Ex Parte Davison

Board of Patent Appeals and Interferences

Nov 24, 2010

10844174 (B.P.A.I. Nov. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte DAVID DAVISON
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Appeal 2009-015284
Application 10/844,174
Technology Center 1700
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Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-015284
Application 10/844,174

A. Introduction2, 3
David Davison (“Appellant”) timely appeals under 35 U.S.C. § 134(a)
from the final rejection4 of claims 7-32, which are all of the pending claims.
We have jurisdiction under 35 U.S.C. § 6. We AFFIRM-IN-PART.
The subject matter on appeal relates to methods of igniting high
energy, stable explosive systems with an electrical pulse. The inventive
compositions are said to be useful as explosives and as detonators for other
explosive systems and materials. (Spec. 6, ll. 17-20.) The explosive system
is said to require application of a current of at least 1.0 KJ/gAl in less
than 100 milliseconds to be activated, i.e., to explode or to detonate another
explosive. (Id. at ll. 5-6.) The composition is broadly described as
comprising aluminum metal or other conductors, preferably as fine powders,
thin films, or wires (id. at 12, ll. 18-20), that can be burst by a pulsed
electrical current (id. at 8, ll. 10-13). The composition additionally
comprises a highly halogenated polymer moiety (“HHPM”) and a reduced-
(or non-) halogenated polymer moiety (“RHPM”). According to

2 Application 10/844,174, Explosive Device, filed 12 May 2004, claiming
the benefit of provisional application 60/470,048, which was filed 13 May
2003. The specification is referred to as the “174 Specification,” and is cited
as “Spec.” The real party in interest is listed as Shock Transients, Inc.
(Appeal Brief, filed 17 April 2009 (“Br.”), 3.)
3 Appeal 2010-009596 in application 10/843,765 (which claims the benefit
of the same provisional application), is closely related to this appeal. The
disputed issues are substantially the same. Moreover, the specifications are
largely the same, the primary difference being that the 765 Specification
includes descriptions of initiators.
4 Office action mailed 7 July 2008 (“Final Rejection”; cited as “FR”).
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Application 10/844,174

the 174 Specification, the metal-polymer composites take the place of
conventional electrically activated explosives. The halogens, especially
fluorine (as well as oxygen and certain other species), are said to be
provided upon decomposition of the polymers as oxidizing materials that
assist the activation process. (Spec. 12, ll. 5-8.) More specifically,
polytetrafluoroethylene (“PTFE,” sold by DuPont as Teflon®), Kevlar® [an
aromatic polyamide sold by DuPont], and polyethers are said to be suitable
polymeric materials. (Id. at ll. 9-10.) In the words of the 174 Specification,
“mixtures, solutions, emulsions or dispersions of such materials may be used
to provide the oxidizing materials at the elevated temperatures brought on by
the pulsed detonation signal and/or the initial reaction brought on by the
pulsed signal.” (Id. at ll. 11-13.)
Representative Claim 7 reads:
7. A method of igniting an explosive device comprising
providing an electrical pulse to the explosive device
comprising a high pressure-producing metal
composition and a mixture of at least two
polymeric materials,
a first polymeric material comprising a
backbone with at least 25% by weight
halogen atoms bonded thereto and
a second polymeric material comprising a
backbone with less then [sic: than] 15% by
weight halogen atoms bonded thereto
that is of sufficient energy and duration as to vaporize at
least some metal and cause the explosive device to
explode.
(Claims App., Br. 21; indentation and paragraphing added.)
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Application 10/844,174

Independent claim 13 is similar to claim 7, but specifies that the
composition contains aluminum. Independent claim 21 is similar to claim 7
but recites the additional limitation that “the first polymeric material is
present in a ratio of at least 3/4 with respect to the metal.” (Claims App.,
Br. 22; emphasis added.)
The Examiner has maintained the following grounds of rejection:5
A. Claims 7-32 stand rejected under 35 U.S.C. § 112(1) as lacking
enablement for the second polymer to include up to 15%
halogen.
B. Claims 7-32 stand rejected under and 35 U.S.C. § 102(b) in
view of Davison.6
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
The Appellant bears the procedural burden of showing harmful error
in the Examiner’s rejections. See, e.g., Shinseki v. Sanders, 129 S.Ct. 1696,
1706 (2009) (citations omitted) (“Lower court cases make clear that courts
have correlated review of ordinary administrative proceedings to appellate
review of civil cases in this respect. . . . [T]he party seeking reversal
normally must explain why the erroneous ruling caused harm.”) See also,
In re Chapman, 595 F.3d 1330, 1338 (Fed. Cir. 2010) (discussing the role of

5 Examiner’s Answer mailed 15 June 2009 (“Ans.”). After considering
Appellant’s brief, the Examiner withdrew several rejections under § 112.
(Ans. 2-4.)
6 David K. Davison and Richard F. Johnson, Electrically Activated, Metal-
Fueled Explosive Device, U.S. Patent 5,859,383 (1999).
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Appeal 2009-015284
Application 10/844,174

harmless error in appeals from decisions of the Board of Patent Appeals and
Interferences (“Board”)). Arguments not timely made have been waived.
37 C.F.R. § 41.37(c)(1)(vii) (second sentence); see also In re Hyatt, 211
F.3d 1367, 1373 (Fed. Cir. 2000) (an argument not first raised in the brief to
the Board is waived on appeal)
Enablement is a question of law based on factual findings regarding
issues such as the nature of the art, the level of skill in the art. The critical
question is whether undue experimentation would have been required on the
part of a person having ordinary skill in the art to make and use the claimed
invention. See, e.g., Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342,
1360 (Fed. Cir. 1998) and In re Wands, 858 F.2d 731, 735, 736-37 (Fed.
Cir. 1988) (listing several important factors). The prior art timely cited by
Appellant and provided in the evidence appendix indicates that low-halogen
content polymers such as those recited in claim 7 were known to those
skilled in the art. On the other hand, the Examiner has failed to come
forward with substantial credible evidence that the ordinary polymer chemist
would have required undue experimentation to provide such polymers.
Accordingly, we REVERSE the rejection for lack of enablement.
To be anticipatory, a reference must describe, either expressly or
inherently, each and every claim limitation, arranged or combined as
required by the claimed invention, and enable one of skill in the art to
practice an embodiment of the claimed invention without undue
experimentation. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). It is
well-settled that a description of a small genus may provide a description of
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Application 10/844,174

the individual members of the genus such that anticipation lies. In re
Schaumann, 572 F.2d 312, 316-17 (CCPA 1978).
In the present case, Davison, which is the work, in part, of the present
inventor (Br. 16, last para.), teaches conductive reactive masses comprising
aluminum or other metals and an oxidizing material that are activated or
detonated by a pulsed electric charge. (Davison, col. 4, l. 54-col. 5, l. 19;
col. 5, ll. 34-40.) The aluminum may be provided as a mesh of wires. (Id.
at ll. 59-61.) Davison teaches that the wires “may be insulated with an
oxidizing covering (e.g., polytetrafluoroethylene, Kevlar™, polyethers, or
other polymers which provide large amounts of oxidizing moieties when
heated or vaporized).” (Id. at col. 6, ll. 6-9.) Davison explains the function
of these materials in language highly reminiscent of the present specification
at col. 6, ll. 22-52, cited by the Examiner (FR 4; Ans. 4.) In particular,
Davison teaches that “mixtures, solutions, emulsions or dispersions of such
materials may be used to provide the oxidizing materials” (id. at ll. 31-32)
and that “[t]he oxidizing material may be comprise [sic] more than one
material” (id. at ll. 36-37). Davison also teaches that “[i]t is unlikely that
ratios outside the range of 3:1 to 1:3, (either weight to weight or molar
equivalent to molar equivalent) wire to oxidizing agent would be highly
desirable” (id. at ll. 45-48; emphasis added), with ratios closer to
stoichiometric equivalence being more preferred (id. at ll. 48-52).
Appellant first presents general arguments, without identifying
specific claims. (Br. 16.) Appellant then argues for the separate
patentability of claims 21 and 17 [sic: 27], 24, 30, and 32, all of which
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Application 10/844,174

depend from claim 21.7 (Br. 17.) Accordingly, claims 7-20 stand or fall
with claim 7, and as will be seen shortly, claims 21-32 stand or fall with
claim 21. 37 C.F.R. § 41.37(c)(1)(vii).
Appellant argues first that Davison provides only “incidental
disclosure that other polymers may be mixed with the primary polymers
(some of which may by happenstance to be fluorinated polymers with more
than 25% fluorine).” (Br. 16, 1st para.) Appellant argues further that
Davison does not disclose proportions, amounts, or specific materials to be
combine. (Id.) We find this argument is without merit.
Davison names three specific polymers, PTFE, Kevlar®, and
polyethers as suitable oxidizing materials to wrap around wires. Davison
also teaches that mixtures of such materials can be used. PTFE has, as
Appellant demonstrates (Spec. 8, ll. 24-28) (and as any beginning chemistry
student could show independently), a fluorine content of about 76% by
weight, well above the “at least 25% by weight” required of the first
polymeric material recited in claim 13. Kevlar® (aromatic polyamide) and
polyethers are substantially halogen free in their most common
embodiments, as indicated by the absence of halogen labels in their chemical
names. Thus, Kevlar® and polyethers meet the “less than 15% by weight
halogen” requirement of the second polymeric material recited in claim 7.
Claim 7 does not require any relative amounts of one polymer or the other,

7 Claim 17 depends from independent claim 13, which was not argued
separately, and which therefore stands or falls with claim 7, which it most
closely resembles. In the event of further prosecution, it should be noted
that claim 13 and dependent claims 15 and 17-20, although denominated as
method claims, do not positively recite any process steps.
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nor does it specify a relative amount of metal. Accordingly, we have no
difficulty finding that Davison, in describing a small genus of explosives,
describes aluminum wires embedded in “a mixture of at least two polymeric
materials,” one of which is highly halogenated, as recited in claim 7. As for
properties, Davison teaches the only properties recited in claim 7, namely,
ignition by an electrical pulse sufficient to vaporize the metal and to cause
the explosive device to explode. (E.g., Davison col. 2, ll. 28-52.)
Appellant argues that Davison does not disclose the limitation, recited
in claims 21 and 17 [sic: 27], that the first polymeric material be present in a
ratio of at least 3/4 with respect to the metal. (Br. 27.) While Davison
discloses limits for the ratio of metal to oxidizing agent, the Examiner has
not directed our attention to disclosure relating to halogenated oxidizing
agents in particular. Accordingly, we REVERSE the rejection for
anticipation of claims 21 and 27. Because all claims dependent on claim 21
incorporate by reference all the limitations recited in claim 21, it follows that
all the claims dependent on claim 21 are also reversed.
C. Order
We REVERSE the rejection of claims 7-32 under 35 U.S.C. § 112(1)
for lacking of enablement.
We REVERSE the rejection of claims 21-32 under 35 U.S.C. § 102(b)
in view of Davison.
We AFFIRM the rejection of claims 7-20 under 35 U.S.C. § 102(b) in
view of Davison.
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Appeal 2009-015284
Application 10/844,174

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
tc

Mark A. Litman & Associates, P.A.
York Business Center, Ste. 205
3209 West 76th Street
Edina, MN 55435
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