Ex Parte Aghamehdi

Board of Patent Appeals and Interferences

Sep 26, 2008

10960818 (B.P.A.I. Sep. 26, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte HOSSEIN AGHAMEHDI
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Appeal 2008-2852
Application 10/960,818
Technology Center 2800
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Decided: September 26, 2008
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Before CHARLES F. WARREN, TERRY J. OWENS, and
THOMAS A. WALTZ, Administrative Patent Judges.

WALTZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Primary Examiner’s final rejection of claims 1 and 3-6, which are the only
claims pending in this application. We have jurisdiction pursuant to 35
U.S.C. § 6(b).
According to Appellant, the invention is directed to a single cell fuel
sensor including a housing with only two laterally spaced apart chambers,
Appeal 2008-2852
Application 10/960,818

and the first chamber is a fuel inlet chamber, the second chamber has a fuel
mixing portion and a fuel outlet portion, with a major portion of the fuel
inlet chamber inclined at an angle of substantially less than 90º from the
common axis (App. Br. 2). Further details of the invention may be gleaned
from a reading of illustrative independent claim 1 as reproduced below:
1. A single cell fuel sensor comprising:

a housing including only two laterally spaced apart chambers, a first
of said chambers being a fuel inlet chamber, and a second of said chambers
having a fueling mixing portion and a fuel outlet portion, said fuel mixing
portion and said fuel outlet portion being arrayed along a common axis, a
major portion of said fuel inlet chamber being inclined at an angle of
substantially less than 90° from said common axis of said fuel mixing
portion and said fuel outlet portion; and

an electrode fitted into said fuel mixing portion of said second
chamber, said electrode being electrically isolated from said housing.

The Examiner has relied on the following prior art references as
evidence of obviousness:
Ertel 5,182,523 Jan. 26, 1993
Plichon 2005/0000809 A1 Jan. 6, 2005

ISSUE ON APPEAL
Claims 1 and 3-6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ertel in view of Plichon (Ans. 3).
Appellant contends that the Examiner admits that Ertel does not teach
a major portion of the fuel inlet chamber being inclined at an angle
substantially less than 90º, but citation of Plichon does not remedy this
deficiency since Plichon is “totally different” than both the claimed fuel cell
and that of Ertel because it relates to a three chamber system (App. Br. 3).
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Application 10/960,818

Appellant contends that modifying the fuel cell of Ertel in the manner
proposed would “likely” result in making it unworkable since the fuel would
by-pass the first sensor element 1 of Ertel (App. Br. 4).
Appellant finally contends that the “hole-in-the-wall” 52 of Plichon
could not be considered a “major portion” of the fuel inlet chamber as
required by the claims (App. Br. 4).1
The Examiner contends that Plichon discloses a fuel inlet chamber
inclined at an angle substantially less than 90º and that it would have been
obvious to incorporate this fuel inlet chamber into the fuel sensor of Ertel for
the purpose of providing the desired fuel flow from the inlet to the electrode
(Ans. 3).
The Examiner contends that the system of Ertel would certainly be
workable even if the fuel inlet chamber were inclined (Ans. 5). The
Examiner also contends that Plichon discloses a “major portion” of the fuel
inlet chamber inclined (id.).
We determine the following issue presented from the record of this
appeal: (1) has Appellant established that the Examiner committed reversible
error in combining Ertel and Plichon to render obvious all of the limitations
of claim 1 on appeal?
We determine that the Examiner has established a prima facie case of
obviousness in view of the reference evidence, which prima facie case has
not been adequately rebutted by Appellant’s arguments. Therefore, we
sustain the sole ground of rejection on appeal essentially for the reasons

1 Appellant only presents arguments for the patentability of claim 1 (App.
Br. 4). Therefore, we select claim 1 from the grouping of claims and limit
our consideration to this claim. 37 C.F.R. § 41.37(c)(1)(vii).
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Application 10/960,818

stated in the Answer, as well as those reasons set forth below. The decision
of the Examiner is thus AFFIRMED.
OPINION
We determine the following Factual Findings (FF) from the record in
this appeal:
(1) Ertel discloses a single cell fuel sensor comprising a housing 2,
including only two laterally spaced apart chambers 5 and 9, a first
chamber 5 being a fuel inlet chamber, a second chamber having a
fuel mixing portion (space between sensor 4 and housing 2) and a
fuel outlet portion 9, said fuel mixing portion and fuel outlet
portion 9 arrayed along a common axis, and an electrode 4 fitted
into the fuel mixing portion, said electrode being electrically
isolated from the housing 2 (Ans. 3; Ertel, Fig.1; col. 3, l. 45-col.
4, l. 56; col. 5, ll. 26-28);
(2) Ertel discloses a fuel conduit 8 which connects the fuel inlet 5 to
the fuel outlet 9, and teaches that this conduit may have an
“incline, bevel or slant” for setting the mixture flowing to the
second sensor element 4, and thus to the fuel outlet 9 (Ertel, col. 2,
ll. 41- 45; col. 4, ll. 33-37; col. 5, ll. 60-61; and col. 6, ll. 10-11);
(3) Plichon discloses a three chamber fuel sensor assembly with the
inlet and outlet on a common side, with one embodiment where an
opening 52 is formed by a slide 50 at an angle relative to the
longitudinal axis to provide the desired fuel flow from the inlet to
the anode 26 (Ans. 3; Plichon, Figs. 1 and 4; ¶¶ [0008], [0032],
and [0033]).
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Application 10/960,818

Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art: and (4) secondary considerations, if any. See
Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). “[A]nalysis [of
whether the subject matter of a claim is obvious] need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex, Inc., 127
S. Ct. 1727, 1741 (2007). Discovery of the optimum value of a variable in a
known process is normally obvious. See In re Aller, 220 F.2d 454, 456
(CCPA 1955); In re Boesch, 617 F.2d 272, 276 (CCPA 1980). “[I]f a
technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill.” KSR, 127 S. Ct. at 1741.
Applying the preceding legal principles to the Factual Findings in the
record of this appeal, we determine that the Examiner has properly
established a prima facie case of obviousness in view of the reference
evidence. There is no dispute that Ertel explicitly discloses all the
limitations recited in claim 1 on appeal with the exception of “a major
portion of said fuel inlet chamber being inclined at an angle of substantially
less than 90º …” (Ans. 3; App. Br. 3; FF (1)). As shown by FF (2) listed
above, we determine that Ertel discloses and suggests that the fuel conduit 8
linking the inlet 5 and the outlet 9, which conduit may be considered as an
extension or portion of the inlet chamber, is inclined to set the mixture of
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Application 10/960,818

fuel flowing. Accordingly, we determine that it would have been obvious to
incorporate an inclined fuel inlet conduit in the system of Ertel to cause the
fuel to flow from the inlet to the outlet, with determination of the optimum
angle of incline well within the ordinary skill in this art to achieve the
desired flow result. See In re Aller, supra; In re Boesch, supra.
Additionally, as shown by FF (3) listed above, we determine that
Plichon would have suggested an inclined angle for the desired fuel flow
from the inlet chamber to other portions of the system. We also determine
that one of ordinary skill in this art would have recognized that the
improvement taught by Plichon would improve similar devices (i.e., two
chamber fuel sensors) in the same way, and thus the incorporation of the
inclined fuel inlet chamber into the system of Ertel would have been
obvious. See KSR, supra.
Appellant argues that the Plichon device is “totally different” than the
Ertel device or the claimed device (App. Br. 3). This argument is not
persuasive. We do not find that the three chamber device of Plichon, with
many similar features to Ertel, is so different from the two chamber device
of Ertel that one of ordinary skill in the art would not apply the
improvements of Plichon to the system of Ertel (compare Fig. 1 of Plichon
with Fig. 1 of Ertel, and note the inlet and outlet on a common side, the
common features of an inlet chamber, an outlet chamber, fuel conduits,
electrode and sensors, and back plate). See KSR, supra.
Appellant argues that modifying the sensor of Ertel in the manner
proposed would “likely” result in making Ertel “unworkable” since fuel
would by-pass the first sensor element (App. Br. 4). We find this argument
unpersuasive for several reasons. First, this is mere attorney argument and
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Application 10/960,818

not supported by any expert testimony or evidence. See In re Scarborough,
500 F.2d 560, 566 (CCPA 1974) (Attorney argument generally is held to be
insufficient to take the place of evidence or expert testimony). Second, as
correctly stated by the Examiner (Ans. 5), the sensor system disclosed by
Ertel would still work even with an inclined fuel inlet chamber. Third, as
shown by FF (2) listed above, we determine that Ertel suggests inclining the
conduit extension of the fuel inlet chamber, with no indication that this
system would be “unworkable.”
Appellant argues that the inclined portion taught by Plichon does not
meet the claimed “major portion” of the fuel inlet that is inclined (App. Br.
4). This argument is also not persuasive. As shown by FF (2) listed above,
we determine that Ertel suggests inclining the conduit 8, which may be
considered as a “major portion” of the fuel inlet chamber. Additionally,
Appellant has not alleged nor shown any criticality for the length of the
inclined portion of the fuel inlet chamber. We determine that the length of
the inclined portion would have been ascertainable by one of ordinary skill
in this art, depending on the desired flow and location of the inclined
conduit.
For the foregoing reasons and those stated in the Answer, we sustain
the Examiner’s rejection of all appealed claims under § 103 (a) over Ertel in
view of Plichon. The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

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PL initials:
sld

WILLIAM H. MCNEILL
OSRAM SYLVANIA INC.
100 ENDICOTT STREET
DANVERS, MA 01923
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