Appeal No. 2001-1372 Page 11
Application No. 08/018,841
the characteristics and dimensions of the Davis projectiles “to achieve an optimum
result” (answer, page 6).
In light of the fact that Davis teaches the use of 55 Nitinol, the same material
disclosed by appellants, as the shape memory alloy material for the projectile, it is our
opinion that the examiner has met the initial burden of providing a basis to reasonably
support the determination that the yield strength characteristics recited in claim 15 are
possessed by the shape memory alloy material of Davis’ projectile so as to shift the
burden to appellants to prove that the shape memory alloy material of Davis does not
possess these characteristics. See In re King, 801 F.2d 1324, 1327, 231 USPQ 136,
138 (Fed. Cir. 1986).
As support for their position that Davis teaches the use of sintered powdered
shape memory alloy material having voids, appellants rely on the affidavit of Alexis A.
Popoff (Paper No. 16). In section 5 of the affidavit, affiant states a belief that the Davis
patent “purports to teach a person of ordinary skill in the art to use sintered powdered
metal Nitinol elements in a projectile, or make an entire projectile of sintered powdered
metal Nitinol.” While it is true that Davis teaches that voids are useful in all
embodiments of the invention disclosed therein to enhance the speed of recovery of the
component, as discussed supra, the Popoff affidavit overlooks two important points with
regard to Davis’ disclosure. First, Davis merely cites powdered metallurgy as one
illustrative technique for forming a shape memory alloy projectile or deforming means
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