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 .
Election/Restrictions
Applicant’s election of invention III in the reply is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 1-13 and 19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/5/2025.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over Callaway (20040011235) in view of Posson (6427599).
Regarding claim 14, Callaway discloses an infrared countermeasure device in figure 1 that includes an outer casing (element 6), an expulsion charge (element 20) meets claimed impulse charge since it is shown at the same location in the base of the casing which is referred to as a port, an igniter portion (meets igniter assembly) which transfer the ignition from the impulse cartridge (elements 30, 8, 28) and para (0034) and includes an igniter pellet (elements 8 and 30 meet the pellet limitation). The device includes a spectral flare pellet (meets payload limitation) (element 4) that is ejected upon ignition and provides an IR signature (see abstract). The device includes an expulsion charge (element 20) meets claimed impulse charge since it is shown at the same location in the base of the casing which is referred to as a port and electric igniter (meets electrical activator) adjacent to the ignition charge since it ignites the ignition charge (para. 0033). The device of Calloway discloses a primary ignition charge 22, secondary ignition charge 30, and a primer pellet 8 (meets claimed ignition and output charges). Calloway further discloses that the primer pellet (ignition pellet) can have multiple layers of different composition (element 8) with a first composition of magnesium, Teflon, and Viton (meets fluoropolymer elastomer) (0016) or second composition of potassium perchlorate and binder (0039). The first and second layers are adjacent to each other (element 8) and also adjacent to the output of the impulse cartridge since the impulse cartridge ignites the primer pellet. The claimed composition of the second layer is not fully disclosed.
Posson teaches an IR countermeasure device that includes the use of a layer of boron, potassium perchlorate, and binder (meets granular matrix binder) (see Table 2) and indicates that it is known to use this composition with a magnesium, Teflon, Viton composition to provide protection to the magnesium, Telfon, Viton composition from unwanted water absorption (col. 21, lines 40-65).
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 layer of boron, potassium perchlorate, and binder with the primer pellet of Calloway since Posson suggests that such a layer will provide protection from unwanted water absorption. Further, such a layer will provide the same benefits as taught by Posson since both Posson and Calloway are using the same magnesium, Teflon, Viton pellet and since Posson suggests that the layer of boron, potassium perchlorate, and binder is known to provide moisture protection to this composition.
Language that suggests or makes optional but does not require steps to be performed or does not limit a claim to a particular structure does not limit the scope of a claim or claim limitation (i.e. “suitable for”, “configured to”, etc.). These clauses are essentially method limitations or statements of intended or desired use and do not serve to patentably distinguish the claimed structure over that of the reference. See In re Pearson, 181 USPQ 641; In re Yanush, 177 USPQ 705; In re Finsterwalder, 168 USPQ 530; In re Casey, 512 USPQ 235; In re Otto, 136 USPQ 458; Ex parte Masham, 2 USPQ 2nd 1647.
Regarding claims 15 and 16, the first layer has an interface area since the layers will inherently form an interface since the same claimed chemicals are used. The layers are toching and will mix in the same manner as that which is claimed (see Calloway fig. 1 and Posson (col. 21, lines 40-65).
Regarding claims 17 and 18, the pressed and applied by slurry limitation are considered to be product by process limitations. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985), (MPEP 2113). Posson also discloses a slurry application.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “port” and “output charge” must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 14-18 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 language in claim 14 that recites “wherein the output charge expels the payload including the igniter assembly containing the hybrid ignition pellet” is indefinite because the output charge is not shown to expel the payload and the igniter assembly.
Claims 14-18 recites the limitation "the countermeasure payload", “the ignition train”, “the countermeasure flare payload”, “the infrared signature”, “the base portion or port”, “the outer flare case”, “output charge”, “the payload”, “the output charge” “the hybrid ignition pellet”, “the ignition pellet”, “the moisture insensitive first layer”, “the output of the impulse cartridge”, “the fuel material”, “the moisture insensitive first layer”. There is insufficient antecedent basis for these limitations in the claim.
Conclusion
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.
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/AILEEN B FELTON/Primary Examiner, Art Unit 1734