Ex Parte HerbageDownload PDFBoard of Patent Appeals and InterferencesJun 30, 200910722234 (B.P.A.I. Jun. 30, 2009) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte DAVID W. HERBAGE ____________________ Appeal 2008-006338 Application 10/722,234 Technology Center 3600 ____________________ Decided:1 June 30, 2009 ____________________ Before: LINDA E. HORNER, JOHN C. KERINS and STEVEN D.A. McCARTHY, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL 1 The two month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304 (2008), begins to run from the Decided Date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or the Notification Date (electronic delivery). Appeal 2008-006338 Application 10/722,234 2 The Appellant appeals under 35 U.S.C. § 134 (2002) from the 1 Examiner’s decision finally rejecting claims 44 and 46-53 under 35 U.S.C. 2 § 103(a) (2002) as being unpatentable over Becker (US 4,662,265, issued 3 May 5, 1987), Gassler (US 4,681,014, issued Jul. 21, 1987), Grosso (US 4 5,425,514, issued Jun. 20, 1995) and Finkelstein (US 3,245,318, issued Apr. 5 12, 1966); and from the final rejection of claim 54 under § 103(a) as being 6 unpatentable over Becker, Gassler, Grosso, Finkelstein and Null (US 7 4,149,166, issued Apr. 10, 1979). We have jurisdiction under 35 U.S.C. 8 § 6(b) (2002). 9 We REVERSE. 10 Claim 44 is the sole independent claim on appeal: 11 12 44. A countermeasure system for 13 vertically launching a countermeasure cartridge 14 trained only in azimuth comprising: 15 a base for supporting the system; 16 a launch tube having a central axis, the tube 17 being disposed substantially vertically on the base, 18 the tube having a zero twist longitudinal keyway 19 therein for effecting non-rotational, axial 20 movement relative thereto; 21 means for rotating the launch tube about its 22 axis for training the countermeasure in azimuth 23 while disposed on the base; 24 a countermeasure cartridge receivable within 25 the tube, having propulsion means for launching 26 the cartridge longitudinally out of the tube along 27 its axis; 28 the countermeasure cartridge having a guide 29 key cooperable with the tube longitudinal keyway 30 said guide key and said keyway being disposed for 31 interaction to effect non-rotational axial movement 32 throughout a substantial portion of the launch; 33 Appeal 2008-006338 Application 10/722,234 3 the countermeasure cartridge having a 1 canard disposed thereon for adjustment of the pitch 2 of the cartridge during flight after launch from the 3 tube. 4 5 The Examiner finds that Becker discloses a launch tube capable of 6 assuming a vertical orientation and of rotating, when in its vertical 7 orientation, about its own axis. (Ans. 4.) The Appellant argues that Becker 8 neither discloses nor suggests a launch tube capable of being disposed 9 substantially vertically. (Reply Br. 2-3.) Based on this argument, the 10 Appellant contends that Becker fails to disclose rotating the launch tube 11 about its axis for training a countermeasure in azimuth while disposed on a 12 base. (App. Br. 8; Reply Br. 3.) The Appellant further contends that the 13 Examiner failed to articulate reasoning with some rational underpinning 14 sufficient to support the conclusion that one of ordinary skill in the art would 15 have had reason to combine the teachings of Becker, Gassler, Grosso and 16 Finkelstein (and, in the case of clam 53, Null) to provide Becker’s 17 arrangement with a launch tube capable of being disposed substantially 18 vertically. (Reply Br. 5-6.) 19 Becker discloses a vehicle mounted arrangement including support 20 bodies 1 and 2 for horizontally orienting a rotatable weapon support 21 platform 9. (Becker, col. 2, ll. 28-41.) Becker provides this arrangement to 22 address a problem with the horizontal orientation of weapon systems which 23 are adjustable to a steep firing angle such as howitzers, anti-aircraft cannons 24 and mortars. (Becker, col. 1, ll. 7-12.) Becker teaches effecting the 25 horizontal orientation of the weapon support platform 9 by relative rotation 26 of the support bodies 1, 2. (Becker, col. 2, ll. 51-55.) A bearing 21c 27 Appeal 2008-006338 Application 10/722,234 4 positioned between the weapon support platform 9 and the support body 1 1 permits a lateral motorized adjusting drive 28 to rotate the platform 9 about a 2 vertical axis 11. (Becker, col. 2, l. 63 – col. 3, l. 1.) 3 Becker’s weapon support platform 9 mounts a weapon 5. (Becker, 4 col. 2, ll. 55-63.) Fig. 1 of Becker depicts the weapon 5 as a tube. Becker 5 describes the weapon 5 as being mounted on a trunnion bearing 35 for 6 swinging about a horizontal axis. (Becker, col. 2, ll. 55-63 and Fig. 1.) Fig. 7 1 of Becker shows the trunnion as being mounted so as to intersect the 8 vertical axis 11. 9 Becker does not expressly disclose that the weapon 5 is capable of 10 being swung into a vertical orientation. Furthermore, the mere fact that the 11 weapon 5 is capable of swinging about the axis of the trunnion 35 through 12 an unspecified arc does not imply reason to believe that the weapon 5 is 13 capable of swinging all of the way to a vertical orientation. Since Becker’s 14 arrangement addresses a problem with weapon systems adjustable to fire at 15 steep firing angles but not necessarily vertically, the nature of Becker’s 16 arrangement would not have provided one of ordinary skill in the art reason 17 to enable the weapon 5 to swing through a vertical orientation. Since the 18 teachings of Becker would not have disclosed a weapon 5 capable of 19 swinging into a vertical orientation or provided one of ordinary skill in the 20 art reason to enable the weapon 5 to swing through a vertical orientation, 21 Becker would not have disclosed or suggested rotating the weapon 5 about 22 its own axis when rotating the weapon support platform 9 about the vertical 23 axis 11. 24 The Examiner articulates no reasoning other than the erroneous 25 finding that Becker discloses a weapon rotatable into a vertical orientation to 26 Appeal 2008-006338 Application 10/722,234 5 support the conclusion that the teachings of Becker, Gassler, Grosso, 1 Finkelstein (and, in the case of claim 54, Null) would have led one having 2 ordinary skill in the art to provide Becker’s arrangement with a launch tube 3 capable of being disposed substantially vertically or to provide Becker’s 4 arrangement with means for rotating the launch tube about the axis of the 5 launch tube for training a countermeasure in azimuth while disposed on a 6 base. (See Ans. 4-6 and 7.) Therefore, the Appellant has shown that the 7 Examiner erred in rejecting claim 44 and its dependent claims 46-53 under 8 § 103(a) as being unpatentable over Becker, Gassler, Grosso and Finkelstein. 9 In addition, the Appellant has shown that the Examiner erred in rejecting 10 claim 54, which depends from claim 44, under § 103(a) as being 11 unpatentable over Becker, Gassler, Grosso, Finkelstein, and Null. 12 13 DECISION 14 We REVERSE the rejections of claims 44 and 46-54. 15 16 REVERSED 17 18 19 20 21 22 23 24 25 26 Appeal 2008-006338 Application 10/722,234 6 1 2 3 4 5 6 LV 7 8 H. ROY BERKENSTOCK 9 WYATT, TARRANT & COMBS, LLP 10 SUITE 800 11 1715 AARON BRENNER DRIVE 12 MEMPHIS, TN 38120-4367 13 Copy with citationCopy as parenthetical citation