Ex Parte Shelton et al

Patent Trial and Appeal Board

Nov 15, 2018

14287478 (P.T.A.B. Nov. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/287,478 05/27/2014
123896 7590 11/19/2018
Mintz Levin/Wayne Fueling Systems LLC
One Financial Center
Boston, MA 02111
FIRST NAMED INVENTOR
Artemus A. Shelton
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. CONFIRMATION NO.
275426 (47376-137C01US) 3266
EXAMINER
NGUYEN, PHUONG T
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
11/19/2018 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):
ipdocketingbos@mintz.com
ipfileroombos@mintz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ARTEMUS A. SHELTON,
RANDAL S. KRETZLER, JEFFREY REITER,
DANIEL HOLMES, and BENGT I. LARSSON1
Appeal2018-000820
Application 14/287,478
Technology Center 3700
Before JENNIFER D. BAHR, MICHAEL L. HOELTER, and
LEE L. STEPINA, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 31-53. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We REVERSE.
1 The Applicant Data Sheet, filed May 27, 2014, identifies Dresser, Inc.
("Appellant") as the applicant as provided in 37 C.F.R. § 1.46, but the
Appeal Brief identifies Wayne Fueling Systems, LLC ( assignee of Dresser,
Inc.) as the real party in interest. Appeal Br. 1.
Appeal2018-000820
Application 14/287,478
THE CLAIMED SUBJECT MATTER
Claims 31, 42, and 50 are independent. Claims App. A-D. Claim 31,
reproduced below, is illustrative of the claimed subject matter.
31. A fuel dispensing device, comprising:
a hose configured to pass fluid therethrough;
a nozzle attached to a distal end of the hose, the nozzle
being configured to receive the fluid from the hose, the nozzle
being configured to dispense the fluid from a distal end
thereof, and the nozzle being configured to pass air
therethrough such that air is allowed to pass through an opening
of the nozzle, the fluid and the air being prevented from mixing
together within the nozzle;
a housing having a cavity configured to releasably seat
the nozzle therein;
a heat element configured to heat the air passing through
the nozzle;
a sensor configured to sense an ambient outdoor
temperature; and
a controller configured to allow the heat element to
provide heat therefrom when the sensed temperature is below a
predetermined threshold temperature, and the controller
being configured to prevent the heat element from providing
heat when the sensed temperature is above the predetermined
threshold temperature.
REJECTIONS
I. Claims 31-39 and 42-53 stand rejected under 35 U.S.C. § 103 as
unpatentable over McClelland (US 2016/0280532 Al, published
Sept. 29, 2016) and Rennick (US 6,710,302 Bl, issued Mar. 23,
2004).
II. Claims 40 and 41 stand rejected under 35 U.S.C. § 103 as
unpatentable over McClelland, Rennick, and Hurko
(US 4,808,793, issued Feb. 28, 1989).
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III. Claims 31, 42, 50, and 52 stand rejected under 35 U.S.C. § 103 as
unpatentable over Bartlett (US 2012/0024892 Al, published Feb.
2, 2012) and Rennick.
IV. Claims 32-39, 43--49, 51, and 53 stand rejected under
35 U.S.C. § 103 as unpatentable over Bartlett, Rennick, and
McClelland.
V. Claims 40 and 41 stand rejected under 35 U.S.C. § 103 as
unpatentable over Bartlett, Rennick, and Hurko.
DISCUSSION
Rejection I
Independent claims 31 and 50 recite, in pertinent part, "a sensor
configured to sense an ambient outdoor temperature" and a step of "sensing
an ambient outdoor temperature," respectively. Claims App. A, C-D. The
Examiner found that McClelland lacks a sensor configured to sense an
ambient outdoor temperature and a controller configured as claimed, but that
Rennick teaches a sensor configured to sense an ambient outdoor
temperature and a controller configured as claimed. Final Act. 4. The
Examiner determined that it would have been obvious to replace
McClelland's temperature sensing configuration and controller configuration
with a sensor configured to sense an ambient outdoor temperature and a
controller configured as claimed "in order to avoid the overheat." Id. at 8-9.
Expanding on the reason to combine the references, the Examiner adds that
McClelland and Rennick "are related as the same technical field (heating
element)," and "therefore, it would have been obvious to combine them, in
order to avoid overheat." Ans. 3 (italics omitted); see also Adv. Act. 2.
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Appellant argues that the Examiner failed "to establish any objective
reason with rational underpinning why a person of ordinary skill in the art
... would have made the proposed modification of McClelland in view of
Rennick." Appeal Br. 10. Appellant contends that the only reasons
articulated by the Examiner for the modification are flawed. Id. at 10-12.
For the reasons that follow, we agree with Appellant that the reasons
articulated by the Examiner lack rational underpinnings.
The first reason articulated by the Examiner for the modification is "in
order to avoid the overheat." Final Act. 9. Modifying McClelland by
configuring the temperature sensor used to control McClelland's heating
means to sense an ambient outdoor temperature, rather than the temperature
of the liquid as McClelland's temperature sensor 8 does (see McClelland
,r 84), would not play any role in avoiding overheating of either the heating
means or the liquid. See Appeal Br. 10-14. This articulated rationale
(avoiding overheat) might explain why it would have been obvious to
modify McClelland's controller to allow the heat element to provide heat
when the sensed temperature is below a predetermined threshold and to
prevent the heat element from providing heat when the sensed temperature is
above a predetermined threshold. However, it is not apparent, and the
Examiner does not cogently explain, why configuring the temperature sensor
to sense an ambient outdoor temperature, rather than a liquid temperature,
would contribute toward avoiding overheat. Thus, the articulated rationale
does not establish an apparent reason, with any rational underpinning, to
make this modification.
The Examiner's observation that both McClelland and Rennick
disclose heating elements (Ans. 3; Adv. Act. 2) also does not explain why it
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would have been obvious to modify McClelland to configure the
temperature sensor to sense an ambient outdoor temperature. Even
assuming the presence of a heating element in both references is sufficient to
place them in the same technical field, as the Examiner posits (Adv. Act. 2;
Ans. 3), this does not establish a reason to combine them.
For the above reasons, Appellant apprises us of error in the
Examiner's conclusion that McClelland and Rennick render obvious the
subject matter of independent claims 31 and 50. Accordingly, we do not
sustain the rejection of claims 31 and 50, or their dependent claims 32-39
and 51 (Claims App. A-B, D), as unpatentable over McClelland and
Rennick.
Claim 42 recites "a sensor configured to sense a temperature adjacent
the opening of the nozzle." Claims App. C. Appellant contends, correctly,
that the rejection "does not specifically address the language of claim 42,
instead addressing claim 42 based on the language of claim 31, which is
different language." Appeal Br. 19; see Final Act. 3--4, 8-9 (addressing
claims 31, 42, and 50 together with respect to sensing an ambient outdoor
temperature, but not addressing sensing a temperature adjacent the opening
of the nozzle).
In response to Appellant's argument, the Examiner takes the position
that McClelland's Figure 4 shows temperature sensor 8 "configured to sense
a temperature adjacent the opening of the nozzle (nozzle 4)." Ans. 5 (italics
omitted). This position is not well taken. McClelland's Figure 4 shows
temperature sensor 8 arranged on flexible pipe connector 40, which connects
liquid dispensing circuit 2 to flexible pipe 3. McClelland ,r,r 85, 93; Figs. 4,
6. McClelland's flexible pipe 3, which is, in reality, much longer than
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Application 14/287,478
shown in Figure 4 ("at least 2 m, for instance"), connects liquid dispensing
circuit 2 (and flexible pipe connector 40) to nozzle 4. Id., Fig. 4; ,r,r 75, 78.
Thus, temperature sensor 8, located as shown in Figure 4 of McClelland, is
substantially separated from nozzle 4 and, therefore, is not configured to
sense a temperature adjacent the opening of nozzle 4.
In addressing Appellant's argument regarding the location of the
temperature sensor, the Examiner also reiterates the finding that Rennick' s
temperature sensor 132 is configured to sense an ambient outdoor
temperature. Ans. 5. This finding is unavailing, for the reasons discussed
above in regard to claims 31 and 50.
For the above reasons, Appellant apprises us of error in the
Examiner's conclusion that McClelland and Rennick render obvious the
subject matter of independent claim 42. Accordingly, we do not sustain the
rejection of claim 42, or claims 43--49, 52, and 53, which depend from claim
42 (Claims App. C, D), as unpatentable over McClelland and Rennick.
Re} ection II
The aforementioned deficiencies in the rejection of claim 31 as
unpatentable over McClelland and Rennick also pervade the rejection of
claims 40 and 41 as unpatentable over McClelland, Rennick, and Hurko.
See Final Act. 9. The Examiner relies on Hurko for teaching a heat element
comprising a heat cable and a positive temperature coefficient, but does not
articulate any additional findings or reasoning that would cure the
aforementioned deficiencies of McClelland and Rennick. Id.
Accordingly, we do not sustain the rejection of claims 40 and 41 as
unpatentable over McClelland, Rennick, and Hurko.
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Re} ection III
In addition to the features of claim 31 discussed above, independent
claim 31 recites a fuel dispensing device comprising a nozzle attached to the
distal end of a hose, the nozzle "configured to receive ... fluid from the
hose" and "to dispense the fluid from a distal end thereof," and "configured
to pass air therethrough such that air is allowed to pass through an opening
of the nozzle, the fluid and the air being prevented from mixing together
within the nozzle." Claims App. A. In addition to the features of claim 42
discussed above, independent claim 42 recites a fuel dispensing device
comprising a hose and nozzle having a first passageway extending through
both the hose and the nozzle to allow fluid to be dispensed from the nozzle,
and the nozzle "including a second passageway extending therethrough and
being configured to pass air therethrough such that air is allowed to pass
through an opening of the nozzle, the second passageway being adjacent to
and independent from the first passageway."2 Claims App. B. In addition to
the features of claim 50 discussed above, independent claim 50 recites a step
of "allowing passage of fluid through a first passageway of a fuel dispensing
system" and a step of "forcing heated air through a second passageway of
the fuel dispensing system, the second passageway being adjacent to," but
separate from, the first passageway such that heated air passing through the
second passageway heats the fluid within the first passageway, but heated air
within the second passageway is prevented from mixing with the fluid
within the first passageway. Claims App. C-D.
2 We understand the recitation of "the second passageway being adjacent to
and independent from the first passageway" to indicate that there is no
common pathway among these the two passageways such that their contents
might co-mingle.
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The Examiner found that Bartlett does not explicitly disclose a
temperature sensor configured to sense an ambient outdoor temperature and
a controller as set forth in independent claims 31, 42, and 50. 3 Final Act. 10.
The Examiner did not identify any other elements of claim 31, 42, or 50 as
lacking in Bartlett. Id. at 10-11. The Examiner relied on Rennick for a
sensor configured to sense an ambient outdoor temperature and a controller
as recited in the claims. Final Act. 10-11. The Examiner articulated the
same reasoning for combining Rennick with Bartlett as the Examiner
articulated for combining Rennick with McClelland-namely, "in order to
avoid the overheat." Id. at 11.
Appellant argues, and we agree, that Bartlett does not disclose a
nozzle, as recited in claims 31 and 42, or a step of forcing heated air through
a second passageway adjacent the first passageway to heat the fluid in the
first passageway, the second passageway being separate from the first
passageway to prevent the heated air from mixing with the fluid, as recited
in claim 50. Appeal Br. 28-29, 32, 35. As Appellant argues (id. at 28),
Bartlett only discloses fluid passing into or through nozzle 206; Bartlett does
not disclose passing air through the nozzle. In Bartlett's system, fluid passes
from storage tank 218 through main fluid piping 222, fluid conditioning
subsystem 224, flow meter 234, internal fluid piping 23 8, flow control valve
240, flow switch 242, flow manifold 246, fluid delivery line 252 of fluid
3 Bartlett discloses a temperature sensor for sensing ambient temperature, as
well as a control system that receives the temperature information and
determines that the fluid should be heated when the ambient temperature
falls below a predetermined level, but need not be conditioned when
temperatures are at a suitable level. Bartlett ,r 57. This disclosure appears
pertinent to the claimed features the Examiner found lacking in Bartlett.
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hose 204, and one-way bypass valve 257, into nozzle 206. Bartlett, Fig. 4;
,r,r 49, 58---62. Bartlett's one-way bypass valve 257 is biased to close fluid
return line 254 of fluid hose 204 during fluid dispensing, when pressure in
nozzle 206 and fluid hose 204 is relatively low. Id. ,r 62. Once dispensing is
complete and the customer manually releases the trigger closing the internal
dispensing valve of nozzle 206, control system 208 normally closes flow
control valve 240 to stop fluid flow to nozzle 206. Id. ,r 65. If control
system 208 determines that the fluid temperature and/or ambient temperature
is below a predetermined level, control system 208 activates the fluid
recirculation subsystem by keeping flow control valve 240 open, causing
fluid pressure to build in nozzle 206 and open one-way valve 257, allowing
fluid to enter return line 254 of fluid hose 204. Id.
In light of the above disclosure, Bartlett provides two passageways in
fluid hose 204---fluid delivery line 252 and fluid return line 254, but does
not disclose more than one passageway in nozzle 206. Accordingly, Bartlett
does not disclose first and second passageways through nozzle 206, as
recited in claim 42. Bartlett only discloses fluid (not air) passing into and/or
through nozzle 206. Even assuming that Bartlett's nozzle 206 is capable of
receiving and passing air therethrough, Bartlett does not disclose any
structure in nozzle 206 that configures it for receiving and dispensing fluid
and for passing air therethrough such that the fluid and air are prevented
from mixing with each other in the nozzle, as recited in claim 31. The
Examiner did not identify, nor do we find, any disclosure in Bartlett of
forcing heated air through a second passageway of the fuel dispensing
system, as recited in claim 50.
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The Examiner did not rely on Rennick for any of the aforementioned
features of claims 31, 42, and 50 that we find lacking in Bartlett. Thus, the
Examiner failed to establish that Bartlett and Rennick in combination render
obvious the subject matter of these claims. Accordingly, we do not sustain
the rejection of independent claims 31, 42, and 50, or claim 52, which
depends from claim 42 (Claims App. D), as unpatentable over Bartlett and
Rennick.
Re} ection IV
In rejecting claims 32-39, and 51, which depend from claim 31
(Claims App. A-B, D), and claims 43--49 and 53, which depend from claim
42 (Claims App. C, D), the Examiner found that McClelland teaches, among
other things, a hose configured to pass air therethrough and a nozzle
configured to receive the air from the hose, and the hose and the nozzle
having first and second passageways configured to pass fluid and air,
respectively, therethrough without mixing. Final Act. 12-14. The Examiner
determined it would have been obvious to modify Bartlett "by including ...
an air supply, a first passageway, [and] a second passageway, ... as taught
by McClelland, in order to prevent the fluid and the air from mixing
together." Id. at 15. The Examiner's reasoning in proposing to add an air
supply and to provide first and second passageways as taught by McClelland
does not explain why it would have been obvious to provide an air supply in
Bartlett. The articulated rationale "in order to prevent the fluid and the air
from mixing together" (id.) presumes the passage of both fluid and air
through the dispensing system, but does not provide a reason why one of
ordinary skill in the art would have been prompted to do so in Bartlett's
system.
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Thus, the Examiner failed to provide the requisite reasoning to
establish that Bartlett, Rennick, and McClelland, in combination, render
obvious the subject matter of claims 32-39, 43--49, 51, and 53.
Accordingly, we do not sustain the rejection of claims 32-39, 43--49, 51, and
53 as unpatentable over Bartlett, Rennick, and McClelland.
Rejection V
The aforementioned deficiency in the rejection of claim 31 as
unpatentable over Bartlett and Rennick also pervades the rejection of claims
40 and 41 as unpatentable over Bartlett, Rennick, and Hurko. See Final
Act. 16. The Examiner relies on Hurko for teaching a heat element
comprising a heat cable and a positive temperature coefficient, but does not
articulate any additional findings or reasoning that would cure the
aforementioned deficiencies of Bartlett and Rennick. Id.
Accordingly, we do not sustain the rejection of claims 40 and 41 as
unpatentable over Bartlett, Rennick, and Hurko.
DECISION
The Examiner's decision rejecting claims 31-53 under
35 U.S.C. § 103 is reversed.
REVERSED
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