Ex Parte Wilson et al

Patent Trial and Appeal Board

Mar 25, 2013

11593947 (P.T.A.B. Mar. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DENNIS EUGENE WILSON
and KURT ANTHONY SCHRODER
____________

Appeal 2011-001237
Application 11/593,947
Technology Center 3600
____________

Before STEFAN STAICOVICI, GAY ANN SPAHN, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Dennis Eugene Wilson and Kurt Anthony Schroder (Appellants) seek
our review under 35 U.S.C. § 134 of the Examiner’s rejection of claims 1-
12. Appellants cancelled claims 13-28. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.

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Application 11/593,947

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Claimed Subject Matter
The claimed subject matter relates to a “device for neutralizing
explosive devices and weapons (collectively ‘ordnance’) containing
explosive material.” Spec. 4, ll. 8-9. Claims 1, 9, and 11 are the
independent claims on appeal. Claim 1, reproduced below, with emphasis
added, is illustrative of the appealed subject matter.
1. A device for neutralizing ordnance containing explosive
material, said device comprising:
a projectile; and
an energetic material contained within said projectile,
wherein said energetic material, in response to said projectile
contacts and penetrates the casing of an ordnance containing
explosive material, reacts with said explosive material within
said ordnance in order to deflagrate said explosive material
within said ordnance, wherein said energetic material includes
a reducer and an oxidizer, both being formed in separate layers
packed within said projectile.

Rejections
The following Examiner’s rejections1 are before us for review:
I. claims 1, 2, and 4-12 under 35 U.S.C. § 102(b) as anticipated
by Rose (US 3,664,262, issued May 23, 1972); and
II. claim 3 under 35 U.S.C. 103(a) as unpatentable over Rose.

1 The Final Office Action mailed May 13, 2009 rejected claims 4 and 12
under 35 U.S.C. § 112, second paragraph, as being indefinite. Final Rej. 2-
3. However, Appellants’ “Amendment Under 37 C.F.R. § 1.116” filed June
3, 2009, amended claims 4 and 12. Pursuant to paragraphs 5 and 7 of the
Advisory Action mailed June 12, 2009, the Examiner found Appellants’
amendments to claims 4 and 12 to overcome the rejection under 35 U.S.C.
§ 112, second paragraph, and therefore, entered the amendment for purposes
of appeal.
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OPINION
Rejection I – Anticipation based on Rose
The Examiner finds that Rose discloses an energetic material
(explosively reactive elements 19, 20, e.g., iron oxide powder and
aluminum), “wherein said energetic material, in response to said projectile
contacting and penetrating the casing of an ordnance containing explosive
material would inherently react with said explosive material within said
ordnance in order to deflagrate said explosive material within said
ordnance.” Ans. 3 (citing Rose, col. 2, ll. 6-24).
Appellants argue that Rose discloses “when element 19 comes [in]to
contact with element 20, ‘elements 19 and 20 explosively react to produce
secondary explosions thereby extending the destructive radius and effects of
the warhead,’” so that “Rose’s elements 19-20 enable conflagration,” not
deflagration. App. Br. 5 (citing Rose, col. 2, ll. 3-5). More particularly,
Appellants argue that “[t]he term ‘deflagration’ is a term of art” meaning “a
type of explosion in which the shock wave arrives before the reaction is
complete because the reaction front moves more slowly than the speed of
sound in the medium,” and “an extremely rapid burning of a material, which
is tremendously faster than normal combustion but slower than detonation,”
so that “Rose’s warhead having two layers of explosives 11 is simply
incapable of deflagrating another ordnance containing explosive material.”
Reply Br. 2.
Appellants’ Specification provides definitions of both deflagration
and detonation. Spec. 7, paras. [0023] and [0024]. According to the
Specification, “deflagration” is typified by combustion or burning
(exothermic chemical reaction) of a substance with self-contained oxygen so
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that the reaction zone advances into the unreacted material at less than the
velocity of sound in the material, whereas “detonation” is typified by an
explosion or violent release of energy, wherein the reaction front (typically
chemical) moves through an explosive material at a velocity greater than the
speed of sound in the material, and energy is transmitted from the reacted to
the unreacted material by a shock wave through the high-temperature and
high-pressure gradients generated at the wave front with the reaction
generally occurring on a sub-microsecond time scale. These definitions
appear consistent with the following definitions of deflagration and
detonation from the “Munitions Glossary”2:
Deflagration: A rapid chemical reaction in which the output of
heat is enough to enable the reaction to proceed and be
accelerated without input of heat from another source.
Deflagration is a surface phenomenon with the reaction
products flowing away from the un-reacted material along the
surface at subsonic velocity. The effect of a true deflagration
under confinement is an explosion. Confinement of the
reaction increases pressure, rate of reaction, and temperature,
and may cause transition into a detonation. Reference: DoD
6055.9 STD
. . .
Detonation: A violent chemical reaction within a chemical
compound or mechanical mixture evolving heat and pressure.
A detonation is a reaction that proceeds through the reacted
material toward the un-reacted material at a supersonic velocity.
The result of the chemical reaction is exertion of extremely high
pressure on the surrounding medium, forming a propagating
shock wave that originally is of supersonic velocity. When the
material is located on or near the surface of the ground, a crater

2 Accessed at
http://www.globalsecurity.org/military/systems/munitions/glossary.htm (last
visited March 22, 2013).
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normally characterizes a detonation. Reference: DoD 6055.9
STD
Therefore, we conclude that “deflagration” is a term of art in the
munitions/ordnance/explosives industry, and consistent with the
Specification’s definitions and the use of that terminology in that field of
endeavor3, we interpret the claim terminology “deflagration” as referring to
a combustion or burning, wherein “the reaction zone advances into the
unreacted material at less than the velocity of sound in the material,” in
contrast to a detonation, wherein “a reaction front . . . moves through an
explosive material at a velocity greater than the speed of sound in the
material.”
In accordance with our interpretation of the claim terminology
“deflagrate,” the Examiner has failed to show that Rose’s reactively
explosive materials 19, 20, e.g., iron oxide powder and aluminum, satisfy the
claim language of being an energetic material or an oxidizer, which “in
response to said projectile contact[ing] and penetrat[ing] the casing of an
ordnance containing explosive material, reacts with said explosive material
within said ordnance in order to deflagrate said explosive material within
said ordnance.” App. Br., Clms. App’x. Emphasis added. In other words,
the Examiner has not shown that Rose’s reactively explosive materials 19,
20 are capable of combusting or burning in such a manner that “the reaction
zone advances into the unreacted material at less than the velocity of sound

3 See US 6,460,459 B1 to McCahon, issued Oct. 8, 2002, col. 1, ll. 5-62,
describing ways in which high explosives can “burn,” i.e., detonation versus
deflagration; see also US 6,540,029 B2 to Snoeys, issued Apr. 1, 2003, col.
2, ll. 54-59; US 5,864,517 to Hinkey, issued Jan. 26, 1999, col. 12, ll. 22-43;
US 5,855,827 to Bussing, issued Jan. 5, 1999, col. 4, ll. 46-62; and US
5,905,227 to Eichert, issued May 18, 1999, col. 4, ll. 18-36.
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in the material,” in accordance with the term of art “deflagrate.” Rather, as
pointed out by Appellants, Rose describes that “[u]pon meeting, elements 19
and 20 explosively react to produce secondary explosions thereby extending
the destructive radius and effects of the warhead.” Rose, col. 2, ll. 3-5. See
Reply Br. 2. Thus, in a first instance, Rose’s description of “secondary
explosions . . . extending the destructive radius and effects of the warhead”
is consistent with a detonation (explosion, wherein reaction front moves
through the explosive material at a velocity greater than the speed of sound
in the material), not a deflagration (combustion or burning, wherein the
reaction zone advances into the unreacted material at less than the velocity
of sound in the material). The Examiner has not provided any evidence to
show otherwise.
Accordingly, we do not sustain the Examiner’s rejection of
independent claims 1, 9, and 11, and claims 2, 4-8, 10, and 12 dependent
thereon, under 35 U.S.C. § 102(b) as anticipated by Rose.

Rejection II – Obviousness based on Rose
The Examiner’s rejection of claim 3 relies on the same erroneous
finding that Rose discloses its energetic materials (reactively explosive
elements 19, 20) reacting with the explosive material within an ordnance in
order to deflagrate the explosive material within the ordnance. Since we
found supra that Rose does not disclose that its energetic materials
deflagrate the explosive material within an ordnance and the Examiner’s
proposed modification of Rose does not remedy this deficiency of Rose, we
also do not sustain the Examiner’s rejection of claim 3 under 35 U.S.C.
§ 103(a) as unpatentable over Rose.
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DECISION
We reverse the Examiner’s decision to reject claims 1-12.

REVERSED

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