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In Re Pepperball Technologies

March 7, 2012

IN RE PEPPERBALL TECHNOLOGIES, INC. IN RE PEPPERBALL TECHNOLOGIES, INC.


Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences.

Per curiam.

NOTE: This disposition is nonprecedential.

(Reexamination No. 90/008,731)

(Reexamination No. 90/008,728)

Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences.

Before RADER, Chief Judge, PLAGER, and DYK, Circuit Judges.

PepperBall Technologies, Inc. ("PepperBall") appeals the decision of the Board of Patent Appeals and Interferences ("Board"), affirming the examiner's rejection of claims 1-25 of U.S. Patent No. 6,393,992 (filed Apr. 9, 1999) ("the '992 patent"). Ex parte PepperBall Technologies, Inc., No. 2010-003789, 2010 WL 2638032 (B.P.A.I. June 30, 2010). PepperBall also appeals the Board's decision to affirm the examiner's rejection of claims 1-28 of U.S. Patent No. 7,194,960 (filed June 10, 2004) ("the '960 patent"). Ex parte PepperBall Technologies, Inc., No. 2010-004091, 2010 WL 2638033 (B.P.A.I. June 30, 2010). This opinion resolves both appeals. Because the Board's fact findings are supported by substantial evidence, and because this court sees no legal error in the Board's decision, this court affirms.

I.

The '992 and '960 patents disclose a non-lethal projectile delivering an inhibiting substance to a living target for riot control or subduing a suspected criminal. The projectiles of the '992 patent are spherical and contain a pepper-based, powdered inhibiting substance such as oleoresin capsicum. Oleoresin capsicum is derived from capsaicin, which is in the capsaicinoid family and extracted from plants in the capsicum genus (commonly known as chili peppers). The projectiles are frangible, rupturing upon impact and radially dispersing the powder proximate to the target (e.g., a human) in a cloud. For optimal dispersion of the powered substance, the projectiles are filled greater than 50%, and preferably filled greater than 90%. Filling the projectiles 100%, however, will produce an undesirable clump instead of a cloud. Claims 1 and 22 are representative:

1. A system comprising:

a generally spheroid frangible projectile to be impacted with a target where the frangible projectile is configured such that an ignitable substance is not used in launching the frangible projectile; the frangible projectile comprising a rigid frangible shell having a thickness and a volume formed within, wherein the rigid frangible shell ruptures upon impact with the target; and an inhibiting substance contained within the volume and occupying at least about 50% of the volume; wherein the inhibiting substance comprising a powdered inhibiting substance, wherein upon impact with the target the rigid frangible shell ruptures radially dispersing the powdered inhibiting substance proximate to the target into a cloud; and wherein the inhibiting substance comprises powdered oleoresin capsicum.

22. The system of claim 1, wherein a fill material contained within the volume comprising the powdered inhibiting substance occupies between 60% and 95% of the volume.

The '960 patent is a child of the '992 patent. There are two main differences in the '960 patent from its parent. First, the powdered inhibiting substance is nonivamide instead of oleoresin capsicum. Second, upon impact, the shell ruptures dispersing the powdered substance omnidirectionally instead of ...


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