Ex Parte Feuvrier-Danziger

Patent Trial and Appeal Board

Mar 28, 2016

13275260 (P.T.A.B. Mar. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/275,260
82551 7590
Mersenne Law
9600 S.W. Oak Street
Suite 500
Tigard, OR 97223
10/17/2011
03/28/2016
FIRST NAMED INVENTOR
Luc Alexandre Feuvrier-Danziger
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.
GUN.TAB 1539
EXAMINER
MORGAN, DERRICK R
ART UNIT PAPER NUMBER
3641
MAILDATE DELIVERY MODE
03/28/2016 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 LUC ALEXANDRE FEUVRIER-DANZIGER
Appeal2014-001529
Application 13/275,260
Technology Center 3600
Before JENNIFER D. BAHR, JOHN C. KERINS, and
GEORGE R. HOSKINS, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Luc Alexandre Feuvrier-Danziger (Appellant) appeals under
35 U.S.C. § 134(a) from the Examiner's decision rejecting claim 25. 1 We
have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
1 Subsequent to the Final Action (mailed Feb. 25, 2013, hereinafter "Final
Act."), Appellant canceled claims 1-14, 23, and 24, and added new claim
25. See Amendment filed Apr. 17, 2013. The remaining claims 15-22 are
withdrawn from consideration. See id.; Final Act. 1 (Office Action
Summary). The Examiner entered the Amendment and indicated that
"[c]laim 25 would be rejected similarly to the rejections of claims 1, 3, 23,
and 24 [set forth in the Final Action]". Advisory Act. 1, 2.
Appeal2014-001529
Application 13/275,260
THE CLAIMED SUBJECT MATTER
Claim 25, reproduced below, is the only claim involved in this appeal.
25. An accessory for a belt-fed firearm, comprising:
mounting means for attaching the accessory to an upper
surface of a belt-fed firearm, said firearm suited for successively
firing bullets from a plurality of rounds of ammunition, each of
said rounds being generally cylindrical in shape and having a
base portion oriented towards an operator of the firearm and a
bullet portion opposite the base portion, said bullet being
oriented away from the operator of the firearm, each of said
rounds of ammunition joined to at least one but no more than two
neighboring rounds by a belt linkage, and each of said rounds of
ammunition being of similar shape and dimensions, having a
common length and a diameter; and
a plurality of protrusions extending vertically from an
upper surface of the accessory, said protrusions held in alignment
by the mounting means so that the protrusions lie on a line that
is roughly parallel to a barrel of the firearm,
a distance between each pair of such protrusions in a
direction of the barrel being less than the length of a round of
ammunition including the base portion and the bullet;
a height of each protrusion being greater than half the
diameter of a round of ammunition, and wherein
the mounting means is to secure the protrusions to the
firearm so that a belt of ammunition for the firearm, when draped
over the protrusions so that one protrusion lies between the base
portion of two adjacent rounds of ammunition of the belt, and
another, different protrusion lies between the bullet portion of the
two adjacent rounds of ammunition of the belt, preventing the
belt of ammunition from sliding freely from side to side across
the upper surface of the firearm and supporting it so that it may
be carried or stored.
2
Appeal2014-001529
Application 13/275,260
REJECTIONS2
I. Claim 25 stands rejected under 35 U.S.C. § 112, second paragraph,
as indefinite. 3
II. Claim 25 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Bevacqua (US 2005/0217470 Al, published Oct. 6, 2005) and
Ulveraker (US 2010/0011946 Al, published Jan. 21, 2010).
DISCUSSION
Rejection I-Indefiniteness
The bases for this rejection appear to be that (1) it is not clear whether
a firearm is being claimed, or whether only the subcombination of the
accessory is being claimed; and (2) because the Examiner construes the
claim recitations directed to the firearm "as intended use with the firearm not
being claimed," and "[f]urthermore, since a specific belt-fed firearm is not
claimed, the limitations pertaining to the dimensions of the apparatus as they
relate to the dimensions of ammunition to be used remain indefinite." Final
Act. 4--5; Ans. 6-7.
As to the first basis, the Examiner does not cogently explain why it is
unclear whether claim 25 is directed to an accessory or to the combination of
an accessory and a firearm. Claim 25 recites "[a]n accessory for a belt-fed
firearm, comprising," in pertinent part, "mounting means for attaching the
2 The Examiner states that the rejection under 35 U.S.C. § 112, first
paragraph, "of previous claim 24 and the section of new claim 25 it pertains
to is withdrawn." Ans. 6.
3 The Examiner's remarks in the paragraph bridging pages 6 and 7 of the
Answer indicate that the Examiner is maintaining this rejection, which was
previously applied to claims 1-14 (Final Act. 4), against claim 25.
3
Appeal2014-001529
Application 13/275,260
accessory to an upper surface of a belt-fed firearm." Appeal Br. 11 (Claims
App.) (emphases added). This language conveys that claim 25 does not
include the firearm, and the Examiner does not specifically identify anything
in the Specification or claim to suggest otherwise.
As to the second basis, we appreciate, and Appellant does not appear
to dispute, the Examiner's point that "there exists a wide variety of belt-fed
firearms, to which this accessory could be mounted, which do not
particularly use the same size and shape of ammunition." Ans. 7; see
Appeal Br. 5---6; Reply Br. 1. However, we agree with Appellant that this is
not a sufficient basis for a determination that the claim is indefinite. See
Appeal Br. 5-6; Reply Br. 1. The fact that there may be a wide range of
dimensions satisfying the limitations of claim 25 pertains to the breadth of
the claim, and not to the question of whether one of ordinary skill in the art
would understand the scope of the claim. Merely that a claim is broad does
not mean that it is indefinite. See In re Johnson, 558 F .2d 1008, 1016 n.17
(CCPA 1977); In re Miller, 441F.2d689, 693 (CCPA 1971); In re Gardner,
427 F.2d 786, 788 (CCPA 1970); Ultimax Cement Mfg. Corp. v. CTS
Cement Mfg. Corp., 587 F.3d 1339, 1352 (Fed. Cir. 2010) (pointing out that
merely claiming broadly does not prevent the public from understanding the
scope of the claim).
For the above reasons, we do not sustain the rejection of claim 25
under 35 U.S.C. § 112, second paragraph.
Re} ection II-Obviousness
The Examiner acknowledges that "Bevacqua does not specifically
disclose the protrusions being spaced in a direction of the barrel by a
distance less than a length of a round of ammunition or a protrusion between
4
Appeal2014-001529
Application 13/275,260
a base portion of two adjacent rounds and a different protrusion between a
bullet portion of two adjacent rounds," as required in claim 25. Ans. 4. The
Examiner's rejection of claim 25 is predicated in part on the Examiner's
determination that it would have been obvious to modify "Bevacqua to have
projections with spacing similar to that as taught by Ulveraker," thereby
providing "a mountable accessory with a 'C-shaped' cartridge holder which
has spacing for ammunition links, similar to that as taught by Ulveraker, in
order to further the capability of the accessory of Bevacqua." Id. According
to the Examiner,
it would have been obvious to ... have modified Bevacqua with
a structure similar to that as taught by Ulveraker in order to
improve upon the capability of Bevacqua such that the accessory
can be used with a wider variety of weapons including belt-fed
or automatic weapons which are equipped with a rail which
would receive mounting means 65 as shown in figure 3 of
Bevacqua as well as improving on the securement means of
Ulveraker in holding belt-fed ammunition in place.
Id. at 5-6.
The Examiner provides "a visual representation of the modification,"
reproduced below, depicting the structures of Bevacqua and Ulveraker, and
the modified cartridge holder resulting from their combination. Ans. 4, 5.
The Examiner's visual representation shows (1) Bevacqua's cartridge holder
10, as depicted in Bevacqua's Figure 1, on the left; (2) Ulveraker's
5
Appeal2014-001529
Application 13/275,260
ammunition retainer bracket 10, as depicted in Ulveraker's Figure 4, in the
center; and (3) a modified cartridge holder purportedly resulting from the
combination of Bevacqua and Ulveraker on the right. The modified
cartridge holder depicted in the Examiner's illustration has a notch in each
of side portions 22 of cylindrical cartridge clip 20. See Bevacqua Fig. 2;
i-f 25 (describing "[ c ]artridge clip 20 [having] a substantially cylindrical
shape with side portions 22 spaced apart creating opening 24").
Appellant argues that "the Examiner's stated rationale for making the
modification ("to further the capability of the accessory of Bevacqua") is
nonsensical." Reply Br. 4 (emphasis and citation omitted). According to
Appellant, "[t]here is simply no reason to modify Bevacqua to hold a belt of
linked ammunition to a weapon that cannot fire it." Id. (emphasis omitted).
Appellant's argument misses the mark a bit in that it presumes that the
modified clip would be used on Bevacqua 's single shot firearm to hold a belt
of linked ammunition. See Bevacqua i-f 16 (stating that "[a]n important
feature of the present invention is the ability of the user to be able to reload a
single shot firearm"). We understand the Examiner's rationale for the
modification to be that it would make Bevacqua's cartridge clip more
versatile by rendering it capable of use with a belt-fed or automatic weapon
for supporting a belt of linked ammunition.
However, Appellant's attack on the Examiner's rationale for the
modification does have merit when viewed in the context of Bevacqua's
teachings. More specifically, the stated objectives of Bevacqua's
cartridge/shell holder include "provid[ing] a firearm cartridge/shell holder
that does not interfere with the normal use of the firearm" and "provid[ing] a
firearm cartridge/shell holder that allows for the quick and easy reloading of
6
Appeal2014-001529
Application 13/275,260
the firearm." Bevacqua if 14. Bevacqua's cartridge/shell holder is capable
of meeting those objectives because it is designed and intended to hold a
single cartridge. Id. if 15. When used in this manner, Bevacqua's
cartridge/shell holder with a cartridge/shell held therein is relatively
unobtrusive, and would not interfere with the normal operation (i.e., aiming
and firing) of the firearm. See id., Fig. 1. One of ordinary skill in the art
would not immediately envisage use of such a clip for carrying a belt of
linked ammunition, which would be significantly more obtrusive and apt to
interfere with normal operation of the firearm.
As Appellant points out, Ulveraker addresses managing belts of linked
ammunition, but in a different context-solving the problem of interlocking
and jamming when the ammunition is fed from an ammunition box or
magazine by placing ammunition retainers atop partitions separating
ammunition box chambers. See Appeal Br. 8; Ulveraker iii! 6, 11.
Ulveraker gives no hint that it would be desirable to carry a belt of linked
ammunition on a clip mounted to a belt-fed or automatic firearm for
reloading the firearm; rather, Ulveraker addresses storing such belts in an
ammunition box or magazine for feeding to a firearm. Id. if 2.
Moreover, with respect to the Examiner's additional stated rationale
of improving on the securement means ofUlveraker in holding belt-fed
ammunition in place, as Appellant also points out, use of the C-shaped clip
of Bevacqua, even if modified as proposed by the Examiner, seemingly
would hold the round of ammunition so securely therein that it might hinder
smooth withdrawal of the belt from an ammunition container. See Reply Br.
5. Thus, it is not apparent why a person having ordinary skill in the art
7
Appeal2014-001529
Application 13/275,260
would have seen the modified clip of Bevacqua as an improvement on the
securement means of Ulveraker.
In light of the above, it is not apparent, absent the disclosure in
Appellant's Specification to do so, why a person of ordinary skill in the art
would have been prompted to use Bevacqua's cartridge/shell holder, even if
modified as proposed by the Examiner, for holding a belt of linked
ammunition. Likewise, it is not apparent why a person of ordinary skill in
the art would have considered the modified cartridge/shell holder of
Bevacqua as improving the securement means of Ulveraker' s retainer.
Consequently, on the basis of the record before us, the Examiner's stated
rationale for the proposed modification (i.e., to make it more versatile by
rendering it capable of use with a belt-fed or automatic weapon for
supporting a belt of linked ammunition as well as improving on Ulveraker' s
securement means in holding belt-fed ammunition in place) lacks rational
underpinnings. Accordingly, we do not sustain the rejection of claim 25
under 35 U.S.C. § 103(a) as unpatentable over Bevacqua and Ulveraker.
DECISION
The Examiner's decision rejecting claim 25 is reversed.
REVERSED
8