Ex Parte Pearce et al

Patent Trial and Appeal Board

May 22, 2017

13556337 (P.T.A.B. May. 22, 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.
13/556,337 07/24/2012 Russell Randall Pearce 83239041 8298
28866 7590 05/24/2017
MACMILLAN, SOBANSKI & TODD, LLC - FORD
ONE MARITIME PLAZA - FIFTH FLOOR
720 WATER STREET
TOLEDO, OH 43604
EXAMINER
WERNER, ROBERT A
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
05/24/2017 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):
docketing @ mstfirm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUSSELL RANDALL PEARCE,
DENNIS SEUNG-MAN YANG,
and
CHITO M. DANCEL
Appeal 2015-007503
Application 13/556,337
Technology Center 3700
Before LINDA E. HORNER, LYNNE H. BROWNE, and
GORDON D. KINDER, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Russell Randall Pearce et al. (Appellants) appeal under 35 U.S.C.
§134 from the rejection of claims 1—10. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
Appeal 2015-007503
Application 13/556,337
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
1. A method for opening a pressurized fuel system for
refilling a fuel tank via a fuel fill pipe, wherein the fuel fill pipe
is covered by a remotely-controlled lockable fuel opening,
wherein the fuel tank has an air space coupled by a fuel tank
isolation valve to an inlet of a carbon canister for treating an air
flow to remove fuel vapors, and wherein the carbon canister has
an outlet coupled to atmosphere, the method comprising the steps
receiving a request for opening the fuel system when the
fuel opening is locked;
opening the fuel tank isolation valve while the fuel
opening remains locked;
detecting a high tank pressure condition in which opening
the fuel fill pipe is potentially unsafe;
if the high pressure condition is detected, then activating a
vacuum assist pump coupled between the carbon canister outlet
and atmosphere to increase a flow of treated air through the
carbon canister;
measuring fuel tank pressure;
deactivating the vacuum assist pump when the measured
tank pressure decreases to a predetermined pressure; and
unlocking the fuel opening.
The prior art relied upon by the Examiner in rejecting the claims on
matter:
of:
REFERENCES
appeal is:
Kidokoro
Mitani
Matsubara
US 6,067,967
US 6,986,341 B2
US 7,213,450 B2
May 30, 2000
Jan. 17, 2006
May 8, 2007
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Appeal 2015-007503
Application 13/556,337
REJECTIONS
I. Claims 1, 3—7, 9, and 10 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kidokoro and Matsubara.
II. Claims 2 and 8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kidokoro, Matsubara, and Mitani.
DISCUSSION
Rejection I
Claims E 3, and 4
Appellants argue claims 1,3, and 4 together. See Appeal Br. 5. We
select independent claim 1 as the representative claim, and claims 3 and 4
stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Kidokoro discloses all of the limitations of
claim 1 except for a carbon canister that “has an outlet coupled to
atmosphere and the vacuum assist pump coupled between the carbon
canister outlet and atmosphere.” Final Act. 3. The Examiner further finds
that “Matsubara teaches a pressurized fuel system (Fig. 1A and IB)
comprising a carbon canister 26 that has an outlet coupled to atmosphere and
a vacuum assist pump 74 coupled between the carbon canister outlet and
atmosphere.” Id. (citing Matsubara Fig. IB; 5:21—29,47—55). Based on
these findings, the Examiner determines that it would have been obvious “to
modify Kidokoro, by the carbon canister has an outlet coupled to
atmosphere and the vacuum assist pump coupled between the carbon
canister outlet and atmosphere, as taught by Matsubara, for the purpose of
providing negative pressure to the canister [sic].” Id. (citing 14:18—23).
Appellants argue that “there is no carbon canister and no treated air in
Kidokoro.” Appeal Br. 3; see also Reply Br. 2 (noting that “Claim 1 recites
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Application 13/556,337
‘treating an air flow to remove fuel vapors’”). The fact that Kidokoro fails
to disclose a carbon canister is not in dispute. See Final Act. 3. Thus,
Appellants’ argument does not apprise us of error.1
Noting that “[t]he claimed carbon canister as recited is required to
treat an air flow to remove fuel vapors” and that “Kidokoro discloses a
pressurized vapor tank,” Appellants argue that “[t]he rejection has failed to
provide any justification for equating the vapor storage tank with a carbon
canister that treats an air flow to remove vapors and is vented to
atmosphere.” Appeal Br. 4.
Responding to this argument, the Examiner finds that “it is old and
well known to use a canister filled with activated carbon as part of a fuel
vapor recovery system for an internal combustion engine.” Ans. 9. The
Examiner explains that “[t]he fuel vapor recovery system is part of a
vehicle’s emission control system. The fuel vapor recovery system prevents
evaporated fuel vapor inside the fuel tank from being vented into the
atmosphere.” Id. The Examiner further explains that “[t]he Kidokoro
disclosure represents an early fuel vapor recovery system before such carbon
canisters became standard in the industry” and determines that it would have
been obvious “to incorporate a carbon canister into Kidokoro’s design as it
would update the system to industry standard.” Id. at 10.
In reply, Appellants contend that:
1 We note that Appellants’ argument attacks Kidokoro separately.
Nonobviousness cannot be established by attacking the 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).
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Appeal 2015-007503
Application 13/556,337
In upgrading the system of Kidokoro to an industry standard by
adding a carbon canister, the carbon canister would be placed
between the fuel tank and atmosphere (i.e., it would not have
been substituted for vapor tank 29 since it provides a different
function). Therefore, there would be no reason for associating
the hypothetically added carbon canister with Kidokoro’s
compressor 5 because the compressor is intended to work with
the sealed system of storage tank 29.
Reply Br. 2.
Appellants’ contention is based on bodily incorporation of
Matsubara’s carbon canister into the closed system of Kidokoro. “[I]t is not
necessary that the inventions of the references be physically combinable to
render obvious the invention under review.” In re Sneed, 710 F.2d 1544,
1550 (Fed. Cir. 1983). The relevant inquiry is 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. See In re Keller, 642 F.2d
413, 425 (CCPA 1981). The Examiner notes, however, that typically carbon
canisters include a port connecting to the fuel tank, a port connecting to the
intake of the engine, and a port connecting to the atmosphere. Ans. 9.
Furthermore, as shown in Matsubara, when a carbon canister is used for
vapor recovery, it is located between the fuel tank and the atmosphere.
Matsubara, Fig. 1. As such, one having ordinary skill in the art would
understand that were one to incorporate the carbon canister of Matsubara
into the system of Kidokoro, a port connecting the carbon canister to
atmosphere would be included. Thus, Appellants’ argument is
unconvincing.
Appellants further contend that “Matsubara actually teaches away
from the present invention.” Appeal Br. 4; see also Reply Br. 2.
Appellants’ argument is unconvincing because “teaching away” requires that
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Application 13/556,337
the reference “criticize, discredit, or otherwise discourage” the use of other
alternatives. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Appellants do not identify any portions of Matsubara which criticizes,
discredits, or otherwise discourages the proposed modification or the instant
invention. We will not read into a reference a teaching away from a
proposed combination when no such language exists. See Dystar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
1356, 1364 (Fed. Cir. 2006).
Noting that “[e]ven though a vacuum pump is present for the purpose
of diagnostic testing for the fuel tank isolation valve (i.e., the very same
pump that is utilized in the preferred embodiment of the present invention),
the vacuum pump is not activated during Matsubara’s refueling operation,”
Appellants argue that “[i]f such an operation of the vacuum pump during
refueling was obvious as alleged in the rejection, then it would have been
part of the refueling process that is disclosed by Matsubara.” Appeal Br. 5.
Appellants’ argument is not responsive to the rejection as articulated
by the Examiner which relies upon Kidokoro for the limitations pertaining to
the vacuum pump. See Final Act. 3. Furthermore, Appellants are again
attacking the reference separately. As noted supra, such attacks do not
apprise us of error.
Appellants additionally contend that Matsubara “provides secondary
evidence that the claimed operation was not obvious.” Appeal Br. 5.
Appellants’ contention is not well taken as we are unaware of any precedent
that supports Appellants’ contention that because one of the prior art
references relied upon to the reject the claims doesn’t show all of the
claimed features, this is evidence of non-obviousness.
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For these reasons, we sustain the Examiner’s decision rejecting claim
1, and claims 3 and 4 which depend therefrom.
Claims 5, 6, 7, 9, and 10
Appellants argue claims 5—7, 9, and 10 together. See Appeal Br. 7.
We select independent claim 5 as the representative claim, and claims 6, 7,
9, and 10 stand or fall with claim 5.
Appellants present essentially the same arguments for claim 5 as
argued for claim 1. See id. at 5—7. These arguments are unconvincing for
the reasons discussed supra.
Accordingly, we sustain the Examiner’s decision rejecting claim 5,
and claims 6, 7, 9, and 10 which fall therewith.
Rejection II
Appellants do not present any separate arguments for the patentability
of claims 2 and 8. Appeal Br. 7. Accordingly, we sustain the Examiner’s
decision rejecting claims 2 and 8 for the same reasons we sustain the
Examiner’s decision rejecting claims 1 and 5.
DECISION
The Examiner’s rejections of claims 1—10 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)(l)(iv).
AFFIRMED
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