Appeal No. 2001-1372 Page 12
Application No. 08/018,841
with voids and further points out that “[o]ther methods of creating voids are well known
in the art” (column 4, lines 4-5). The Popoff affidavit does not address shape memory
alloy components formed with voids via other known techniques in accordance with
Davis’ teachings or offer any rationale as to why such components would not inherently
possess the yield strength characteristics recited in claim 15. Second, while Davis
teaches that voids are useful and that the utilization of components of shape memory
alloy having voids is within the scope of the invention, we, like the examiner, find that
Davis’ disclosure (column 9, lines 1-3) that “any of the embodiments discussed
heretofore may also be fabricated from shape-memory alloy containing voids”
(emphasis ours) would have conveyed to one skilled in the art that, while the provision
of voids in the shape memory alloy component will enhance its speed of recovery upon
impact, projectiles having shape memory alloy components not provided with voids are
also within the scope of the invention disclosed therein.7 The Popoff affidavit does not
offer any rationale as to why a 55 Nitinol shape memory alloy material without voids
would not possess the yield strength characteristics recited in claim 15. Rather, all of
the reasoning offered in the Popoff affidavit to support the position that the shape
memory alloy material of Davis’ projectile does not possess these characteristics is
7 In this regard, we also observe that none of the independent claims in the Davis patent requires
voids. In fact, dependent claim 9 is the only claim which calls for voids in the deforming means.
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