Ex Parte Horsting

Patent Trial and Appeal Board

Nov 21, 2017

13218543 (P.T.A.B. Nov. 21, 2017)

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.
13/218,543 08/26/2011 John J. Horsting 2011P00695US 8138
64588 7590 11/24/2017
Continental Automotive Systems, Inc.
Patents & Licenses
21440 W Lake Cook Road
Floor 7
Deer Park, IL 60010
EXAMINER
STAUBACH, CARL C
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
11/24/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patentsus @ continental-corporation.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN J. HORSTING
Appeal 2016-003870
Application 13/218,543
Technology Center 3700
Before STEVEN D. A. MCCARTHY, ANNETTE R. REIMERS, and
THOMAS F. SMEGAL, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
John J. Horsting (Appellant)1 seeks our review under 35 U.S.C. § 134
of the Examiner’s rejections2 under 35 U.S.C. § 103(a) of claims 1—4, 7—12,
and 15—20 as unpatentable over Cunningham, (US 7,768,382 B2, iss. Aug.
3, 2010); and Zefon International: Sampling Equipment Specialists, Gastec
Detector Tubes, (hereinafter “GasTec”); and of claims 5, 6, 13, and 14 as
1 According to Appellant, the real party in interest is Continental
Automotive Systems, Inc. Br. 1.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Office Action, dated Jan. 15, 2015 (“Final Act.”). We also refer
herein to the Appeal Brief filed Aug. 4, 2015 (“Br.”), and the Examiner’s
Answer mailed Dec. 17, 2015 (“Ans.”).
Appeal 2016-003870
Application 13/218,543
unpatentable over Cunningham, GasTec, and Rebinsky (US 2012/0193230
Al, pub. Aug. 2, 2012). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Claims 1,11, and 19 are independent claims. Claim 1 is reproduced
below and illustrates the claimed subject matter, with disputed limitations
emphasized.
1. A fuel supply system for a vehicle comprising:
a fuel tank for holding fuel therein, the fuel tank having a
filler neck,
a pump for pumping fuel from the tank,
a filter for filtering fuel,
a fuel rail for receiving filtered fuel originating from the
pump,
a pressure regulator for controlling pressure of fuel
received by the fuel rail,
fuel injectors for injecting fuel, received from the fuel rail,
into an internal combustion engine, the filler neck, tank, pump,
filter, pressure regulator, and fuel rail are fluidly connected to
define fuel flow path structure between the tank and the fuel
injectors, and
a passive fuel detection system in fluid communication
with the fuel flow path structure, the fuel detection system
including a plurality of detectors, each detector being constructed
and arranged to be exposed to fuel to detect a distinct chemical
element or compound in the fuel and if the distinct element or
compound is detected, to indicate such detection in a non­
erasable manner.
(Br., Claims Appendix, 16.)
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Appeal 2016-003870
Application 13/218,543
ANALYSIS
Obviousness of Claims 1—4, 7—12, and 15—20 over Cunningham and
GasTec
Appellant argues claims 1—4, 7—12, and 15—20 together in contesting
the rejection of these claims as obvious over Cunningham and GasTec. See
Br. 8—14. We select claim 1 as the representative claim for this group, and
the remaining claims stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner finds that Cunningham discloses substantially all the
limitations of a fuel supply system located in the fuel system, as recited by
claim 1, including inter alia, a fuel composition sensor, but does not teach “a
plurality of detectors [sensors] each constructed and arranged to detect a
distinct chemical element or compound in the fuel.” Final Act. 2—3.
However, the Examiner observes that “GasTec manufactures detector tubes
for the detection of ethanol, methanol, Sulfur, and water,”3 and that “[i]t has
been long since acknowledged in the field of internal combustion engines
the importance of monitoring a fuel composition and quality for the purpose
of determining the use of an improper fuel.” Id. at 3 (citing Rebinsky, para.
29; McDougal (US 4,821,697, iss. Apr. 18, 1989), col. 8,11. 47-57).
From the foregoing, the Examiner reasons that it would have been
obvious “to modify the vehicle misfuel identification system of Cunningham
in view of the passive GasTec detector tubes to provide a way for
manufacturers to determine if an improper fuel has been used,” explaining
3 The Specification (| 18) identifies GasTec as a manufacturer of detector
tubes useful in the claimed fuel detection system.
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Appeal 2016-003870
Application 13/218,543
that “[t]his combination will render predictable results, as the functioning of
both the engine and the detector tubes will not be altered in any way.” Id.
In taking issue with the analysis and conclusions presented in the
Final Action, Appellant’s first contention is that “Cunningham fails to teach,
suggest or disclose a passive fuel detection system in communication with
the fuel flow path structure.” Br. 10. However, Appellant is simply
attacking Cunningham in isolation for lacking support for teaching a passive
fuel detection system, rather than addressing the Examiner’s combination of
Cunningham and GasTec. Non-obviousness cannot be established by
attacking references individually when the rejection is predicated upon a
combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986). As the Examiner explains, “active fuel monitoring is
known in the prior art as taught by Cunningham and passive fuel monitoring
is known in the prior art as evidenced by Gas[T]ec.” Ans. 7. Appellant has
not disputed the Examiner’s findings in the Answer. Thus, Appellant’s
contention does not inform us of error.
Based on the foregoing, we sustain the Examiner’s rejection of claims
1—4, 7—12, and 15—20 over Cunningham and GasTec.
Obviousness of Claims 5, 6, 13, and 14 over Cunningham, GasTec,
and Rebinsky
We understand Appellant’s appeal of the rejection of claims 5, 6, 13,
and 14 to rest on the arguments presented against the rejections of claims 1
and 11, which we found not demonstrative of error in the Examiner’s
rejection of claims 1—4, 7—12, and 15—20 over Cunningham and GasTec, as
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Appeal 2016-003870
Application 13/218,543
set forth supra. Thus, we sustain the Examiner’s unpatentability rejection of
claims 5, 6, 13, and 14 over Cunningham, GasTec, and Rebinsky.
DECISION
We AFFIRM the Examiner’s rejections under 35 U.S.C. § 103(a).
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)(l)(iv).
AFFIRMED
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