DETAILED ACTION
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1 and 3-5 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Hetz (20070053785) in view of Shaner (6981996) and Rhodes (20090050321).
Regarding claim 1, Hetz discloses a shaped explosive jet charge perforating gun that is used for perforating a well (0005) by detonating the explosive charge (0034). The shaped explosive jet charge gun is disposed into a wellbore well (meets positioning in a well step) (0034). The shaped charge gun includes a gun (meets casing limitation) (fig. 1, number 6) and liner inside the casing (fig. 1, number 10). There is an explosive charge in between the housing and the liner (fig. 1, number 8). The liner (0012) is made from “tungsten, uranium, hafnium, tantalum, nickel, copper, molybdenum, lead, bismuth, zinc, tin, silver, gold, antimony, cobalt, zinc alloys, tin alloys, nickel, palladium, coated metal particles. The metal powder can be chosen from these listed metals singularly or can come from combinations thereof.” Hetz indicates that the metal powder in the liner comprises 20 %-100 % of the composition (0027). The casing can be made from the same materials as the liner and also additional metals such as steel and aluminum (0018). The use of spheroidized metal powder is not disclosed.”(0012).
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Shaner discloses spheroidized tungsten powder-tin composite as a safer replacement for lead for use in making complex projectile shapes (abstract and col. 1, lines 10-38). Shaner discloses spheroidized tungsten powder.
Rhodes discloses that it is known to use crystalline tungsten (meets “normal tungsten” limitation as shown by Applicant’s specification 0029) in a shape charge liner (0003 and 0054)
It would have been obvious to one having ordinary skill in the art at the time the invention was made and/or filed to use the spheroidized tungsten powder in place of the lead that is used in Hetz because Shaner suggests that the spheroidized tungsten powder can be used as a replacement for lead since lead is a toxic metal and since Shaner suggests that it can be used for making complex projectile shapes. The shaped explosive jet charge gun disclosed in Hetz is a projectile. It is also obvious to use the crystalline tungsten powder in the shaped charge liner of Hetz since Hetz discloses that tungsten is a known material for a shaped charge liner and since Rhodes teaches the use of crystalline tungsten in a similar shaped charge liner. It is also obvious to use different percentages of the two forms of tungsten since the references identify these materials as having the result of forming an improved shape charge liner. Thus, it would have been obvious vary the parameters such as amounts to achieve a desired result. It is well-settled that optimizing a result effective variable is well within the expected ability of a person of ordinary skill in the subject art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980), In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955).
Regarding claim 3, Shaner discloses a spheroidized tungsten powder-tin mixture.
Regarding claim 5, Shaner discloses that it is known to use spheroidized tungsten in amounts such as 96 % (col. 1, lines 50-55). Alternatively, it is also obvious vary the parameters such as amounts to achieve the claimed properties. "[W]here 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 Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Claims 1-3 and 5 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Blanchard (2785631) in view of Shaner (6981996).
Regarding claim 1, Blanchard discloses a shaped explosive jet charge perforating that is used for perforating a well by detonating the explosive charge (col. 4, lines 45-55). The shaped explosive jet charge gun is used in borehole (meets positioning in a well step) (claim 1 and col. 1, lines 20-40). The shaped charge container (meets casing limitation) (fig. 2, number 35) and liner inside the casing (fig. 2, number 36). There is an explosive charge in between the housing and the liner (fig. 2, number 34). The container (casing) is made of lead or other suitable material and the liner is made of a suitable material such as metal or plastic (col. 2, lines 40-50). The use of spheroidized metal powder is not disclosed.
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Shaner discloses spheroidized tungsten powder-tin composite as a safer replacement for lead for use in making complex projectile shapes (abstract and col. 1, lines 10-38).
It would have been obvious to one having ordinary skill in the art at the time the invention was made and/or filed to use the spheroidized tungsten powder in place of the lead that is used in Blanchard because Shaner suggests that the spheroidized tungsten powder can be used as a replacement for lead since lead is a toxic metal and since Shaner suggests that it can be used for making complex projectile shapes. The shaped explosive jet charge gun disclosed in Blanchard is a projectile. Further, Blanchard discloses that any suitable metal can be used and Shaner discloses that it is known to use spheroidized tungsten powder in a projectile. Thus is would be obvious to use the spheroidized tungsten powder of Shaner as the “suitable metal” for the casing or the liner disclose in Blanchard. It is also obvious to use different percentages of the two forms of tungsten since the references identify these materials as having the result of forming an improved shape charge liner. Thus, it would have been obvious vary the parameters such as amounts to achieve a desired result. It is well-settled that optimizing a result effective variable is well within the expected ability of a person of ordinary skill in the subject art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980), In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955).
Regarding claim 3, Shaner discloses a spheroidized tungsten powder-tin mixture.
Regarding claim 5, Shaner discloses that it is known to use spheroidized tungsten in amounts such as 96 % (col. 1, lines 50-55). Alternatively, it is also obvious vary the parameters such as amounts to achieve the claimed properties. "[W]here 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 Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Claims 4 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Blanchard in view of Shaner as applied to claims 1-3 and 5 above, and further in view of Stawovy (20050241522).
Stawovy teaches the use of normal tungsten powder in a shape charge liner.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to use the normal tungsten powder as taught in the shape charge liner of Stawovy with the shape charge liner of Blanchard as modified by Shaner. It is prima facie obvious to combine two compositions, each taught for the same purpose to yield a third composition for that very purpose. In re Kerkhoven, 205 USPQ 1069, In re Pinten, 173 USPQ 801, and In re Susi, i69 USPQ 423. It is also obvious to use normal tungsten powder in the shaped charge liner of Blanchard since Stawovy discloses that it can be used in a shaped charge liner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-5 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 1 recites that the amount of tungsten is at least 99 % and then recites that the amount contains at least 15 % of spheroidized tungsten. These amounts are incompatible and require more spheroidized tungsten than is permitted by the first range.
Claims 3-5 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 3-5 add additional materials to the liner material where claim 1 requires the liner to be pure tungsten. These claims fail to limit the independent claim.
Response to Arguments
Applicant's arguments have been considered but are moot in view of the new ground(s) of rejection. Applicant argues the combination of Hetz and Shaner and asserts that Hext is not a projectile. The Examiner disagrees. In para 0005, Hetz discloses that during operation, the liner collapses and is ejected. The liner is a projectile. Further, Hetz refers to the shaped charge as used in a perforating gun. Since the shape charge is used in a “gun”, it is considered to be a projectile. Shaner discloses spheroidized tungsten powder-tin composite as a safer replacement for lead for use in making complex projectile shapes (abstract and col. 1, lines 10-38). Thus, one of skill in the projectile/ammunition/gun art would look for alternatives to lead due to the toxicity. With regards to the density arguments, both references indicate that they are concerned with the resulting density and thus it would be obvious to choose replacement products when density is a consideration.
Hetz indicates that the metal powder in the liner comprises 20 %-100 % of the composition (0027). Since 100 % of the liner is the metal than the liner can be made all of tungsten as taught.
Regarding claim 4, Stawovy does provide a rational for the inclusion of normal tungsten powder. It is prima facie obvious to combine two compositions, each taught for the same purpose to yield a third composition for that very purpose. In re Kerkhoven, 205 USPQ 1069, In re Pinten, 173 USPQ 801, and In re Susi, i69 USPQ 423. It is also obvious to use normal tungsten powder in the shaped charge liner of Hetz since Stawovy discloses that it can be used in a shaped charge liner.
With regards to Blanchard, Applicant argues that the liner is not disclosed to be a lead material. Note that Blanchard discloses that the casing can be lead and that the liner can be metal. It is obvious to use the spheroidized tungsten powder in place of the lead that is used in Blanchard because Shaner suggests that the spheroidized tungsten powder can be used as a replacement for lead since lead is a toxic metal and since Shaner suggests that it can be used for making complex projectile shapes. Further since Blanchard describes that the liner can be metal, one of skill would use the spheroidized tungsten powder since it is a metal.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AILEEN BAKER FELTON whose telephone number is (571)272-6875. The examiner can normally be reached on Monday 9-5:30, Thursday 11-3, Friday 9-5:30.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Johnson can be reached on 571-272-1177. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AILEEN B FELTON/Primary Examiner, Art Unit 1734
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