11193988 (B.P.A.I. May. 7, 2012)

Ex Parte Maldonado et al

Board of Patent Appeals and InterferencesMay 7, 2012

11193988 (B.P.A.I. May. 7, 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. 11/193,988 07/28/2005 Edgard Maldonado DAM 600-03 8406 24211 7590 05/07/2012 US ARMY SOLDIER AND BIOLOGICAL CHEMICAL COMMAND OFFICE OF THE CHIEF COUNSEL/IP TEAM (BLDG E4435) 5183 BLACKHAWK ROAD APG, MD 21010-5424 EXAMINER LEE, BENJAMIN P ART UNIT PAPER NUMBER 3641 MAIL DATE DELIVERY MODE 05/07/2012 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 EDGARD MALDONADO, DANIEL J. HARTMAN, NOEL GONZALEZ and WILLIAM G. ROUSE ____________ Appeal 2009-011041 Application 11/193,988 Technology Center 3600 ____________ Before LINDA E. HORNER, JOHN C. KERINS and KEN B. BARRETT, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-011041 Application 11/193,988 2 STATEMENT OF THE CASE Edgard Maldonado et al. (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-24 and 35. Claims 25-34 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellants’ invention is directed to a launchable grenade system. Independent claim 1 is illustrative: 1. A launchable grenade system, comprising: a launchable grenade having a lift charge, a lift charge ignition system, a fuze, a payload expulsion system, and a payload; and a disposable launch canister in which said grenade is packaged and from which it can be launched, configured to lock into a discharger tube of a conventional launch platform, said launch canister providing a closed base in which lift charge gases can be confined to increase launch thrust. THE REJECTIONS The Examiner rejected: (i) claims 1-3, 6-20, 23, 24 and 35 under 35 U.S.C. § 102(b) as being anticipated by Leichter (US 6,250,226 B1, issued June 26, 2001); (ii) claims 4 and 5 under 35 U.S.C. § 103(a) as being unpatentable over Leichter in view of McElroy (US 5,171,932, issued Dec. 15, 1992) (iii) claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Leichter in view of Malecki (US 6,047,644, issued Apr. 11, 2000); and Appeal 2009-011041 Application 11/193,988 3 (iv) claims 21 and 22 under 35 U.S.C. § 103(a) as being unpatentable over Leichter in view of Gerber (US 6,129,024, issued Oct. 10, 2000). ISSUE Did the Examiner err in finding that Leichter discloses a disposable launch canister, into which a grenade is packaged, with the disposable launch canister further being configured to lock into a discharger tube of a conventional launch platform? ANALYSIS Claims 1-3, 6-20, 23, 24 and 35--Anticipation--Leichter The Examiner found that case 50 in Leichter corresponds to the claimed disposable launch canister, and is “configured to lock into a discharger tube” and further “is inherently secured in a grenade launcher which constitutes a ‘discharger tube’”. Ans. 3-4. The Examiner additionally maintained that “since the case is inherently meant for use with a grenade launcher, the canister is capable of being locked into a discharger tube”, and “the canister is capable of, and in fact intended to be, ‘locked’ into a discharger tube (of grenade launcher).” Ans. 12. Appellants counter the Examiner’s position, arguing that, “[t]he case (50) in Leichter is either a standard shell casing for a projectile, or in another embodiment can be a launcher tube for a grenade (see Column 1, lines 50- 65).” Appeal Br. 5. This argument is based on the disclosure in Leichter that, “[i]n an embodiment, the case 50 can be a launcher tube,” Leichter, col. 1, l. 65, and the remainder of the disclosure of Leichter appearing to be directed to the article as “ammunition”, which is indicative that the case is akin to a standard shell casing. Appeal 2009-011041 Application 11/193,988 4 Appellants have the better position here. There is no explicit or inherent disclosure that the case 50 and projectile 100 as a unit are meant for use with a grenade launcher, as asserted by the Examiner. Instead, in the instance or embodiment where the Leichter ammunition is to be launched, Leichter discloses that the case itself is to be the launcher tube, and thus cannot reasonably be said to correspond to the claimed disposable launch canister configured to lock into a discharger tube. The rejection of independent claims 1 and 35, and that of claims 2, 3, 6-20, 23 and 24 depending from claim 1, is not sustained. Claims 4 and 5--Obviousness--Leichter/McElroy McElroy is not relied on by the Examiner to cure the above-noted deficiency of the Leichter reference in anticipating claim 1, from which claims 4 and 5 depend. The rejection of claims 4 and 5 over Leichter in view of McElroy is not sustained. Claim 14--Obviousness-Leichter/Malecki Malecki is not relied on by the Examiner to cure the above-noted deficiency of the Leichter reference in anticipating claim 1, from which claim 14 depends. The rejection of claim 14 over Leichter in view of Malecki is not sustained. Claims 21 and 22--Obviousness--Leichter/Gerber Gerber is not relied on by the Examiner to cure the above-noted deficiency of the Leichter reference in anticipating claim 1, from which claims 21 and 22 depend. The rejection of those claims as unpatentable over Leichter in view of Gerber is not sustained Appeal 2009-011041 Application 11/193,988 5 CONCLUSION The Examiner erred in finding that Leichter discloses a disposable launch canister into which a grenade is packaged, with the disposable launch canister further being configured to lock into a discharger tube of a conventional launch platform. DECISION The rejections of claims 1-24 and 35 are reversed. REVERSED Klh