Ex Parte Aitken

Patent Trial and Appeal Board

Sep 21, 2018

13756318 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/756,318 01/31/2013
36865 7590 09/21/2018
MCCOY RUSSELL LLP
806 S.W. BROADWAY, SUITE 600
PORTLAND, OR 97205
FIRST NAMED INVENTOR
Brian Thomas Aitken
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
83342940 6942
EXAMINER
HAKOMAKI, JAMES R
ART UNIT PAPER NUMBER
3753
MAIL DATE DELIVERY MODE
09/21/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN THOMAS AITKEN
Appeal2018-000066 1
Application 13/756,318
Technology Center 3700
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 1-5, 7, and 20-33.
We have jurisdiction to review the case under 35 U.S.C. §§ 134 and 6.
The invention relates generally to a refueling adapter in a vehicle fuel
delivery system. Spec. 1 lines 3--4.
Claim 1 is illustrative:
1. A refueling adapter comprising:
1 The Appellant identifies Ford Global Technologies, LLC as the real party
in interest. Appeal Br. 3.
Appeal2018-000066
Application 13/756,318
a nozzle section; and
an inlet section coupled to and positioned upstream of the
nozzle section, the inlet section including a restrictor element
extending across an inlet section flow passage and an anti-sealing
rib coupled to an inlet section housing and axially extending
along the inlet section flow passage;
wherein the nozzle section removably engages with a cap-
less refueling port.
The Examiner rejected claims 1-5 under 35 U.S.C. § I02(b) as
anticipated by Dutzi et al. (US 8,720,721 B2, iss. May 13, 2014) (hereinafter
"Dutzi").
The Examiner rejected claims 1 and 7 under 35 U.S.C. § I02(b) as
anticipated by Lin (US 2012/0152865 Al, pub. June 21, 2012).
The Examiner rejected claims 20 and 24--32 under 35 U.S.C. § I02(b)
as anticipated by Muto et al. (US 2010/0288762 Al, pub. Nov. 18, 2010)
(hereinafter "Muto").
The Examiner rejected claims 21-23 under 35 U.S.C. § I03(a) as
unpatentable over Muto and Harris et al. (US 6,415,827 Bl, iss. July 9,
2002) (hereinafter "Harris").
The Examiner rejected claim 20 and 33 under 35 U.S.C. § I03(a) as
unpatentable over Lin and Lilley (US 167,548, iss. Sept. 7, 1875).
We AFFIRM-IN-PART.
ANALYSIS
Reiection of Claims 1. 2. and 4 over Dutzi
Claim 1 recites a "nozzle section." The Specification describes that
"nozzle section 206 may also be referred to as an outlet section." Spec. 7
line 4. Claim 1 also recites an "inlet section." The Specification describes
2
Appeal2018-000066
Application 13/756,318
"inlet section coupled to and positioned upstream of the nozzle section, the
inlet section including a restrictor element." Spec. 2 lines 6-10.
We are not persuaded of Examiner error by the Appellant's argument
that the Appellant is unable to determine which elements in Dutzi the
Examiner finds correspond to the claimed inlet and nozzle sections. Reply
Br. 2-3; see also Appeal Br. 11-12.
The Examiner finds Dutzi discloses the claimed inlet section at
element 20, the claimed nozzle section at element 12, and the claimed
restrictor section at element 22. Final Act. 6. The Examiner clarifies that in
Dutzi's Figure 1, as annotated by the Examiner, the nozzle is where the fuel
flows out downstream of the inlet section, and is "where the tip of the arrow
is pointing." Answer 11. These elements can be seen in Dutzi' s Figure 1, as
annotated by the Board, shown below:
10
Dutzi Figure 1 annotated to identify elements 12, 14, 20, and 22
3
Appeal2018-000066
Application 13/756,318
Our review of Dutzi' s Figure 1 leads us to conclude the Examiner
relies on the upper portion of Dutzi's capless refueling system as
corresponding to the claimed inlet section that includes the claimed restrictor
section, and the remaining, bottom portion of the figure as corresponding to
the claimed nozzle section.
According to the description of Dutzi, the claimed nozzle appears to
more readily correspond with element 14, Dutzi's "fuel pipe," because
"valve assembly 12 incorporates a PSV body 20 (i.e. lower body portion) of
material such as molded thermoplastic or the like which is adapted to be
matedly inserted into the proximal end of the fuel pipe 14." Dutzi col. 4
lines 19--23. Thus, although the arrow on element 12 in Dutzi's Figure 1 is
generally at the lower half of the drawing where pipe 14 is, the description
indicates element 12 is actually an assembly of everything above pipe 14.
Id. at lines 1--4 ("FIG. 1 illustrates an exemplary capless refueling system 10
including a multistage valve assembly 12 adapted for disposition within a
fuel pipe 14. ") However, because the claimed device has only three
components, and the Examiner identifies that Dutzi' s element 20 "is
positioned above" element 12, the artisan would have understood the
claimed nozzle as corresponding to the lower portion of Dutzi' s device,
which is also labeled pipe 14.
We are also not persuaded of Examiner error by the Appellant's
argument that the Examiner is in error by identifying Dutzi' s pipe 14 as a
cap-less refueling port. Appeal Br. 13; see also Reply Br. 3. The claimed
adapter does not recite a cap-less refueling port as a component. Instead, the
claim recites that "the nozzle section removably engages with a cap-less
4
Appeal2018-000066
Application 13/756,318
refueling port." The Examiner identifies that pipe 14 in Dutzi is the portion
of the adapter that engages with a cap-less refueling port. Final Act. 6.
For these reasons, we sustain the rejection of claim 1 as anticipated by
Dutzi, as well as dependent claims 2 and 4 that were not argued separately.
Reiection of Claim 3 over Dutzi
Dependent claim 3 recites, in part, "the inlet section comprises a
frustoconical section."
We are unpersuaded of Examiner error by the Appellant's argument
that Dutzi fails to disclose a frustoconical section based on the Examiner's
assertion that Figure 1 shows a taper in the cross-sectional view of the
device. Appeal Br. 14; see also Reply Br. 4. Dutzi discloses that outer walls
of upper inlet section 20 are "generally cylindrical." Dutzi col. 4 lines 48-
51. Dutzi' s Figure 1 shows that interior walls above element 40, positioned
approximately mid-way between the top and bottom of the inlet section, are
narrower than the walls below element 40. The interior surface of the cavity
within element 20, therefore is frustoconical: that is, shaped like a cone with
the tip end cut off.
For this reason, we sustain the rejection of claim 3.
Reiection of Claim 5 over Dutzi
Dependent claim 5 recites, in part, "where an area of a flow impeding
surface of the anti-sealing rib is less than an area of a flow impeding surface
of the restrictor element."
The Appellant argues it cannot be determined if Dutzi meets the claim
language, because "it could just as likely be that portions of the alleged ribs
which are not visible in the figures have flow impeding surfaces larger than
5
Appeal2018-000066
Application 13/756,318
a flow impeding surface of the PSV valve." Appeal Br. 15; see also Reply
Br. 5---6.
We are unpersuaded of Examiner error by the Appellant's argument.
The Specification describes that "FIG. 6 shows a flow impeding
surface 600 of the anti-sealing rib 300 and a flow impeding surface 602 of
the restrictor element 302. The area of surface 600 is less than the area of
surface 602." Spec. 11 lines 6-8. Figure 6 is a cross-sectional view, and
appears to be looking through the inlet at the restrictor element. The
Specification also describes that the "flow impeding surface 602 is planar
and perpendicularly arranged with regard to the axis 308, shown in FIG. 3."
Id. at lines 10-11. The flow-impeding area of the anti-sealing rib is,
therefore, construed as the area of the rib perpendicular to the flow of fluid.
The rib in claims 1 and 5 is recited as being "axially extending along the
inlet section flow passage." The axially-extending ribs shown protruding
toward the interior of the inlet section, visible in Dutzi's Figure 2, present a
cross-sectional area, perpendicular to the axis of flow, on the top end of the
rib immediately adjacent to the inlet surface, which is trivial in magnitude to
the cross-sectional area of the flapper valve 22 the Examiner finds is the
restrictor element. The ordinary artisan, viewing Dutzi's figures, would
have recognized the small area of top surfaces of the internal ribs are vastly
smaller than the area of the restrictor 22.
For this reason, we sustain the rejection of claim 5.
Reiection of Claim 1 over Lin
The Examiner finds the claimed nozzle section at element 32 of Lin,
and also finds "the nozzle section is capable of removably engaging with a
cap-less refueling port." Final Act. 7.
6
Appeal2018-000066
Application 13/756,318
We are not persuaded by the Appellant's arguments that the claim
"requires more than a mere 'capability' for the nozzle to be used in a
particular way. Claim 1 requires removable engagement with a cap-less
refueling port." Appeal Br. 16. The claim is directed to a device, and the
language for engaging with a refueling port is functional language. As
functional language, we are required to give this language weight to the
extent that the prior art is or is not capable of meeting the limitation. In re
Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997).
The Specification describes that with a cap-less inlet, "there is no
removable cap but rather a spring-loaded covering of the inlet that moves as
a result of insertion of an appropriately sized nozzle and/or an adapter."
Spec. 5 lines 18-20. Lin discloses "Spout 32 is substantially hollow
throughout its length to allow fluid to flow therethrough from main
body 30." Lin ,r 44. Lin's spout is, therefore, capable of being inserted into
a cap-less fuel port that merely requires an object to push aside the spring-
loaded covering.
The Appellant further argues alleged problems in using Lin's device
with a fuel port, such as leakage. Reply Br. 6-8. None of the alleged
problems are addressed by claim language, and merely relate to
characteristics that may be desirable in an adapter. If a device has the same
structure as the claimed adapter, however, it meets the claim language. The
Appellant has not persuasively argued that Lin's structure fails to meet the
claim language.
For these reasons, we sustain the rejection of claim 1 over Lin.
7
Appeal2018-000066
Application 13/756,318
Reiection of Claim 7 over Lin
Dependent claim 7 recites, in part, "where a diameter of the restrictor
element is less than a diameter of the nozzle section of the refueling
adapter."
We are persuaded by the Appellant's argument that Lin's element 19,
which the Examiner identified as being the claimed restrictor section, is
wider than Lin's element 32, the element the Examiner identified as the
nozzle section. Appeal Br. 18. A review of Figure 1 of Lin shows every
part of the nozzle 32 is narrower than element 19's overall width.
For this reason, we do not sustain the rejection of claim 7.
Reiection of Claims 20 and 24-32 over Muto
Independent claim 20 recites, in part, "a vehicle having a cap-less
refueling port; and a refueling adapter removably engaging the cap-less
refueling port."
The Appellant asserts Muto does not disclose a cap-less refueling
port. Appeal Br. 19. The Examiner asserts Muto' s vehicle fuel port is cap-
less during use. Answer 1 7. We agree with the Appellant, because Muto
discloses vehicle M's "fuel filler orifice 15a is normally closed by a tank
cap 16, and when filling with fuel, as shown in FIG. 3, insertion of a fuel
filler gun G into the fuel filler guide tube 15 is allowed by removing the tank
cap 16." Muto ,r 57. A fuel system with a cap generally is not a cap-less
system.
We are also persuaded by the Appellant's argument that Muto does
not disclose an adapter that removably engages a cap-less refueling port.
Appeal Br. 20. The Examiner finds Muto discloses the claimed nozzle
section at element 27, and the claimed inlet section at element 15. Final
8
Appeal2018-000066
Application 13/756,318
Act. 8. However, Muto discloses "fuel tank 3 stores ethanol fuel as fuel for
the engine, and a fuel filler guide tube 15 is liquid-tightly welded to its upper
wall 3a so as to extend therethrough." Muto ,r 57. A device that is tightly
welded to an object generally is not considered to be removably engaged
with that object.
For these reasons, we sustain neither the anticipation rejection of
claim 20, nor of claims 24--32 that depend from claim 20 and were rejected
along with it.
Reiection of Claims 21-23 over Muto and Harris
The Examiner does not establish on the record that Harris remedies
the shortcomings in Muto we set forth above at claim 20. For this reason,
we do not sustain the obviousness rejection of claims 21-23.
Reiection of Claims 20 and 33 over Lin and Lilley
Independent claim 20 recites, in part, "the anti-sealing rib includes a
first and a second portion ... [,] the second portion extending across the inlet
section in a radial direction."
We are persuaded by the Appellant's argument that "Appellant cannot
see that Lin's alleged rib has a second portion at all, much less one that"
extends radially across the inlet section. Appeal Br. 26. The Examiner does
not respond to this argument. See Answer 19.
The Examiner finds the claimed inlet section in Lin at element 12, and
the anti-sealing rib at element 20'. Final Act. 12. Lin, however, discloses
"Ribs 20' may be oriented substantially vertically within or without cup 12,
may define a helical pattern, or may conform to other configurations so long
as the ribs are not oriented substantially horizontally within cup 12." Lin
9
Appeal2018-000066
Application 13/756,318
,r 34. Lin, thus, teaches away from a portion of the rib that extends across
the inlet section in a radial direction.
For this reason, we do not sustain the obviousness rejection of
claim 20 over Lin and Lilley. We also do not sustain the rejection of claim
33 that depends from, and was rejected along with, claim 20.
DECISION
We affirm the rejection of claims 1-5 as anticipated by Dutzi.
We affirm the rejection of claim 1 as anticipated by Lin.
We reverse rejection of claim 7 as anticipated by Lin.
We reverse the rejection of claims 20 and 24--32 as anticipated by
Muto.
We reverse the rejection of claims 21-23 as obvious over Muto and
Harris.
We reverse the rejection of claims 20 and 33 as obvious over Lin and
Lilley.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
10