Ex Parte Waymire et al

Patent Trial and Appeal Board

Sep 27, 2016

13317318 (P.T.A.B. Sep. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/317,318
7590
Ingrid McTaggart
3021SE56th Ave.
Portland, OR 97206
FILING DATE FIRST NAMED INVENTOR
10/14/2011 Evan Waymire
09/27/2016
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.
TEM675 9746
EXAMINER
ANDERSON, DON M
ART UNIT PAPER NUMBER
3781
MAILDATE DELIVERY MODE
09/27/2016 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 EV AN WAYMIRE, JOHN LOFFINK, and TIM BARKER
Appeal2014-007281
Application 13/317,318
Technology Center 3700
Before CHARLES N. GREENHUT, JILL D. HILL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Evan Waymire et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's final rejection of claims 1-13 and 15-20. 1 We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Claim 14 has been canceled. Appeal Br. 42 (Claims App.).
Appeal2014-007281
Application 13/317,318
CLAIMED SUBJECT MATTER
Independent claim 1, the sole independent claim on appeal, represents
the claimed subject matter and is reproduced below.
1. A fuel filler assembly for placement in a fuel tank, comprising:
a filler tube including a first end region adapted to be
positioned in a fuel tank, said first end region including an
aperture sized to allow fuel to flow through said aperture and
out of said filler tube, said filler tube including a first crimp and
a second crimp therein;
a support structure positioned within said first end region
of said filler tube, said support structure including a plurality of
support structure apertures for allowing fuel to flow there
through; and
a strainer structure positioned in said filler tube and
including strainer apertures extending there through that are
sized for allowing fuel to flow there through while inhibiting
debris from passing there through,
said strainer structure and said support structure both
retained within said filler tube by said first and said second
crimps.
Appeal Br. (Claims App.).
REJECTIONS
I. Claims 1-13 and 16-19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Watson (US 7,040,360 B2; iss. May 9, 2006) in
view ofDarms (US 2,107,600; iss. Aug. 17, 1936). Ans. 2.
II. Claims 15 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Watson, Darms, and Eichenseer (US 4,867,337, iss. Sept.
19, 1989). Final Act. 9.
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Application 13/317,318
Rejection I
ANALYSIS
Claims 1-3, 6--10, 12, 13, 16, 18, and 19
Appellants argue claims 1-3, 6-10, 12, 13, 16, 18, and 19 as a group.
We select claim 1 as representative, with claims 2, 3, 6-10, 12, 13, 16, 18,
and 19 standing or falling with claim 1.
The Examiner finds that Watson discloses, inter alia, a filler tube 12
including first and second crimps 40, 42 retaining an anti-siphon structure 44
in the filler tube 12. Ans. 2. The Examiner finds that Watson does not
disclose a strainer structure retained within its filler tube 12, but finds that
Danns discloses a strainer structure 20 positioned in a filler tube 10, the
strainer structure including a cylinder-shaped strainer tube "(i.e., elongated
portion of screen 20)" and a circular sheet of material "having open ends
(due to holes in screen)." Id. at 3 (citing Darms 2:10-14 and 45-53, Figs. 1-
4). The Examiner concludes that it would have been obvious to provide
Watson's filler tube 12 "with a strainer structure, as taught by Danns ... to
prevent unwanted debris or solids from entering a gas tank." Id. The
Examiner contends that Darms' strainer could be retained by adjusting "the
location of [Watson's] first crimp (40) (i.e. move it further up tube (12)
away from second crimp (42)) to allow room for the strainer structure of
Danns and to secure it in the filler tube (12)." Final Act. 3.
Appellants contend that the Examiner has not established prima facie
obviousness because neither Watson nor Darms, alone or in combination,
teaches or suggests two crimps that retain a strainer structure. Appeal Br.
18. Appellants' reasoning is set forth in the arguments below.
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Appellants argue that, if one were to combine Watson and Danns,
"the result would be a cup screen removably positioned in the Watson
device above a single crimp, and not secured between two crimps." Appeal
Br. 18. According to Appellants, Watson's crimps 40, 42 secure only an
anti-siphon device 44, and Darms' cup screen 20 is removable from its
filling tube body 10. Id. at 20-21.
The Examiner, however, is not proposing to modify Watson to include
a removable strainer; rather, the Examiner proposes to take Danns' strainer
and retain it with Watson's crimps 40, 42. Appellants do not explain why
Danns' strainer must remain removable when added to the filler assembly of
Watson in such a manner that the strainer is retained therein by crimps 40,
42. We, therefore, are not persuaded by this argument.
Appellants also contend that moving one of Watson's crimps upward
"to accommodate the strainer structure of Danns is not taught or suggested
by either of the references," and that moving Watson's crimp upward
"would render the device of Watson unfit for its intended purpose" because
securing a Danns' screen with Watson's anti-siphon insert 44 "may allow a
vandal to damage to the thin 'screen' 20 of Darms" and then the screen
would not retain Watson's anti-siphon insert 44 in place. Appeal Br. 22-23.
The Examiner responds that
since Watson teaches the desirability of having the support
structure secured by two crimps; it would be obvious to one of
ordinary skill in the art to also secure the strainer structure
between two crimps. Securing the strainer structure between
two crimps would make it less likely to come loose or be
removed by an unauthorized person. One of ordinary skill in
the art would understand that the invention of Watson could be
easily modified to secure the strainer structure between two
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Application 13/317,318
crimps by moving the location of one of the existing crimps, as
suggested by the Examiner, or by simply creating an additional
crimp in the filler tube.
Ans. 12. The Examiner explains that the test for obviousness is not whether
the features of a secondary reference may be bodily incorporated into the
primary reference; nor is it that the claimed invention must be expressly
suggested in any one or all of the references. Rather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art. Ans. 12-13 (citing In re Keller, 642 F.2d 413
( CCP A 19 81)). We further note that " [a] person of ordinary skill in the art is
also a person of ordinary creativity, not an automaton." KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007). "[I]n many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle." Id. at 420.
We agree with the Examiner's conclusion that one skilled in the art
would have understood that a Danns' screen 20 could be added to filter gas
in Watson's anti-siphon filler tube, and that it could have been securely held
therein by, for example, moving Watson's crimp(s) 40, 42 to secure both the
screen 20 and the anti-siphon insert 44 insert between the crimps. Ans. 13.
Also, as noted above, the Examiner's rejection does not propose that Darms'
screen remain removable when incorporated into Watson's crimped filler
tube. Appellants' conclusory argument regarding screen damage fails to
persuade us that addition of Danns' screen to Watson's fill tube would allow
a vandal to remove the anti-siphon insert 44 from Watson's filler tube.
Appellants next argue that Danns teaches away from the proposed
combination, because Danns teaches a removable cup screen. Appeal Br.
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Application 13/317,318
24. Appellants similarly argue that both references teach against the
Examiner's proposal to move any of Watson's crimps. Appeal Br. 18-19.
However, to teach away, a reference's disclosure must "criticize, discredit,
or otherwise discourage the solution claimed." In re Fulton, 391 F.3d 1195,
1199-1201 (Fed. Cir. 2004). Lacking any disclosure in Watson that
discourages crimp relocation, or any disclosure in Darms that discourages
removing the strainer, we are not persuaded that either references teaches
away from the propose combination.
Appellants further argue that there is no teaching or motivation in
either reference to secure a strainer. Appeal Br. 24. The Examiner finds
insert securement to be taught by Watson, and a strainer to be disclosed by
Darms, and combines the disclosures of the references to conclude that
securing the strainer with the insert to be obvious. Ans. 2-3. Thus, a single
reference need not teach or suggest strainer securement.
Claims 4, 5, 11, 16, and 17
Two-Part Strainer Structure
Appellants argue claims 4, 5, 11, 16, and 17 as a group. Appeal Br.
25-31. We select claim 4 as representative. Claims 5, 11, 16, and 17 stand
or fall with claim 4. Claim 4 is directed to a fuel filler assembly with a
strainer structure including "a cylindrical shaped strainer tube" and "a sheet
of material having a circular perimeter."
The Examiner contends that the claims do not preclude a strainer
structure having a cylindrical tube that is integrally attached to a circular
sheet. Ans. 14. The Examiner also contends that "claim 17 would allow the
end plate and tube to be inserted in a single step; the claim does not require
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two separate steps." Id. We agree with the Examiner that the recitation of
the strainer structure including a "cylindrical shaped strainer tube" and "a
sheet of material having a circular perimeter" does not recite the elements
being necessarily separable. Giving elements separate names is not the same
as a positive recitation of the elements being separable.
Open-Ended Tube
Dependent claims 2, 4, 5, and 16 recite the cylindrical-shaped strainer
tube of the strainer structure having open ends. The Examiner finds this
disclosure in Danns' "cylindrical shaped strainer tube (i.e. elongated portion
of screen (20)) having open ends (due to holes in screen)." Ans. 3.
Appellants argue that the Examiner errs in finding that Danns
discloses a strainer structure including an open ended tube. Appeal Br. 25.
Appellants contend that that the plain meaning of "open ends" is
"unobstructed space," which meaning is consistent with use of the term in
their Specification. Id. at 29-30. According to Appellants, their Figures 4
and 5 "show no structural mass at the end of tube 92." Id. at 30.
The Examiner contends that Darms' screen bottom, shown in Danns'
Figure 3, is "open ended" because it includes apertures allowing liquid to
pass therethrough. Ans. 14. Even if we disagree with the Examiner's
interpretation of the term "open ended," we agree with the Examiner's
finding that Danns' screen cup 20, which includes a cylinder-shaped strainer
tube with a circular sheet of material at one end thereof, meets the limitation
of a strainer structure including a cylindrical shaped strainer tube having
open ends and a sheet of material having a circular perimeter. We,
therefore, are not persuaded by this argument.
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Darms' Cup Screen as the Open End and Sheet or End Plate
Appellants argue that the Examiner errs in finding that the bottom of
Danns' cup screen satisfies both the "open end" limitation and the "sheet" or
"end plate" limitation. Appeal Br. 32.
The Examiner responds that Darms' screen 20 discloses the strainer
structure, with the elongated/tubular portion of the screen 20 being the
claimed "cylindrical shaped strainer tube," and the bottom of the screen
(visible in the view of Danns' Figure 3) being the claimed "sheet of material
having a circular perimeter." Ans. 14--15. The Examiner finds that Danns'
screen 20 has open ends because it has no top and has holes in its bottom
surface. Id. at 15. Appellants' argument depends on the above argument
that the strainer is claimed as two separate elements. Appeal Br. 33. As
stated above, regarding claims 4, 5, 11, and 16, we agree with the Examiner
that the recitation of the strainer structure including a cylindrical shaped
strainer tube and a sheet of material does not recite the elements being
necessarily separate pieces. Giving elements separate names is not the same
as a positive recitation of the elements being separable.
For the reasons set forth above, we sustain Rejection I.
Rejection II
Appellants argue that Darms teaches away from the Examiner's
proposed combination of Watson, Danns, and Eichenseer, because Darms
discloses a removable cup and the proposed combination would permanently
secure the cup. Appeal Br. 35-37. As explained above, to teach away, a
reference's disclosure must "criticize, discredit, or otherwise discourage the
solution claimed." Fulton, 391 at 1199-1201. Lacking any such
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discouragement in Danns of permanently secure the screen/strainer, we are
not persuaded that Danns teaches away from the propose combination. We,
therefore, sustain Rejection II.
DECISION
We AFFIRM the rejection of claims 1-13 and 16-19 under 35 U.S.C.
§ 103(a) as being unpatentable over Watson and Danns.
We AFFIRM the rejection of claims 15 and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Watson, Danns, and Eichenseer.
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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