Appeal No. 97-1646
Application 08/080,890
Rejection (3)
We will not sustain this rejection. Method claims 5, 10, 11
and 13 are drawn to methods of cutting block explosives or
reducing block propellant. Costarelli, the only reference
applied in this rejection, discloses a method of cutting
thermoplastic waste materials, and does not teach or suggest
using the method to cut material of the type recited in these
claims. The fact that the Costarelli apparatus could be used to
cut blocks of energetic material as argued by the examiner, does
not make it obvious to do so, absent some suggestion thereof in
the prior art. Cf. In re Osplack, 195 F.2d 921, 923, 93 USPQ6
306, 307 (CCPA 1952).
Rejections (4) and (5)
These rejections are grounded on the examiner’s finding that
it would have been obvious to provide the apparatus of Costarelli
with a remotely controlled carousel in view of the disclosure of
such a carousel by Kühnert.
6By contrast, we have sustained Rejection (2), supra,
because the recitation of energetic or propellant material does
not distinguish the claimed apparatus over the prior art. See In
re Casey, 370 F.2d 576, 580, 152 USPQ 235, 238 (CCPA 1967) and In
re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed.
Cir. 1997) (recitation of a new intended use for an old product
does not make a claim to that old product patentable).
8
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