12187751 (P.T.A.B. May. 28, 2014)

Ex Parte Veenstra

Patent Trial and Appeal BoardMay 28, 2014

12187751 (P.T.A.B. May. 28, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/187,751 08/07/2008 Michael Jon Veenstra 81171493 3637 28395 7590 05/28/2014 BROOKS KUSHMAN P.C./FGTL 1000 TOWN CENTER 22ND FLOOR SOUTHFIELD, MI 48075-1238 EXAMINER JAGAN, MIRELLYS ART UNIT PAPER NUMBER 2856 MAIL DATE DELIVERY MODE 05/28/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL JON VEENSTRA ____________ Appeal 2012-005209 Application 12/187,751 Technology Center 2800 ____________ Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and N. WHITNEY WILSON, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL App App decis 35 U inclu vess with (4) a fuel press Spec 1 The eal 2012-0 lication 12 Appellan ion reject .S.C. § 6(b We reve The clai des (1) a f el; (3) a co the valve detector a in the vess urized fue ification, a real party 05209 /187,751 ST t1 appeals ing claims ). rse. CL med inven uel storag nduit disp for deliver djacent th el, the det l. The cla n annotat -in-intere ATEMEN under 35 1-20. We AIMED S tion is dire e vessel; (2 osed withi ing a strea e conduit f ector being imed syste ed version st is Ford G 2 T OF TH U.S.C. § 1 have juris UBJECT M cted to fu ) a valve n the vess m of press or detectin positione m is illust of which lobal Tec E CASE 34 from th diction ov ATTER el storage operatively el and in fl urized fue g a state o d outside rated by F is reproduc hnologies e Examin er the app system wh associate uid comm l to the ve f the pres of the stre IG. 3 of th ed below , LLC (Br er’s eal under ich d with the unication ssel; and surized am of e : . 1). Appeal 2012-005209 Application 12/187,751 3 An annotated version of FIG. 3 from the Specification showing a side view, in partial cross-section, of a portion of a fuel storage system according to the invention. Claims 1 and 7 are representative of the claims on appeal and are reproduced below from the Claims Appendix of the Appeal Brief (emphasis added): 1. A fuel storage system comprising: a fuel storage vessel; a valve operatively associated with the vessel; a conduit disposed within the vessel and in fluid communication with the valve for delivering a stream of pressurized fuel to the vessel; and a detector adjacent the conduit for detecting a state of the pressurized fuel in the vessel, the detector being positioned outside of the stream of pressurized fuel. 7. A vehicle storage system for hydrogen fuel comprising: a fuel storage vessel; a valve attached with the vessel for selectively accessing the fuel in the vessel; a conduit disposed within the vessel and in fluid communication with the valve for delivering the fuel to the vessel, the conduit extending away from the valve and terminating at an end portion through which the fuel exits the conduit; and Appeal 2012-005209 Application 12/187,751 4 a sensor disposed within the vessel and between the valve and the end portion of the conduit for sensing a state of the fuel in the vessel. REJECTIONS ON APPEAL (1) Claims 1-6 are rejected under 35 U.S.C. § 102(b) as being anticipated by Allmendinger.2 (2) Claims 7-12 and 14-19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Yen.3 (3) Claims 13 and 20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Yen in view of Najjar.4 REJECTION (1) With regards to the anticipation rejection over Allmendinger, the Examiner makes findings with reference to Allmendinger’s drawing, which is reproduced below: An annotated version of a portion of the drawing of Allmendinger. 2 Allmendinger, et al., US Patent 6,394,647 B1, issued May 28, 2002. 3 Yen, et al., US Pat. Pub. 2010/0024542 A1, published February 4, 2010. 4 Najjar, et al., US Patent 4,776,705, issued October 11, 1988. Appeal 2012-005209 Application 12/187,751 5 The Examiner finds that Allmendinger discloses a system comprising: (a) a fuel storage vessel 2; (b) a valve 4 operatively associated with the vessel 2; (c) a conduit 3 disposed within the vessel and in fluid communication with valve 4 for delivering a stream of pressurized fuel to the vessel (col. 3, ll. 45-48); and (d) a detector 5a adjacent to conduit 3 for detecting a state of the pressurized fuel in the vessel 2, the detector (5a) being positioned outside of the stream of pressurized fuel (col. 3, ll. 53-57) (Ans. 4-5). The Examiner’s finding that Allmendinger’s conduit 3 is “disposed within” the fuel storage vessel is not supported by this record. As may be seen from the drawing, and as noted by Appellant (Br. 3), conduit 3 is not “disposed within” the fuel storage vessel, but is located entirely outside of it. The Examiner argues because the space in the conduit is connected to and leads into the space 2 in the vessel, the conduit is considered to be “disposed within” the fuel storage vessel (Ans. 12). However, the word “within” means “inside” (DICTIONARY.COM,dictionary.reference.com/browse/within?s=t (last visited May 23, 2014)). Moreover, the Specification explicitly states that the conduit “extends away from the valve 36 and into the storage vessel 34” (Spec. 5, ll. 26-27, emphasis added). Thus, we determine that a conduit which is located entirely outside of the vessel – as is shown by Allmendinger – cannot be considered to be “disposed within” that vessel. A prior art reference only anticipates a patent claim under 35 U.S.C. § 102(b) if it discloses every claim limitation. See, e.g., In re Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012) (citing Verizon Servs. Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1336–37 (Fed. Cir. 2010)). Appeal 2012-005209 Application 12/187,751 6 In this instance, our finding that Allmendinger does not disclose a conduit “disposed within” a vessel requires reversal of the anticipation rejection. REJECTIONS (2) AND (3) The Examiner finds that Yen discloses each of the elements of claim 7,5 except that it does not disclose a sensor disposed within the vessel and between the valve and the end portion of the conduit (Ans. 6). The Examiner, citing Yen ¶ 0024, further finds that Yen discloses that the temperature sensor is to be located between the valve and the end portion of the conduit in order to sense the temperature of the fuel in the vessel (id. at 7). Therefore, according to the Examiner, it would have been obvious to modify Yen by relocating the sensor to the interior of the vessel – so long as the sensor is between the valve and the end portion of the conduit – because shifting the position of the sensor would be the product of routine experimentation as the operation of the device would not be modified by the relocation (id.) The Examiner’s argument is not persuasive. First, as noted by Appellant (Br. 5), if Yen’s temperature sensor 22 must be located between the valve 24 and the end portion of the manifold (conduit) 20, sensor 22 cannot be located inside the vessel as manifold 20 is located completely outside vessel 10. Second, as also noted by Appellant (id. at 6), Yen’s sensor 22 is connected to manifold 20 “to enable monitoring of the hydrogen gas entering and leaving the tank 10.” Yen 2, ¶ 0024. Therefore, locating 5 Appellant does not separately argue the patentability of independent claim 14 or dependent claims 8-13 and 15-20 (Br. 6). Accordingly, our analysis focuses on claim 7. Appeal 2012-005209 Application 12/187,751 7 the sensor inside the tank near one of the ports 16 would frustrate the purpose of the sensor, because it would then only be able to monitor the flow of hydrogen through that specific port, not the entire tank. We conclude that based on the existing record, the Examiner has not provided a persuasive reason why a person of skill in the art would have modified Yen to move its sensor 22 inside the tank 10, as required by appealed claim 7. CONCLUSION We REVERSE the rejection of claims 1-6 under 35 U.S.C. § 102(b) as anticipated by Allmendinger. We REVERSE the rejection of claims 7-12 and 14-19 under 35 U.S.C. § 103(a) as unpatentable over Yen. We REVERSE the rejection of claims 13 and 20 under 35 U.S.C. § 103(a) over Yen in view of Najjar. REVERSED bar