Ex Parte Schulze

Patent Trial and Appeal Board

May 23, 2016

13018705 (P.T.A.B. May. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/018,705 02/01/2011
65764 7590 05/25/2016
FRASER CLEMENS MARTIN & MILLER LLC
28366 KENSINGTON LANE
PERRYSBURG, OH 43551-4163
JORG SCHULZE
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
ATTORNEY DOCKET NO.
P014699-FCA-CHE
(1-41380)
CONFIRMATION NO.
9011
EXAMINER
KELLY, TIMOTHY PATRICK
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
05/25/2016 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):
lopez@fraser-ip.com
howard@fraser-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JORG SCHULZE
Appeal2014-006042
Application 13/018,705
Technology Center 3700
Before JENNIFER D. BAHR, WILLIAM A. CAPP, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-20. Claims 1, 2, 5-9, 12-18, and 202 are
currently pending. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant submits the real party in interest is GM Global Technology
Operations, LLC.
2 Appellant cancelled claims 3--4, 10-11 and 19 in an amendment after Final
Rejection filed October 28, 2013 and entered by the Examiner. See Adv.
Act. 1.
Appeal2014-006042
Application 13/018,705
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A fueling nozzle for dispensing a gaseous fuel to a
vehicle, comprising:
a main body having a conduit formed therein and
configured to permit the gaseous fuel to flow therethrough, the
conduit terminating at a dispensing end of the main body, the
dispensing end of the main body forming an interface with a fuel
inlet of the vehicle during a fueling operation, the fuel inlet of
the vehicle receiving the dispensing end, wherein a terminal
surface of the dispensing end is oriented transverse to the
conduit, the terminal surface is configured to contact the fuel
inlet of the vehicle at the interface, and the terminal surface is
located at a distal end of the main body; and
a sensor disposed at the terminal surface of the dispensing
end of the main body, the sensor configured to detect a leakage
of the gaseous fuel during the fueling operation.
REJECTIONS
1) Claims 1-14 and 16-20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Cohen (US 7,028,724, iss. Apr. 18, 2006).
2) Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Cohen in view of Hartsell (US 5,992,395, iss. Nov. 30, 1999).
DISCUSSION
The Examiner found that Cohen discloses all the limitations of
claim 1 other than "the specific location of the sensor in relation to the
specific transverse terminal surface at the dispensing end that contacts the
fuel inlet of the vehicle." Final Act. 3. The Examiner concluded that it
would have been obvious "to change the shape of the [Cohen] nozzle to
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Appeal2014-006042
Application 13/018,705
arrive at the claimed invention." Id. The Examiner did not specify any
features of Cohen's nozzle that it is asserted it would have been obvious to
change.
Appellant contends that Cohen's terminal surface of the dispensing
end (identified in Figure 5 of Cohen as element 25) is "angled" to the
conduit rather than transverse as recited in claim 1. Appeal Br. at 12.
Appellant further contends that this terminal surface in Cohen is not located
"at a distal end of the main body" as required by claim 1. Id.
The Examiner initially found that the recited "dispensing end of the
main body" is the left end of Cohen's nozzle 20. Final Act. 3; see Cohen,
Fig. 3. We understand this finding to require the recited "terminal surface"
is the surface at the extreme left of nozzle body 20 in Cohen's Figure 3. The
Examiner also found that Cohen's sensor lOOP corresponds to the "sensor"
of claim 1. Final Act. 3. In the Answer, the Examiner interposes a different
reading of Cohen and indicates that the surface identified as element 25 in
Cohen's Figure 5 is the terminal surface. Ans. 7. The Examiner does not
articulate any change in the initial reading of the claimed "sensor" on
Cohen's sensor 1 OOP.
Claim 1 recites that the terminal surface is "located at a distal end of
the main body." The Examiner submits this limitation is satisfied by
Cohen's element 25 because distal "is defined as being situated away from a
central point. The terminal surface (25) is away from the very center of the
main body of the fueling nozzle." Ans. at 7. For the following reasons, we
do not sustain the Examiner's rejection.
Appellant's Figure 2 shows that terminal surface 18 is located at the
actual end of main body 14. The Specification discloses that the sensor is
disposed at the terminal surface to detect gaseous fuel leaks in a gap 26
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Appeal2014-006042
Application 13/018,705
between the nozzle and the vehicle's fueling port. Spec. i-f20; see also Fig. 4.
In light of these teachings in the Specification, and the Examiner's finding
that Cohen's sensor lOOP corresponds to the claimed "sensor disposed at the
terminal surface of the dispensing end of the main body," we cannot agree
with the Examiner's finding that Cohen's surface 25 is "located at a distal
end of the main body." Rather, Cohen's element 25 is located substantially
inward from the left end of the nozzle body (i.e., the end of the nozzle body
adjacent which sensor lOOP is disposed). Cohen, Figs. 3, 5.
The Examiner's finding that Cohen discloses "a terminal surface of
the dispensing end ... located at a distal end of the main body" with "a
sensor disposed at the terminal surface" is not supported by a preponderance
of the evidence. As the rejection is based on an erroneous factual finding,
the conclusion of obviousness cannot stand. See In re Warner, 379 F.2d
1011, 1017 (CCPA 1967) (holding that "[t ]he legal conclusion of
obviousness must be supported by facts. Where the legal conclusion is not
supported by facts it cannot stand."). Therefore, we do not sustain the
rejection, under 35 U.S.C. § 103(a), of claim 1 and claims 2, 5, 6, and 7
which depend thereon.
Independent claims 8 and 16 contain the same limitations concerning
the placement and orientation of the terminal surface and sensor as claim 1.
For the same reasons as for claim 1, we do not sustain the rejections of
claims 8 and 16 and claims 9, 12-14, and 17-18, and 20 which depend
thereon.
The Examiner rejected dependent claim 15 in view of Cohen in
combination with Hartsell. Final Act. 6. Hartsell fails to cure the
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Application 13/018,705
deficiencies in Cohen noted above. For the same reasons as for claim 1, we
do not sustain the rejection of claim 15.
DECISION
The Examiner's decision rejecting pending claims 1, 2, 5-9, 12-18,
and 20 is REVERSED.
REVERSED
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