Ex Parte Lazar

Patent Trial and Appeal Board

Sep 24, 2015

12586378 (P.T.A.B. Sep. 24, 2015)

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.
12/586,378 09/22/2009 Bereli M. Lazar 6525
7590 09/24/2015
BERELI M. LAZAR
Apt 410 S
1590 Broadway
San Francisco, CA 94109
EXAMINER
KLEIN, GABRIEL J
ART UNIT PAPER NUMBER
3641
MAIL DATE DELIVERY MODE
09/24/2015 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BERELI M. LAZAR
____________

Appeal 2013-009758
Application 12/586,378
Technology Center 3600
____________

Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
JAMES J. MAYBERRY, Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Bereli M. Lazar (“Appellant”),1 proceeding pro se,2 appeals under
35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–7 in this
application. The Board has jurisdiction over this appeal under 35 U.S.C.
§ 6(b). We AFFIRM.

1 Appellant indicates Appellant is the real party in interest. See Appeal
Br. B, 1.
2 We refer to the three Appeal Briefs filed by Appellant as “Appeal Brief A”
(filed September 19, 2012), “Appeal Brief B” (filed February 15, 2013), and
“Appeal Brief C” (filed April 1, 2013).
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CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim on appeal:
1. A Plasma Jet Guard for defense against violent
atmospheric cyclones, and consisting of a controlled
meteorological missile equipped with a t[h]rust rocket motor,
electrometers, a control block, electro-insulation, guidance, an
operative turbo-electro-generator, detachable protectors with
lightning rods, and a flight infrastructure, comprising at least
one servo-rocket motor compounded with a magneto-gas-
dynamic jet ionizer for inductive converting the running out hot
exhaust gases of said servo-motor into electro-conductive
plasma-jets.
Appeal Br. C, Claims App., “view-copy a.”
REJECTIONS ON APPEAL3
Claims 1–7 are rejected under 35 U.S.C. § 112, second paragraph, as
indefinite.4 Final Action mailed Apr. 6, 2012 (hereafter “Final Act.”), 4–5;
Answer mailed Apr. 29, 2013 (hereafter “Ans.”), 2. In particular, the
Examiner determines it is unclear where the claim preamble ends and where
the claim body begins, because the claim initially recites “consisting of,” but
then goes on to recite “comprising.” Final Act. 4.

3 The rejection of claims 1–7 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the enablement requirement, has been withdrawn.
See Final Act. 3–4; Ans. 3.
4 The Final Action also objects to the Specification as being “replete with
language that is so grammatically incorrect and/or seemingly nonsensical
that it is confusing and sometimes unintelligible,” and to claim 1 as reciting
“trust” instead of “thrust.” Final Act. 2. Review of such objections may be
had via Petition to the Director, not appeal to the Board. 37 C.F.R.
§ 1.113(a). We therefore do not comment further on these objections.
Appeal 2013-009758
Application 12/586,378

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Claims 4–7 are rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter. Final Act. 5–6; Ans. 2. In particular, the Examiner
determines “claim 4 sets forth that the apparatus of claim 1 (‘A Plasma Jet
Guard’) further comprises ‘a method of Technological Defense against
atmospheric violent cyclones . . . .” Final Act. 5. According to the
Examiner, “such a combined apparatus and method claim is directed to
neither a process nor a machine, but rather embraces or overlaps two
different statutory classes of invention set forth in 35 U.S.C. 101 which is
drafted so as to set forth the statutory classes of invention in the alternative
only.” Id. at 5–6.
Claims 1–7 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Lazar ’436 (US 2007/0056436 A1, pub. Mar. 15, 2007). Final Act. 6;
Ans. 2. In particular, the Examiner finds Lazar ’436 discloses each and
every limitation of claim 1 “except for electrometers and lightning rods,”
and “takes Official Notice that it is well known to use electrometers to detect
electrical fields and lightning rods to protect against lightning strikes.” Final
Act. 6. The Examiner concludes it would have been obvious to provide the
Lazar ’436 device “with electrometers in order to detect electrical fields and
lightning rods to protect against lightning strikes.” Id.
ANALYSIS
In Appeal Brief A, Appellant’s entire argument is:
In many cases, the Nature “operates” its own but almost
identical course of de-energizing the power of cyclones with
lightning bolts which appear like natural dischargers. This
proposal suggests several technological steps mostly based on:
a) Research report “The Electrical Nature of Storms” by D.R.
Mac Gorman and W.D. Rust of National Severe Storms Lab,
Norman, Oklahoma; it’s indicated in Application, [0005],
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Application 12/586,378

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page 2; b) personal observations and simplified tests with mini-
twisters s. c. “smerches”; c) tech-design wherein ionizers can
provide high level of electro-conductivity for the plasma
dischargers formed from seeded rocket fuels; controlled
meteorological missiles (include meteo-rockets, guidance,
meters, and protection) provide proper distant maneuvers in
safe conditions. The power; embodiments and the number of
rocket motors depend on specific tasks and local applications.
Appeal Br. A, 1–2. This argument does not address any one of the
Examiner’s rejections, which are summarized above. We are therefore not
persuaded of Examiner error by the argument presented in Appeal Brief A.
In Appeal Brief B, Appellant’s entire argument is:
The arguments of appellant to each ground of rejection, as a set
of reasons aimed to demonstrate that the claimed solutions are
based and grounded, were presented many times in
Amendments B, C, D. So, this requirement of 37 CFR 41.37(c)
is fulfilled earlier.
. . .
To the said above arguments of the applicant - appellant: Of
course, on the first natural* tests with the natural* sky twisters,
some drive - zones of the atmospheric electricity will be
discharged better and some - worse. But the experience and
knowledge, including voltage of ionizers, lengths of intervals,
particularities of maneuvers, and others will be accumulated
and learned. As always.
. . .
* because the lab trials and PC-programmed models were and
are definitely half-baked, not more.
Appeal Br. B, 1–2. This argument does not address any one of the
Examiner’s rejections, which are summarized above. We are therefore not
persuaded of Examiner error by the argument presented in Appeal Brief B.
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However, Appeal Brief B does refer back to prior arguments made in
Amendments B (March 23, 2012), C (May 7, 2012), and D (June 20, 2012).
As to Amendment B, it contains a section in direct response to “Claim
rejections – 35 USC. 112; 101,” but the actual arguments presented in that
section mostly relate to the § 112 enablement rejection that has been
withdrawn by the Examiner on appeal, not the § 112 indefiniteness rejection
or the § 101 rejection summarized above. See Amendment B, 1–2.
Appellant does state: “5. The method and its means are completely
interconnected. They correspond each other technologically, i.e. in any
operational step.” Id. at 2. This statement may have been in response to the
§ 101 rejection, but even if so, it does not address the basis for the rejection
as summarized above.
Amendment B also contains a section in direct response to “Claim
rejections 35 U.S.C. 103(a).” Id. at 2. Appellant asserts he is “the author”
of both the present application on appeal and Lazar ’436, and the present
Specification at page 1 indicates Lazar ’436 is “related” to the application.
Id. Appellant asks how the present application can be unpatentable over his
own, prior, application. Id. The Examiner, however, correctly concluded
Lazar ’436 is prior art to the present application under 35 U.S.C. § 102(b),
because Lazar ’436 was published on March 15, 2007, more than one year
before the present application was filed on September 22, 2009. See
Ans. 3–4. While the present application refers to the prior application
published as Lazar ’436 as being “related” (Spec. 1), the prior application
was abandoned before the present application was filed, so the co-pendency
requirement for filing date priority of 35 U.S.C. § 120 is not met. See
35 U.S.C. § 120 (later application must be “filed before the patenting or
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Application 12/586,378

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abandonment of or termination of proceedings on” prior application);
Application No. 11/416,600, Notice of Abandonment, mailed July 23, 2009.
As to Amendments C and D, the arguments presented therein appear
to relate to the enablement rejection, which has been withdrawn by the
Examiner on appeal. See Amendment C, 1–2; Amendment D, 1. These
arguments do not address the Examiner’s rejections on appeal, which are
summarized above. We are therefore not persuaded of Examiner error by
the arguments presented in Amendments C and D.
In Appeal Brief C, Appellant does not present any argument. See
Appeal Br. C.
For the foregoing reasons, we are not persuaded that the Examiner
errs in rejecting claims 1–7.
DECISION
The Examiner’s decision rejecting claims 1–7 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)(iv).
AFFIRMED

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