Ex Parte Benjey

Board of Patent Appeals and Interferences

Jun 16, 2005

09963815 (B.P.A.I. Jun. 16, 2005)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ROBERT P. BENJEY
____________
Appeal No. 2005-0880
Application No. 09/963,815
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HEARD: June 8, 2005
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Before FRANKFORT, MCQUADE, and NASE, Administrative Patent Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Robert P. Benjey appeals from the final rejection of claims
1 through 11, all of the claims pending in the application.
THE INVENTION
The invention relates to “systems for providing controlled
venting and preventing escape to the atmosphere of fuel vapor
from a fuel tank, particularly on board a motor vehicle, and more
particularly during refueling” (specification, page 2).
Representative claim 1 reads as follows:
1. A method of controlling fuel tank vapor venting during
refueling comprising:
(a) providing a fuel filler neck on the tank and inserting a
fuel filler nozzle in the tank filler neck and mechanically
sealing between the nozzle and filler neck;
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Application No. 09/963,815
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1 The appellant’s counsel confirmed at the oral hearing that
the step in claim 1 of “forming a liquid seal between the filler
neck and the fuel discharged from the nozzle during refueling” is
not entirely accurate. Claims 4 and 8 contain similar
limitations. The underlying specification (see page 6) more
accurately describes the liquid seal as being formed between the
nozzle and the inner periphery of the neck, and we have so
construed the claim language in question for purposes of the
appeal. In the event of further prosecution, the appellant
should amend claims 1, 4 and 8 to conform with the descriptive
portion of the specification in this regard.
(b) disposing a vent valve in the upper wall of the tank and
connecting a vapor vent line from the vent valve to a vapor
storage canister; and,
(c) connecting one end of a recirculation line to the filler
neck downstream of the mechanical seal and connecting an end
opposite the one end to the vapor vent line; and, forming a
liquid seal between the filler neck and the fuel discharged from
the nozzle during refueling and entraining recirculated vapor
into the tank.1
THE PRIOR ART
The prior art items relied on by the examiner to support the
final rejection are:
Allison 5,282,497 Feb. 1, 1994
The prior art fuel tank system shown and described in Figure 5 of
the drawings and on pages 3 and 4 in the specification of the
instant application (the admitted prior art).
THE REJECTION
Claims 1 through 11 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the admitted prior art in view of
Allison.
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Application No. 09/963,815
3
Attention is directed to the main and reply briefs (filed
March 11, 2004 and June 7, 2004) and the final rejection and
answer (mailed July 16, 2003 and May 27, 2004) for the respective
positions of the appellant and examiner regarding the merits of
this rejection.
DISCUSSION
Since the appellant has not argued separately the
patentability of any particular claim apart from the others, all
of the appealed claims shall stand or fall with representative
claim 1 (see In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091
(Fed. Cir. 1991); In re Wood, 582 F.2d 638, 642, 199 USPQ 137,
140 (CCPA 1978)).
The following passage from the appellant’s specification
describes the admitted prior art fuel tank system:
Referring to FIG. 5, another system of the prior
art is illustrated pictorially where a fuel tank la has
a filler tube 4a with an enlarged cup-shaped upper end
portion 5a shown with refueling nozzle 3a received
therein and having the end thereof inserted in closely
fitting arrangement in the upper end of the filler tube
4a. The lower end of the filler tube 4a extends into
the fuel tank and has a one-way valve 6a provided
thereon to permit fuel to enter the tank but not filler
neck 4a. The tank has a float operated vent valve 7a
provided in the top thereof and registered thereagainst
by flange 8a with the valve 7a extending through an
access opening into the tank for sensing the fuel level
indicated generally at 14a.
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Application No. 09/963,815
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Valve 7a has conduit 9a connected thereto and to
storage canister 10a which is vented through the
atmospheric air inlet tube 12a. Canister 10a has a
purge line 1la connected thereto and adapted for
connection to the air (not shown) of the vehicle
engine. Tube 9a is also connected through conduit 13a
to the enlarged upper end 5a of the filler neck for
recirculating fuel vapor thereto. During filling, the
aspirating effects of the liquid fuel flow from the
nozzle creates a reduced pressure in the upper end of
the tube 5a and draws in air and vapor from 13a into
the filler tube 4a and the tank. The air drawn in
further increases fuel vaporization. Flow of fuel
vapor to the atmosphere through tube 13a can occur if
13a vapor flow is not significantly limited [pages 3
and 4].
The examiner’s determination (see page 2 in the final
rejection) that the admitted prior art teaches, or would have
suggested, a method responsive to all of the limitations in claim
1 except for those pertaining to the mechanical seal between the
nozzle and filler neck is reasonable on its face and has not been
disputed by the appellant. To overcome this deficiency in the
admitted prior art, the examiner turns to Allison.
Allison relates to “motor vehicle fuel filling systems and,
more particularly, to a fuel and vapor control system for
controlling the release of evaporative and running loss fuel
vapors into the atmosphere” (column 1, lines 7 through 11). The
control system 200 illustrated in Figures 7 and 8 comprises a
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Application No. 09/963,815
5
fuel tank 12, a fuel tank fill pipe 14, a control valve assembly
204 at the upper portion of the fuel tank, a vapor line 32
connecting the control valve assembly to a vapor recovery device
206, a nozzle signal line 24 connecting the control valve
assembly to a port 99 near the outer end of the fill pipe, and a
cap-less restrictor assembly 202 within the fill pipe just
upstream of the port for inhibiting release to the atmosphere of
fuel vapors in the fill pipe and nozzle signal line. The control
valve assembly functions to control the flow of fuel vapors from
a vapor dome above the fuel in the tank to the vapor line and the
nozzle signal line. As the fuel level in the tank approaches the
fill line, the fuel vapors pick up and carry liquid fuel through
the nozzle signal line and the resulting “spray” signals the
nozzle shut-off mechanism to terminate the delivery of fuel into
the fill pipe.
Of particular interest in this appeal is the construction of
Allison’s cap-less restrictor assembly 202. As shown in Figure
8, this assembly includes a spring-biased back-splash door
assembly 82, 84, 86, 88 and 90, and a wall member 210 supporting
an elastomeric annular nozzle seal 212, a pressure relief valve
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Application No. 09/963,815
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assembly 102 and a vacuum relief valve (not shown). Allison
teaches that
elastomeric nozzle seal 212 . . . is adapted to
resiliently and sealing engage the exterior periphery
of nozzle “N” upon insertion therethrough prior to
engagement with back splash door 82. Once nozzle “N”
is inserted through nozzle opening 88, the rushing
liquid fuel dispensed therefrom creates a vacuum behind
nozzle seal 212 in chamber 89. As such, the vacuum
relief valve assembly permits air to be drawn into
chamber 89 from exterior chamber 92 during the
refueling process while preventing the escape of vapors
therefrom [column 8, lines 48 through 58].
In proposing to modify the admitted prior art in view of
Allison to reject claim 1, the examiner submits that it would
have been obvious at the time the invention was made to a person
having ordinary skill in the art
to employ in the fill cup 5a of instant figure 5 of the
application [the admitted prior art] a support plate
having mounted thereon a seal element for supporting
and sealing the fuel filler nozzle . . . for the
purpose of sealing the open end of the fill neck 202
[sic, filler tube 4a] and nozzle “N” [sic, refueling
nozzle 3a] thus precluding straight venting of fuel
vapor to the atmosphere as recognized by Allison [final
rejection, pages 2 and 3].
The appellant counters that this rejection is unsound due to
a lack of any suggestion or basis for the proposed combination of
the admitted prior art and Allison (see page 3 in the main
brief), and more specifically because
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Application No. 09/963,815
7
[t]he purpose of the liquid seal in Applicant’s
structure in combination with the mechanical seal is to
prevent or minimize the entrainment of air into the
filler tube during refueling. If air is entrained into
the filler tube, the air pushes the vapor into the
canister line and this places a load on the canister.
Applicant’s device prevents entrainment of air and
minimizes the loading of the canister during refueling.
The Examiner’s proposed combination of the prior
art of FIG. 5 of the present application with the
structure of FIG. 8 of Allison would still permit air
to be drawn into the filler tube through the vacuum
relief valve 102 [sic] of Allison.
The Examiner’s rejection is predicated upon
reworking the structure of the Allison ‘497 patent to
remove the vacuum relief valve 102 [sic] and prevent
the entrainment of air. This reworking would teach
away from or contravene the purpose of the Allison
structure. Accordingly, it is submitted that the
Examiner’s proposed combination, being predicated upon
reworking the reference in a manner teaching away from
the reference is arbitrary and not within the statutory
meaning of “obvious” [reply brief, pages 1 and 2].
The appellant’s position here is not persuasive. The
description of the admitted art in the instant specification
allows that “[f]low of fuel vapor to the atmosphere through tube
13a can occur if 13a vapor flow is not significantly limited”
(page 4). In other words, fuel vapor recirculated through tube
13a to the upper end 5a of filler tube 4a may escape to the
atmosphere, a problem which is self-evident given the
construction of the admitted prior art system. The cap-less
restrictor assembly 202 disclosed by Allison is expressly
designed to solve such a problem. The appreciation of the fuel
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Application No. 09/963,815
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vapor venting problem in the admitted prior art and the teaching
by Allison of a solution thereto would have provided the artisan
with ample suggestion or motivation to incorporate a cap-less
restrictor assembly of the sort disclosed by Allison into the
admitted prior art system. This modification would involve the
addition to the admitted prior art system of a mechanical seal,
such as Allison’s wall member 210 and elastomeric annular nozzle
seal 212, between the nozzle and filler neck upstream of the
vapor recirculation line, thereby arriving at the method recited
in claim 1. That the proposed modification of the admitted prior
art system in view of Allison also would have included the
addition of a vacuum relief valve which permits entrainment of
air into the filler tube during refueling is of no moment as
neither claim 1 nor any other appealed claim excludes such a
relief valve or the entrainment of air permitted thereby.
Hence, on the record before us, the combined teachings of
the admitted prior art and Allison justify the examiner’s
conclusion that the differences between the subject matter
recited in claim 1 and the prior art are such that the subject
matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art.
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Accordingly, we shall sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 1, and claims 2 through 11 which
stand or fall therewith, as being unpatentable over the admitted
prior art in view of Allison.
SUMMARY
The decision of the examiner to reject claims 1 through 11
is affirmed.
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Application No. 09/963,815
Page 10
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. MCQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
JPM/kis
Appeal No. 2005-0880
Application No. 09/963,815
Page 11
EATON CORPORATION
EATON CENTER
1111 SUPERIOR AVENUE
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