Ex Parte Haq et al

Patent Trial and Appeal Board

Sep 28, 2017

14358783 (P.T.A.B. Sep. 28, 2017)

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.
14/358,783 05/16/2014 Sajad Haq BAE.XA3681US 9960
121361 7590 10/02/2017
RAF-TTK /FinrTi & Malnne.v EXAMINER
Gateway One
50 Commercial, Suite 300
ABDOSH, SAMIR
Manchester, NH 03101 ART UNIT PAPER NUMBER
3641
NOTIFICATION DATE DELIVERY MODE
10/02/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing @ finchmaloney .com
nmaloney @ finchmaloney .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SAJAD HAQ and CAROLINE JOLEEN MORLEY
Appeal 2016-008294
Application 14/358,783
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-008294
Application 14/358,783
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
3—5, 7—20, 25, and 26. App. Br. 2. Claims 1, 2, 6, and 21—24 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
THE CLAIMED SUBJECT MATTER
The claims are directed to a fibrous armor material. Spec. 1. Sole
independent claim 3, reproduced below, is representative of the claimed
subject matter:
3. A fibrous armour material for dissipating the
kinetic energy of a moving object, said fibrous armour
material being impregnated with a shear thickening
fluid, in which the shear thickening fluid includes
particles of a thickening agent suspended in a liquid,
and the volume fraction of the thickening agent in the
shear thickening fluid is selected to be in the range 47
to 50% so that the shear thickening fluid has at least
one of:
a viscosity of 0.11 to 0.21 PaS at a shear stress of
200 Pa,
a viscosity of 0.13 to 0.27 PaS at a shear stress of
400 Pa,
a viscosity of 0.14 to 0.37 PaS at a shear stress of
600 Pa, and
a viscosity of 0.16 to 0.45 PaS at a shear stress of
800 Pa.
2
Appeal 2016-008294
Application 14/358,783
REFERENCE
Wagner US 7,498,276 B2 Mar. 3,2009
REJECTION
Claims 3—5, 7—20, 25, and 26 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Wagner. Non—Final Act. 2.
ANALYSIS
The Examiner finds that Wagner teaches all the limitations of
independent claim 3 except for those limitations directed to the volume
fraction of a thickening agent in the shear thickening fluid used to
impregnate the fibrous armor material. Non-Final Act. 2—3. The Examiner
further finds, however, that the volume fraction of thickening agent in the
shear thickening fluid is a “result-effective variable,” and that “adjusting a
result-effective variable in order to obtain an optimized range of values is
considered to be an obvious variant capable of being achieved by a person of
ordinary skill in the art.” Id. at 4. In response to Appellants’ assertion that
the thickening-agent volume fraction is not a result-effective variable, the
Examiner asserts that “the Wagner patent teaches varying the volume
fraction of silica from 57% to 52% between the two examples disclosed in
the reference.” Ans. 6 (citing Wagner, 1:33—35, 10:55—57). According to
the Examiner, “[experimenting with a plurality of volume fractions to
obtain a particular result for a particular scenario (improving penetration
depth at high impact velocities with respect to an undisclosed projectile) is
not an inventive step.” Id.
In this case, the record does not adequately support the Examiner’s
finding that the volume fraction of thickening agent in the shear thickening
3
Appeal 2016-008294
Application 14/358,783
fluid used to impregnate fibrous armor is a result-effective variable.
Normally, “where the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.” In re Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed.
Cir. 2012) (internal citation and quotation marks omitted). But this rule “is
limited to cases in which the optimized variable is a result-effective
variable.” Id. (internal citation and quotation marks omitted). “A
recognition in the prior art that a property is affected by the variable is
sufficient to find the variable result-effective.” Id. at 1297.
Here, the Examiner asserts that Wagner demonstrates that the
thickening-agent volume fraction is a result-effective variable because
Wagner “var[ied] the volume fraction of silica from 57% to 52% between
the two examples.” Ans. 6. But Wagner does not explain why different
volume fractions were used for the two tests. Nor can one reasonably infer
from Wagner’s use of two different volume fractions that performance of the
fabric is affected by changing the volume fraction, or that Wagner was even
testing the performance effects of different volume fractions. As Appellants
note (see App. Br. 4; Reply Br. 2—3), the two examples on which the
Examiner relies measure different things: the first test, which used the 57%
volume fraction, tested ballistic performance of STF-impregnated Kevlar
fabric. Wagner, 5:18—6:32. The second test, which used the 52% volume
fraction, tested slab performance, the ability to withstand “puncturing
threat[s].” Id. at 10:52—11:8. If Wagner had wanted to measure the effect
on performance of different volume fractions, the volume fraction would
have been varied on the same kind of test. Indeed, that is how Wagner
4
Appeal 2016-008294
Application 14/358,783
tested the effects of other variables, such as STF volume and type. See
Wagner, 8:28-55, 10:1^8.
Because we are not persuaded that it was known in the prior art that
the thickening-agent volume fraction is a result-effective variable, we do not
sustain this rejection.
DECISION
For the above reasons, we REVERSE the Examiner’s decision to
reject of claims 3—5, 7—20, 25, and 26.
REVERSED
5