Appeal No. 2001-1372 Page 10
Application No. 08/018,841
condition before and during propulsion through the gun barrel and all the way to the
target (brief, page 13) and (2) Davis teaches the use of sintered powdered metal in
which voids are provided in the material and such sintered powdered metal Nitinol does
not possess the characteristics recited in the claim. In particular, appellants assert that
the yield strength of Davis’ sintered powdered metal Nitinol on cold working does not
increase to over 200 KSI, but merely collapses, as intended by Davis (brief, pages 10
and 16).
Appellants’ first argument with regard to the use of prestrained shape memory
alloy material is not found persuasive because claim 15 does not preclude prestraining
of the shape memory alloy material prior to insertion of the projectile into the barrel. It
is well established that limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982).
With regard to appellants’ second argument, the examiner contends that it is
clear from Davis’ teachings that projectiles including shape memory alloy components
without voids can be used and that the projectiles of Davis formed of a shape memory
alloy in a solid form without voids inherently possess the same characteristics and
dimensions as appellants’ claimed projectile (answer, page 5). In the alternative, the
examiner takes the position that, if the Davis projectiles do not possess the same
characteristics and dimensions as appellants’ claimed projectile, it would have been
obvious to one having ordinary skill in the art at the time the invention was made to vary
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