Ex Parte DennisonDownload PDFPatent Trial and Appeal BoardJan 5, 201512199306 (P.T.A.B. Jan. 5, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte GREGORY A. DENNISON ________________ Appeal 2012-009343 Application 12/199,306 Technology Center 3600 ________________ Before: EDWARD A. BROWN, MICHAEL L. HOELTER, and JAMES J. MAYBERRY, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a final rejection of claims 8‒10, 12, 14‒16, and 18. Appeal Br. 2. Claims 1‒7, 11, 13, and 17 have been withdrawn. Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). Appellant’s counsel presented oral argument on December 9, 2014. We REVERSE. Appeal 2012-009343 Application 12/199,306 2 THE CLAIMED SUBJECT MATTER The disclosed subject matter “relates to tipped projectiles having enhanced aerodynamic properties.” Spec. para. 1. Apparatus claim 8, the only independent claim, is illustrative of the claims on appeal and is reproduced below: 8. A projectile for a round of ammunition, comprising: a projectile body; a tip formed from a lightweight material and having a base at least partially received within an upper end of the projectile body, a generally pointed front end, a tip body defining a tip ogival portion, and a series of aerodynamic features formed at selected locations about the tip ogival portion for adjusting a location of a center of pressure of the projectile body with respect to a center of gravity of the projectile body to enhance stability of the projectile body during flight; and wherein an ogive tip length is defined between the upper end of the projectile body and the front end of the tip, and wherein the tip and the projectile body are nonreleaseably connected. REFERENCES RELIED ON BY THE EXAMINER Stahlmann US 4,142,467 Mar. 6, 1979 White US 5,932,836 Aug. 3, 1999 Naumann1 FR 2 627 273 Aug. 18, 1989 THE REJECTIONS ON APPEAL Claims 8, 12, 14–16, and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over White and Stahlmann. Ans. 4. Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable over White, Stahlmann, and FR ’273. Ans. 7. 1 The Examiner identifies this reference as “’273” (Ans. 7) while Appellant identifies this reference as “FR ’273” (Appeal Br. 5). We follow Appellant’s usage. Appeal 2012-009343 Application 12/199,306 3 ANALYSIS The rejection of claims 8, 12, 14–16, and 18 as unpatentable over White and Stahlmann Sole independent claim 8 includes the limitation of “a series of aerodynamic features formed . . . about the tip ogival portion for adjusting a location of a center of pressure of the projectile body with respect to a center of gravity of the projectile body to enhance stability of the projectile body during flight” (emphasis added). Appeal Br. 17, Claims App. The Examiner relies on White for disclosing this limitation.2 Ans. 4‒5. Appellant’s Specification does not specifically define the claimed phrase “to enhance stability” but Appellant’s Specification provides guidance as to its meaning. For example, Appellant’s Specification describes “enhanced aerodynamic properties” as including “increased distances” (Spec. para. 18) and also “stability” as meaning to “resist tumbling” (Spec. para 21). See also Spec. para. 29 (“to help stabilize the projectile and resist tumbling in flight to improve the long range accuracy thereof”). Appellant’s usage of the terms “enhance” and “stability” are also consistent with dictionary definitions of these terms.3 The Examiner references White’s “aerodynamic features 120” that “enhance stability of the projectile body during flight.” Ans. 4‒5. The Examiner reasons that White’s “series of aerodynamic features 120 2 The Examiner relies on Stahlmann for teaching the limitations of a tip made “from a lightweight material” and whose base is “at least partially received within an upper end of a projectile body.” Ans. 6. 3 WEBSTER’S NEW COLLEGIATE DICTIONARY 375 (“enhance”) and 1122 (“stability”) (1979). See also http://www.merriam- webster.com/dictionary/enhance and http://www.merriam- webster.com/dictionary/stability, last accessed January 5, 2015. Appeal 2012-009343 Application 12/199,306 4 inherently adjusts as recited” because a projectile lacking such features would have a different “center of pressure, etc.” Ans. 5; see also Ans. 8. However, the claim limitation in question is directed not only to aerodynamic features that adjust the “center of pressure, etc.,” but also to aerodynamic features that “enhance [the] stability of the projectile.” Specific to this “enhance stability’ limitation, the Examiner finds that the inclusion of the aerodynamic features can broadly and reasonably be construed as being ‘to enhance stability’ at least to the degree that White discloses a stable projectile a critical distance. Therefore, stability can be considered to be enhanced in that the projectile is intended to be stable at least until some critical phase of its flight, i.e., the distance it has covered. Ans. 9. The Examiner’s reliance on White seems to be contorted. White describes flutes 120 as being provided “to enhance the moment forces around the rotational axis of the projectile and hence decrease the stability of the flight trajectory” of the projectile. White 3:43‒45 (emphasis added). White also describes the projectile as one “which started off stable [but which] can have instability induced” so as to shorten the range of the projectile.4 White 3:8‒17. See also White Fig. 1, which is a graph illustrating that the range of a normal (i.e., stable) projectile is reduced by about 1/3 (i.e. about 4000 meters) when White’s spin damping flutes 120 are included thereon. In view of the above, Appellant contends that White does not teach the limitation of “to enhance stability” as claimed. Appeal Br. 7‒ 9; Reply Br. 5‒6; see also Oral Transcript generally. 4 “The present invention seeks to achieve a range limited projectile through augmented roll damping which causes the spin rate to decay faster than the forward velocity.” White 3:8–10. Appeal 2012-009343 Application 12/199,306 5 As if to clarify, the Examiner states that “it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations.” Ans. 8. However, inexplicably, the Examiner follows this statement with the finding: “[n]ote that there is no recitation with respect to the manner in which the projectile is intended to be used.” Ans. 8. Nevertheless, the Examiner further notes “that each reference discloses the metes and bounds of the claimed ‘projectile,’ ‘body,’ ‘tip,’ ‘aerodynamic features,’ etc.” and further that “any intended purpose for which a projectile is intended to be used does not patentably distinguish over the prior art.” Ans. 8. Based on the above (and despite the one seemingly disparate statement), we presume the Examiner finds the “to enhance stability” limitation to be an “intended purpose for which a projectile is intended to be used.” Ans. 8. Appellant appears to have the same presumption in that Appellant contends that the limited portion of the language of Claim 8 excluded from consideration [by the Examiner, see Ans. 8] as a statement that an intended or desired use is in fact properly part of the definition of the structure of claimed aerodynamic features. In particular, the entirety of this language describes the structural formation of the aerodynamic features ‘at selected locations about the tip ogival portion.’ Appeal Br. 8; see also Reply Br. 3. Appellant further contends that even if this claim language is deemed to be functional, and not structural, in nature, Appellant references both the Appeal 2012-009343 Application 12/199,306 6 MPEP and case law5 “that ‘[A] functional limitation must be evaluated and considered, just like any other limitation of the claim, for what it fairly conveys to a person of ordinary skill in the pertinent art in the context in which it is used.’” Appeal Br. 8. In view of the above, there is no dispute that claim 8 is directed to aerodynamic features structurally designed “to enhance stability of the projectile body.” There is also no dispute that White is directed to features structurally designed to intentionally induce instability. White 3:15‒16; Fig. 1. As such, the Examiner’s reliance on White for teaching the limitation “to enhance stability” is not considered to be reasonable in view of the instability teachings of White. In short, the Examiner does not explain why one skilled in the art would look to White when seeking “to enhance stability.” Accordingly, we are not persuaded the Examiner has provided sufficient articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). We reverse the Examiner’s rejection of claims 8, 12, 14‒16, and 18 as unpatentable over White and Stahlmann. We also cannot help but note the Examiner’s reliance on White for also disclosing a separate limitation directed to “a series of aerodynamic features formed at selected locations about the tip ogival portion.” Ans. 4–5. On this topic, claim 8 recites that “an ogive tip length is defined between the upper end of the projectile body and the front end of the tip.” The Examiner 5 MPEP § 2173.05(g) and In re: Swinehart, 439 F.2d 210 (CCPA 1971) Appeal 2012-009343 Application 12/199,306 7 finds that White’s item 30 corresponds to the claimed “projectile body” and hence, by definition, the claimed “ogive tip length” is that part of White’s projectile that extends between the upper end of White’s item 30 to the front end of White’s corresponding “tip 20.” Ans. 4. Consistent therewith, the Examiner finds that White discloses “a tip body, section 100, defining a tip ogival portion.” Ans. 4; see also White 4:34–36. In rebuttal, Appellant argues to the effect that “White does not teach any aerodynamic features formed along the tip of his projectile” but instead “White teaches a specific body geometry, located downstream from the smooth, unaltered tip of the projectile.” Appeal Br. 9; see also Appeal Br. 10 and Reply Br. 4–5. As can be seen, Appellant’s arguments focus on White’s corresponding tip 20 when the limitation in question is directed to aerodynamic features located “about the tip ogival portion.” In summary, Appellant does not persuade us of Examiner error with respect to this limitation in relying on White’s section 100 as the corresponding “tip ogival portion” about which White’s (albeit instability inducing) aerodynamic features 120 are described and illustrated as being located. Ans. 4–5; see also White 4:8–10; Fig. 2. The rejection of claims 9 and 10 as unpatentable over White, Stahlmann, and FR ’273 Claims 9 and 10 depend, directly or indirectly, from claim 8 and include the additional limitation of “a series of ports” that are arranged about the tip body. The Examiner acknowledges that neither White nor Stahlmann disclose such ports, and as such, the Examiner relies on FR ’273 for this limitation. Ans. 7. The Examiner concludes that the ports disclosed in FR ’273 (see Fig. 1a) can be combined with White and Stahlmann “in order to stabilize the projectile.” Ans. 7‒8. Since White intentionally de-stabilizes Appeal 2012-009343 Application 12/199,306 8 the projectile (see supra), it is not clear that the reason to combine FR ’273 with White is reasonable since the stated reason is at cross-purposes to the teachings of White. See also Appeal Br. 13‒14. In short, the Examiner’s reliance on FR ’273 does not cure the rejection of claim 8 and hence, dependent claims 9 and 10. DECISION The Examiner’s rejections of claims 8‒10, 12, 14‒16, and 18 are reversed. REVERSED ssc Copy with citationCopy as parenthetical citation