11021822 (B.P.A.I. Aug. 21, 2012)

Ex Parte Staley

Board of Patent Appeals and InterferencesAug 21, 2012

11021822 (B.P.A.I. Aug. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JOHN R. STALEY III ____________ Appeal 2010-000195 Application 11/021,822 Technology Center 3600 ____________ Before STEFAN STAICOVICI, GAY ANN SPAHN, and MICHAEL C. ASTORINO, Administrative Patent Judges. SPAHN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-000195 Application 11/021,822 2 STATEMENT OF THE CASE John R. Staley III (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s rejections of claims 1, 2, 4-12, 14-19, and 21-24 under 35 U.S.C. § 102(b) as anticipated by Mladjan (US 5,824,942, issued Oct. 20, 1998).1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The claimed subject matter relates to “a weapon sight that can be mounted on a weapon in order to assist with accurate aiming of the weapon.” Spec. 1, ll. 8-10. Claims 1, 11, and 18 are independent and claim 1, reproduced below, with emphasis added, is illustrative of the subject matter on appeal. 1. An apparatus comprising a device that includes: structure configured to support said device on a weapon; a range portion that specifies a range to a target; a sensor portion that provides sensor information representing an orientation of said device; and an electronic control portion responsive to sensor information from said sensor portion and a range from said range portion for calculating how to hit the target with each of first and second munitions that are different and that are 1 The Examiner withdrew the rejection with respect to claims 3, 13, and 20 and thus, we assume that the Examiner intended to indicate the allowability of those claims. See Ans. 2-3. Appeal 2010-000195 Application 11/021,822 3 respectively fired by first and second weapon types that are different. OPINION2 Independent claim 1 and dependent claims 2 and 4-10 Appellant argues claims 1, 2, and 4-10 as a group and we select independent claim 1 as the representative claim. See App. Br. 22-233; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 2 and 4-10 stand or fall with independent claim 1. The Examiner determines that Mladjan discloses each and every feature to anticipate independent claim 1. Ans. 3-4. In particular, the Examiner finds that Mladjan discloses an electronic control portion responsive to information from both the sensor portion and the range portion, which is “capable of calculating how to hit the target with each of first and second munitions that are different and that are fired by first and second weapon types that are different.” Ans. 4. The Examiner refers to Mladjan’s column 5, lines 56-60 as disclosing that Mladjan’s apparatus “can be used for fire control of the M203 grenade launcher as well as the MK19 grenade machine gun which are known to fire different munitions.” Id. Appellant first argues that Mladjan does not actually say that the laser range finder and digital compass assembly or LRF/DCA 530 can be used for fire control of the M203 grenade launcher as well as the MK19 grenade 2 We address Appellant’s arguments in a different order than presented in the Appeal Brief in order to facilitate our analysis. 3 The Examiner presented a line of reasoning in the Office Action mailed October 16, 2007 that was not repeated in the Answer and which the Examiner states was “abandoned.” See Final Rej. 2-3 and Ans. 3-4 and 7. Thus, Appellant’s arguments from page 18 to page 22 of the Appeal Brief are moot and will not be addressed. Appeal 2010-000195 Application 11/021,822 4 machine gun, because the portion of Mladjan cited by the Examiner “is discussing [Mladjan’s] method, rather than his device 530.” App. Br. 17. Appellant also argues that the portion of Mladjan pointed to by the Examiner “is merely saying that a separate and not-illustrated aiming device for an MK19 grenade machine gun could utilize a method similar to the method used by Mladjan’s aiming device 530 for the M203 grenade launcher,” but “Mladjan never says that his method involves calculating how to hit a target with each of two different munitions.” App. Br. 18. We are not persuaded Mladjan fails to disclose that the laser range finder and digital compass assembly or LRF/DCA 530 can be used for fire control of the M203 grenade launcher and MK19 grenade machine gun, because Mladjan discloses “an improved method and device for aiming and firing a rifle-mounted grenade launcher” by “computer controlled firing of [the] grenade launcher.” Mladjan, Abstract, first sentence, and col. 1. ll. 10- 11. For accomplishing the computer controlled firing, Mladjan discloses two computers or microprocessors, namely, the microprocessor of the computer/radio subsystem or CRS 200 (accessible by remote CRS controls 550 shown in Figure 2) and the onboard microprocessor of the digital compass assembly (DCA) which is part of the laser range finder/digital compass assembly or LRF/DCA 530. Mladjan, col. 4, l. 29, col. 5, l. 25, and Fig. 2. Mladjan also discloses a method of fire control for the M203 grenade launcher 520, which includes the use of Mladjan’s apparatus, as follows: It is assumed that the grenadier is at the ready, the LRF/DCA 530 has been activated using set-up controls 531, and a grenade is loaded into the launcher 520. The grenadier locates a target and selects the M203 mode by depressing the proper button on the operations controls 532. The Appeal 2010-000195 Application 11/021,822 5 grenadier points the LRF/DCA 530 at the target and then “fires” the laser beam of the LRF/DCA 530, also controlled by the operations controls 532. The LRF/DCA 530 determines the range and provides it either to the microprocessor (not shown) of the CRS 200 or to the microprocessor of the LRF/DCA 530. Using a pre-programmed look- up table, one of the microprocessors calculates a ballistic solution. That is, the microprocessor (not shown) calculates the proper superelevation angle needed for the grenade to successfully engage the target . . . . The grenade launcher 520 is then fired using trigger 521. Mladjan, col. 5, ll.15-30. Emphasis added. Thus, Mladjan’s laser range finder and digital compass assembly or LRF/DCA 530 can be used for fire control of the M203 grenade launcher 520 via its onboard (i.e., computer controlled firing). Appellant’s argument differentiating between Mladjan’s device and Mladjan’s method is unpersuasive, because in order to carry out Mladjan’s method, one of ordinary skill in the art would use Mladjan’s device. Regardless of whether Mladjan explicitly states that his method involves calculating how to hit a target with each of two different munitions, Mladjan discloses a computer controlled method of firing a M203 grenade launcher 520 and further discloses applying this same method, within the context of Mladjan’s device, “with any number of high apogee trajectory weapons, including the MK19 grenade machine gun and the like.” Mladjan, col. 5, ll. 15-55 and 56-60. We agree with the Examiner that Mladjan’s “device can be attached to a first weapon type, and then removed from the first weapon and attached to a second weapon type different from the first weapon” and “when said device is attached to a first weapon type it is capable of Appeal 2010-000195 Application 11/021,822 6 calculating how to hit a target with a first munition, and . . . when said device is attached to a second weapon type it is capable of calculating how to hit a target with a second munition different from said first munition.” Ans. 6. Thus, Mladjan’s apparatus (weapon subsystem or WS 500) satisfies claim 1’s language of “an electronic control portion . . . for calculating how to hit the target with each of first and second munitions that are different and that are respectively fired by first and second weapon types that are different.” Accordingly, we sustain the Examiner’s rejection of independent claim 1, and claims 2 and 4-10 dependent thereon, under 35 U.S.C. § 102(b) as anticipated by Mladjan. Independent claim 11 and dependent claims 12 and 14-17 Appellant argues claims 11, 12, and 14-17 as a group and we select independent claim 11 as the representative claim. See App. Br. 27-284; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 12 and 14-17 stand or fall with independent claim 11. The Examiner made the same findings for independent claim 11 as set forth supra with respect to independent claim 1 and Appellant presented the same arguments for independent claim 11 as set forth supra with respect to independent claim 1. For the same reasons as discussed supra with respect to independent claim 1, we sustain the Examiner’s rejection of independent claim 11, and claims 12 and 14-17 dependent thereon, under 35 U.S.C. § 102(b) as anticipated by Mladjan. 4 For the same reasons as discussed supra in Footnote 1, Appellant’s arguments at pages 23-27 of the Appeal Brief are moot and will not be addressed. Appeal 2010-000195 Application 11/021,822 7 Independent claim 18 and dependent claims 19 and 21-24 Appellant argues claims 18, 19, and 21-24 as a group and we select independent claim 18 as the representative claim. See App. Br. 17-185; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 19 and 21-24 stand or fall with independent claim 18. The Examiner made the same findings for independent claim 18 as set forth supra with respect to independent claim 1 and Appellant presented the same arguments for independent claim 18 as set forth supra with respect to independent claim 1. For the same reasons as discussed supra with respect to independent claim 1, we sustain the Examiner’s rejection of independent claim 18, and claims 19 and 21-24 dependent thereon, under 35 U.S.C. § 102(b) as anticipated by Mladjan. DECISION We affirm the Examiner’s decision to reject claims 1, 2, 4-12, 14-19, and 21-24. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Klh 5 For the same reasons as discussed supra in Footnote 1, Appellant’s arguments at pages 13-17 of the Appeal Brief are moot and will not be addressed.