Ex Parte Bole

Board of Patent Appeals and Interferences

May 27, 2009

10946482 (B.P.A.I. May. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
____________________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
____________________ 6
7
Ex parte MATTHEW M. BOLE 8
____________________ 9
10
Appeal 2009-002323 11
Application 10/946,482 12
Technology Center 3600 13
____________________ 14
15
Decided:1 May 27, 2009 16
____________________ 17
18
Before FRED E. McKELVEY, Senior Administrative Patent Judge, and 19
LINDA E. HORNER and FRED A. SILVERBERG, Administrative Patent 20
Judges. 21
22
SILVERBERG, Administrative Patent Judge. 23
24
25
DECISION ON APPEAL26

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE 1
Bole (Appellant), the inventor and real party in interest, appeals under 2
35 U.S.C. § 134 (2002) from a rejection of claims 1-3, 13 and 21. Claims 4, 3
7-12 and 14-20 have been withdrawn. Claims 5 and 6 have been canceled. 4
We have jurisdiction under 35 U.S.C. § 6(b) (2002). 5
6
SUMMARY OF DECISION 7
We AFFIRM. 8
9
THE INVENTION 10
The Appellant’s claimed invention is directed to an adjustable airflow 11
regulating device for replacing a truck grille and for placement atop a cab of 12
a tractor truck (Spec. 2:2-10). 13
The invention is readily understood by reference to Figs. 1, 6a, 6b, 6c, 14
14a and 15a, and Claim 1. 15
Figure 1 is reproduced below: 16
17
Figure 1 shows first air flow regulator 110 (Spec. 3:6-8). 18
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1
Figures 6a-6c are reproduced below: 2
3
Figures 6a-6c are representative of the second air flow regulator 130 4
(Spec. 4:3-8). 5
Figure 14a is reproduced below: 6
7
Figure 14a is a block diagram showing the thermostat 152 connected 8
to the motor 125 (Spec. 5:17). 9
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Figure 15a is reproduced below: 1
2
Figure 15a is a block diagram showing the CPU 165 connected to the 3
proximity sensor 162 and the motor 125′ (Spec. 5:20-21). 4
Claim 1, reproduced below, is representative of the claimed subject 5
matter (matter in bold and parentheses added) (App. Br. 3-5 and 13-15): 6
1. A kit for improving gas mileage configured for 7
retrofitting onto a tractor truck, comprising: 8
a first airflow regulator 110 configured to replace a truck 9
grille of said tractor truck (Spec. 7:5-6), said first airflow 10
regulator 110 including means for adjusting 120 said first 11
airflow regulator between an open grille configuration and a 12
closed grille configuration (adjusting means 120, Spec. 8:1-8); 13
a housing 131 configured to attach atop a cab of said 14
tractor truck (Spec. 7:8); 15
a second airflow regulator 130 positioned inside said 16
housing (Spec. 7:8), said second airflow regulator including 17
means for adjusting 140 said second airflow regulator 130 18
between an open top configuration and a closed top 19
configuration (means 140, Spec. 8:18-25); 20
means for actuating 150 said adjustment means 120 of 21
said first airflow regulator 110; and (means 150, Spec. 8:9-13) 22
means for actuating 160 said adjustment means of said 23
second airflow regulator (means 160, Spec. 9:1-4); 24
wherein said second airflow regulator 130 comprises 25
(Spec. 8:18-20; Spec. 7:12-25): 26
a frame 112′ (Fig. 6b) having opposed left and 27
right sidewalls and opposed top and bottom sidewalls extending 28
between said left and right sidewalls, each said left and right 29
sidewall defining a plurality of flange receptors; 30
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a plurality of louvers 116′, each said louver 1
extending between said left and right sidewalls, each said 2
louver having left and right hinge flanges complementary to 3
respective flange receptors of said left and right sidewalls, 4
respectively; and 5
a tie rod 118′ (Fig. 6a) pivotally coupled to an 6
outer edge of each said louver 116′ for maintaining each said 7
louver generally parallel to every other said louver, said 8
plurality of louvers generally overlapping one another when 9
said second airflow regulator is in said closed top configuration, 10
each said louver being generally horizontal when said second 11
airflow regulator is in said open top configuration; 12
wherein said adjustment means 140 of said second 13
airflow regulator 130 includes (Spec. 8:18-20, Spec. 8:1-8): 14
a pinion gear 124′ operatively attached to a 15
respective louver for rotating said respective louver about said 16
respective hinge flange; 17
a motor 125′ mounted to said frame proximate said 18
pinion gear; and 19
a worm gear 126′ operatively coupled to said 20
motor and having a configuration complementary to a 21
configuration of said pinion gear for operative engagement 22
therewith, whereby said worm and pinion gears are operated 23
when said motor is energized; 24
a CPU (central processing unit) 165; 25
a proximity sensor 162 operatively connected to 26
said CPU and said motor for actuating said motor to engage 27
said pinion and worm gears when said proximity sensor detects 28
a trailer, whereby to move said second airflow regulator 130 29
toward said closed top configuration (Spec. 9:1-11). 30
31
THE REJECTIONS 32
The Examiner relies upon the following as evidence of 33
unpatentability: 34
Kangas US 4,102,548 Jul. 25, 1978 35
Massengill US 4,693,506 Sep. 15, 1987 36
Haines US 4,904,015 Feb. 27, 1990 37
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Spears US 5,429,411 Jul. 4, 1995 1
Lee US 5,732,666 Mar. 31, 1998 2
3
The following rejections by the Examiner are before us: 4
1. Claims 1-3 are rejected under 35 U.S.C. § 103(a) as being 5
unpatentable over Massengill in view of Lee, Spears, and Haines. 6
2. Claims 13 and 21 are rejected under 35 U.S.C. § 103(a) as being 7
unpatentable over Massengill in view of Lee, Spears and Haines, and 8
further in view of Kangas. 9
ISSUES 10
The issues before us are whether the Appellant has shown that the 11
Examiner erred in rejecting claims 1-3 as being unpatentable over 12
Massengill in view of Lee, Spears and Haines, and claims 13 and 21 as 13
being unpatentable over Massengill in view of Lee, Spears and Haines, and 14
further in view of Kangas. These issues turn on whether: (1) it would have 15
been obvious to a person having ordinary skill in the art to combine the 16
teachings of the air deflector systems of Massengill, Lee, Spears and Haines 17
for improved gas mileage as called for in claim 1 (App. Br. 10); (2) it would 18
have been obvious to a person having ordinary skill in the art to combine the 19
teachings of Massengill, Lee, Spears, Haines and Kangas for improved gas 20
mileage as called for in claims 13 and 21 (App. Br. 11); and (3) the level of 21
skill is so advanced such that it would have led a person having ordinary 22
skill in the art to combine the air deflector teachings of Massengill, Lee, 23
Spears, Haines and Kangas (App. Br. 10). 24
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FINDINGS OF FACT 1
We find that the following enumerated findings are supported by at 2
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 3
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for 4
proceedings before the Office). 5
1. Massengill discloses an air fairing device 10 for mounting on a cab 6
of a truck 12 (col. 2, ll. 23-27 and fig. 1). The device includes 7
(1) an air fairing structure 14, (2) a plurality of relief doors 16 8
operable between a closed and an open position (figs. 1 and 4, and 9
col. 2, ll. 44-54), the opposite ends 32, 34 of the relief doors 16 10
being rotatably mounted to the structure 14 by a pin 17 (fig. 2A) 11
received in a standard (col. 3, ll. 10-19), (3) a system 40 for 12
opening and closing the relief doors 16 including an actuator 42, 13
42′ (col. 3, ll. 39-49 and fig. 2A), (4) a control circuit 57 for 14
selectively energizing the actuator 42, 42′ including an electric 15
motor 44′, and (5) a worm gear 87 (col. 5, ll. 46-52 and fig. 2B). 16
2. Massengill further discloses that the device is designed to be 17
mounted on a vehicle for retrofit applications (col. 6, ll. 40-43). 18
3. The ordinary meaning of the word “retrofit” includes “To provide 19
(a jet, automobile, computer, or factory, for example) with parts, 20
devices, or equipment not in existence or available at the time of 21
original manufacture.” See, e.g., The American Heritage® 22
Dictionary of the English Language (4th ed. 2000). 23
4. Lee discloses a radiator grill moving device including (1) a 24
plurality of fins 22 coupled by a link bar 24 (col. 2, ll. 60-61 and 25
figs 2-3); wherein the fins may be horizontally arranged (col. 3, 26
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l. 2); (2) fin moving means including a worm 28; (3) a pinion gear 1
30 and a step motor 26 (col. 3, ll. 5-10 and figs. 2-3); (4) a control 2
unit 32 connected to both temperature sensors 36 and the step 3
motor 26 for driving the fin moving means in response to 4
temperature signals output from the temperature sensors 36 (col. 3, 5
ll. 11-14 and fig. 3); and (5) where the control unit 32 compares 6
the temperature signals from the sensors 36 with preset 7
temperature data stored in the memory of the control unit 32 8
(col. 3, ll. 30-33). 9
5. Spears discloses a multi-louvered streamlined fairing adapted to be 10
positioned on the cab of a tractor (col. 1, ll. 52-54). The fairing 11
includes (1) a body 16 having an opening 19 (col. 3, ll. 3-13), (2) a 12
frame 50 having openings 57, wherein pivotally mounted in the 13
openings 57 are louvers 58 which adjustably close the openings 57, 14
the louvers 58 being hingedly mounted by a rear hinge 59 (col. 4, 15
ll. 3-24 and fig. 12), and (3) a linkage including links 62, 63 that 16
are actuated to move the louvers 58 to the open position (col. 4, ll. 17
38-41 and fig. 10), wherein link 63 is connected to the louvers 58 18
at a point spaced from the outer edges of the louvers 58 (fig. 10). 19
6. Haines discloses (1) an air deflection system 10 mounted on a 20
tractor trailer truck (col. 3, ll. 67-68), (2) a tractor 12 coupled to a 21
trailer 14 (col. 4, ll. 1-2), (3) a top fairing 16 extending from a top 22
portion 20 of the tractor 12 (col. 4, ll. 12-13), (4) proximity sensors 23
L, R, and C, (5) a microprocessor 170, (6) a top airfoil solenoid 24
valve 182, and (7) air springs 160, 162 (col. 9, ll. 10-57 and fig. 25
12). 26
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7. Haines further discloses that the presence of a trailer 14 reflects a 1
signal to proximity sensors L, R and C. The proximity sensors L, 2
R and C then, respectively, transmit a signal 164, 166, 168 to a 3
microprocessor 170. The microprocessor then actuates a top airfoil 4
solenoid 182 which diverts pressure from the air supply from the 5
rear-acting air springs 160 to the forward-acting air springs 162 6
thus moving the top airfoil to its forward position (col. 9, ll. 10-57 7
and fig. 12). 8
8. Kangas discloses (1) an air deflector 16 mounted on top of a tractor 9
T (col. 2, l. 47), and (2) a microprocessor 70 for receiving signals 10
from a sensor 78. The signals indicate the actual performance of 11
the vehicle (col. 4, ll. 6-20 and fig. 5). The performance signal Vp 12
is a function of the speed signal Vs. The fuel consumption signal 13
VF1-VF2 and the microprocessor 70 control the air deflector based 14
on the performance signal Vp (col. 3, ll. 22-33, col. 4, ll. 6-20, and 15
figs. 5-6). 16
9. Additional findings as necessary appear in the Analysis portion of 17
this opinion. 18
19
PRINCIPLES OF LAW 20
Appellant has the burden on appeal to the Board to demonstrate error 21
in the Examiner’s position. See Ex parte Yamaguchi, 88 USPQ2d 1606, 22
1614 (BPAI 2008) [burden on appeal] (on appeal, applicant must show 23
examiner erred); Ex parte Fu, 89 USPQ2d 1115, 1123 (BPAI 2008); Ex 24
parte Catan, 83 USPQ2d 1569, 1577 (BPAI 2007); and Ex parte Smith, 25
83 USPQ2d 1509, 1519 (BPAI 2007). See also In re Kahn, 441 F.3d 977, 26
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985-86 (Fed. Cir. 2006) (“On appeal to the Board, an applicant can 1
overcome a rejection [under § 103] by showing insufficient evidence of 2
prima facie obviousness or by rebutting the prima facie case with evidence 3
of secondary indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 4
1350, 1355 (Fed. Cir. 1998)). 5
“Section 103 forbids issuance of a patent when ‘the differences 6
between the subject matter sought to be patented and the prior art are such 7
that the subject matter as a whole would have been obvious at the time the 8
invention was made to a person having ordinary skill in the art to which said 9
subject matter pertains.’” KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 406 10
(2007). The question of obviousness is resolved on the basis of underlying 11
factual determinations including (1) the scope and content of the prior art, 12
(2) any differences between the claimed subject matter and the prior art, 13
(3) the level of skill in the art, and (4) where in evidence, so-called 14
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 15
(1966). See also KSR, 550 U.S. at 406-407 (“While the sequence of these 16
questions might be reordered in any particular case, the [Graham] factors 17
continue to define the inquiry that controls.”). 18
In KSR, the Supreme Court stated that “when a patent claims a 19
structure already known in the prior art that is altered by the mere 20
substitution of one element for another known in the field, the combination 21
must do more than yield a predictable result.” Id. at 416 (citing United 22
States v. Adams, 383 U.S. 39, 50-51 (1966)). 23
In KSR, the Supreme Court held that “if a technique has been used to 24
improve one device, and a person of ordinary skill in the art would recognize 25
that it would improve similar devices in the same way, using the technique is 26
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obvious unless its actual application is beyond his or her skill.” KSR, 550 1
U.S. at 417. 2
In KSR, the Supreme Court stated that: 3
[o]ften, it will be necessary for a court to look to 4
interrelated teachings of multiple patents; the 5
effects of demands known to the design 6
community or present in the marketplace; and the 7
background knowledge possessed by a person 8
having ordinary skill in the art, all in order to 9
determine whether there was an apparent reason to 10
combine the known elements in the fashion 11
claimed by the patent at issue. 12
13
Id. at 418. The Court noted that “[t]o facilitate review, this analysis should 14
be made explicit.” Id. (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) 15
(“[R]ejections on obviousness grounds cannot be sustained by mere 16
conclusory statements; instead, there must be some articulated reasoning 17
with some rational underpinning to support the legal conclusion of 18
obviousness.”)). However, “the analysis need not seek out precise teachings 19
directed to the specific subject matter of the challenged claim, for a court 20
can take account of the inferences and creative steps that a person of 21
ordinary skill in the art would employ.” KSR, 550 U.S. at 418. 22
“When the references are all in the same or analogous fields, 23
knowledge thereof by the hypothetical person of ordinary skill is presumed, 24
(Internal citations omitted), and the test is whether the teachings of the prior 25
art, taken as a whole, would have made obvious the claimed invention.” In 26
re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991). 27
“The large number of cited references does not negate the obviousness 28
of the combination, for the prior art uses the various elements for the same 29
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purposes as they are used by appellants, making the claimed invention as a 1
whole obvious in terms of 35 U.S.C. § 103.” Id. at 987. 2
The Board may affirm a rejection under 35 U.S.C. § 103 based on 3
Examiner's official notice of facts, without citation of references, where 4
Appellant was sufficiently put on notice of the basis of the rejection and did 5
not challenge the truth of the Examiner's assertion. See In re Lundberg, 244 6
F.2d 543, 551 (CCPA 1957) (examiner's statement accepted as true in light 7
of appellant's failure to question its accuracy or to present contradicting 8
evidence); In re Fox, 471 F.2d 1405, 1406-07 (CCPA 1973) (affirming 9
rejection under 35 U.S.C. § 103 without citation of any prior art based on 10
facts that were unchallenged by the appellant). 11
12
ANALYSIS 13
Appellant argues claims 1-3 as a group. As such, we select claim 1 as 14
representative of the group, and claims 2 and 3 will stand or fall with claim 15
1. 37 C.F.R. § 41.37(c)(1)(vii) (2007). The Appellant argues claims 13 and 16
21 separately. 17
Massengill discloses an air fairing device 10 for mounting on a cab of 18
a truck 12. The device includes an air fairing structure 14, a plurality of 19
relief doors 16 operable between a closed and an open position, the opposite 20
ends 32, 34 of the relief doors 16 are rotatably mounted to the structure 14 21
by a pin 17 received in a standard, a system 40 for opening and closing the 22
relief doors 16 including an actuator 42, 42′, a control circuit 57 for 23
selectively energizing the actuator 42, 42′ including an electric motor 44′ 24
and a worm gear 87 (Fact 1). 25
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Massengill does not disclose (1) a first air flow regulator or any 1
control system therefore, and (2) that the adjustment means for the second 2
air flow regulator includes a pinion gear. Lee discloses an air flow regulator 3
for a vehicle grill including a plurality of horizontally arranged fins 22, fin 4
moving means including a worm 28, a pinion gear 30, and a step motor 26 5
(Fact 4). Lee does not explicitly disclose that the air flow regulator adjusts 6
the fins between an open and closed position. 7
Massengill does not disclose having a tie rod pivotally coupled to an 8
outer edge of the relief doors 16. Spears discloses a multi-louvered 9
streamlined fairing adapted to be positioned on the cab of a tractor, the 10
fairing including a louver 58, which adjustably closes openings 57, and a 11
linkage including a link 62 that is actuated to move the louvers 58 to the 12
open position (Fact 5). Spears does not disclose that the link (tie rod) 62 is 13
coupled to the outer edge of louvers (Fact 5). 14
Massengill does not teach a CPU including a proximity sensor 15
operatively connected to the CPU. Haines discloses an air deflection system 16
10 mounted on a tractor trailer truck, and a microprocessor 170 having 17
proximity sensors. Proximity sensors L, R and C, respectively, transmit a 18
signal 164, 166, 168 to the microprocessor 170 to actuate an air foil 19
(Facts 6-7). 20
Massengill does not disclose a CPU receiving fuel consumption or 21
velocity data. Kangas discloses an air deflector 16 mounted on top of a 22
tractor T, and a microprocessor 70 for receiving speed and the fuel 23
consumption data (Fact 8). 24
For the reasons set forth by the Examiner (Ans. 3-8) and provided in 25
further detail infra, we conclude, based on the combined teachings of 26
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Massengill, Lee, Spears and Haines (claim 1), and in addition Kangas 1
(claims 13 and 21), that the claimed subject matter would have been obvious 2
at the time the invention was made to a person having ordinary skill in the 3
art. 4
5
Rejection of claims 1-3 under 35 U.S.C. § 103(a) as being unpatentable over 6
Massengill in view of Lee, Spears, and Haines 7
8
Appellant contends that teachings of the prior art patents were 9
improperly combined. Appellant further contends that the Examiner 10
improperly relied on an unsubstantiated level of skill in the art and therefore 11
is said to have overlooked holes in the cited prior art (App. Br. 10). 12
Appellant still further contends that the invention could not have been 13
obvious if so many patents have to be combined to make out a case of 14
obviousness (App. Br. 10). 15
Appellant has contested the combinability of the teachings of 16
Massengill, Lee, Spears and Haines essentially because of the number of 17
patents applied against the claimed invention (App. Br. 8-12). Since the four 18
patents to Massengill, Lee, Spears, and Haines disclose air deflection 19
devices for a vehicle, they are all from the same field of art. Since 20
Massengill, Lee, Spears and Haines are all from the same field of art, 21
knowledge thereof by the hypothetical person of ordinary skill is presumed. 22
Therefore, the issue is whether the collective teachings of the four patents to 23
Massengill, Lee, Spears and Haines would have made obvious the claimed 24
invention. “When the references are all in the same or analogous fields, 25
knowledge thereof by the hypothetical person of ordinary skill is presumed, 26
(Internal citations omitted), and the test is whether the teachings of the prior 27
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art, taken as a whole, would have made obvious the claimed invention.” In 1
re Gorman, 933 F.2d at 986. “The large number of cited references does not 2
negate the obviousness of the combination, for the prior art uses the various 3
elements for the same purposes as they are used by appellants, making the 4
claimed invention as a whole obvious in terms of 35 U.S.C. § 103.” Id. at 5
987. The modifications proposed by the Examiner are nothing more than the 6
simple substitution of one known element for another to perform the same 7
function, or the mere application of a known technique to a piece of prior art 8
ready for the improvement. See KSR, 550 U.S. at 416-417. See also 9
Anderson's-Black Rock, Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57 10
(1969) (paving repair apparatus consisting of a combination of three known 11
elements, all performing their function in the combination, held obvious). 12
The modification of Massengill by the teachings of Lee as proposed 13
by the Examiner (Ans.4) is the simple substitution of one adjustment means 14
including a pinion and a motor, for another adjustment means including a 15
pinion, a motor, and a worm gear to perform the same function to yield 16
predictable results of a more compact adjustment means, and the mere 17
application of a known technique to a piece of prior art ready for the 18
improvement, that is, the provision of a first airflow regulator on the vehicle 19
grill that yields predictable results of diverting air at the vehicle grill to 20
thereby improve gas mileage. See KSR, 550 U.S. at 416-417. Lee does not 21
explicitly disclose that the air flow regulator adjusts the fins between an 22
open and closed position. We conclude that it would have been obvious at 23
the time the invention was made to a person having ordinary skill in the art 24
to adjust the first air flow between an open and a closed position in order to 25
efficiently regulate the radiator operating temperature over a greater range. 26
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The modification of Massengill by the teachings of Spears as 1
proposed by the Examiner (Ans. 4-5) is the mere application of a known 2
technique to a piece of prior art ready for the improvement, that is, the 3
provision of a tie rod coupled to Massengill’s relief doors 16 that yields the 4
predictable result of the relief doors 16 moving in unison. See Id. at 417. 5
Spears does not disclose that the link (tie rod) 62 is coupled to the outer edge 6
of louvers 58 (Fact 5). However, the Examiner found that it was old and 7
well known in the art to pivotally couple the link to an outer edge of 8
Massengill’s relief doors 16 (Ans. 5). The Board may affirm a rejection 9
under 35 U.S.C. § 103 based on Examiner's official notice of facts, without 10
citation of references, where Appellant was sufficiently put on notice of the 11
basis of the rejection and did not challenge the truth of the Examiner's 12
assertion. See In re Lundberg, 244 F.2d at 551; In re Eskild, 387 F.2d 987, 13
988 (CCPA 1968). The Examiner took Official Notice of this common and 14
well known teaching in the prior art (Ans. 5). The Examiner made the same 15
finding based on Official Notice in the Non-Final Office Action, dated May 16
4, 2006, and in the Final Office Action, dated October 7, 2006. The 17
Appellant has never contested the Examiner's finding. 18
The modification of Massengill by the teachings of Haines as 19
proposed by the Examiner (Ans. 6) is the mere application of a known 20
technique to a piece of prior art ready for the improvement, that is, the 21
provision of a CPU including a proximity sensor that yields the predictable 22
results of detecting the presence or absence of a trailer and actuating an air 23
flow regulator in response thereto. See id. at 417. 24
Appellant has not shown that the Examiner erred in concluding that 25
the combined teachings of Massengill, Lee, Spears and Haines (claim 1), 26
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and in addition Kangas (claims 13 and 21) as set forth by the Examiner 1
(Ans. 3-8) would have been obvious at the time the invention was made to a 2
person having ordinary skill in the art. 3
Appellant has not shown that the Examiner erred in finding that 4
Massengill, Lee, Spears and Haines are combinable, and that when 5
combined, disclose a kit for improving gas mileage as called for in claim 1. 6
Appellants have not demonstrated that the Examiner erred in rejecting claim 7
1 and claims 2-3 depending respectively therefrom over Massengill, Lee, 8
Spears and Haines. We affirm the rejection of claims 1-3 under 35 U.S.C. 9
§ 103 as being unpatentable over Massengill, Lee, Spears and Haines. 10
11
Rejection of claims 13 and 21 under 35 U.S.C. § 103(a) as being 12
unpatentable over Massengill in view of Lee, Spears, Haines, and Kangas 13
14
Appellant contends that it would not be obvious to one of ordinary 15
skill in the art to combine Massengill, Lee, Spears, Haines, and Kangas to 16
arrive at the invention recited in claim 21 (App. Br. 11). Appellant further 17
contends that it is unreasonable to believe that one of ordinary skill in the art 18
would have ever found it obvious to combine the various elements from all 19
five of these patents and therefore propose the present invention (App. Br. 20
11). 21
Appellant has contested the combinability of the teachings of 22
Massengill, Lee, Spears, Haines and Kangas due to the number of references 23
(5) applied against the claimed invention (App. Br. 8-12). Since Massengill, 24
Lee, Spears, Haines and Kangas are all from the same field of art, 25
knowledge thereof by the hypothetical person of ordinary skill is presumed. 26
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Therefore, the issue is whether the collective teachings of the five patents 1
would have made obvious the claimed invention. 2
The modification of Massengill by the teachings of Kangas (cls. 13 3
and 21) is the mere application of a known technique to a prior art device 4
ready for improvement, that is, the utilization of velocity and fuel 5
consumption to control air flow regulators. See KSR, 550 U.S. at 417. 6
Appellant has not shown that the Examiner erred in finding that 7
Massengill, Lee, Spears, Haines and Kangas are combinable, and when 8
combined, disclose a kit for improving gas mileage as called for in claims 13 9
and 21. Therefore, we conclude that the Appellants have not demonstrated 10
that the Examiner erred in rejecting claims 13 and 21 over Massengill, Lee, 11
Spears, Haines and Kangas. We affirm the rejection of claims 13 and 21 12
under 35 U.S.C. § 103 as being unpatentable over Massengill, Lee, Spears, 13
Haines and Kangas. 14
15
CONCLUSIONS OF LAW 16
We conclude that the Appellant has not shown that the Examiner 17
erred in rejecting claims 1-3 under 35 U.S.C. § 103(a) as being unpatentable 18
over Massengill in view of Lee, Spears, and Haines, and claims 13 and 21 19
under 35 U.S.C. § 103(a) as being unpatentable over Massengill in view of 20
Lee, Spears, and Haines, and further in view of Kangas. 21
22
DECISION 23
The decision of the Examiner to reject claims 1-3 over Massengill in 24
view of Lee, Spears, and Haines, and claims 13 and 21 over Massengill in 25
view of Lee, Spears, and Haines, and further in view of Kangas is affirmed. 26
Appeal 2009-2323
Application 10/946,482

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No time period for taking any subsequent action in connection with 1
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007). 2
3
AFFIRMED 4
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mls 14
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HARSHAW RESEARCH, INC. 16
210 W. TECUMSEH STREET 17
OTTAWA, KS 66067 18