
Rejection 1. The Examiner finds that Williams discloses a gas
generant composition that can include 15–95% of fuel such as
diguanidinium 5,5’-azotetrazolate and 20–85% of an oxidizer, such as an
alkali metal or alkali earth metal nitrates (Non-Final Act. 2–3). The
Examiner further finds that Lundstrom discloses a gas generating
composition for use in air bags that includes, inter alia, guanidinium picrate
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in an amount from 5–70% (Non-Final Act. 3). The Examiner determines
that it would have been obvious to use the additives disclosed by Lundstrom
in Williams’s composition because Williams suggests that various additives
may be used and Lundstrom teaches that these additives improve the
performance of a gas generating composition (id.). The Examiner further
determines that it would have been obvious to vary parameters such as
amounts in order to achieve the claimed properties (id.).
Appellant makes several arguments seeking reversal of the rejection.
First, Appellant argues that Williams requires the use of a silicone
coating over its granules, which takes its composition outside of the scope of
both claim 1 (which recites the transition phrase “consisting of”) and claim
28 (which recites the transition phrase “consisting of”) because neither claim
recites the presence of a silicone coating (Appeal Br. 4–5, 11–13). The
Examiner does not dispute that Williams teaches that its composition is
ultimately coated in silicone, which is plainly taught by the reference (Ans.
7; Williams, 1:60–63, 3:53–60). However, as explained by the Examiner,
Williams teaches that its compositions are made into granules prior to being
coated with silicone (3:53–60). Thus, Williams teaches the production of
granules without a silicone coating. Moreover, Williams teaches that all
components which make up the gas generating composition are mixed
together to form granules prior to being coated (id.).
Accordingly, if the teachings of Lundstrom were to have been
combined as set forth in the rejection, the gas generating composition—
which would contain the azotetrazolate component and the additive—would
be created before being subjected to the coating process, which would meet
both the claims using the “consisting essentially of” transition phrase and the
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“consisting of” transition phrase, regardless of whether the silicone coating
described by Williams would affect the basic and novel characteristics of the
claimed invention.3
Appellant further argues that, because the embodiment relied on by
the Examiner is an intermediate component, it must anticipate the claims in
order to render them unpatentable (Appeal Br. 5). This argument is not
persuasive. Williams discloses that its gas generating compositions are
prepared by combining all of the components to produce granules, which are
subsequently coated with silicone (Williams 3:53–60). Thus, if the
teachings of Lundstrom were combined with those of Williams, the
components identified in the claims would be combined into granules
without the silicone coating. Moreover, Appellant offers no persuasive legal
support for the proposition that an intermediate component is proper prior art
for an anticipation analysis but not for an obviousness analysis. See, e.g.,
Cohesive Technologies, Inc. v. Waters Corp., 543 F.3d 1351, 1363–64 (Fed.
Cir. 2008) (explaining that while tests for anticipation and obviousness are
different, “prior art references that anticipate a claim will usually render that
claim obvious”).

3 Appellant argues that the silicone coating affects the basic and novel
characteristics of invention (see, Appeal Br. 5). We are somewhat skeptical
that a component which provides “improved burn characteristics, and/or
relatively more gas upon combustion” affects a pyrotechnic agent’s basic
and novel characteristics. We also question whether the “consists of” claim
language would exclude a composition where a “pyrotechnic agent” meeting
the claim 5’s recitations must exclude any kind of coating or outer
packaging. But we need not decide these issues because, as discussed, supra,
the combined teachings of Williams and Lundstrom disclose an intermediate
component which contains only the elements set forth in the claims.
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In addition, Appellant argues that Williams does not have any
disclosure about the deflagration temperatures of its compositions, much less
how that value might be affected by varying the relative amounts of the
components of the composition (Appeal Br. 6). Therefore, according to
Appellant, the deflagration temperature of the composition cannot be
considered a result effective variable which could be optimized by a person
of skill in the art (Appeal Br. 6–7).
This argument is not persuasive because the Examiner is not relying
on a result-effective variable argument (Ans. 8). Instead, the rejection states
that the claimed amounts of the components would have been obvious and,
therefore, the resulting deflagration temperature would have been present in
the resulting composition (Ans. 9–10). That is, the Examiner determines
that the combined teachings of the cited art result in a pyrotechnic agent that
is identical or substantially identical to the claimed pyrotechnic agent and
that one skilled in the art would have reasonably expected the claimed and
prior art pyrotechnic agents to have the same or similar properties. See In re
Best, 562 F.2d 1252, 1256 (CCPA 1977) (where “the claimed and prior art
products are identical or substantially identical, or are produced by identical
or substantially identical processes, the PTO can require an applicant to
prove that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product.”). That the ranges of the amounts of
the components only overlap with the claimed ranges, rather than mirroring
them exactly, does not change the determination that the claimed ranges
would have been obvious, rendering the claimed deflagration temperature
(which is a property resulting from the specific composition) obvious as
well. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“In cases
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involving overlapping ranges, we and our predecessor court have
consistently held that even a slight overlap in range establishes a prima facie
case of obviousness.)
Appellant also argues that a person of skill in the art would have had
no reason to combine the teachings of Williams and Lundstrom (Appeal Br.
9–10). In particular, Appellant argues that, because neither reference is
concerned with deflagration temperatures, a person of skill in the art
interested in deflagration properties would not have looked to either
reference (Appeal Br. 10). This argument is not persuasive, because it does
not dispute the Examiner’s rationale for combining the references, which is
not related to the deflagration properties of the compositions described in the
references. It is well established that the reason to combine the references
need not be the same motivation driving the inventors. See, e.g., In re
Lintner, 458 F.2d 1013, 1016 (CCPA 1972).
Appellants makes additional arguments regarding certain specific
claims separately. We address those claims in turn.
Claim 28. Claim 28 is essentially identical to claim 5, except
that it uses the “consisting of” transition phrase instead of “consisting
essentially of.” Thus, the claim excludes any composition containing
components not specifically identified in the claim. Appellant makes several
arguments pertaining to this claim. First, as was done in connection with
claim 5, Appellant argues that the presence of the silicone coating as
described in Williams requires reversal of the rejection of claim 28 (Appeal
Br. 11–12). This argument is not persuasive for the same reasons as
discussed above in connection with claim 5 (i.e., the silicone coating in
Williams is only applied to an already formed granule, which, when
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combined with the teachings of Lundstrom, would contain only the
components set forth in the claim).
Second, Appellant argues that Lundstrom requires the use of a
coordination complex oxidizer, and that a person of skill in the art would not
have used part of Lundstrom’s composition without using this component as
well (which would take it outside the scope of claim 28) (Appeal Br. 12–13).
This argument is persuasive. Lundstrom discloses that its composition
improves the performance of a gas generating composition, but necessarily
includes both the coordination complex oxidizer and the non-azide fuel
(Lundstrom, 2:34–43). The Examiner has not proffered an explanation of
why a person of skill in the art would have selected only one of Lundstrom’s
components to combine with the composition of Williams.
Accordingly, we reverse the obviousness rejection of claim 28, and
the claims which depend from it: claims 29–34, 39–43, 46, 47.
Claims 53 and 54. Claims 53 and 54 recite the pyrotechnic
agent according to claim 5, but made using a particular process. Appellant
argues that the pyrotechnic agents of these claims would be expected to be
structurally different from the combined prior art because they would not be
coated in silicone (Appeal Br. 14–15). These arguments are not persuasive,
for the reasons described above in connection with claim 5 (namely that the
combined art teaches non-coated granules).
Claim 55. Claim 55 recites that the azotetrazolate compound is
aminoguanidine-5-5’-azotetrazolate (AGATZ). Appellant argues that this
compound is not disclosed by either Williams or Lundstrom and, therefore,
would not have been obvious in view of the art (Appeal Br. 16). In
response, the Examiner finds that both Williams and Lundstrom teach that
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derivatives of tetrazoles and aminotetrazoles may be used and, therefore,
that the use of AGATZ would have been obvious (Ans. 10, citing Williams,
2:48–65 and Lundstrom 4:1–35). Appellant’s argument is persuasive.
While the Examiner is correct that both references broadly teach the use of
“derivatives” of aminotetrazoles, there is nothing in the art which
specifically suggests the use of AGATZ, or even that AGATZ was a
compound known to have useful properties in this field.
Accordingly, we reverse the rejection of claim 55.
Claims 56 and 57. Claims 56 and 57 recites specific
combinations of components. Appellant argues that the art does not suggest
using these specific combinations, even if they are individually mentioned in
the art (Appeal Br. 16). This argument is not persuasive because, as noted
by the Examiner (Ans. 10–11), each of the components recited those claims
is recited in the art. Thus, it would have been obvious to pick them, absent
some showing of unexpected results. Therefore, we sustain the rejection of
claims 56 and 57.
Rejection 2. The Examiner finds that these claims do not meet the
written description requirement because these claim each recite the absence
of a coating or nitro complex, which is a negative limitation for which there
is no basis in the Specification (Non-Final Act. 6). Appellant argues that
these claims are inferentially described in the Specification because the long
list of possible additives for use in the disclosed compositions does not
include either a coating or a nitro complex (Appeal Br. 17–19). We agree
with Appellant that, essentially for the reasons set forth in the Appeal Brief,
a person of ordinary skill in the art would have understood that Appellant
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was in possession of a composition which did not included a coating or the
presence of a nitro compound. Accordingly, we reverse these rejections.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
5, 7, 9, 11,
13, 15, 17,
23–34, 39–
44, 46–57
103(a) Williams,
Lundstrom
5, 7, 9, 11,
13, 15, 17,
23–27, 44,
48–54, 56,
57
28–34, 39–
43, 46, 47,
55
46–52 112, first
paragraph
Written description 46–52
Overall
Outcome
5, 7, 9, 11,
13, 15, 17,
23–27, 44,
48–54, 56,
57
28–34, 39–
43, 46, 47,
55

TIME PERIOD FOR RESPONSE
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 IN PART