Ex Parte Langevin et al

Patent Trial and Appeal Board

Jan 31, 2017

13446362 (P.T.A.B. Jan. 31, 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.
13/446,362 04/13/2012 Kevin Richard Langevin CFL0048US3 1095
23413 7590 02/02/2017
TANTOR TOT RTTRN T T P
EXAMINER
20 Church Street FREEMAN, JOSHUA E
22nd Floor
Hartford, CT 06103 ART UNIT PAPER NUMBER
3641
NOTIFICATION DATE DELIVERY MODE
02/02/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN RICHARD LANGEVIN and PAUL M. HOCHSTRATE
Appeal 2015-003386
Application 13/446,3 621
Technology Center 3600
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kevin Richard Langevin and Paul M. Hochstrate (Appellants) appeal
under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—
20 under 35 U.S.C. § 103(a) as unpatentable over Lewis (US 6,182,389 Bl,
iss. Feb. 6, 2001). We have jurisdiction over this appeal under 35 U.S.C.
§ 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 According to Appellants, the real party in interest is Colt’s Manufacturing
Company LLC. Appeal Br. 2 (filed September 8, 2014).
Appeal 2015-003386
Application 13/446,362
INVENTION
Appellants’ invention relates to “a bolt and extractor for a firearm and,
more particularly, to an improved bolt and extractor configuration.” Spec.
12.
Claims 1 and 19 are independent claims. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A bolt for a firearm, comprising:
an extractor pivotally mounted to the bolt for movement
between at least a first position and a second position, the
extractor having a hook member located at a distal end of the
extractor, wherein the hook member is at least partially received
within a pocket on a muzzle end of the bolt and the hook member
moves away from a center line of the bolt as the hook member is
moved from the first position towards the second position,
wherein a bottom of the pocket is recessed at least a first
dimension within a first range A that is greater than 0.130 inches
and less than 0.200 inches in a first direction from the muzzle
end of the bolt and the hook member has an axial thickness
parallel to the center line of the bolt within a first range A' that
is greater than 0.050 inches and less than 0.130 inches and
wherein the hook member is flush with the muzzle end of the bolt
when the hook member is in the second position.
Appeal Br. 11 (Claims App.) (emphasis added).
ANALYSIS
The Examiner finds Lewis discloses each of the structural elements of
independent claims 1 and 19, except the specifically claimed dimensions for
the pocket recess at the muzzle end of the bolt and the axial thickness of the
hook member. Final Act. 3—A. Appellants do not dispute these findings.
Appeal Br. 6—9. The Examiner also asserts a skilled artisan would have
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Application 13/446,362
known a larger hook would result in a stronger hook, Final Action 2, that
would have “an improved working life expectancy,” Answer 4. Appellants
have not taken issue with the validity of these representations.
Regarding the dimensional limitations for the disclosed structural
elements, the Examiner determines, absent any affidavit showing of
unexpected results, “it would have been an obvious matter of design choice
to change the dimensions of the hook and bottom pocket recess, since such a
modification would have involved a mere change in the size of a
component.” Final Act. 2 (citing In re Rose, 220 F.2d 459 (CCPA 1955)).
Furthermore, the Examiner concludes “[i]t would have been obvious ... to
use the [claimed] dimensions, since it has been held that where the general
conditions of a claim are disclosed in the prior art, discovering the optimum
or workable ranges involves only routine skill in the art.” Id. (citing In re
Aller, 220 F.2d 454 (CCPA 1955)). Appellants challenge whether the
Examiner made a proper prima facie case of obviousness and argue “that the
claimed dimensions are not merely a change in size.” Appeal Br. 9.
Describing the background of the invention, the Specification states,
“it is desirable to provide a firearm or components of a firearm that
withstand excessive cycling and thus extend the useful life of such
components in order to reduce the need for replacement.” Spec. 13. In the
Reply Brief, at page 2, Appellants acknowledge it was known that, “[t]here
are many different forms of failure, but most are tied to breakage of the
extractor hook region.'” (Emphasis added). With this information as
background, and given the undisputed fact a skilled artisan knew increasing
the size of the hook region would result in a stronger hook with an improved
working life expectancy, the record supports a skilled artisan would have
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Application 13/446,362
had a reason to optimize the dimensions of the extractor hook (and the
associated dimensions accommodating those changes) and, in particular, a
reason to increase the size of the hook to provide more strength and
durability.
Likewise, there is a rational underpinning to the Examiner’s
conclusion that the specific dimensions claimed for the extractor hook, and
the recess receiving that hook, are non-inventive discoveries of the optimum
or workable ranges for a device already known. “[WJhere the general
conditions of a claim are disclosed in the prior art, it is not inventive to
discover the optimum or workable ranges by routine experimentation.” In re
Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed. Cir. 2012)(quoting In re
Aller, 220 F.2d at 456). Appellants do not dispute the Examiner’s findings
that Fewis discloses,
an extractor 34 pivotally mounted to the bolt 36 for movement
between a first position and a second position, the extractor
having a hook member 98 located at a distal end of the extractor
34, wherein the hook member 98 is at least partially received
within a pocket... on a muzzle end of the bolt 36 and the hook
member 98 moves away from a center line of the bolt 36 as the
hook member 98 is moved from the first position towards the
second position, . . . and wherein the hook member 98 is flush
with the muzzle end of the bolt 36 when it is in the second
position.
Final Act. 3. Given these undisputed structural similarities between the
firearm bolt Fewis discloses and the claimed bolt, the Examiner viewed
properly Fewis as disclosing the “general conditions” of claims 1 and 19.
Similarly, because a skilled artisan recognized the extractor hook size
directly affects it strength and ability to handle operating conditions, the
dimensions of the hook size were known to be result-effective variables.
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Application 13/446,362
Therefore, the Examiner’s conclusion that the specific dimensions claimed
for the extractor hook, as well as the corresponding recess, are unpatentable
optimizations of the claimed bolt has a rational underpinning.
Appellants were invited repeatedly to provide evidence of an
unexpected result by the Examiner. Final Act. 2; Ans. 4. Although
Appellants introduce an affidavit from Mr. Langevin for the first time with
the Reply Brief, that testimony was not provided in a timely manner and,
therefore, it will not be considered as part of this appeal. See 37 C.F.R.
§ 41.41(b). Nevertheless, we have consider Appellants’ arguments in the
Reply Brief,2 at pages 2-4, and we are unconvinced it provides support for
Appellants’ contention that the difference between the claimed firearm bolt
and the Lewis firearm bolt is not merely a change in size. To the contrary,
Appellants state, “[a]fter trying to solve the [extractor failure] issue with
changes in materials, heat treatments, and manufacturing processes, with no
success, we increased the size of the hook member located at a distal end of
the extractor by increasing its thickness.'1'’ Id. at 3 (emphasis added). “The
increased thickness of the hook member required it to be at least partially
received within a pocket on a muzzle end of the bolt as the hook member
moves away from a center line of the bolt.” Id.
Although Appellants assert that the increase in the extractor size
enables the bolt to have an improved life expectancy, they do not indicate
(let alone, explain why) the result was unexpected. Id. The Federal Circuit
has held that patentability of a “result-effective variable” optimization
2 Appellants’ Reply Brief is basically a reproduction of Mr. Langevin’s
testimony. Thus, while we do not consider Mr. Langenvin’s testimony for
its evidentiary value, we do consider its persuasiveness as an argument.
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requires proof “the claimed ranges are ‘critical’ and ‘produce a new and
unexpected result which is different in kind and not merely in degree from
the results of the prior art”'’ In re Applied Materials, Inc., 692 F.3d at 1297
(quoting In re Aller, 220 F.2d at 456) (emphasis added). Appellants’
argument regarding how the dimensional changes resulted in a change in
degree does not persuade us of any unexpected results that are different in
kind.
Therefore, for the foregoing reasons, we sustain the Examiner’s
rejections of independent claims 1 and 19 as unpatentable in view of Lewis.
Also, because Appellants’ only patentability argument for claims 2—18 and
20 is that those claims depend from claims 1 and 19 (Appeal Br. 9), we
sustain the Examiner’s rejections of claims 2—18 and 20 as well.
DECISION
We affirm the Examiner’s decision to reject claims 1—20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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