11717958 (B.P.A.I. Sep. 10, 2012)

Ex Parte Andreasen et al

Board of Patent Appeals and InterferencesSep 10, 2012

11717958 (B.P.A.I. Sep. 10, 2012)

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. 11/717,958 03/14/2007 Norman Andreasen LUCW:0037/FLE/STA (128795 2059 7590 09/10/2012 Michael G. Fletcher Fletcher Yoder PC P.O. Box 692289 Houston, TX 77269-2289 EXAMINER WEBER, JONATHAN C ART UNIT PAPER NUMBER 3641 MAIL DATE DELIVERY MODE 09/10/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte NORMAN ANDREASEN, JOHN L. DE CRISTOFARO, JOHN ANTHONY DISPENZA, LEON KLAFTER, and RICHARD THOMAS LAGROTTA ____________________ Appeal 2010-006117 Application 11/717,958 Technology Center 3600 ____________________ Before: JENNIFER D. BAHR, PHILLIP J. KAUFFMAN, and GAY ANN SPAHN, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006117 Application 11/717,958 2 STATEMENT OF THE CASE Norman Andreasen et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-29 and 32. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A field armor system comprising a collapsible or separable structure comprising at least four vertical surfaces enclosing a space, wherein at least one of the vertical surfaces comprises a projectile resistant plastic composite armored panel; and wherein in at least one dimension the space is from greater than about 2" to less than about 18". Evidence The Examiner relied on the following evidence in rejecting the claims on appeal: Francis Espeland US 4,828,132 US 6,048,593 May 9, 1989 Apr. 11, 2000 Rejections Appellants request our review of the following rejections: The Examiner rejected claims 1-29 and 32 under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which Appellants regard as the invention. The Examiner rejected claims 1, 2, 20-23, 27-29, and 32 under 35 U.S.C. § 103(a) as unpatentable over Francis. The Examiner rejected claims 3-19 and 24-26 are rejected under 35 U.S.C. § 103(a) as unpatentable over Francis and Espeland. Appeal 2010-006117 Application 11/717,958 3 OPINION Indefiniteness The Examiner rejected claims 1-29 and 32 on the basis that “it is unclear what structure the term ‘armored’ implies in the claims since there is no definition in the specification as to what this is limited to.” Ans. 3; Ans. 10-11. For the reasons proffered by Appellants on pages 2 and 3 of the Reply Brief and on pages 7 and 8 of the Appeal Brief, we agree with Appellants that the term “armored” does not render claims 1 and 23 (and their dependent claims) indefinite. The Examiner rejected claim 21 under 35 U.S.C. § 112, second paragraph on the additional basis that “it is unclear how a container or structure that is collapsible or separable (As stated in amended claim 1) can be permanently fixed together.” Ans. 3. The Examiner reasoned that claim 21 is indefinite because “the specification does not provide a teaching on how to ‘permanently join’ the vertical faces to one another and a bottom surface allowing the structure to be collapsible or separable.” Ans. 12. This second basis of rejection appears to stem from a misreading of claim 21. Claim 21 does not require that the vertical faces be permanently joined to one another; instead, claim 21 requires that the vertical faces be permanently joined to a bottom surface. We do not agree with the Examiner that the limitation “wherein all faces [i.e., the front, rear, and two side faces that comprise the vertical surfaces] are permanently joined to a bottom surface” in claim 21, which depends from claim 1, is at odds with the “collapsible or separable” limitation in claim 1. Claim 21, via its dependence from claim 1, requires that the structure comprising the at least four vertical surfaces be collapsible Appeal 2010-006117 Application 11/717,958 4 or separable, not that the vertical surfaces be separable from the bottom surface. Moreover, claim 21 does not require that the vertical surfaces (faces) be fixedly joined to the bottom surface. With a separable connection arrangement using pressure fit connectors that allow the vertical surfaces to be completely separated and snapped together in the field as described by Appellants (Spec., p. 8, ll. 16-18), a permanent pivotable connection joining the vertical surfaces to the bottom surface, for example, would permit the vertical surfaces to be separated from one another and collapsed. Likewise, with such a separable connection arrangement of the vertical surfaces to one another, even a permanent and fixed joining of the vertical surfaces to the bottom surface, such as by gluing (see Spec., p. 8, ll. 18-20), for example, could conceivably permit the vertical surfaces to be separated from one another. While not addressing whether Appellants’ Specification provides written description support for either of these two examples, both examples illustrate that the “permanently joined” limitation in claim 21 is not inherently at odds with the “separable or collapsible” limitation of claim 1, from which claim 21 depends. In light of the above, we do not sustain the Examiner’s rejection of claims 1-29 and 32 under 35 U.S.C. § 112, second paragraph. Obviousness based on Francis A first issue presented for our review of this rejection is whether the Examiner erred in finding that the shipping container of Francis is a field armor system comprising at least one projectile resistant plastic composite armored panel. App. Br. 10-11; Ans. 3, 12-13. The Examiner’s position with respect to these limitations is articulated on pages 9 and 10 of the Final Rejection, mailed June 4, 2009. Appeal 2010-006117 Application 11/717,958 5 The Examiner construes the limitation “projectile resistant plastic composite armored panel” as encompassing “a plastic composite panel that is capable of opposing or retarding motion of an object.” Final Rejection, p. 10. This construction effectively ignores the limitation “armored” and thus is improper. See Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing claim constructions which render phrases in claims superfluous). We agree with Appellants that a person of ordinary skill in the art would not consider the corrugated plastic board of the Francis shipping container to be an armored panel as that term would be understood by one of ordinary skill in the art consistent with Appellants’ Specification. See Spec., p. 2, ll. 19-21 (describing protection from projectile impact in military and civilian situations, in the forms of, for example, personal protective equipment, armored vehicles, armored housing, and field fortifications); Spec., p. 3, ll. 19-22 (describing field fortifications “made by digging into the ground to form earthen works, such as soil berms, trenches, tunnels, or foxholes”); Spec., p. 15, ll. 5-6, 17-18 (describing providing protection from penetration of a structure by multiple high velocity projectiles, such as bullets); App. Br. 11; Reply Br. 4. In light of the above, the Examiner erred in finding that the shipping container of Francis is a field armor system comprising at least one projectile resistant plastic composite armored panel. Thus, we do not sustain the rejection of claims 1, 2, 20-23, 27-29, and 32 as unpatentable over Francis. Obviousness based on Francis and Espeland Claims 3-19 and 24-26 depend directly or indirectly from claim 1 or claim 23 and further require that the plastic composite panel comprise a blend of ceramic particles and a plastic matrix material, wherein the ceramic Appeal 2010-006117 Application 11/717,958 6 particles comprise at least 50% by volume of the blend. The Examiner’s rejection relies on a finding that Espeland discloses a projectile resistant plastic composite panel comprising a blend of ceramic particles and a plastic matrix material, wherein the ceramic particles comprise at least 50% by volume of the blend. Ans. 7-9, 13-14. For essentially the reasons set forth on pages 5-6 of Appellants’ Reply Brief, the portions of Espeland relied upon by the Examiner do not support the Examiner’s finding. Espeland enumerates several suitable fillers, including, inter alia, silica, boron carbide, silicon carbide, and ceramic microspheres, that can be used in the concrete composition, preferably in mixtures with one another. Col. 7, ll. 5-18. Espeland discloses using from about 20 to about 60 weight percent of fine and course fillers, of which silica is an example, but only about 10 to no more than about 40 weight percent of extremely fine fillers (or mixture of extremely fine fillers), of which ceramic microspheres are an example. Col. 7, ll. 19-29, 49-62. The Examiner has not pointed to any portion of Espeland that teaches or suggests that boron carbide or silicon carbide can be substituted for silica at the same weight percentage, as asserted by the Examiner. We additionally note that the percentages called for in claims 3-19 and 24-26 are by volume and not by weight, and the Examiner has not explained how the weight percentages convert to volume percentages. Thus, we cannot sustain the Examiner’s rejection of claims 3-19 and 24-26 as unpatentable over Francis and Espeland, because it is grounded in part on an unsupported finding. Appeal 2010-006117 Application 11/717,958 7 DECISION The Examiner’s decision rejecting claims 1-29 and 32 is reversed. REVERSED mls