LOCKHEED MARTIN CORPORATION

Patent Trials and Appeals Board

Mar 27, 2020

14959677 - (D) (P.T.A.B. Mar. 27, 2020)

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.
14/959,677 12/04/2015 Eugene J. Urda FS-10238 1050
50818 7590 03/27/2020
Roberts Calderon Safran & Cole, P.C.
Intellectual Property Department
P.O. Box 10064
MCLEAN, VA 22102-8064
EXAMINER
CHAO, MICHAEL W
ART UNIT PAPER NUMBER
2492
NOTIFICATION DATE DELIVERY MODE
03/27/2020 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):
docketing@rmsc2.com
lgallaugher@rmsc2.com
secretaries@rmsc2.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EUGENE J. URDA and CHARLES H. DANDO III
Appeal 2019-000180
Application 14/959,677
Technology Center 2400
Before ROBERT E. NAPPI, DENISE M. POTHER, and
JASON MORGAN, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject all pending claims 1–8, 10–15, 17, 18, and
23–27. Appeal Br. 1, 43–46 (Claims App.).2 We have jurisdiction under
35 U.S.C. § 6(b) and heard this appeal on March 10, 2020.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Lockheed Martin
Corp. Appeal Br. 2.
2 Throughout this opinion, we refer to the Final Action (Final Act.) mailed
October 6, 2017, the Advisory Action (Advisory) mailed December 27,
2017, the Appeal Brief (Appeal Br.) filed March 8, 2018, the Examiner’s
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We AFFIRM.
STATEMENT OF THE CASE
The invention relates to an anti-tamper device. Spec. ¶ 2.
Specifically, the claims are directed to “the systems and methods . . .
configured . . . to neutralize (e.g., destroy) electronic and/or software related
components of an existing system so that they cannot be used, stolen or
reverse engineered.” Id. ¶ 10; see id. ¶¶ 1, 11–13.
A modular system is shown below in the Specification’s Figure 1.

Figure 1 Showing the Modular System
Id. ¶¶ 8, 14. Modular system 100, shown above as Figure 1, includes
component 15 mounted on board 10, hermetically sealed space 20 provided
by cover 25 hermetically sealed to board 10, monitoring component 40, and
countermeasure component 45. Id. ¶¶ 14, 16, 19. Space 20 can be filled
with a controlled amount of air, gas, or perfume provided through an
injection hole, by components 15, 40, or 45, or by an additional component.
Id. ¶ 15. The Specification also states “a vacuum can be created within the
enclosed space.” Id. ¶ 23.

Answer (Ans.) mailed August 3, 2018, and the Reply Brief (Reply Br.) filed
October 3, 2018.
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Claim 1, below, recites the claimed subject matter:
1. A system, comprising:
a component provided within a hermetically sealable
enclosure, which discharges a substance into the hermetically
sealable enclosure;
a measurement component provided within the
hermetically sealable enclosure, which measures environmental
conditions comprising at least the substance within the
hermetically sealable enclosure; and
a countermeasure component provided within the
hermetically sealable enclosure, which renders inoperative at
least one electronic or software component within the
hermetically sealable enclosure when the measurement
component detects that the environmental conditions within the
hermetically sealable enclosure have changed beyond a
predetermined amount,
wherein the system is configured to cause the component
to discharge the substance into the hermetically sealable
enclosure in response to at least one of: the hermetically
sealable enclosure being hermetically sealed, a predetermined
period of time elapsing, and a software command.

Appeal Br. 43 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Smolker US 3,882,324 May 6, 1975
Little US 5,998,858 Dec. 7, 1999
Maloney US 6,262,664 B1 July 17, 2001
Wandel US 2008/0252450 A1 Oct. 16, 2008
Bertoni US 2013/0249691 A1 Sept. 26, 2013
Piccolo US 2015/0310732 A1 Oct. 29, 2015
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WITHDRAWN REJECTIONS
The Examiner entered the Amendment After-Final Rejection Under
37 C.F.R. § 1.116 submitted December 6, 2017. Advisory 2. As a result,
the Examiner withdrew (1) the rejection of claims 3, 8, 15, 24, and 26 under
35 U.S.C. § 112(a), (2) the rejection of claim 253 under 35 U.S.C. § 112(b),
and (3) the rejections of claims 17–18 under 35 U.S.C. § 102(a)(2) based on
Bertoni and Epstein. See Advisory 2; Ans. 3–4, 12–13. The Examiner
maintained the remaining rejections but changed the bases for the art
rejections under 35 U.S.C. § 103 due the claim amendments. See Advisory
2; see Ans. 3–4.
OUTSTANDING REJECTIONS
The rejections stand as follows:
(1) Claims 3, 8, 18, and 24 are rejected under 35 U.S.C. § 112(b) as
being indefinite for failing to particularly point out and distinctly claim the
subject matter which the inventor or a joint inventor, regards as the
invention. Ans. 3.
(2) Claims 1–8, 10, 17, 18, and 23–264 are rejected under 35 U.S.C.
§ 103 over Bertoni, Wandel, and Piccolo. Id. at 3–8.

3 The Final Action further discusses claim 25 for this ground. Final Act. 5.
The Examiner, however, does not include or repeat this discussion in the
Answer. Ans. 3, 13–16. For purposes of this Decision, we presume the
indefiniteness rejection for claim 25 has been withdrawn. Also, the
Examiner states the rejection of claim 18 under this ground was withdrawn
(Ans. 13) but then further discusses claim 18 (id. at 13–15). For purposes of
this Decision, we presume the indefiniteness rejection for claim 18 has been
maintained.
4 Claim 27 depends from independent claim 11, not independent claim 1 or
17. Appeal Br. 46 (Claims App.). For purposes of this Decision, we
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(3) Claims 25 and 26 are also rejected under 35 U.S.C. § 103 over
Bertoni, Wandel, Piccolo, and Maloney. Id. at 3, 12.
(4) Claims 11–15 and 27 are rejected under 35 U.S.C. § 103 over
Bertoni, Smolker, Wandel, and Piccolo. Id. at 3, 8–12.
(5) Claims 1–8, 10, 17, 18, and 23–26 are also rejected under
35 U.S.C. § 103 over Little, Wandel, and Piccolo. Id. at 4, 12.
(6) Claims 25 and 26 are also rejected under 35 U.S.C. § 103 over
Little, Wandel, Piccolo, and Maloney. Id.
(7) Claims 11–15 and 27 are also rejected under 35 U.S.C. § 103 over
Little, Smolker, Wandel, and Piccolo. Id.
Arguments which Appellant could have made, but did not make in the
Brief are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Except to
the extent indicated below, we adopt as our own the findings and reasons set
forth in the rejections from which the appeal is taken and in the Examiner’s
Answer.
INDEFINITESS REJECTION
Claims 3, 8, 18, and 24 are rejected under 35 U.S.C. § 112(b) as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which the inventor or a joint inventor regards as the invention. Ans.
3, 13–16.
Claims 3, 18, and 24
For claims 3 and 24, the Examiner asserts the recited “substance” that
is discharged includes a vacuum and a vacuum is “the opposite of a

presume the Examiner intended to group claim 27 with the rejections for
claim 11 rather than claims 1 and 17.
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substance,” rendering these claims ambiguous. Final Act. 5; Ans. 14–15.
Regarding claim 3, the Examiner further states detecting a “vacuum leak” is
ambiguous since this “requires the prior existence of a vacuum.” Ans. 14.
Regarding claim 24, the Examiner argues no vacuum was created in claims 1
or 23, rendering the recited “vacuum no longer being in existence” in claim
24 ambiguous and confusing. Id. at 15.
For claim 18, the Examiner states claim 18 “contemplates a vacuum”
(Final Act. 5), while claim 17, from which claim 18 depends, recites
monitoring an environmental condition by detecting a substance (Ans. 14).
According to the Examiner, these limitations are opposites, rendering the
claim confusing. Id. at 14–15.
As for claims 3, 18, and 24, Appellant contends for each of these
claims that “a vacuum may be complete or partial,” such as after releasing a
substance, and therefore releasing a substance and having a vacuum are not
mutually exclusive. Appeal Br. 10–11; Reply Br. 2–3. Appellant further
contends “[n]othing in the specification indicates that the existence of a
vacuum and the discharge of a substance are mutually exclusive.” Appeal
Br. 11. As for claims 3 and 24, Appellant further emphasizes these claims
recite a component that detects a vacuum leak (claim 3) or a substance loss
in response to a vacuum no longer being in existence in the enclosure (claim
24). Id. at 10. Appellant adds claims 3 and 24 do not require “the action of
detecting to be performed.” Id. at 11; Reply Br. 3. As for claim 18,
Appellant argues “the claim does not require an absolute or perfect
vacuum,” and “[n]othing in the specification would contradict this
interpretation.” Reply Br. 4.

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Principles of Law
“[T]he statutory language of ‘particular[ity]’ and ‘distinct[ness]’ [in
35 U.S.C. § 112] indicates, claims are required to be cast in clear—as
opposed to ambiguous, vague, indefinite—terms.” In re Packard, 751 F.3d
1307, 1313 (Fed. Cir. 2014). “A decision on whether a claim is [indefinite]
under § 112, [second paragraph (pre-AIA)], requires a determination of
whether those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted).
Issues
The issue before us is whether the following recitations are ambiguous
when read in light of the disclosure:
(1) “the measurement component detects one of air pressure, gas, an
odor and vacuum leak within the hermetically sealable enclosure” as claim 3
recites;
(2) “the environmental condition is one of air pressure, presence of a
gas, an odor and a vacuum” as claim 18 recites; and
(3) “the measurement component is configured to detect the loss of
the substance in response to . . . (iii) a vacuum no longer being in existence
in the hermetically sealable enclosure” as claim 24 recites?
Analysis
Initially, we note that the Examiner rejected claims 3 and 24 under
35 U.S.C. § 112(a) as failing to comply with the written description
requirement because “no description could be found that would support
discharging a substance and maintaining a vacuum.” Final Act. 4; id. at 3–4.
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This rejection has been withdrawn. Ans. 12–13. Thus, the issue of whether
the Specification describes the subject matter in claims 3 and 24 in sufficient
detail that one skilled in the art can reasonably conclude that the inventor
had possession of the claimed invention is not before us.
(1) Claim 3
Claim 3 depends from claim 1, which recites “a component provided
within a hermetically sealable enclosure, which discharges a substance into
the hermetically sealable enclosure.” Appeal Br. 32 (Claims App.). Claim 3
further limits the “measurement component,” reciting “the measurement
component detects one of air pressure, gas, an odor and vacuum leak within
the hermetically sealable enclosure.”5 Id. At first blush, these limitation
seem contradictory in that claim 1 recites discharging a substance within a
hermetically sealable enclosure and claim 3 recites detecting a vacuum leak
within the enclosure, suggesting the enclosure has a vacuum.
However, as broadly recited in claim 3, the hermetically sealable
enclosure may have contained a vacuum prior to the substance being
discharged and thus, the claimed “measurement component” would still be
capable of detecting the recited “vacuum leak within the hermetically
sealable enclosure” by measuring a discharged substance. Likewise,
Appellant explains “[a]fter a substance has been discharged into an
enclosure, a partial vacuum may exist, and vacuum leak may be measurable,

5 Although claim 3 recites the component “discharges” and the measurement
component “detects,” claim 3 is a “system” claim, which merely requires the
“component” to be configured discharge a substance and the “measurement
component” to detect one or air pressure, gas, an odor, and a vacuum leak.
Appeal Br. 43 (Claims App.); see id. at 11 (stating “[c]laims 3 and 24 do not
require the action of detecting to be performed.”)
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for example, by the claimed measurement component.” Appeal Br. 11.
Both the Examiner and Appellant also agree that a vacuum may be partial.
Advisory 2; Appeal Br. 10. Given the above understanding, one skilled in
the art would understand what claim 3 is reciting.
When addressing claim 24, the Examiner contends “[a]s no vacuum is
ever established in claim 1 or 23, . . . it would be ambiguous and confusing
to a reader when or how the vacuum was established when the claim appears
to create the opposite of a vacuum by adding a substance in claim 1.” Ans.
15. But, breadth of claim does not render it indefinite. See In re Gardner,
427 F.2d 786, 788 (CCPA 1970). Also, as explained above, an ordinarily
skilled artisan would be able to understand what is being claimed.
We also turn to the Specification to determine whether those skilled in
the art would understand what is recited in claim 3. The Specification
discusses “detect[ing] a vacuum leak” in paragraph 17. Spec. ¶ 17.
Specifically, the disclosure states “the measurement and/or monitoring
component 40 can measure the controlled amount of air pressure, or gas,
such as CO2, or detect an odor of the perfume.” Id. Moreover, an ordinary
artisan would understand the controlled substance discussed in Paragraph 17
is provided within the enclosed space 20. See id. ¶¶ 16–17, Fig. 1.
Paragraph 17 further states “[i]n additional embodiments, the measurement
and/or monitoring component 40 can detect a vacuum leak (or other
environmental conditions within the enclosure), which would be indicative
of a tampering event.” Id. ¶ 17, Fig. 1. Because the Specification describes
detecting a vacuum leak as “additional embodiments,” an ordinary artisan
would understand the vacuum leak as an additional feature to the previously
described embodiments. Thus, when reading claim 3’s limitations in light of
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the disclosure, we determine an ordinarily skilled artisan would understand
what claim 3 is reciting.
Accordingly, Appellant has persuaded us of error in the rejection of
claim 3.
(2) Claim 18
Clam 18 depends from independent claim 17, which is a method
comprising “discharging, by a component within a hermetically sealable
enclosure, a substance into the hermetically sealable enclosure” and
“monitoring an environmental condition within the hermetically sealable
enclosure including at least detecting the substance.” Appeal Br. 45 (Claims
App.). Claim 18 further recites “the environmental condition is one of air
pressure, presence of a gas, an odor and a vacuum.” Id.
Although this claim may appear contradictory, we refer to our above
explanation related to claim 3. As explained when addressing claim 3, the
enclosure in claim 18 similarly may have contained a vacuum (e.g., an
environmental condition) prior to discharging the substance and then
monitor the “vacuum” condition by detecting a certain amount of the
discharged substance. As an example, the Specification further describes
“the measurement and/or monitoring component 40 will detect that the
environmental condition within the enclosure 20 has changed by a certain
predetermined amount.” Spec. ¶ 17; see id. ¶ 23 (discussing examples of a
predetermined amount). As such, when reading claim 18’s limitations in
light of the disclosure, we determine an ordinarily skilled artisan would
understand what claim 18 is reciting.
Accordingly, Appellant has persuaded us of error in the rejection of
claim 18.
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(3) Claim 24
Claim 24 depends from claim 23, and claim 23 depends from claim 1.
Claim 23 recites “the measurement component is configured to detect a loss
of the substance,” and claim 24 further recites “the measurement component
is configured to detect the loss of the substance in response to . . . (iii) a
vacuum no longer being in existence in the hermetically sealable enclosure.”
Appeal Br. 45–46 (Claims App.). Although detecting a substance’s loss in
response to a vacuum no longer existing may be seem contradictory, such a
phenomena can exist. For example, the loss of a discharged substance can
be detected once the enclosure’s hermetically seal is broken and the pressure
inside the enclosure matches atmosphere. The Specification also covers
such a phenomena. See Spec. ¶ 23 (discussing detecting losses beyond a
predetermined amount). Thus, when reading claim 24’s limitations in light
of the disclosure, we determine an ordinarily skilled artisan would
understand what is claimed.
Appellant has therefore persuaded us of error in the rejection of claim
24.
Claim 8
In contrast, we do not find the Examiner erred in rejecting claim 8.
The Examiner contends this claim requires “a temporary injection hole”
while claim 1 requires “the alternate embodiment of a component within the
enclosure that discharges a substance.” Final Act. 5. For this reason, the
Examiner contends the scope of claim 8, which recites the injection hole is
plugged or sealed “after injection of the substance” is unclear and
ambiguous. Ans. 16; Final Act. 5.
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Appellant argues the claim does not require using the injection hole to
inject the substance (Appeal Br. 11) and the claim “merely requires that the
cover is structured to include the temporary injection hole or valve” (id. at
12). Appellant further contends “there is nothing about the claimed
temporary injection hole or valve which is plugged or sealed that would be
incompatible with the presence of a component provided within a
hermetically sealable enclosure, which discharges a substance into the
hermetically sealable enclosure.” Id.
We disagree with Appellant. Claim 1 requires “a component . . .
discharges a substance into the hermetically sealable enclosure” and “the
system is configured to cause the component to discharge the substance into
the hermetically sealable enclosure in response to . . . the hermetically
sealable enclosure being hermetically sealed.” Appeal Br. 43 (Claims App.)
(emphases added). Claim 6 depends from claim 1 and further recites “the
hermetically sealable enclosure is hermetically sealed.” Appeal Br. 44
(Claims App.). Clam 8 ultimately depends from claim 6 and even further
recites “the cover [forming the hermetically sealed enclosure] includes a
temporary injection hole or valve which is plugged or sealed, respectively,
after injection of the substance.” Id. (emphasis added).
As emphasized above, the claim 8 recites both a discharged substance
being discharged into a hermetically sealable enclosure and in response to
the enclosure being hermetically sealed as well as an injection hole or valve
being plugged or sealed after injection (e.g., discharged) of the same
substance. Upon reading this claim, an ordinarily skilled artisan would not
understand whether the claim includes a hermetically sealed enclosure
because the claimed “temporary injection hole or valve” is further recited as
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plugged or sealed after injection of the discharged substance, which is
discharged in response to the enclosure being hermetically sealed. Id. at
43–44 (Claims App.). Also, although claim 8 recites a “system” claim such
that the “injection hole or valve” need not perform the recited “plugged or
sealed” action (see id. at 12; Reply Br. 6), the claim still needs to have the
ability to perform the claimed function. Appellant has not persuasively
demonstrated that an ordinary would not understand what structure performs
the recited cover’s “temporary injection hole or valve which is plugged or
sealed, respectively, after injection of the substance” in claim 8, which is
discharged after an enclosure is sealed hermetically as required by claims
from which claim 8 depends.
Appellant argues for the first time in the Reply Brief that claim 7,
from which claim 8 depends, requires the cover to be hermetically sealed to
the board but does not require the cover to seal the enclosure hermetically.
Reply Br. 6. Although this argument has been waived, we note claim 7
recites “the hermetically sealed enclosure formed by a cover which is
hermetically sealed to the board.” Appeal Br. 44 (Claims App.) (emphasis
added). Moreover, claim 6 recites the enclosure is hermetically sealed. Id.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of claim 8.
OBVIOUSNESS REJECTION OVER BERTONI, WANDEL,
AND PICCOLO
Claims 1–8, 10, 17, 18, and 23–26 are rejected under 35 U.S.C. § 103
over Bertoni, Wandel, and Piccolo. Ans. 3–8; Final Act. 8–11, 13, 15.6

6 Based on the entered amendments presented after the Final Office Action,
claims 1 and 17 include the subject matter of canceled claims 6, 21, and 22.
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Claims 1–8, 10, and 23–26
For purposes of discussion, we select independent claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner found
Bertoni teaches most of claim 1’s limitations, including the recited enclosure
is a “hermetically sealed enclosure.” Final Act. 8–9, 11 (citing Bertoni
¶¶ 26–27, 47, Figs. 1, 4); Ans. 4–5. However, the Examiner determined
Bertoni does not disclose the recited “component provided within a[n] . . .
enclosure, which discharges a substance into the . . . enclosure” “in response
to the enclosure being hermetically sealed,” turning to Wandel in
combination with Bertoni for these features. Final Act. 9–10 (citing Wandel
¶¶ 16–17, 26, 34, 52, Abstract), 13 (citing Wandel ¶ 52); Ans. 5–6 (same).
Additionally, the Examiner turned to Piccolo in combination with the
Bertoni/Wandel system to teach the recited “system is configured to cause
the component to discharge the substance into the enclosure in response to
. . . a predetermined period of time elapsing” or “a software command.”
Final Act. 15 (citing Wandel ¶ 52; Piccolo, Abstract); Ans. 6–7 (citing
Piccolo ¶¶ 8, 57, 68, Abstract).
Appellant presents several arguments, mainly asserting that Bertoni,
Wandel, and Piccolo do not teach or suggest “a component provided within
a hermetically sealable enclosure, which discharges a substance into the
hermetically sealable enclosure” and “the system is configured to cause the
component to discharge the substance into the hermetically sealable
enclosure in response to at least one of: the hermetically sealable enclosure
being hermetically sealed, a predetermined period of time elapsing, and a
software command” recited in claim 1. Appeal Br. 13–19.
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ANALYSIS
Based on the record before us, we do not find error in the Examiner’s
rejection of independent claim 1.
“[A] component provided within a hermetically sealable enclosure, which
discharges a substance into the hermetically sealable enclosure”
For this limitation, Appellant asserts Bertoni does not teach a
component with a hermetically sealed enclosure that discharges a substance
into the disclosure, Wandel does not cure this deficiency or discharge a
substance in response the recited options, and Piccolo does not teach cure
the noted deficiencies. Id. at 15–18. We are not persuaded.
As indicated above, the Examiner found Bertoni teaches most of
claim 1’s limitations. Final Act. 8–9, 11 (citing Bertoni ¶¶ 26–27, 47, Figs.
1, 4); Ans. 4–5. More specifically, the Examiner found Bertoni teaches the
recited “a hermetically sealed enclosure,” mapping housing 2 to the
enclosure. Final Act. 9 (citing Bertoni, Fig. 1), 11 (citing Bertoni ¶¶ 26, 47);
Ans. 18 (citing Bertoni ¶ 47). Bertoni discloses “the housing could be of a
hermetic type, with sealed walls . . . .” Bertoni ¶ 47. We thus disagree with
Appellant (Appeal Br. 15) that Bertoni does not teach or suggests “a
hermetically sealable enclosure” as claim 1 recites or that Wandel (id. at 17)
or Piccolo (id. at 18) need to cure this purported deficiency.
Regarding the limitation “a component provided within [the]
hermetically sealable enclosure, which discharges a substance into the
hermetically sealable enclosure” in claim 1 (Appeal Br. 43 (Claims App.)
(emphasis added)), the Examiner found Bertoni does not disclose this feature
and turned to Wandel when combined with Bertoni to teach this feature.
Final Act. 9–10 (citing Wandel ¶¶ 16–17, 34, 52, Abstract; Bertoni ¶ 26);
Ans. 5–6. In particular, like Bertoni (Bertoni, Abstract), Wandel teaches a
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device that detects intrusion or tampering with an enclosure’s contents
(Wandel, Abstract). Wandel teaches its anti-tampering device involves
dispensing a substance (e.g., gas, liquid, or aerosol) into a container’s
interior before or after the container is sealed. Id. ¶¶ 16–17, 52. Appellant
does not dispute this finding but rather argues that Wandel does not
discharge the substance in response to the hermetically sealable enclosure
being hermetically sealed in the last limitation of claim 1. Appeal Br. 16–
17. Thus, on the record, combining Wandel’s teaching with Bertoni’s
hermetically sealable enclosure would predictably result in “a component
provided within a hermetically sealable enclosure, which discharges a
substance into the hermetically sealable enclosure” as claim 1 recites.
“the system is configured to cause the component to discharge the substance
into the hermetically sealable enclosure in response to at least one of: the
hermetically sealable enclosure being hermetically sealed, a predetermined
period of time elapsing, and a software command”
As discussed above, the Examiner found that Bertoni does not teach
the “discharge” feature and turned to Wandel to teach this feature. Final
Act. 9–10, 13; Ans. 5–6. Additionally, the Examiner turned to Piccolo to
teach the “in response to . . . a predetermined period of time elapsing, and a
software command” as claim 1 recites. Final Act. 15; Ans. 6–7. Thus,
Appellant’s argument that Bertoni fails to teach the “in response” to feature
does not consider the rejection as proposed. Appeal Br. 15–16.
As for Wandel’s teachings, Appellant argues this reference does not
teach discharging the substance in response to an enclosure being sealed. Id.
at 16. Instead, Appellant asserts Wandel does not indicate the canister is
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broken upon the pouch7 being sealed but “merely appears to provide an
instruction indicating that the pouch should be in a sealed state when the
small canister is broken.” Id. (citing Wandel ¶ 52). We are not persuaded.
First, we note the phrase “in response to” in claim 1 when construed
broadly but reasonably in light of the disclosure (Spec. ¶ 15) does not
require an immediate or direct response between the enclosure being sealed
and the substance discharging into the enclosure as Appellant appears to
argue (Appeal Br. 16–17). See Ans. 17 (citing Spec. ¶ 15) (stating “[t]here
is no particular time limit on the release of a substance after it is sealed”).
Wandel teaches “trace gas is provided through a small canister that is . . .
broken when the po[u]ch has been sealed.” Wandel ¶ 52 (emphasis added),
quoted in Final Act. 13. This statement in Wandel teaches that a gas (e.g., a
“substance”) is provided (e.g., “discharged”) when (e.g., “in response to”) a
pouch or container (e.g., an “enclosure”) is sealed. Id. Wandel also relates
the discharging the gas to the pouch being sealed by using the term “when,”
suggesting to one skilled in the art that there is an intended relationship
between the sealed enclosure and releasing the gas. See id. We therefore
determine Wandel when combined with Bertoni, at least suggests to an
ordinarily skilled artisan the recited “system is configured to cause the
component to discharge the substance into the hermetically sealable
enclosure in response to . . . the hermetically sealable enclosure being
hermetically sealed” as claim 1 recites.

7 Wandel uses the word “poach.” Wandel ¶ 52. For purposes of this
Decision, we presume this is a typographical error, intending to use the term
“pouch.”
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In the Reply Brief, Appellant newly discusses Wandel’s paragraphs
12–14 and contends Wandel “is contrary to the claimed invention.” Reply
Br. 7–8. This argument is waived. See 37 C.F.R. § 41.41(b)(2) (stating
“[a]ny argument raised in the reply brief which was not raised in the appeal
brief, or is not responsive to an argument raised in the examiner’s answer . . .
will not be considered by the Board for purposes of the present appeal,
unless good cause is shown.”). In any event, the newly cited paragraphs
discuss detecting a break in container’s seal to detect intrusion (Wandel
¶¶ 12–14) and is not contradictory to the purpose for which the Examiner
relied upon Wandel—using a component to discharge a gas within a sealed
container or enclosure (see Ans. 5–6; see Final Act. 9–10).
Additionally, if claim 1 is construed to require the substance to
discharge into the enclosure in direct response to the enclosure being sealed
and Wandel is viewed as not teaching this alleged direct relationship, we
further note that claim 1 recites “in response to at least one of: the
hermetically sealable enclosure being hermetically sealed, a predetermined
period of time elapsing, and a software command.” Id. (emphasis added).
Thus, the prior art need only teach one of these causal relationships. See
Ans. 17–18 (noting “the alternate embodiment implicated in the alternate
limitations of claim 1”). The rejection further relies on Piccolo, when
combined with Bertoni and Wandel, to teach discharging a substance in
response to “a predetermined period of time elapsing” or “a software
command.” Final Act. 15 (citing Piccolo, Abstract); Ans. 6–7 (citing
Piccolo ¶¶ 8, 57, 68, Abstract).
Appellant does not challenge that the combination of Bertoni,
Wandel, and Piccolo fails to teach or suggest discharging a gas in response
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to a software command but rather asserts that Piccolo fails to teach or
suggest a hermetically sealed enclosure and a component within the
enclosure discharging a substance into a hermetically sealed enclosure as
recited in claim 1. See Appeal Br. 18. Yet, Bertoni and Wandel were relied
upon for these features (Final Act. 9–11 (citing Bertoni ¶¶ 26, 47; Wandel
¶¶ 16–17, 34, 52); Ans. 5–6 (citing Wandel ¶¶ 16–17, 34, 50, 52)), and one
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986).
Lastly, Appellant contests modifying Bertoni in view of Piccolo as
proposed would render it unsatisfactory for its intended purpose. Appeal Br.
18–19. Appellant states that the modification “would defeat the ability of
the system disclosed by Bertoni to detect tampering.” Id. at 19; Ans. 9.
Essentially, Appellant argues Piccolo teaches discharging a substance into
an enclosure that is not hermetically sealed and thus modifying Bertoni
would result in an enclosure that is not hermetically sealed and unable to
detect tampering. Appeal Br. 18–19. We are not persuaded because this
argument fails to consider the rejection as proposed. Final Act. 8–11, 13,
15; Ans. 6–7. Namely, Bertoni teaches a hermetically sealed enclosure
(Final Act. 11), Wandel teaches including a component within the enclosure
that discharges a substance (id. at 9–10), and the modification does not
proposed to remove these features from the Bertoni/Wandel system but
rather to add Piccolo’s feature of discharging a substance in response to a
software command to the combined Bertoni/Wandel hermetically sealed
enclosure. Id. at 15 (stating “[a] person of ordinary skill in the art . . . would
have modified Bertoni in view of Wandel with Piccolo by utilizing the
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software triggered canister of Piccolo.”); see Ans. 6–7, 20 (stating
“[c]hanging how a substance is released from a cartridge or canister does not
change the principle of operation of the system of Bertoni in view of
Wandel.”)
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of independent claim 1 and claims 2–8, 10, and 23–26, which
ultimately depend from claim 1 and are not argued separately. See Appeal
Br. 24.
Claims 17 and 18
Appellant separately argues independent claim 17. Appeal Br. 19–24.
The arguments are similar to those presented for claim 1, including Bertoni
does not teach a hermetically sealable enclosure or a component within the
enclosure discharging a substance into the enclosure, Wandel does not teach
or suggest discharging a substance in response to the enclosure being
hermetically sealed, and Piccolo does not teach or suggest a hermetically
sealable enclosure and therefore discharging a substance into the enclosure
as recited in claim 17. Compare id., with id. at 13–19. We are not
persuaded and sustain the rejection of claim 17 and dependent claim 18,
which is not separately argued (id. at 24), for reasons similar to those
discussed for claim 1.
ALTERNATIVE OBVIOUSNESS REJECTION OVER BERTONI,
WANDEL, PICCOLO, AND MALONEY

Claims 25 and 26 are alternatively rejected under 35 U.S.C. § 103
based on Bertoni, Wandel, Piccolo, and Maloney. Ans. 3, 12; Final Act. 16.
Appellant contends claims 25 and 26 are in condition for allowance by
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virtue of their dependency to claim 1. Appeal Br. 24–25. We are not
persuaded for the reasons discussed related to claim 1. Appellant separately
contends “[t]hese claims also include allowable subject matter on their own
merits.” Id. at 25. However, Appellant provides no explanation related to
how the prior art fails to teach or suggest a specific limitation in claims 25
and 26. Id. We therefore sustain the rejection of claims 25 and 26 for
reasons similar to those discussed for claim 1.
OBVIOUSNESS REJECTION OVER BERTONI, SMOLKER,
WANDEL, AND PICCOLO

Claims 11–15 and 278 are rejected under 35 U.S.C. § 103 over
Bertoni, Smolker, Wandel, and Piccolo. Ans. 3, 8–12; Final Act. 16–19, 9–
11 (addressing the “fourth” component, including “providing the
environmental condition in response to at least one of: the hermetically
sealable enclosure being hermetically sealed”), 15 (addressing “in response
to at least one of: . . . a predetermined period of time elapsing, and a
software command”), 14–15 (addressing claim 27). We select independent
claim 11 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellant presents arguments for independent claim 11. Appeal Br.
26–31. The arguments are similar to those presented for claim 1, including
Bertoni does not teach a hermetically sealable enclosure or a component that
discharges a substance into the enclosure, Wandel does not teach or suggest
discharging a substance in response to the enclosure being hermetically
sealed, and Piccolo does not teach or suggest a hermetically sealable

8 As previously noted, claim 27 depends from independent claim 11, and we
accordingly grouped this claim with the rejection of claim 11.
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enclosure and therefore discharging a substance into the enclosure as recited.
Compare id., with id. at 13–19. We are not persuaded for the reasons stated
above when addressing claim 1.
Appellant additionally contends Smolker does not teach (1) a
component within an enclosure that provides an environmental condition or
(2) the enclosure provides an environmental condition in response to: sealing
the enclosure, a predetermined time period elapsing, or a software command.
Id. at 28. These arguments, however, do not consider fully the rejection’s
combination as proposed, which relies on Wandel in combination with
Bertoni and Smolker to teach the recited “fourth component which provides
the environmental condition within the enclosure in response to at least one
of: the enclosure being hermetically sealed” (Ans. 9–10; Final Act. 19, 9–
11) and Piccolo in combination with Bertoni, Smolker, and Wandel (Ans.
11–12; see Final Act. 15) to teach providing the environmental condition
within the enclosure in response to at least one of a predetermined time
period elapsing or a software command as recited. Smolker is cited for a
limited purpose to teach using a countermeasure component to disable or
destroy a component (e.g., circuitry) by providing an explosion or
electromagnetic pulse is known. Ans. 9; see Final Act. 17–18.
Accordingly, we sustain the rejection of claim 11 and dependent
claims 12–15, which are not separately argued (Appeal Br. 31), for reasons
the above-stated reasons.

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OBVIOUSNESS REJECTION OVER LITTLE, WANDEL, AND
PICCOLO

Claims 1–8, 10, 17, 18, and 23–26 are also rejected under 35 U.S.C.
§ 103 over Little, Wandel, and Piccolo. Ans. 4, 12; Final Act. 20–28.9
Claims 1–8, 10, and 23–26
For purposes of discussion, we select independent claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv). For this rejection, similar to
the rejection based on Bertoni, Appellant asserts that Little, Wandel, and
Piccolo do not teach or suggest “a component provided within a hermetically
sealable enclosure, which discharges a substance into the hermetically
sealable enclosure” and “the system is configured to cause the component to
discharge the substance into the hermetically sealable enclosure in response
to at least one of: the hermetically sealable enclosure being hermetically
sealed, a predetermined period of time elapsing, and a software command”
recited in claim 1. Appeal Br. 32–33. Appellant presents argument similar
to those above when addressing claim 1 and the Bertoni, Wandel, and
Piccolo rejection, including Wandel fails to teach discharging the substance
in response to an enclosure being hermetically sealed and Piccolo does not
teach a hermetically sealed enclosure or discharging, by a component, within
a hermetically sealable enclosure. Id.
The arguments for this rejection thus are similar to those presented for
claim 1 when addressing the obviousness rejection based on Bertoni,
Wandel, and Piccolo. Compare id., with id. at 13–19. We sustain the

9 As previously mentioned, claims 1 and 17 currently include the subject
matter of claims 6, 21, and 22 based on the entered After-Final Amendment.
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rejection of claim 1 and dependent claims 2–8, 10, and 23–26, which are not
separately argued (id. at 34–35), for reasons similar to those previously
discussed.
Claims 17 and 18
Appellant separately argues independent claim 17. Appeal Br. 33–34.
However, the arguments are similar to those presented for claim 1, including
Wandel does not teach or suggest discharging a substance in response to the
enclosure being hermetically sealed and Piccolo does not teach or suggest a
hermetically sealable enclosure and therefore discharging a substance into
the enclosure as recited. Compare id., with id. at 32–33. We are not
persuaded and sustain the rejection of claim 17 and dependent claim 18,
which is not separately argued (id. at 34–35), for reasons similar to those
discussed for claim 1.
ALTERNATIVE OBVIOUSNESS REJECTION OVER LITTLE,
WANDEL, PICCOLO, AND MALONEY

Claims 25 and 26 are alternatively rejected under 35 U.S.C. § 103
based on Little, Wandel, Piccolo, and Maloney. Ans. 4, 12; Final Act. 28–
29. Appellant contends claims 25 and 26 are in condition for allowance by
virtue of their dependency to claim 1. Appeal Br. 35. We are not persuaded
for the reasons discussed related to claim 1. Appellant separately contends
“[t]hese claims also include allowable subject matter on their own merits.”
Id. However, Appellant provides no explanation related to how the prior art
fails to teach or suggest a specific limitation in claims 25 and 26. Id. We
therefore sustain the rejection of claims 25 and 26 for reasons similar to
those discussed for claim 1.
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OBVIOUSNESS REJECTION OVER LITTLE,
SMOLKER, WANDEL, AND PICCOLO

Claims 11–15 and 27 are also rejected under 35 U.S.C. § 103 over
Little, Smolker, Wandel, and Piccolo. Ans. 4, 12; Final Act. 29–31, 26–27
(addressing claim 27 and the “fourth” component, including “providing the
environmental condition in response to at least one of: the hermetically
sealable enclosure being hermetically sealed”), 27–28 (addressing “in
response to at least one of: . . . a predetermined period of time elapsing, and
a software command”).
Appellant presents arguments for independent claim 11. Appeal Br.
36–38. However, the arguments are similar to those presented for claim 1,
including (1) Smolker does not teach a component within an enclosure that
provides an environmental condition in response to sealing the enclosure, a
predetermined time period elapsing, or a software command, (2) Wandel
fails to teach discharging the substance in response to an enclosure being
hermetically sealed and (3) Piccolo does not teach a hermetically sealed
enclosure or discharging, by a component, within a hermetically sealable
enclosure as recited. Compare id., with id. at 32–33. We are not persuaded
for the reasons stated above when addressing claim 1. Accordingly, we
sustain the rejection of claim 11 and dependent claims 12–15, which is not
separately argued (Appeal Br. 38), for the above-stated reasons.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
3, 8, 18, 24 112(b) Indefiniteness 8 3, 18, 24
1–8, 10, 17,
18, 23–26
103 Bertoni, Wandel,
Piccolo
1–8, 10, 17,
18, 23–26

25, 26 103 Bertoni, Wandel,
Piccolo, Maloney
25, 26
11–15, 27 103 Bertoni, Smolker,
Wandel, Piccolo
11–15, 27
1–8, 10, 17,
18, 23–26
103 Little, Wandel,
Piccolo
1–8, 10, 17,
18, 23–26

25, 26 103 Little, Wandel,
Piccolo, Maloney
25, 26
11–15, 27 103 Little, Smolker,
Wandel, Piccolo
11–15, 27
Overall
Outcome
1–8, 10–15,
17, 18, 23–
27

TIME PERIOD FOR RESPONSE
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