Roland Phillips

Patent Trials and Appeals Board

Sep 13, 2019

14240424 - (D) (P.T.A.B. Sep. 13, 2019)

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.
14/240,424 04/11/2014 Roland Phillips MEYRP0101WOUS 6860
23908 7590 09/13/2019
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
EXAMINER
JOHNSON, STEPHEN
ART UNIT PAPER NUMBER
3641
NOTIFICATION DATE DELIVERY MODE
09/13/2019 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):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ROLAND PHILLIPS
____________________

Appeal 2019-000731
Application 14/240,4241
Technology Center 3600
____________________

Before BIBHU R. MOHANTY, PHILIP J. HOFFMANN, and
TARA L. HUTCHINGS, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s rejection of claims 1 and 4–9. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
According to Appellant, “[t]he invention relates to a ballistic
multilayer arrangement to defend against projectiles or other highly-
accelerated components.” Spec. 1, ll. 5–7. Claim 1 is the sole the

1 “The real party in interest in the present appeal is RELION Protection
Systems AG.” Appeal Br. 3.
Appeal 2019-000731
Application 14/240,424

2
independent claim on appeal. Below, we reproduce claim 1 as
representative of the appealed claims.
1. A ballistic layer for a ballistic multilayer
arrangement, the ballistic layer being formed by an absorption
layer including expanded glass held in a matrix including a
synthetic resin, wherein the expanded glass is present in the form
of sintered expanded-glass granulate, and the sintered expanded-
glass granulate is held in a dense packing or fill by the matrix
that encloses the sintered expanded-glass granulate.

REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. Claims 1 and 4–9 under 35 U.S.C. § 103(a) as unpatentable
over Misencik et al. (US 2009/0090236 A1, pub. Apr. 9, 2009)
(“Misencik”) and Strachan (US 5,120,380, iss. June 9, 1992);
and
II. Claims 1 and 4–9 under 35 U.S.C. § 102(b) as anticipated by
Morgan et al. (US 2011/0023763 A1, pub. Feb. 3, 2011)
(“Morgan”).

ANALYSIS
Rejection I
In the Appeal Brief, Appellant argues that the Examiner’s obviousness
rejection is in error because the Examiner does not support adequately that
one of ordinary skill would use Strachan’s granulate in Misencik’s ballistic
layer that is formed by an absorption layer including a matrix with a
synthetic resin. See Appeal Br. 9–15. Based on our review of the record,
including Appellant’s Appeal Brief and Reply Brief, and the Examiner’s
Appeal 2019-000731
Application 14/240,424

3
Final Office Action and Answer, we agree with Appellant. Thus, for the
reasons discussed below, we do not sustain the obviousness rejection.
Similar to Appellant’s claims, which recite “[a] ballistic layer for a
ballistic multilayer arrangement” (Appeal Br., Claims App.), Misencik is
directed to a “blast-resistant panel system” (Misencik ¶ 1). Although
Appellant disagrees with the Examiner’s finding, we assume, arguendo, that
Strachan discloses the claimed sintered expanded-glass granulate. The
Examiner determines that it would have been obvious to use Strachan’s
sintered expanded-glass granulate in Misencik’s ballistic layer that is formed
by an absorption layer including a matrix with a synthetic resin, because
[Appellant] is selecting one material type of particulate for
another in an analogous art setting with expected or predictable
results. [Appellant] should note that “when a patent claims a
structure already known in the prior art [which] is altered by the
mere substitution of one element for another known in the field,
the combination must do more than yield predictable results.”
Answer 4 (citation to KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)
omitted). We do not sustain the rejection, however, because the Examiner
does not establish that using Strachan’s sintered expanded-glass granulate in
place of Misencik’s synthetic material would provide expected or
predictable results.
As stated above, Misencik is directed to a blast-resistant panel system,
which does not use a sintered expanded-glass granulate. Answer 4. The
Examiner cites Misencik’s paragraph 29 as providing “[e]xplicit motivation”
for using Strachan’s granulate. Id. at 5. Based on our review of this portion
of Misencik, we do not discern any such motivation, or anything else
indicating that using a sintered expanded-glass granulate in a blast-resistant
panel system would provide expected or predictable results. Misencik’s
Appeal 2019-000731
Application 14/240,424

4
paragraph 29 does not appear to even discuss the use of glass, but rather
discusses the use of certain other “pulverizable material[s].” Misencik ¶ 29.
Misencik’s discussion of using certain pulverizable materials in a blast-
resistant panel system does not indicate that using a sintered expanded-glass
granulate would provide expected or predictable results simply because a
sintered expanded-glass granulate is a pulverizable material.
The Examiner also cites Strachan’s column 5, lines 10–36, as
providing “[e]xplicit motivation” for using Strachan’s granulate in
Misencik’s blast-resistant panel system. Answer 7. First, neither this
portion nor any other portion of Strachan appears to be directed to a blast-
resistant panel system, but rather Strachan is directed to “core-filled
pultruded profiles.” Strachan col. 1, ll. 5–6. The Examiner does not find
that Strachan discloses anything about the use of pultruded profiles in a
blast-resistant panel system, a ballistic layer, or the like. Further, even
assuming (as we discuss above) that the cited portion of Strachan refers to a
sintered expanded-glass granulate, we do not discern anything in the portion
of Strachan which the Examiner cites indicating that using a sintered
expanded-glass granulate in Misencik’s blast-resistant panel system would
provide expected or predictable results. At most, the cited portion of
Strachan may establish that one of ordinary skill would know to use a
sintered expanded-glass granulate in certain pultruded profiles.
Thus, based on the foregoing, we do not sustain the Examiner’s
obviousness rejection of independent claim 1 and of claims 4–9 that depend
from claim 1.

Appeal 2019-000731
Application 14/240,424

5
Rejection II
As set forth above, independent claim 1 recites, in relevant part, “[a]
ballistic layer for a ballistic multilayer arrangement, the ballistic layer being
formed by . . . .” Appeal Br., Claims App. (emphasis added). We agree with
Appellant that the Examiner does not support adequately that Morgan
discloses a “ballistic layer.” Appeal Br. 21. As discussed in Appellant’s
Specification, a ballistic layer is a layer that “defend[s] against projectiles or
other highly-accelerated components.” Spec. 1, ll. 5–7. Claim 1’s recitation
of the claimed “ballistic layer” in the claim body is a structural limitation
that Morgan must disclose to anticipate the claim. Based on our review of
the record, including the supporting references the Examiner cites (see, e.g.,
Answer 9–11), it is not clear that Morgan discloses a ballistic layer as
claimed. Therefore, we do not sustain the anticipation rejection of
independent claim 1, or of dependent claims 4–9.

DECISION
We REVERSE the Examiner’s anticipation and obviousness
rejections of claims 1 and 4–9.

REVERSED