Ex Parte Van Vliet

Patent Trial and Appeal Board

Jun 21, 2013

11444602 (P.T.A.B. Jun. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte SCOTT M. VAN VLIET
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Appeal 2011-006143
Application 11/444,602
Technology Center 3700
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Before: WILLIAM V. SAINDON, SCOTT A. DANIELS and
JEREMY M. PLENZLER, Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Scott M. Van Vliet (Appellant) appeals under 35 U.S.C. § 134 from a
rejection of claims 1, 4 and 7. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to a self-contained remote fueling system
“used for delivery of fuel to remote locations that do not have utility
services.” Spec., para. [0001]. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A remote refueling station comprising:
a ground engaging support structure transportable as a single
unit for remote set up;
a storage tank for storing fluids, the storage tank being
mounted on the ground engaging supply structure, the storage
tank having an enclosed containment structure;
the storage tank being partitioned into sections for storing a
first fluid and a second fluid, the tank having a vent and a top
fill for each section;
a pumping station for each section mounted on the ground
engaging support structure for transferring fluids from the
storage tank;
a lighting system mounted on the ground engaging support
structure;
an environmentally protected enclosure mounted on the
ground engaging support structure, the environmentally
protected enclosure being external to the containment structure
and comprising an extension from one section of the storage
tank;
the vent of each section of the storage tank being positioned
at an end of the respective section opposite the environmentally
protected enclosure; and
an onboard power source and control board located within
the environmentally protected enclosure and connected to
supply power to the pumping station and lighting system, the
onboard power source comprising a generator and a battery.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Brodie US 5,400,924 Mar. 28, 1995

Non-Patent References:
(a) Envirotank [Online], Ghost Station, (http://www.envirotank.com/
ghoststation.htm) (Mar. 13, 2006); and
(b) A.G.I. Envirotank - Ghost Station References
(https://www.environtank.com/ghoststationreferences06.htm).

REJECTION
The Examiner made the following rejection:
Claims 1, 4 and 7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Envirotank [Online], Ghost Station (hereinafter referred to
as “Envirotank”) in view of Brodie and A.G.I. Envirotank - Ghost Station
(hereinafter referred to as “Ghost Station reference”). Ans. 3.

ANALYSIS
Claims 1, 4 and 7
The Examiner found that the Envirotank online content and the Ghost
Station reference as combined with Brodie disclose all the elements of
claims 1, 4 and 7.1 Specifically, the Examiner found that Envirotank
discloses a remote refueling station comprising a ground engaging support
structure, a storage tank, a pumping station, a lighting system, and an

1 The Envirotank online content was cited by the Examiner in the Non-Final
Office Action of March 18, 2008. The Ghost Station Reference was
provided by Appellant as Non Patent Literature under an Information
Disclosure Statement filed September 19, 2007.
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environmentally protected enclosure comprising an extension of the storage
tank. Ans. 3-5 and Exam’r’s Fig. 1. The Examiner found that the Ghost
Station reference discloses an embodiment of the Envirotank remote fueling
station having a tank subdivided into two sections with respective vent
stacks for each section at the end of each section opposite from the
environmentally protected enclosure. Ans. 5-6 and Exam’r’s Fig. 2. The
Examiner found that Brodie teaches an onboard power supply for a fuel tank
provided within an environmentally protected structure and reasoned that it
would be obvious to include the power supply in the environmentally
protected structure of the Envirotank fueling station “in order to provide
power to the apparatus in locations with no existing power grid.” Ans. 6.
Appellant points out that there is no disclosure in Envirotank or the
Ghost Station reference describing an onboard power supply for the fuel
tank and that “it is known to the Applicant that the apparatus displayed in
the Envirotank reference either had no power source or had a power source
located outside the envirohood.” Br. 10. Based on this, Appellant makes
two main arguments, first that the Examiner has failed to appreciate the
demand in the community –in that the industry convention is to separate the
power source from the fuel tank apparatus because it is common sense that
“separating a power source from a fuel dispenser and placing the power
source in open air will reduce the chance of fire and explosion.” Br. 11.
Second, Appellant argues that Brodie teaches away from an enclosure which
is an extension from the fuel tank because Brodie describes that fuel lines
are not to be in contact with the vertical side walls of the containment vessel,
and also because Brodie’s containment vessel is not fully enclosed as an
“environmentally protected enclosure” as shown in Appellant’s Figure 1 and
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described in Appellant’s Specification. Br. 12 citing Brodie, col. 3, ll. 25-
28.
At the outset, we acknowledge that neither Envirotank nor the Ghost
Station reference explicitly describe the location or proximity of the power
source as being located inside the envirohood, i.e., the environmentally
protected enclosure for the pumping station which is essentially a small
room for an attendant or a customer to conduct the relevant financial
transaction to pay for the fuel. See generally Envirotank. However, neither
do these references explain that the power source could not be located in the
environmentally protected enclosure. Appellant asserts personal knowledge
that the power source is located outside the protected enclosures of both
Envirotank and the Ghost Station reference. Br. 10. To the extent that
Appellant’s knowledge, unsupported by evidence of record, is entitled to any
evidentiary weight, the Examiner does not rely upon the Envirotank or the
Ghost Station reference for meeting the claim limitation of the power source
located in the environmentally protected enclosure.
Appellant attacks Envirotank and the Ghost Station reference in
isolation, whereas the Examiner’s proposed combination is predicated on a
combination of the three references, specifically Brodie, for a power source
comprising a generator and a battery located inside an environmentally
protected enclosure. Ans. 5 and see In re Merck & Co., Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references”). We are thus not persuaded of error in the
Examiner’s articulated reasoning and rationale underpinnings supporting the
underlying combination of Brodie, Envirotank and the Ghost Station
Reference.
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With respect to Appellant’s argument that it is industry demand, or
conventional to place the power supply for pumping fuel from the tanks as
far away as possible for safety reasons thus reducing the chance of fire and
explosion, as noted by the Examiner, Appellant’s argument appears to rest
upon an apparent “willingness to disregard [conventional] safety protocols
which [Appellant] claims would limit the motivation of one of ordinary skill
in the art.” Ans. 7. It may be a safety consideration to provide a power
source a distance away from a combustible fuel tank, however, neither
Envirotank, the Ghost Station reference, nor any independent evidence
provided by Appellant disclose any particular convention, technical standard
or distance a power supply must be spaced from a fuel tank. This argument
does not apprise us of error in the Examiner’s reasoning particularly where
Brodie clearly discloses a power supply, i.e., a fuel driven generator 29,
adjacent to the fuel tank and located inside the containment vessel 22.
Brodie, Fig. 2. Obviousness is not limited to the best option available to a
person of ordinary skill in the art but rather to the known options within his
or her technical grasp. KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 421
(2007).
Appellant asserts that Brodie is an old reference predating current
regulations, but provides no evidence that Brodie’s disclosure relating to
power supply and fuel tank proximity conflicts with or is impacted in any
manner by current regulations. Br. 11. It is well settled that argument of
counsel cannot take the place of evidence lacking in the record. Estee
Lauder, Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997).
Appellant argues that Brodie teaches away from an enclosure
comprising an extension from the fuel tank where Brodie “requires that the
vertical side walls 12 of his vessel 11 are free of contact from all apparatuses
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within vessel 11, including fuel tank 14, fuel lines 17 and dispensers 18, to
prevent the transference of impact shocks from walls 12 to any apparatus
within vessel 11.” Br. 12. Brodie however is only cited by the Examiner for
locating the power supply within the enclosure, not for the environmentally
protective enclosure itself. Ans. 6. The Examiner relies on Envirotank and
the Ghost Station reference for meeting the claimed limitation of an
environmentally protective enclosure. Ans. 4-6 and Exam’r’s Figs. 1-2.
Moreover, Appellant’s assertion that the fuel lines must be spaced from
contact with the walls of the environmentally protective enclosure as taught
by Brodie does not, as seen in Brodie itself, preclude locating the power
supply within the protective enclosure. See Brodie, Fig. 2.
Appellant also asserts that the “environmentally protective enclosure”
as recited in claim 1 means a fully enclosed structure. Br. 12-13. giving the
claims the broadest reasonable interpretation, as we must, we decline to read
the asserted implicit limitations of a fully enclosed structure from
Appellant’s Figure 1, and paragraph 12, lines 1-3 from Appellant’s
Specification into the plain meaning of “environmentally protective
structure.” The plain meaning of “environmentally protective structure”
simply requires a structure that defines a space protected from the
environment; the extent of such protection is not specifically claimed.
Appellant also argues that Brodie teaches away from a fully enclosed
structure because Brodie’s containment vessel 22 has only partially enclosed
walls 12 having a height which facilitates entry and exit from the
containment vessel 22 by personnel. Br. 13 citing Brodie, col. 3, ll. 22-25.
However, Appellant does not point to, and we do not see, anything in Brodie
that that criticizes, discredits, or discourages investigation into the claimed
invention. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (A
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reference does not teach away by merely disclosing an alternative invention
without criticizing, discrediting, or otherwise discouraging investigation into
the claimed invention.).
Appellant also asserts that the “environmentally protective enclosure”
as recited in claim 1 means a fully enclosed structure. Br. 12-13. Again we
point out that the Examiner relies upon the fully enclosed envirohood
structures shown in Envirotank and the Ghost Station reference for meeting
the claimed limitation of an “environmentally protective enclosure,” not
Brodie. Ans. 4-6 and Exam’r’s Figs. 1-2. Furthermore, giving the claims
the broadest reasonable interpretation, as we must, we decline to read the
asserted implicit limitations of a fully enclosed structure from Appellant’s
Figure 1, and paragraph 12, lines 1-3 from Appellant’s Specification into the
plain meaning of “environmentally protective structure.” The plain meaning
of “environmentally protective structure” simply requires a structure that
defines a space at least partially protected from the environment; the extent
of such protection is not specifically claimed.
Appellant additionally urges us to consider the advantages and
intended uses for the claimed apparatus such as protecting the power supply
from exposure to leaks and fumes from the tanks. Br. 14-15. We are not
persuaded of examiner error by such arguments, as stated by our reviewing
court in In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998), “the name
of the game is the claim.” It is well established that limitations not
appearing in the claims cannot be relied upon for patentability. In re Self,
671 F.2d 1344, 1348 (CCPA 1982).
Appellant points out that one of skill in the art generally has a high
school diploma and potentially a technical training certificate. Br. 14.
Appellant argues that a skilled worker would not combine Brodie with
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Envirotank and the Ghost Station reference because “a skilled worker would
understand that building Brodie's vessel 11 as an extension from fuel tank 14
would defeat Brodie's stated purpose of avoiding shock transference to fuel
tank 14.” Id. As discussed above, the Examiner relies on Envirotank and
the Ghost Station reference for meeting the claimed limitation of an
environmentally protective enclosure. Ans. 4-6 and Exam’r’s Figs. 1-2.
Brodie is merely relied upon for locating the power supply within an
enclosure. Ans. 6. For similar reasons as set forth supra with respect to
Brodie teaching away from an enclosure comprising an extension from the
fuel tank, we are not apprised of error in the Examiner’s reasoning because
the Examiner does not rely upon Brodie for a certain type or specific
structure of an enclosure, but only for showing that a power supply can be
located within an environmentally protective enclosure.
Appellant further argues that the combination of Brodie with
Envirotank and Ghost Station reference would not yield the claimed
invention because Brodie’s vessel 11 is not an environmentally protected
enclosure under the meaning required by the Appellant’s claims. Br. 15. As
discussed above, the Examiner relies on Envirotank and the Ghost Station
reference for meeting the claimed limitation of an environmentally
protective enclosure. Ans. 4-6 and Exam’r’s Figs. 1-2. Brodie is merely
relied upon for locating the power supply within an enclosure. Ans. 6. For
the same reasons as set forth supra with respect to Brodie teaching away
from a fully enclosed structure, and based on our understanding of the plain
meaning of “environmentally protective structure” we are not apprised of
Examiner error. As discussed, the Examiner relies upon Brodie only for
locating the power supply within a containment structure, not for the
environmentally protective enclosure itself. To the extent Appellant further
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argues that Envirotank and the Ghost Station reference disclose a power
source spaced away from the storage tanks in the open air, again we are not
persuaded of Examiner error where these references are silent as to the
location and proximity of a power source to the tanks.
For these reasons, we are not apprised of Examiner error and we
sustain the rejection of claim 1 as unpatentable over Envirotank, the Ghost
Station reference, and Brodie. Claims 4 and 7 depend from claim 1 and are
not argued separately and, therefore, fall with claim 1. See Br. 16.

DECISION
For the above reasons, the Examiner’s rejection of claims 1, 4 and 7 is
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)(1)(iv) (2011).

AFFIRMED

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