Ex Parte Martin et al

Patent Trial and Appeal Board

Sep 26, 2017

13264721 (P.T.A.B. Sep. 26, 2017)

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.
13/264,721 01/25/2012 James D. Martin AG100572 3469
116439 7590
Joel G. Landau
Aerojet Rocketdyne
P.O. Box 7922
RLB70
Canoga Park, CA 91304
09/28/2017 EXAMINER
MCDONOUGH, JAMES E
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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):
joel.landau@rocket.com
nicole.holieway@rocket.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES D. MARTIN, EDWARD O. HOSEY, and
SCOTT K. DAWLEY
Appeal 2016-005425
Application 13/264,721
Technology Center 1700
Before CATHERINE Q. TIMM, JAMES C. HOUSEL, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL1
1 Our decision refers to the Specification (Spec.) filed October 14, 2011, the
Examiner’s Final Office Action (Final Act.) dated January 23, 2015,
Appellants’ Appeal Brief (Appeal Br.) filed October 8, 2015, the Examiner’
Answer (Ans.) dated March 4, 2016, and Appellants’ Reply Brief (Reply
Br.) filed April 25, 2016.
Appeal 2016-005425
Application 13/264,721
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision finally rejecting claims 1, 5, 8, 14, and 16.3 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
The invention relates to energetic compositions and formulations to
control the sensitivity of the compositions to shock. Spec. 12. Appellants
disclose that a prominent cause of unintentional detonation of explosive and
energetic compositions is their high sensitivity to physical shock. Id. ^ 3.
Appellants further disclose that prominent energetic compounds, cyclic
nitramines, can be desensitized by the addition of linear nitramine additives
without loss of energy. Id. 1 5.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
1. A low-sensitivity propellant formulation comprising a cyclic
nitramine and a linear nitramine, wherein said linear nitramine
is a solid energetic material having a melting point within a
range of 50°C to 150°C and has the formula
2 According to Appellants, the real party in interest is Aerojet Rocketdyne,
Inc., a wholly-owned subsidiary of Aerojet Rocketdyne Holdings, Inc.
Appeal Br. 2.
3 Pending claims 7, 9, 10, 12, 13, 15, 17, and 18 have been withdrawn from
consideration and are not before us on appeal. Final Act. 1. In addition,
pending claims 6 and 11 are objected to only and are also not before us on
appeal. Id. at 5.
2
Appeal 2016-005425
Application 13/264,721
R
NO,!j$ i
•n—4
m
r
i~CH2€K
N(>3
tt
wherein:
m is zero or 1;
n is 1 or 2;
R1 is a member selected from the group consisting of Ci—
C6 alkyl, nitrato, azido, nitrato-Ci-C6 alkyl, and azido-Ci-C6
alkyl; and
R2 is a member selected from the group consisting of Ci—
C6 alkyl, nitrato, azido, nitrato-(Ci-C6 alkyl) and azido-(Ci-C6
alkyl);
such that the total number of non-terminal CH2CH2
groups is one, two, or three, and the total number of nitrato
groups is one or two; and
wherein said cyclic nitramine has the formula
r
R2
V
K; () j
-N,
K"
N'
NO,
P
wherein:
R2 is a member selected from the group consisting of
CH2 and N-R4 in which R4 is a member selected from the group
consisting of NO2, NO, C(0)CH3, CH2OCH3, CH2OC2H5, H,
C1-C4 alkyl, and cyclohexyl;
P is 1 or 2; and
when p is 1, R3 is a member selected from the group
consisting of NO2, NO, C(0)CH3,CH20CH3, CH2OC2H5, H,
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Appeal 2016-005425
Application 13/264,721
C1-C4 alkyl, and cyclohexyl, and when p is 2, R3 is C1-C4
alkylene.
REJECTIONS
The Examiner maintains, and Appellants request our review of, the
following grounds of rejection:
1. Claims 1, 5, 8, 12, and 16 under 35 U.S.C. § 102(b) as
anticipated by Flanagan;4 and
2. Claims 1, 5, 14, and 16 under 35 U.S.C. § 103(a) as
unpatentable over Zeigler.5
ANALYSIS
Rejection 1: § 102(b) by Flanagan
Appellants do not separately argue the dependent claims, but instead
focus on claim 1 only. Accordingly, the dependent claims stand or fall with
claim 1. The Examiner finds Flanagan anticipates each and every limitation
of claim 1. Ans. 2, 4—5.
Appellants argue that Flanagan does not anticipate their claims
because Flanagan’s composition has a melting point approximately 100°C
lower than claimed. Appeal Br. 3^4. This argument is not persuasive
because claim 1 does not require the formulation have any particular melting
point. Ans. 4. Instead, claim 1 requires the formulation include a “linear
nitramine [that] is a solid energetic material having a melting point within a
range of 50°C to 150°C.” Appeal Br., Claims App’x. In re Self, 671 F.2d
1344, 1348 (CCPA 1982) (“Many of appellant’s arguments fail from the
4 Flanagan et al., US 4,961,380, issued October 9, 1990 (“Flanagan”).
5 Zeigler, US 5,520,756, issued May 28, 1996.
4
Appeal 2016-005425
Application 13/264,721
outset because . . . they are not based on limitations appearing in the
claims.”).
Flanagan teaches a formulation comprising a cyclic nitramine, 1,3,5,7-
tetranitrazacyclooctane (HMX), and a linear nitramine, l,5-dinitrato-3-
nitrazapentane (DINA), having a melting point of 52.5°C. Ans. 2, 4;
Flanagan 1:30-37, Table 1. As the Examiner finds (Ans. 2), Appellants
teach that DINA is a specific example of a linear nitramine within the
claimed linear nitramine formula. Spec. 118. Further, Appellants disclose
that HMX is a well-known example of a cyclic nitramine within the scope of
the claimed cyclic nitramine formula. Spec. 113.
Appellants state that they have consistently argued that Flanagan does
not disclose a linear nitramine that is a solid energetic material having a
melting point within a range of 50°C to 150°C. Reply Br. 2. However,
Appellants fail to specifically address or otherwise rebut the Examiner’s
finding that Flanagan teaches DINA, a linear nitramine having a melting
point of 52.5°C, which is not only clearly within the range required in claim
1, but also a specific example Appellants disclose as a linear nitramine
within the scope of the formula recited in claim 1.
Appellants also argue that Flanagan’s linear nitramine is directed to a
eutectic liquid across all operating temperatures, whereas the claimed linear
nitramine is a solid. Reply Br. 2. This argument is not persuasive because
Flanagan teaches that it is the propellant component of the composition that
is eutectic, not the linear nitramine per se. Moreover, we discern no
difference between Flanagan’s linear nitramine, DINA, and that used by
Appellants, which is also DINA. “When the claimed compositions are not
novel they are not rendered patentable by recitation of properties, whether or
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Appeal 2016-005425
Application 13/264,721
not these properties are shown or suggested in the prior art.” In re Spada,
911 F.2d 705, 709 (Fed. Cir. 1990); see also, In re Papesch, 315 F.2d 381,
391 (CCPA 1963) (“From the standpoint of patent law, a compound and all
of its properties are inseparable; they are one and the same thing.”).
Appellants further contend that, if Flanagan’s linear nitramine would
be mixed with the claimed cyclic nitramine, the Flanagan linear nitramine
“would remain liquid in the mixture and not absorb into the claimed cyclic
nitramine.” Reply Br. 2. According to Appellants, the resulting mixture
would be a slurry and not a solid propellant having reduced sensitivity. Id.
This argument is also not persuasive. To begin, we note that claim 1 does
not require that the propellant formulation be a solid. We also note that
claim 1 does not require that the linear nitramine absorb into the cyclic
nitramine. Self supra. Notwithstanding these facts, we note that Flanagan
teaches a solid propellant composition including HMX and DINA.
Moreover, Appellants fail to direct our attention to any disclosure in
Flanagan or other evidentiary support for this argument.
A preponderance of the evidence supports the Examiner’s finding of
anticipation by Flanagan. We, therefore, sustain the Examiner’s anticipation
rejection.
Rejection 2: § 103(a) over Zeigler
Appellants do not separately argue the dependent claims, but instead
focus on claim 1 only. Accordingly, the dependent claims stand or fall with
claim 1. The Examiner finds Zeigler teaches a composition comprising
cyclotrimethylene trinitramine (RDX) and methyl nitratoethyl nitramine.
Ans. 3. The Examiner also finds Zeigler teaches use of one compound from
6
Appeal 2016-005425
Application 13/264,721
Table 1 mixed with one compound from Table 2. Id. at 6. Zeigler, Table 1,
teaches three compounds including DINA having a melting point of 52.5°C
as an alternative to methyl nitratoethyl nitramine. Id.; Zeigler, Table 1. The
Examiner finds that although DINA is not the particularly preferred or
exemplified compound from Table 1, the list of possible compounds in
Table 1 is finite and DINA has a higher energy density than the other
compounds which makes it desirable in energetic materials. Id. As such,
the Examiner concludes that the selection of DINA for use in a propellant
formulation along with HMX would have been obvious to one of ordinary
skill in the art. Id.
Appellants state that the rejection states that “Zeigler’s methyl
nitratoethyl nitramine renders obvious [the] claimed chemical composition.”
Appeal Br. 4. This statement mischaracterizes the Examiner’s rejection. It
is not the methyl nitratoethyl nitramine, compound 2 in Zeigler’s Table 1,
that renders obvious the composition of claim 1, but the nitratoethyl
nitramine, compound 1 in Zeigler’s Table 1, which the Examiner finds is a
linear nitramine within the scope of the formula in claim 1 having a melting
point between 50°C and 150°C.
Appellants argue that the Examiner has not established a prima facie
case of obviousness. Appeal Br. 4. In particular, Appellants argue that
because Zeigler requires that the first compound from Table 1 is at least
partially soluble in the second compound from Table 2, the resulting two
part plasticizer composition is a liquid polymer used for gelation of the
matrix component. Id. Appellants assert, therefore, that both compounds of
the plasticizer composition are liquid, whereas claim 1 requires a “linear
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Appeal 2016-005425
Application 13/264,721
nitramine is a solid energetic material having a melting point within a range
of 50°C to 150°C.” Id.
Appellants’ argument is not persuasive. As the Examiner indicates
Zeigler teaches a linear nitramine, compound 1 from Table 1 (DINA),
having a melting point in the claimed range. We discern no difference
between Zeigler’s compound 1 (DINA) and that used by Appellants, which
is also DINA. As such, Zeigler’s compound 1 is a solid energetic material.
Papesch, 315 F.2d at 391. Though Zeigler dissolves compound 1 into
compound 2, claim 1 does not exclude such dissolution and Appellants have
not shown that the linear nitramine is a different compound in solution, or
more germane, in the final propellant formulation when mixed with HMX.
A preponderance of the evidence supports the Examiner’s findings
and conclusion of obviousness over Zeigler. We, therefore, sustain the
Examiner’s obviousness rejection.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Examiner’s Answer, the decision of the Examiner rejecting claims 1,
5, 8, 12, 14, and 16 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
8