Ex Parte Downing

Patent Trial and Appeal Board

Dec 10, 2018

14517334 (P.T.A.B. Dec. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/517,334 10/17/2014
23413 7590 12/12/2018
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Warren Downing
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CFL0031US 13 4520
EXAMINER
LY,TOANC
ART UNIT PAPER NUMBER
2887
NOTIFICATION DATE DELIVERY MODE
12/12/2018 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WARREN DOWNING
Appeal2017-011622
Application 14/517,334
Technology Center 2800
Before TERRY J. OWENS, KAREN M. HASTINGS, and
WESLEY B. DERRICK, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge OWENS.
Opinion Dissenting filed by Administrative Patent Judge HASTINGS.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Applicant/Appellant (Colt Canada IP Holding Partnership)
appeals under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 1-
15. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The claims are to a networked battle system and a rifle. Claims 1
and 11 are illustrative:
1. A networked battle system comprising:
a communication network;
Appeal2017-011622
Application 14/517,334
a first rifle that includes at least one accessory coupled
thereto that determines a bearing of the first rifle;
a communication element coupled to the rifle allowing
the at least one accessory to provide bearing information to the
communication network;
a battle management system in communication with the
first rifle through the communication network that receives the
bearing information from the accessory and updates a battle
plan based on the bearing information to form an updated battle
plan; and
a display screen coupled to the first rifle that displays the
updated battle plan.
11. A rifle comprising:
a rail system carried by an upper receiver of the rifle;
at least one accessory coupled to the rail system;
a communication element coupled to the rail system;
at least one sensor coupled to the rail that determines a
bearing of the rifle; and
a microprocessor carried in either the rail system or a
portion of the rifle;
wherein information is provided from the sensor to the
microprocessor through the rail system and then provided to the
communication element through the rail system for
transmission to a communication network.
McRae
Goree
Huet
Teetzel
The References
US 2008/0039962 Al
US 2012/0214137 Al
US 2013/0337415 Al
US 2015/0041538 Al
The Re} ections
Feb. 14,2008
Aug. 23, 2012
Dec. 19, 2013
Feb. 12,2015
(filed Feb. 8, 2013)
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-
4, 7, and 8 over Goree in view of McRae, claims 5, 6, 9, and 10 over Goree
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Application 14/517,334
in view of McRae and Huet, claims 11, 12, 14, and 15 over Teetzel in view
of Goree, and claim 13 over Teetzel in view of Goree and McRae.
OPINION
We reverse the rejections. We need address only the independent
claims, i.e., claims 1 and 11.
Claim 1
Claim 1 requires a networked battle system comprising a display
screen that is coupled to a rifle and displays an updated battle plan.
Goree discloses weapon systems and methods which "enable an
operator to interact with at least one weapon and/or at least one sensor over a
network such as a LAN or the Internet wherein one or more sensors may be
configured to simulate a weapon and wherein weapons and simulated
weapons may be integrated with a video surveillance system" (i13). For an
operator to use a simulated or real weapon, a weapon icon is selected in an
operator user interface and a weapon user interface is presented to the user
allowing entry of commands to the weapon such as commands to pan, tilt
and fire the weapon (i156). "Supervisor commands may also include
commands to enable or disable a weapon or authorize the firing of a weapon
at a particular target" (id.). "Training may include teaching a user to utilize
the system or remotely teach a user to utilize a manually operated weapon.
For example by utilizing the network and at least one weapon and at least
one sensor, a user may be trained via the network weapon system to operate
a non-remotely operated weapon in lieu of on-site hands-on training. By
using one sensor configured as a simulated weapon, a user may be trained in
use of the system without requiring the actual firing or detonation of
weapons" (id.). "This could be used for example in order to screen possible
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Application 14/517,334
new recruits for their understanding of firearms operation before allowing
them to directly handle a weapon" (id.).
McRae discloses a rifle having a scope which provides a heads-up
display of firearm system information to the rifle's user (i1i1110, 112,
113, 121).
The Examiner finds that "[ s ]ince Goree discloses that the network
weapon system may include on-site training a user of a non-remotely
operated weapon, the remote weapon can have a human operator at them"
(Ans. 2-3), and "[t]herefore, one of ordinary skill in the art would find the
benefit of providing information to the user by adding a display for
displaying the information while the battlefield device is in use of McRae
applicable to the users of manually operated weapons with remotely
connected sensors" (Ans. 3).
Goree discloses using the network weapon system to train a user to
use a non-remotely operated weapon, but this training is "in lieu of on-site
hands-on training" (i156). The Examiner does not establish that during this
training using the network operating system in lieu of hands-on training, the
user being trained is on-site with a non-remotely operated weapon such that
the user would benefit from McRae' s display providing firearm system
information to the user being trained.
Thus, the Examiner has not established that one of ordinary skill in
the art would have had an apparent reason to add McRae's display to
Goree's weapon. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418
(2007) ( establishing a prima facie case of obviousness requires an apparent
reason to modify the prior art as proposed by the Examiner). Accordingly,
we reverse the rejection of claim 1 and its dependent claims.
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Application 14/517,334
Claim 11
Claim 11 requires a rifle comprising a microprocessor carried in either
the rifle's rail system or a portion of the rifle.
Teetzel discloses a rifle having a fire control system (C), which
includes a ballistics calculation processor, secured to an auxiliary rail
member (40) which is releasably secured to a rail system (12) (i1i117, 24).
The Examiner states that in view of claim 11 's recitation: "A rifle
comprising: a rail system carried by an upper receiver of the rifle; at least
one accessory coupled to the rail system," "any accessory is considered as
comprised by the rifle when the accessory is coupled to the rail system.
Such accessories and any part of such accessory would be in the rifle"
(Ans. 3). Accordingly, the Examiner finds that "[s]ince the [claim 11]
microprocessor is in part of an accessory that is in part of the rifle, T eetzel
does teach a microprocessor in the rifle" (Ans. 4).
Claim 11 includes, as a separate requirement from the at least one
accessory coupled to the rail system, "a microprocessor carried in either the
rail system or a portion of the rifle." Thus, unlike the accessory, the
microprocessor, to be part of the claimed rifle, must be carried in either the
rail system or a portion of the rifle, not coupled to the rail system. The
Examiner does not establish that Teetzel's ballistics calculation processor,
which is coupled to the rail system, is carried in the rail system or a portion
of the rifle.
Thus, the Examiner has not set forth a factual basis that is sufficient to
support a conclusion of obviousness of the rifle claimed in the Appellant's
claim 11. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) ("A
rejection based on section 103 clearly must rest on a factual basis, and these
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Application 14/517,334
facts must be interpreted without hindsight reconstruction of the invention
from the prior art"). Accordingly, we reverse the rejection of that claim and
its dependent claims.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1--4, 7, and 8 over
Goree in view of McRae, claims 5, 6, 9, and 10 over Goree in view of
McRae and Huet, claims 11, 12, 14, and 15 over Teetzel in view of Goree,
and claim 13 over T eetzel in view of Goree and McRae are reversed.
The Examiner's decision is reversed.
REVERSED
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UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WARREN DOWNING
Appeal2017-011622
Application 14/517,334
Technology Center 2800
Before TERRY J. OWENS, KAREN M. HASTINGS, and
WESLEY B. DERRICK, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge, dissenting.
I respectfully dissent from the majority's decision to reverse the§ 103
rejections of claims 1-10 over at least the basic combination of Goree and
McRae.
To prevail in an appeal to this Board, Appellant must adequately
explain or identify reversible error in the Examiner's rejections. See 37
C.F.R. § 41.37(c)(l)(iv) (2012); see also In re Jung, 637 F.3d 1356, 1365-
66 (Fed. Cir. 2011) ( explaining that even if the Examiner had failed to make
a prima facie case of unpatentability, it has long been the Board's practice to
require Appellants to identify the alleged error in the Examiner's rejections).
Having considered the evidence in this appeal record in light of the
respective positions advanced by the Examiner and Appellant, it is clear that
Appellant does not adequately explain or identify reversible error in the
Examiner's rejection of claims 1-10 under 35 U.S.C. § 103(a) as
unpatentable over at least the basic combination of Goree and McRae.
Appeal2017-011622
Application 14/517,334
Appellant does not even address the Examiner's reliance on paragraph 56 of
Goree or the Examiner's rationale that at least during training, there would
have been a person at the rifle that would benefit from a display as
exemplified in McRae (Final Act. 1 O; Br. 4, Ans. 3; no responsive brief has
been filed). Accordingly, Appellant does not identify reversible error in the
Examiner's reasoning.
I also believe that one of ordinary skill in the art would have readily
inferred that the options discussed in paragraph 56 of Goree encompass
training a person while at a remote weapon.
Futhermore, the Examiner reasoned that it would have been useful to
include McRae's display on Goree's rifle displaying the information of
Goree (e.g., Final Act. 4; Ans. 3). In sum, Goree teaches obtaining battle
plan information using sensors on weapons, and its benefit, while McRae
teaches how to display information to individual riflemen, and Appellant has
not adequately addressed the Examiner's reasoning as to why it would have
been obvious to display Goree's information using a display attached to a
weapon.
Thus, even assuming that Goree' s training did not include the trainee
and rifle together, I believe that one of ordinary skill in the art, using no
more than ordinary creativity, would have readily appreciated that there
likely would be a rifleman at the remote weapon at some point (e.g., at least
upon initial set up of the rifle, or as de facto explained by the Examiner, a
rifleman using McRae' s manually operated weapon modified to have a
remotely connected sensor as exemplified to be desirable in Goree), and that
such a rifleman would have benefited from Goree' s information from the
network such that it would have been obvious to display the information to a
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Application 14/517,334
rifleman using a display such as exemplified in McRae. KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398,417 (2007) ("[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.").
Accordingly, I would have affirmed all of the Examiner's§ 103
rejections on appeal.
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