2020005984 (P.T.A.B. Sep. 1, 2021)

NCC NANO, LLC

Patent Trials and Appeals BoardSep 1, 2021

2020005984 (P.T.A.B. Sep. 1, 2021)

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. 15/448,306 03/02/2017 KURT A. SCHRODER NCC.001010A 8480 124676 7590 09/01/2021 Russell Ng PLLC 8729 Shoal Creek Blvd., Suite 100 Austin, TX 78757 EXAMINER FELTON, AILEEN BAKER ART UNIT PAPER NUMBER 1734 NOTIFICATION DATE DELIVERY MODE 09/01/2021 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): stephanie@russellnglaw.com PTOL-90A (Rev. 04/07) Appeal 2020-005984 Application 15/448,306 1 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KURT A. SCHRODER and RONALD IAN DASS Appeal 2020-005984 Application 15/448,306 Technology Center 1700 Before BEVERLY A. FRANKLIN, JEFFREY B. ROBERTSON, GEORGE C. BEST , Administrative Patent Judges. FRANKLIN, Appeal 2020-005984 Application 15/448,306 2 Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1–3. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Claim 1 is illustrative of Appellant’s subject matter on appeal and is set forth below: 1. An energetic composition, comprising: a solid hydrate; and a plurality of aluminum particles dispersed within said solid hydrate, wherein said aluminum particles have a specific surface area of greater than 11 m2/g, wherein said aluminum particles have a negative standard reduction potential relative to a standard hydrogen electrode. REFERENCE The prior art relied upon by the Examiner is: Name Reference Date Higa US 2011/0240186 A1 Oct. 6, 2011 THE REJECTIONS 1. Claims 1 and 2 are rejected under pre-AIA 35 Appeal 2020-005984 Application 15/448,306 3 U.S.C. § 102(b) as being anticipated by Higa. 2. Claim 3 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Higa. OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). Upon review of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports Appellant’s position in the record. Accordingly, we reverse each of the Examiner’s rejections on appeal essentially for the reasons set forth by Appellant, and add the following for emphasis. The dispositive issue in this case is whether Higa discloses the claim limitation of “a plurality of aluminum particles dispersed within said solid hydrate”. We refer to page 2 of the Final Office Action regarding the Examiner’s position. Therein, the Examiner states that Higa discloses aluminum having particle sizes of from 20–100 nm and a hydrate (¶¶ 16 and 26). Final Act. 2. The Examiner states that the hydrate is used as a passivation layer around the aluminum and meets the limitation of the fuel being dispersed within the hydrate (¶ 26). Id. We agree with Appellant that it cannot be said that Higa discloses aluminum particles dispersed within a solid hydrate. As explained by Appellant in the paragraph bridging pages 4–5 of the Appeal Brief, Higa actually discloses a metal-oxidizer composition, and not the claimed metal-hydrate composition. Higa, ¶¶ 15 and 16. Appeal 2020-005984 Application 15/448,306 4 Appellant also points out that in ¶ 26 of Higa, Higa discloses the AlO as being the passivation layer, and therefore does not seem to support the Examiner’s position (made on page 2 of the Final Office Action) that Higa teaches that the “hydrate is used as a passivation layer around the aluminum and meets the limitation of the fuel being dispersed within the hydrate (para. 0026).” Appeal Br. 4. We agree. We also agree with Appellant’s statement made on page 3 of the Reply Brief. Therein, Appellant states that Higa mentions the word “hydrate” only one time in ¶ 26, and this hydrate is formed by MoO3 absorbing water (“[s]ome MoO3 . . . absorbs water and undergoes a phase change over time. The MoO3 hydrate catalyzes the hydrolysis of nanoscale aluminum powders.”). Appellant’s point being that it cannot be said that this forms a solid hydrate. Examples of the solid hydrates are set forth in Table 1 on page 6 of Appellant’s Specification. In view of the above, we reverse Rejection 1. We reverse Rejection 2 for the same reasons. CONCLUSION We reverse the Examiner’s decision. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Ba sis Affirmed Reversed 1, 2 102(b) Higa 1, 2 3 103(a) Higa 3 Overall Outcome 1–3 REVERSED