Alan Hudson et al.

Patent Trials and Appeals Board

Oct 18, 2019

15159847 - (D) (P.T.A.B. Oct. 18, 2019)

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.
15/159,847 05/20/2016 ALAN HUDSON MSH-1090 7850
8131 7590 10/18/2019
MCKELLAR IP LAW, PLLC
784 SOUTH POSEYVILLE ROAD
MIDLAND, MI 48640
EXAMINER
FREEMAN, JOSHUA E
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
10/18/2019 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 ALAN HUDSON and TERRANCE HAND
____________

Appeal 2018-000466
Application 15/159,847
Technology Center 3600
____________

Before MICHAEL L. HOELTER, GEORGE R. HOSKINS, and
SCOTT C. MOORE, Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claim 1 in this application. The Board has
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as the
inventors. Appeal Br. 2.
Appeal 2018-000466
Application 15/159,847

2
CLAIMED SUBJECT MATTER
Claim 1 recites:
1. A shield having ballistic protection, said shield consisting of:
A. A riot shield having a top portion;
B. firmly attached to an inside surface of said riot shield,
C. a ballistic shield, said ballistic shield having a back
surface, said back surface having fixedly attached to said
back surface, carrying handles for said ballistic shield;
D. said ballistic shield covering only a portion of said riot
shield to provide open vision for a user near said top of
said riot shield.
Appeal Br. 5 (Claims App.).
REJECTIONS ON APPEAL
Claim 1 is rejected under 35 U.S.C. § 102(a)(1) as anticipated by
Bauer (US 4,843,947, issued July 4, 1989). See Ans. 3–4 (entering new
ground of rejection).2
Claim 1 also is rejected under 35 U.S.C. § 103 as unpatentable over
Bauer and Dovner (US 2007/0283477 A1, published Dec. 13, 2007). See
Final Act. 2–3; Ans. 2–3.
OPINION
A. Anticipation by Bauer
The Examiner finds Bauer discloses a shield consisting of a riot shield
(i.e., shield member 1) having a top portion providing open vision for a user,
with a reinforcing plate (i.e., plate 2) attached to an inside surface of riot

2 In response to the new ground of rejection, Appellant elected to maintain
the appeal by filing a Reply Brief. See Ans. 7–8; Reply Br. 1–3; 37 C.F.R.
§ 41.39(b).
Appeal 2018-000466
Application 15/159,847

3
shield 1, and handles (i.e., handles 3, 4) attached to the back surface of
reinforcing plate 2. Final Act. 2 (citing Bauer, Fig. 1, 3:25–40); see Bauer,
3:24–27. The Examiner, further, finds Bauer’s reinforcing plate 2 is “a
ballistic shield” as recited in the claim (emphasis added). Ans. 4 (citing
Bauer, 2:39–54, 3:24–40).
Appellant’s only objection to the foregoing findings is that, in
Appellant’s view, reinforcing plate 2 is not a ballistic shield. Appeal Br. 3;
Reply Br. 2–3. Thus, there are two issues for consideration in relation to the
anticipation rejection: the proper claim construction of the term “ballistic
shield,” and whether Bauer’s reinforcing plate 2 is a ballistic shield. See
37 C.F.R. § 41.37(c)(1)(iv) (arguments not included in Appeal Brief are
waived).
First Issue: Claim Construction of “Ballistic Shield”
Appellant asserts a riot shield is different from a ballistic shield. See
Appeal Br. 2; Reply Br. 2–3. Appellant contends the Specification
demonstrates “[r]iot shields are used when protection is needed during riots
to protect the user from thrown objects such as cans, bottles and rocks,”
whereas “[b]allistic protection offers a higher level [of] protection to the
user.” Appeal Br. 2 (citing Spec. 1:10–13, 2:11–15).
In support, Appellant presents what appear to be quotations of
Wikipedia articles for “Riot shields” and “Ballistic shields,” although no
detailed citations are provided. Reply Br. 2–3. Appellant contends these
articles indicate a shield’s ability to protect against “small caliber” bullets
does not make the shield a ballistic shield, as that term is understood in the
art, because a ballistic shield protects against “high caliber” bullets. Id.
Appeal 2018-000466
Application 15/159,847

4
Appellant, however, does not specify the minimum caliber that differentiates
between riot shields and ballistic shields in this regard. See id.
We must give the term “ballistic shield” its broadest reasonable
construction that is consistent with Appellant’s Specification. See In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The
Specification describes “a shield that is a riot shield that has certain ballistic
properties,” and the “shield is configured to give an individual protection
during riots, and the like, from thrown cans, bottles, and rocks, among other
projectiles, but also will give the user ballistic protection.” Spec. 1:8–13
(emphasis added). Thus, Appellant’s shield includes “a riot shield having a
ballistic shield attached on an inside surface.” Id. at 2:11–12, 2:28–32.
These passages support Appellant’s contention that the terms “riot shield”
and “ballistic shield” have different connotations, and in particular, that a
ballistic shield provides a higher level of protection for the user than a riot
shield. However, the Specification does not help to identify the defining
level of protection that makes a shield a ballistic shield. See id. For
example, Appellant does not cite any disclosure(s) in the Speciation to
support Appellant’s contention that the demarcation line is a minimum bullet
caliber. See Appeal Br. 2; Reply Br. 2–3.
Dictionary definitions of the term “ballistic” include a general
meaning “of or relating to the science of the motion of projectiles in flight,”
and a specific meaning “of a material: capable of resisting or stopping
bullets or other projectiles.” See https://www.merriam-webster.com/
dictionary/ballistic (accessed Oct. 3, 2019). Thus, the general connotation of
a “ballistic” shield is a shield that is capable of resisting or stopping bullets,
without regard to a minimum bullet caliber.
Appeal 2018-000466
Application 15/159,847

5
The Wikipedia articles quoted by Appellant are to the same effect. In
particular, they indicate: “Ballistic shields are designed to stop or deflect
bullets fired at their carrier.” Reply Br. 2. That is, there is no minimum
bullet caliber required for the shield to be a “ballistic” shield.
The Wikipedia articles additionally indicate “[s]ome riot shields are
designed to be bullet resistant against low-velocity handgun and shotgun
ammunition, however, most are not.” Id. (emphases added). This does not
persuade us that shields protecting against “low-velocity” bullets are not
ballistic shields. Rather, the Wikipedia articles, when read together, indicate
a ballistic shield is also a riot shield. Id. at 2–3. For example, ballistic
shields, like riot shields, protect the user against many different kinds of
thrown projectiles such as rocks. Id. The differentiator is that a ballistic
shield additionally protects against bullets fired from a gun. Id. That is, a
ballistic shield is one species of the genus of riot shields; the two terms are
not mutually exclusive. Id. When read as a whole, the Wikipedia articles’
indication that some riot shields are bullet resistant against low-velocity
ammunition is merely a recognition of that genus-species relationship.
For the foregoing reasons, we construe the term “ballistic shield” to
mean a shield that is capable of resisting or stopping bullets, without regard
to a minimum bullet caliber.
Second Issue: Whether Bauer’s Reinforcing Plate is a Ballistic Shield
The Examiner finds Bauer’s reinforcing plate 2 is a ballistic shield.
See Ans. 4 (citing Bauer, 2:39–54, 3:24–40).
Appellant disagrees, contending Bauer’s reinforcing plate 2 “is not
added to provide any additional protection to the person carrying the shield,”
and “is merely added to provide structural support to the shield.” Appeal
Appeal 2018-000466
Application 15/159,847

6
Br. 3. Appellant asserts: “The shield of Bauer does not have any ballistic
properties.” Id. Further according to Appellant: “Although Bauer may have
a layer of polycarbonate [i.e., reinforcing plate 2] attached to the inside of
the riot shield [i.e., shield member 1] wherein the polycarbonate may be
known to provide small caliber ballistic protection, it is not a ballistic
shield,” because “[p]olycarbonate is not suitable for high caliber weaponry.”
Reply Br. 3 (emphases by Appellant).
We agree with the Examiner. Bauer’s reinforcing plate 2 is made
from “high quality polycarbonate of between 2 to 5 mm thickness,” which is
“capable of stopping most of the projectiles and missiles likely to be used by
rioters” including “bird shot and small calibre bullets.” Bauer, 3:24–36,
3:46–56. This provides “increased strength and resistance to projectiles and
missiles,” versus shield member 1 alone. Id. at 2:45–51. Thus, reinforcing
plate 2 is a “ballistic shield,” as that term is construed above.
The evidence does not support Appellant’s contention that a
polycarbonate material, such as disclosed in Bauer, cannot form a ballistic
shield. Instead, such evidence as Dovner discloses that a “viewport 18 may
include a transparent ballistic material, such as a polycarbonate material.”
Dovner ¶¶ 17, 30 (emphases added).
Thus, we determine a preponderance of the evidence supports the
Examiner’s finding that Bauer’s reinforcing plate 2 is a ballistic shield.
Conclusion as to Anticipation by Bauer
For the foregoing reasons, we sustain the rejection of claim 1 as
anticipated by Bauer.
Appeal 2018-000466
Application 15/159,847

7
B. Obviousness Over Bauer and Dovner
The Examiner presents the obviousness rejection as an alternative to
the anticipation rejection, in the event it is found Bauer’s reinforcing plate 2
is found not to be a ballistic shield. Final Act. 2–3; Ans. 2–3. For reasons
provided above, we find Bauer’s reinforcing plate 2 is a ballistic shield. We
nonetheless also address the obviousness rejection to provide a complete
record.
The Examiner finds Dovner discloses ballistic insert 50 attached to the
rear side of protective shield 10 to provide additional protection against
ballistic projectiles in the midsection of the shield. Ans. 2–3 (citing Dovner
¶ 22, Fig. 5); Final Act. 2 (citing Dovner, Figs. 2 & 5, Abstract). The
Examiner finds “Dovner clearly suggest[s] providing additional protection to
the midsection of the riot shield with . . . ballistic material” to protect the
torso of the user, and determines it would have been obvious to modify
Bauer’s reinforcing plate 2 to be made of ballistic material for that purpose.
Ans. 3; Final Act. 2–3.
Appellant responds that Bauer’s reinforcing plate 2 “is not added to
provide any additional protection to the person carrying the shield” and
instead “is merely added to provide structural support to the shield.” Appeal
Br. 3 (citing Bauer, 1:5, 2:37–38, 3:46–48, 3:52–55). Thus, Appellant’s
view is that “[t]here is nothing in Bauer that requires the addition of
[b]allistic properties to the shield.” Id. at 3–4. Further according to
Appellant, “[t]he entire shield [10] of Dovner is the ballistic shield,”
including upper portion 12 and lower portion 14. Id. at 3 (citing Dovner
¶ 13). Appellant therefore contends there is no motivation “to take the
ballistic shield [10] of Dovner and use it in place of reinforcing plate [2]
Appeal 2018-000466
Application 15/159,847

8
taught in Bauer.” Id. at 3–4. Instead, Appellant contends the combination of
Bauer with Dovner would result in replacing Bauer’s shield member 1, not
Bauer’s reinforcing plate 2, with the ballistic material of Dovner. Id. at 4.
Appellant further contends that attaching Dovner’s ballistic shield 10 to the
back of Bauer’s shield does not result in the claimed invention, because
Dovner’s entire shield 10 is ballistic, so the combination would lack a
ballistic shield “covering only a portion of said riot shield to provide open
vision for a user near said top of said riot shield.” Id.
The Examiner replies that Bauer discloses using plate 2 to “give[] the
riot shield increased strength and resistance to projectiles and missiles.”
Ans. 5 (quoting Bauer, 2:48–51) (emphasis by Examiner). The Examiner
also cites Bauer’s disclosures that plate 2 can be made of polycarbonate, and
that polycarbonate “has been shown to be capable of stopping most of the
projectiles and missiles likely to be used by rioters” and “can even stop bird
shot and small caliber bullets.” Id. (quoting Bauer, 3:27–36, 3:46–47)
(emphasis by Examiner). The Examiner further takes the position that
obviousness does not require the bodily incorporation of Dovner’s entire
shield 10 within Bauer’s shield. Id. at 6 (citing In re Keller, 642 F.2d 413
(CCPA 1981)).
We determine a preponderance of the evidence supports the
Examiner’s determination of obviousness. The Examiner has satisfied the
burden to provide a rational underpinning sufficient to support the legal
conclusion of obviousness. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006), cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007). In particular, we find Bauer and Dovner both teach it is
beneficial for a large shield to have a smaller shield attached to the central
Appeal 2018-000466
Application 15/159,847

9
region of the rear side of the large shield, for extra protection. Bauer
discloses a smaller reinforcing plate 2 attached to the central region of a
larger shield member 1, to provide “increased strength and resistance to
projectiles and missiles.” Bauer, Fig. 1, 2:46–51 (emphasis added), 2:46–
56. Dovner similarly discloses a smaller ballistic insert 50 attached to the
central region of a larger ballistic shield 12, 14, “thereby customizing the
protective shield 10 for the particular mission.” Dovner, Fig. 5, ¶ 22. Based
on the relative positioning of Bauer’s reinforcing plate 2 and handles 3, 4,
and of Dovner’s ballistic insert 50 and handle 40, the Examiner’s finding
that the smaller shields of both references are meant to provide extra
protection for the user’s torso is adequately supported. See Bauer, Fig. 1,
3:24–27; Dovner, Fig. 5, ¶¶ 22–23.
In light of the foregoing commonality between Bauer and Dovner,
there is a rational underpinning to support the Examiner’s determination that
it would have been obvious to modify Bauer’s reinforcing plate 2 to be made
of a ballistic material, like Dovner’s ballistic insert 50. This would have
provided additional protection against ballistic projectiles in the user’s torso
region, as disclosed by Dovner. See Dovner, Fig. 5, ¶ 22.
Appellant’s opposition rests largely on the premise that the bodily
incorporation of Dovner’s entire ballistic shield 10 within Bauer’s shield
would not lead to the claimed invention. However, the test for obviousness
is not whether the features of one reference (such as Dovner) may be bodily
incorporated into the structure of the other reference (such as Bauer), but
rather is “what the combined teachings of the references would have
suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425.
“A person of ordinary skill is also a person of ordinary creativity, not an
Appeal 2018-000466
Application 15/159,847
10
automaton.” KSR, 550 U.S. at 421. In this case, for the reasons provided
above, a preponderance of the evidence supports the Examiner’s
determination that it would have been obvious to modify Bauer’s reinforcing
plate 2 so as to be made of a ballistic material, like Dovner’s ballistic
insert 50. Thus, we sustain the rejection of claim 1 as having been obvious
over Bauer and Dovner.
CONCLUSION
In summary:
Claim Rejected 35 U.S.C. § Reference(s) Affirmed Reversed
1 102(a)(1) Bauer 1
1 103 Bauer, Dovner 1
Overall Outcome 1
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED
Notice of References Cited
Application/Control No.
15/159,847
Applicant(s)/Patent Under
Reexamination
Examiner Art Unit
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U.S. PATENT DOCUMENTS
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L US-
M US-
FOREIGN PATENT DOCUMENTS
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NON-PATENT DOCUMENTS
* Include as applicable: Author, Title Date, Publisher, Edition or Volume, Pertinent Pages)
U Dictionary Definition of 'ballistic'
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*A copy of this reference is not being furnished with this Office action. (See MPEP § 707.05(a).)
Dates in MM-YYYY format are publication dates. Classifications may be US or foreign.
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ballistic
adjective
bal· lis· tic | \ bə-ˈli-stik \
Page 1 of 9Ballistic | Definition of Ballistic by Merriam-Webster
10/3/2019https://www.merriam-webster.com/dictionary/ballistic
Definition of ballistic
1 : extremely and usually suddenly excited, upset, or angry : wild He went ballistic when he saw the dent in his car.and the
crowd goes ballistic
2 : of or relating to the science of the motion of projectiles in flight
3 exercise : being or characterized by repeated bouncing ballistic stretching
4 physics, of an object in motion : behaving like a projectile But the Bell Labs switch uses such a low current that the few
ballistic electrons are a distance of a micrometer or more apart …— Robert Pool
5 of a material : capable of resisting or stopping bullets or other projectiles ballistic glassballistic nylon… engineered
specifically to be worn under ballistic vests and shirts.— K. M. Reese
Other Words from ballistic Synonyms & Antonyms More Example Sentences Learn More about ballistic
Keep scrolling for more
Other Words from ballistic
ballistically \ bə- ̍ li- sti- k(ə- )lē \ adverb
Synonyms & Antonyms for ballistic
Synonyms
angered, angry, apoplectic, cheesed off [chiefly British], choleric, enraged, foaming, fuming, furious, hopping, horn-mad,
hot, incensed, indignant, inflamed (also enflamed), infuriate, infuriated, irate, ireful, livid, mad, outraged, rabid, rankled,
riled, riley, roiled, shirty [chiefly British], sore, steamed up, steaming, teed off, ticked, wrathful, wroth
Antonyms
angerless, delighted, pleased
Visit the Thesaurus for More
Examples of ballistic in a Sentence
she went ballistic when she discovered her sister using her nail polish
Recent Examples on the Web
After an attack on Riyadh's airport in 2017, US State and Defense officials accused Iran of violating UN sanctions against
export of ballistic-missile technology, displaying pieces of missiles and drones used in attacks.— Sean Gallagher, Ars
Technica, "Missiles and drones that hit Saudi oil fields: Made in Iran, but fired by whom?," 16 Sep. 2019 Employees are
allowed to buy ballistic vests to wear under their uniform.— oregonlive, "Portland-area paramedics learning self-defense to
cope with new threat: the public," 13 Sep. 2019
These example sentences are selected automatically from various online news sources to reflect current usage of the word
'ballistic.' Views expressed in the examples do not represent the opinion of Merriam-Webster or its editors. Send us
feedback.
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First Known Use of ballistic
1764, in the meaning defined at sense 2
History and Etymology for ballistic
Page 2 of 9Ballistic | Definition of Ballistic by Merriam-Webster
10/3/2019https://www.merriam-webster.com/dictionary/ballistic