Ex Parte Cerovic et al

Patent Trial and Appeal Board

Oct 30, 2012

11307304 (P.T.A.B. Oct. 30, 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.
11/307,304 01/31/2006 Milan Cerovic 101.00130 2303
49754 7590 10/31/2012
TASER INTERNATIONAL, INC.
17800 N. 85TH STREET
SCOTTSDALE, AZ 85255-9603
EXAMINER
TROY, DANIEL J
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
10/31/2012 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MILAN CEROVIC,
MAGNE H. NERHEIM, and DAVID K. DUBAY
____________

Appeal 2010-005421
Application 11/307,304
Technology Center 3600
____________

Before GAY ANN SPAHN, MICHAEL C. ASTORINO, and
WILLIAM A. CAPP, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Milan Cerovic et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s rejections of claims 1, 14-16, 19-25, and 29-31.
Appellants cancelled claims 13, 17, 18, 26-28, and 32. The Examiner
withdrew claims 3-12 from consideration, indicated allowability with respect
to claim 33, and objected to claim 2 as being dependent upon a rejected base
claim. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
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Application 11/307,304

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The Claimed Subject Matter
Claim 1 (the sole independent claim on appeal), reproduced below, is
representative of the subject matter on appeal.
1. A deployment unit for use with a provided
electronic weapon to deploy a provided electrode,
the deployment unit comprising:
an electrically fired primer;
a first cavity comprising a pyrotechnic
charge that produces a gas at an increasing
pressure when ignited by the primer, the gas
contained by the first cavity for a period of time;
a second cavity; and
a partition between the first cavity and the
second cavity that opens in response to the
pressure increasing to a threshold magnitude, to
propel the electrode from the second cavity by a
sudden release of the pressure.

The Rejections
The following Examiner’s rejections are before us for review:
(1). Claims 1, 15, 16, 19-25, and 29-31 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Su (US 2006/0187610 A1, published Aug. 24,
2006) and Schwebel (US 3,802,430, issued Apr. 9, 1974); and
(2). Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Su, Schwebel, and Carman (US 7,096,792 B1, issued Aug. 29, 2006).

OPINION
Rejection (1) – Obviousness based on Su and Schwebel
The Examiner finds that Su substantially discloses the subject matter
of independent claim 1, except that Su “lacks specifically disclosing a
pyrotechnic charge contained by a first cavity.” Ans. 5. To cure the
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deficiency of Su, the Examiner turns to Schwebel for its teaching of a
pyrotechnic charge 26 in a first cavity. Ans. 6 and 10. The Examiner
concludes that it would be obvious to one of ordinary skill in the art to
simply substitute Schwebel’s first cavity comprising a pyrotechnic charge as
one known propulsion means for the compressed gas cylinder 30, i.e.,
another known propulsion means, of Su to obtain predictable results. Ans.
10-11. The Examiner notes that Schwebel discloses the use of a pyrotechnic
charge in place of propellant gas for “the specific advantage of ‘eliminating
the need for more conventional specifically constructed heavy-duty gas
storage vessels of the prior art.” Ans. 11 (citing to Schwebel, col. 2, ll. 8-
12). Therefore, the Examiner also concludes that it would have been
obvious to one of ordinary sill in the art “to replace the compressed gas
cylinder of Su with a pyrotechnic charge in a cavity, similar to th[at]
disclosed by Schwebel, in order to eliminate the need for specially
constructed heave-duty gas storage vessels. Id.
First, Appellants argue that “[t]he Examiner’s proposed combination
does not include a ‘partition’ as claimed.” Reply Br. 13. Emphasis omitted.
More particularly, Appellants argue that “there is no teaching in Schwebel
regarding the structures identified A and B by the Examiner as ‘partitions’”
and “[t]here is no description of the materials used to make what is shown in
cross section in the figures of Schwebel so functions cannot be implied by
properties of materials (e.g., ductile, combustible, resists rupture up to
certain pressure).” Reply Br. 8. Emphasis omitted. Appellants also argue
that “the material may reasonably consist of a film wrapper merely to
contain loose powder granules” and “[n]o timing function is discussed in
Schwebel that would indicate these structures can perform the function of a
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partition as discussed by [Appellants] and recited in claim 1.” Id. Emphasis
omitted. Appellants also argue that there is no teaching in the proposed
combination of Su and Schwebel that meets claim 1’s limitation “that the
‘partition between the first cavity and the second cavity . . . opens in
response to the pressure increasing to a threshold magnitude.” Id.
We determine the scope of the claims in patent applications not solely
on the basis of the claim language, but upon giving claims their broadest
reasonable construction in light of the specification as it would be
interpreted by one of ordinary skill in the art. See In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The properly interpreted
claim must then be compared with the prior art. In the instant application,
the patent Specification does not assign or suggest a particular definition to
the word “partition.” Therefore, in determining the ordinary and customary
meaning of the claim word “partition” as viewed by a person of ordinary
skill in the art, it is appropriate to consult a general dictionary definition of
the word “partition” for guidance. Comaper Corp. v. Antec, Inc., 596 F.3d
1343, 1348 (Fed. Cir. 2010). The ordinary and customary meaning of the
noun “partition” is “something that divides; esp : an interior dividing wall.”
MERRIAM-WEBSTER’S COLLEGIATE® DICTIONARY, (10TH ED. 1997). In
comparing the properly interpreted claim language of “partition” to the prior
art of Schwebel, a person of ordinary skill in the art would find that the
Examiner’s interpretation of the rightmost structure containing primer 26 as
a partition is reasonable since it is something that divides. Therefore, we are
not persuaded of error in the Examiner’s rejection based upon Appellants’
first argument.

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Next, Appellants argue that “[t]he Examiner’s proposed combination
. . . does not ignite the charge as claimed.” Reply Br. 13. Emphasis omitted.
More particularly, Appellants argue that:
[a]fter simple substitution as described by the Examiner, the
packaging of charge 26 is opened by slidable bullet 40[], not
opened as claimed, “in response to the pressure increasing to a
threshold magnitude” where “the pressure” has its origin as “a
pyrotechnic charge produces a gas at an increasing pressure
when ignited by the primer.”
Id. In other words, Appellants argue that the Examiner erred as not
presenting a prima facie case, “because the charge 26 in the combination is
activated by percussion, not by ignition as recited in the claim.” Id. We are
not persuaded of Examiner error by Appellants’ argument because Schwebel
specifically discloses that “firing pin 27 is thrust into primer 26, igniting the
latter and thereby igniting pyrotechnic charge 25.” Schwebel, col. 3, ll. 42-
44. Thus, pyrotechnic charge 25 is ignited as required by the claim
language.
Appellants also argue that the Examiner’s proposed combination “is
not a ‘simple substitution’ because substituted elements have different
function.” Reply Br. 14. Emphasis omitted. However, the Examiner’s
proposed combination of Su and Schwebel replaces “the compressed gas
cylinder of Su with another known propulsion means (the pyrotechnic
charge of Schwebel).” Ans. 11. Thus, as the Examiner proposes the simple
substitution of one known propulsion means for another, we do not agree
that the substituted elements have a different function.
Appellants also argue that “[t]he number and variety of structures that
must be different to achieve the combination proposed by the Examiner
constitutes substantial reconstruction and redesign” (Reply Br. 14), and that
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the combination of Su and Schwebel would change the principle of
operation of Su, because to meet the claim language, the combination “must
propel a projectile by a pressure of a gas produced by igniting a pyrotechnic
charge,” and “[t]his is contrary to the principle of non-firearm propulsion
taught by Su” (App. Br. 15; emphasis omitted).
We are not persuaded that modifying Su by substituting the
pyrotechnic charge of Schwebel for the gas cylinder of Su would require a
substantial reconstruction and redesign. See In re Ratti, 270 F.2d 810, 813
(CCPA 1959) (“This suggested combination of references would require a
substantial reconstruction and redesign of the elements shown in [the
primary reference] as well as a change in the basic principles under which
the [primary reference] construction was designed to operate.” (Emphasis
added)). In Ratti, the modification suggested by the Examiner changed the
basic principle of sealing from attaining sealing through a rigid, press-fit,
interface between the components, to attaining sealing by providing a
resilient interface between the components. Id. at 811-13. This
modification fundamentally changed the technical basis of how a seal
performed its sealing function and how a sealed interface was attained. In
the case before us, a pyrotechnic charge provides propulsion, and replacing
Su’s compressed gas cylinder propulsion means with Schwebel’s
pyrotechnic charge propulsion means would still allow Su’s projectiles 11,
12 to be propelled and thus, operate in the same manner. This is not a
“change in the basic principles” of operation of Su and would not require a
substantial reconstruction and redesign.
Appellants also argue that Schwebel is non-analogous art. App. Br.
16-17. More particularly, Appellants indicate that their claimed subject
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matter is concerned with “providing an impulse force” that is “intended to
improve the accuracy and repeatability of propelling a projectile at least 15
feet (several meters) by a sudden release of gas pressure for a short time
behind the projectile while the projectile proceeds from a bore having a
length of about an inch for a hand-held electronic weapon.” App. Br. 17.
Appellants argue that “[t]he teachings of Schwebel are not reasonably
pertinent to the problem concerning [Appellants] at least because Schwebel
does not recognize a need nor exemplify an application for such an impulse
force.” Id. Emphasis omitted. Indeed, Appellants contend that “[t]he
bellows in Schwebel entirely contains the gas that moves the plug,” and
therefore, “there is no need to design the gas generating function of the
pyrotechnics for an impulse force because gas expansion that is not
essentially an impulse is still fully captured in the bellows and effective to
move the plug.” Id.
We are not persuaded that Schwebel is non-analogous art. We
disagree with Appellants that the teachings of Schwebel are not reasonably
pertinent to the problem concerning Appellants. We agree with the
Examiner that Appellants’ “problem includes propelling an[] object forward
in a handheld device through the use of a primer and pyrotechnic charge,”
and “Schwebel includes a primer (36) used to ignite[] a pyrotechnic charge
(26), the ignition then generat[ing] gas in a confined channel (figure 2) to
propel an object (44) forward” so that “Schwebel would have logically
commended itself to the inventor’s attention in considering his problem.”
Ans. 12.
Accordingly, for all of the above-discussed reasons, we sustain the
Examiner’s rejection of independent claim 1, and claims 15, 16, 19-25, and
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29-31 falling therewith, under 35 U.S.C. § 103(a) as unpatentable over Su
and Schwebel.
Obviousness based on Su, Schwebel, and Carman
Claim 14 depends from claim 1 and calls for the deployment unit to
cooperate with the electronic weapon as a magazine having a plurality of
electrodes for a plurality of independent deployment operations, each
deployment operation deploying a particular electrode of the plurality of
electrodes.
Appellants do not provide separate arguments for the rejection of
claim 14 under 35 U.S.C. § 103(a) as unpatentable over Su, Schwebel, and
Carman other than those provided for claim 1 and Appellants indicate that
dependent claim 14 “stand[s] or fall[s] with claim 1.” App. Br. 5; Reply Br.
3.
Accordingly, we sustain the Examiner’s rejection of claim 14 under
35 U.S.C. § 103(a) as unpatentable over Su, Schwebel, and Carman.

DECISION
We affirm the Examiner’s decision to reject claims 1, 14-16, 19-25,
and 29-31.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED
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