12012923 (P.T.A.B. Jun. 26, 2013)

Ex Parte Bosch et al

Patent Trial and Appeal BoardJun 26, 2013

12012923 (P.T.A.B. Jun. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/012,923 02/05/2008 W. Bruce Bosch TEM645 4717 7590 06/26/2013 Ingrid McTaggart 3021 SE 56th Ave. Portland, OR 97206 EXAMINER CHAUDRY, ATIF H ART UNIT PAPER NUMBER 3753 MAIL DATE DELIVERY MODE 06/26/2013 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 W. BRUCE BOSCH and EVAN WAYMIRE ____________________ Appeal 2011-005431 Application 12/012,923 Technology Center 3700 ____________________ Before: CHARLES N. GREENHUT, BRETT C. MARTIN, and BARRY L. GROSSMAN, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005431 Application 12/012,923 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 5 and 7-15. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The claims are directed to a fuel tank flange. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A fuel tank system comprising: a fuel tank including a wall having a fuel tank aperture formed therein, said fuel tank aperture extending between an interior and an exterior of said fuel tank; a flange plate secured over said fuel tank aperture, and including at least three flange plate apertures formed therein; at least three fuel tank system components, wherein individual ones of said at least three fuel tank system components is secured within an individual one of said at least three fuel tank flange plate apertures and extends into said interior of said fuel tank from said exterior of said fuel tank; and wherein said exterior of said fuel tank defines a rounded cross sectional shape and wherein a lower surface of said flange plate defines a rounded cross sectional shape that matches said rounded cross sectional shape of said fuel tank. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Helberg Zink Regna Watson US 1,110,057 US 5,211,202 US 5,775,357 US 6,273,118 Sep. 8, 1914 May 18, 1993 Jul. 7, 1998 Aug. 14, 2001 Appeal 2011-005431 Application 12/012,923 3 REJECTIONS Claims 1, 2, 5, 7, 8, 9, and 12-15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Regna and Zink. Ans. 3. Claims 3 and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Regna, Zink and Watson. Ans. 5. Claims 4 and 11 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Regna, Zink and Helberg. Ans. 6. OPINION Appellants group the claims according to the Examiner’s rejections and we select the first claim of each group as representative under 37 C.F.R. § 41.37(c)(1)(vii). The Examiner correctly found that Regna discloses the basic structure of independent claim 1 without the flange plate defining a “rounded” shape. While Appellants’ lengthy analysis of what Zink discloses (App. Br. 13-24) is generally accurate, the only truly critical and relied upon teaching in Zink is that it was known to make fuel tanks 42 rounded and flanges 108 conform to them. Regna already discloses a flange that, with the exception of being generally planar to conform to a planar surface of a gas tank, is structurally and functionally the same as Appellants’ flange. Thus, Regna demonstrates that tank-conforming flanges for securing fuel-tank apertures and components were already known in the art. There is nothing in Regna to suggest the criticality of maintaining the specific rectangular shape of the fuel tank disclosed therein. Fuel tanks can function appropriately in many different shapes. We agree with the Examiner that it would have been Appeal 2011-005431 Application 12/012,923 4 obvious to one having ordinary skill in the art to use a rounded tank if the automotive design called for it, and to make Regna’s flange conform thereto. It is of little moment that the cited flange in Zink may have some structural or functional differences from that used in Regna or by Appellants (contra App. Br. 13, 19-21). It is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements. In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012). Teaching away, as is argued by Appellants (App. Br. 14), is a matter of what is claimed. The fact that some aspects of Zink’s design differ from Regna (App. Br. 14) does not in any way demonstrate that one skilled in the art would be led away from the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellants’ only arguments concerning the Examiner’s application of Watson appear to be that Watson lacks some of the structure that Regna and Zink have been cited for, and that no single reference discloses the particular combination of multiple fuel tank components (as taught by Regna) on a rounded flange (as suggested by Zink) secured with a single weld line (as suggested by Watson). App. Br. 26. These arguments lack a solid legal foundation. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures.); see In re Keller, 642 F.2d 413, 425 (CCPA 1981)(The test for obviousness is not whether the claimed invention is expressly suggested in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references.). Appeal 2011-005431 Application 12/012,923 5 What Appellants believe to be lacking in the Examiner’s proposed combination including Helberg is unclear. App. Br. 26-29. There is clearly a “tube support,” casing 7, and “tube support base,” pipe 6, in Helberg. Claim 4 does not require a tube that would extend to the flange (App. Br. 28), but even to the extent claim 111 requires such a structure, i.e., outer hollow valve stem b, is also clearly apparent in Helberg and meets that limitation. Appellants have not apprised us of any error in any of the Examiner’s rejections. DECISION The Examiner’s rejections are 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls 1 We note that claim 11 lacks antecedent basis for “said tube support” and leave appropriate correction to be determined by the Examiner and Appellants in any further prosecution.