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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission has been entered.
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 1, 3, 4, 6, 9, 10, and 13-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Feichtinger (WO 8501179).
Regarding claims 1, 9, 10, Feichtinger discloses the process of mixing thermite (aluminum and metal oxide (pg 2)) with boric acid and heating which transforms the boric acid to boron oxide which then acts as a binder (pg. 3 and 4).
Regarding claims 3, 4, 6, water is used for the processing and can be removed by drying or by the heating step (pg. 3).
Regarding claims 13-15, Feichtinger discloses that the final mixture does not contain water and that the water can be remove by drying or heating.
The glassy binding phase is an inherent property of the composition made by the disclosed method since the method steps and ingredients are identical. 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.
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, 3, 4, 6-10, and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Jones (3745077) in view of Feichtinger (WO 8501179).
Regarding claims 1-10, 13, and 14, Jones discloses the pressed mixture in an incendiary or projectile/propellant including boron oxide (B2O3) from 10-28 % as a binder with thermite materials and amounts including aluminum from 28-38 % and iron oxide from 33-60 %. (col. 1 lines 55-65 and col. 2, lines 10-20). The disclosure recites “one or more metal oxides” on page 2. The composition is free of water and organic materials. The composition is mixed and heated (see abstract and ex. 1). See also col. 2, lines 30-40 which describe the cooling and solidifying step with function as a binder.
Regarding claims 1, 9, 10, Feichtinger discloses the process of mixing thermite (aluminum and metal oxide (pg 2)) with boric acid and heating which transforms the boric acid to boron oxide which then acts as a binder (pg. 3 and 4).
Regarding claims 3, 4, 6, water is used for the processing and can be removed by drying or by the heating step (pg. 3).
Regarding claims 13-15, Feichtinger discloses that the final mixture does not contain water and that the water can be remove by drying or heating.
The glassy binding phase is an inherent property of the composition made by the disclosed method since the method steps and ingredients are identical. 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.
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 teachings of Feichtinger which indicate that it is known to process thermite materials with boric acid to then have the resultant decomposition to boron oxide through heating.
Claims 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Jones as applied above, and further in view of Alexander (3255281).
Regarding claims 11 and 12, Alexander teaches that it is known to include aluminum as a fiber or powder that influences the burning rate (see col. 8).
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 aluminum in the form of fibers with the composition of Jones since both relate to propellants/projectiles and since Alexander teaches that the inclusion of aluminum in the form of fibers and powder will influence the burning rate.
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 1-14 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 “glassy” in claim 1 is a relative term which renders the claim indefinite. The term “glassy” is 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.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that the prior art does not disclose metal oxides. Note that the prior art at page 2 recites that the composition can include one or more metal oxides. This meets the claim terminology. The reference refers to the composition multiple times as being a thermite composition.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues that the specification gives a definition of the term glassy. The examiner disagrees because the definition does not provide any details about the character of this phase. The specification recites "the term "glassy" refers to any solid phase of material having a structure that is at least partially, and often mostly or completely, amorphous". This definition clearly contemplates any phase that the material can be. The prior art discloses the same method steps of heating and thus will result in the same glassy definition that is given by the applicant. The glassy binding phase is an inherent property of the composition made by the disclosed method since the method steps and ingredients are identical. 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.
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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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