DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 12-31 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a composition without significantly more. The claim(s) recite(s) the features that are the data produced when the composition is burned. This judicial exception is not integrated into a practical application because there are no features of the composition claimed. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims only recite the data produced when the composition is burned. The burning rate pressure exponent is reciting data that is produced when the composition is burned and does not limit the features of the composition.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 12-31 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Petersen (8114229).
Regarding claims 12-15, Petersen discloses a propellant that includes HTPB, nano aluminum from 1-10 % (col. 4, lines 35-56), HMX or RDX, and an anionic surfactant such as sodium dioctyl sulfosuccinate (claim 5) from 1-20 % (col. 4, lines 60-67). The intended such as burning rate, throttling, and extinguishing are intended use statements of the propellant but also of an apparatus containing the propellant. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Regarding claim 16-20, the burning rate pressure and combustion regime are inherent to the composition that is disclosed.
Regarding claim 21, the nanoparticles are inherently unaggregated and unagglomerated since the composition has exactly the same components as that which is claimed by Applicant.
Regarding claims 27 and 28, the limitations to the rocket motor do not carry weight in a composition claim and do not limit the composition.
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 21-26 and 30 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.
The term “unaggregated” and “unagglomerated” in claims 21-26 and 30 is a relative term which renders the claim indefinite. The terms are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The degree of aggregation or agglomeration is not shown, one of skill in the art would not know the amount of these properties.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that the prior art does not meet the limitation “unaggregated and unagglomerated” because of an alleged passivation coating. These terms do not mean that a particle is either passivated or not. Further, there is no evidence recited that the prior art has a passivation layer. The claims do not recite that the particles are unoxidized and the terms in the claims do not mean unoxidized. There is no suggestion in the prior art that such an oxidized particle will lead to aggregation and agglomeration. Applicant argues that the aluminum nanopowder is not the same as that which Applicant is using but note that the specification uses aluminum nano sized particles. There is nothing to show that these are different than the prior art. The terms aluminum nanopowder and nanoparticles of aluminum are considered to be the same.
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 Monday 9-5:30, Thursday 11-3, Friday 9-5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Johnson can be reached at 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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