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 § 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 1-6 and 8-19 are rejected under 35 U.S.C. 103 as being unpatentable over Naud (20080011398) Naud (20080011398).
Regarding claims 1 and 4, Naud discloses a thermite composition that can include magnesium, boron, aluminum or titanium nanoparticles (0012), an oxidizer such as copper oxide, boron oxide titanium oxide, silicon oxide (0012). Naud indicates that these materials can be an intermetallic of two metals together (0013) and also that the fuel and oxidant mixtures can include another metal such as aluminum, boron, or magnesium (0014). The nanoscale size is disclosed from 10 nm -1000 nm (0015) and indicates that the size distribution influences the ignition. The reduced burn time as compared to a second composition is an inherent property of this composition since the same claimed ingredients are used. As to limitations which are considered to be inherent in a reference, note the case law of In re Ludke, 169 USPQ 563; In re Swinehart, 169 USPQ 226, In re Fitzgerald, 205 USPQ 594; In re Best et al, 195 USPQ 430; and In re Brown, 173 USPQ 685, 688. Naud discloses that the mixtures of metals and oxidizer can be combined in either stoichiometric amounts or variations from the stoichiometric amounts (0012).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to vary the parameters of the thermite mixture 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). Naud indicates that the desired result is the function of the thermite mixture as a match for ignition and since Naud indicates that stoichiometric amounts or variations from the stoichiometric amounts (0012) can be used, one of skill in the art will readily be able to determine the amounts to achieve the desired ignition.
Regarding claim 2, Naud discloses an oxide of the metals recited including copper oxide, boron oxide titanium oxide, silicon oxide (0012).
Regarding claim 3, the metals disclosed by Naud inherently form a native oxide shell when exposed to the air. As to limitations which are considered to be inherent in a reference, note the case law of In re Ludke, 169 USPQ 563; In re Swinehart, 169 USPQ 226, In re Fitzgerald, 205 USPQ 594; In re Best et al, 195 USPQ 430; and In re Brown, 173 USPQ 685, 688.
Regarding claims 5 and 6, Naud discloses the nanoscale size from, 10 nm -1000 nm (0015) and indicates that the size distribution influences the ignition.
Regarding claims 14-18, the peak pressure, pressurization rate, burn time reduction, ignition temperature as claimed are inherent properties of this composition since the same claimed ingredients are used. As to limitations which are considered to be inherent in a reference, note the case law of In re Ludke, 169 USPQ 563; In re Swinehart, 169 USPQ 226, In re Fitzgerald, 205 USPQ 594; In re Best et al, 195 USPQ 430; and In re Brown, 173 USPQ 685, 688.
Regarding claim 19, Naud discloses the mixing and drying of the composition in para. 0022.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Naud (20080011398) as applied above and further in view of Dreizin (20210101157)
Regarding claim 20, Dreizin discloses that it is known to use hexane (does not contain oxygen) as the solvent when processing thermite materials (0078) and that the solvent has an effect on ignition temperatures (0103).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to use hexane as the solvent with the composition of Naud since Dreizin teaches that it is known to use hexane when processing thermite materials and since Dreizin further suggests that using hexane as the solvent will affect the ignition temperature.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that the amounts of magnesium and other metal are not disclosed. However, Naud indicates that stoichiometric amounts or variations from the stoichiometric amounts (0012) can be used, one of skill in the art will readily be able to determine the amounts to achieve the desired ignition.
In response to applicant's argument that the invention has different burn rate, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
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.
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/AILEEN B FELTON/Primary Examiner, Art Unit 1734
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