Ex Parte Smith et al

Patent Trial and Appeal BoardMar 30, 2016

12798787 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121798,787 04/09/2010 24504 7590 04/01/2016 THOMAS I HORSTEMEYER, LLP 400 INTERSTATE NORTH PARKWAY SE SUITE 1500 ATLANTA, GA 30339 FIRST NAMED INVENTOR James E. Smith JR. 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 222115-1010 7488 EXAMINER PO, MING CHEUNG ART UNIT PAPER NUMBER 1771 NOTIFICATION DATE DELIVERY MODE 04/01/2016 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): uspatents@tkhr.com kristen.layton@tkhr.com ozzie. liggins@tkhr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMES E. SMITH, JR., GREGORY E. OGDEN, CLINTON J. BROWN, PAUL M. FRISBY, and SAHARA. TORABZADEH Appeal2014-006410 Application 12/798,787 Technology Center 1700 Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and JAMES C. HOUSEL, Administrative Patent Judges. PERCURIAM. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellants2 seek review of the Examiner's decision to reject claims 1- 18 under 35 U.S.C. Â§ 103(a) as obvious over Brand3 in view of Anflo. 4 1 Our decision refers to the Specification filed Apr. 9, 2010 (Spec.), Appellants' Appeal Brief filed Sept. 26, 2013 (Br.), and the Examiner's Answer mailed Mar. 7, 2014 (Ans.). 2 Appellants identify the real parties of interest as The University of Alabama in Huntsville and Ogden Engineering & Associates, LLC. Br. 2. 3 Brand et al., US 6,218,577 Bl, issued Apr. 17, 2001. 4 Anflo et al., US 6,254,705 Bl, issued July 3, 2001. Appeal2014-006410 Application 12/798,787 We have jurisdiction under 35 U.S.C. Â§Â§ 6(b) and 134(a). We REVERSE. The claims are directed to methods of preparing hypergolic green fuel propellants and hypergolic green fuel solutions (see, e.g., claims 1 and 9). Appellants describe the inventive method as a "'one-step synthesis method,'" as contrasted with the method used by the Air Force Research Laboratory (AFRL), which Appellants characterize as a multi-step process. Spec. 1-3. The first step of the AFRL process involves placing 2- hydroxyethylhydrazine (HEH), as a precursor, in a reactor, slowly adding water and then slowly adding nitric acid to produce hydroxyethylhydrazinium nitrate (HEHN). Spec. p. 1, 1. 19 to p. 2, 1. 18 and p. 8, 1. 21. Water is then removed from the HEHN and acetone is mixed with the HEHN to produce a hypergolic green fuel. Spec. p. 2, 11. 9-10 and p. 2, 1. 22 top. 3, 1. 2. In the AFRL method, it is necessary to dilute with water to control the nitration rate of HEH to HEHN. Spec. p. 2, 11. 20-21. This multiple step process, in which water must be added and then later removed, is time consuming. Spec. p. 2, 11. 21-22. Appellants' method uses less than 5% water and adds acetone to HEH via a "'one-step synthesis method"' to prepare a hypergolic green fuel propellant. Spec. p. 8, 11. 17-19. Appellants disclose that fuels produced by the process ignite consistently and more quickly at elevated temperatures than a fuel produced by the AFRL process. Spec. p. 8, 1. 22 top. 9, 1. 1. Claim 1 is illustrative of the subject matter on appeal and is reproduced from the Claims Appendix of the Appeal Brief: 1. A method of preparing hypergolic green fuel (HGF) 2 Appeal2014-006410 Application 12/798,787 propellant comprising: providing a solution of acetone in 2- Hydroxyethylhydrazine (HEH), wherein the solution is about 15 to 50 percent by volume acetone in HEH; and adding nitric acid containing less than 5% water to the acetone-HEH solution to form the HGF propellant, wherein the molar ratio of nitric acid to HEH is less than about 0.05: 1 to 1.4: 1. Claims Appendix B 1 of Br. OPINION The dispositive issue on appeal is whether Appellants have identified a reversible error in the Examiner's finding of a reason to substitute the methanol solvent of Brand with the acetone fuel taught by Anflo. Appellants have identified such an error. The Examiner finds Brand discloses a process of making salts of HEH and an exemplary process in which HEH is used to synthesize HEHN. Ans. 2. The Examiner finds Brand does not disclose using a solution of acetone, as recited in claim 1, but instead uses methanol as a solvent when producing HEH. Ans. 2. The Examiner finds Anflo discloses liquid propellant formulations that include an ionic oxidizer and a fuel. Ans. 2. Referring to Anflo, the Examiner finds "[t]he fuel is taught in reference claim 1 to be a solvent and in lines 19-32 of column 3 that a ketone may be used as well as methanol." Ans. 2. The Examiner finds Anflo discloses acetone as a preferred ketone. Ans. 2. The Examiner concludes it would have been obvious to substitute acetone for the methanol of Brand because "the solvent is chosen to place a reactant into solution and should not influence the product formed." Ans. 2-3. 3 Appeal2014-006410 Application 12/798,787 Appellants contend one of ordinary skill in the art would not have substituted the methanol of Brand with the acetone of Anflo because the propellants of Brand and Anflo are chemically different. Br. 9-10. Appellants further argue Anflo uses methanol or acetone as a fuel while Brand uses methanol only as a solvent, which is removed prior to use of the produced HEHN. Br. 10-11. In view of these differences, Appellants assert one of ordinary skill in the art would not have looked to Anflo for a substitute solvent because the primary purpose of the acetone disclosed by Anflo is a fuel, not a solvent. Br. 11. Appellants' arguments are persuasive. Brand discloses a polar solvent system in which an acid-base reaction occurs between a relatively strong base, HEH, and a strong acid. Brand col. 2, 11. 17-20. Brand discloses various solvents that can be used in the system, including methanol. Brand col. 2, 11. 31-35. In an example in which HEHN is produced, Brand discloses removal of the solvent (i.e., methanol) once the acid-base reaction produces HEHN. Col. 2, 11. 52-64. In other words, methanol is not a fuel in the process of Brand and does not serve as a reactant in the acid-base reaction. As discussed above, the Examiner refers to Anflo and finds "[t]he fuel is taught in reference claim 1 to be a solvent and in lines 19-32 of column 3 that a ketone may be used as well as methanol." Ans. 2. The Examiner further finds Anflo teaches methanol and acetone are equivalent solvents for propellants. Ans. 5. Based on this, the Examiner concludes it would have been obvious to substitute acetone for methanol in the solvent system of Brand. Ans. 2. 4 Appeal2014-006410 Application 12/798,787 However, the disclosure of Anflo does not support the Examiner's conclusion of obviousness. Anflo discloses a liquid propellant comprising a fuel and a solution of an oxidizer having the formula "X-D," where Xis a cation and Dis the anion dinitramide. Anflo col. 2, 11. 4--11. Neither Anflo nor Brand disclose or suggest that HEH is soluble in acetone or that acetone is otherwise equivalent to methanol as a solvent for HEH in the solvent system of Brand. In other words, although Anflo indicates its fuel can serve as a solvent for its oxidizer when the oxidizer is soluble in the fuel, Anflo does not disclose or suggest its fuel would be an equivalent solvent for Brand's reaction between HEH, a relatively strong base, and a strong acid. Nor does the Examiner provide an explanation or technical reasoning why acetone would be an equivalent to methanol as a solvent for HEH in Brand's process. Therefore, the disclosures of Brand and Anflo do not support the Examiner's findings or conclusion that one would have substituted the acetone of Anflo for methanol in the solvent system of Brand. In view of the above, the Examiner has not met the initial burden of presenting a prima facie case of obviousness over Brand and Anflo. Accordingly, the Examiner's rejection of claims 1-18 is not sustained. CONCLUSION We do not sustain the Examiner's rejection. DECISION The Examiner's decision is reversed. 5 Appeal2014-006410 Application 12/798,787 REVERSED 6