Ex Parte Zsigmond

Board of Patent Appeals and Interferences

Aug 11, 2009

11131526 (B.P.A.I. Aug. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
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3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
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7
Ex parte ENDRE ZSIGMOND 8
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10
Appeal 2009-001698 11
Application 11/131,526 12
Technology Center 3700 13
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Decided: August 11, 2009 16
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Before LINDA E. HORNER, JOHN C. KERINS, and 19
FRED A. SILVERBERG, Administrative Patent Judges. 20
21
SILVERBERG, Administrative Patent Judge. 22
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24
DECISION ON APPEAL25
Appeal 2009-001698
Application 11/131,526

2
STATEMENT OF THE CASE 1
Endre Zsigmond (Appellant) seeks our review under 35 U.S.C. § 134 2
of the final rejection of claims 1-10 and 12-18, which are all of the pending 3
claims. Claim 11 has been canceled. We have jurisdiction under 35 U.S.C. 4
§ 6(b) (2002). 5
6
SUMMARY OF DECISION 7
We REVERSE. 8
9
THE INVENTION 10
The Appellant’s claimed invention is directed to a floating structure 11
and a magnetic member being usable to activate a stopping mechanism to 12
prevent a wrong fuel from being dispensed into a storage tank (Spec. 3:13-13
24). 14
Claim 1, reproduced below, is representative of the subject matter on 15
appeal. 16
1. An apparatus for discriminating between 17
two fluids and allowing a first fluid to flow and 18
preventing a second fluid from flowing in a filler 19
tube, the first fluid comprising a first density and 20
the second fluid comprising a second density, the 21
apparatus comprising: 22
the discriminating apparatus disposed in an 23
inlet of the filler tube; 24
an actuating tube for accepting a portion of 25
the first or second fluid; 26
a magnetic structure comprising a material 27
that floats in one of the two fluids, comprising the 28
first density, and sinks in a second of the two 29
fluids, comprising the second density, disposed in 30
the actuating tube; and 31
Appeal 2009-001698
Application 11/131,526

3
a stopper, the stopper comprising a filler 1
tube blocking apparatus, that prevents the second 2
fluid from flowing into the filler tube, said stopper 3
being activated by the magnetic structure, whereby 4
the magnetic structure floats or sinks, depending 5
on a density of the fluid being introduced and 6
magnetically attracts a stopper release apparatus 7
when the magnetic structure reaches a 8
predetermined distance to the stopper release 9
apparatus. 10
11
THE REJECTIONS 12
The Examiner relies upon the following as evidence of 13
unpatentability: 14
Davis US 2,231,158 Feb. 11, 1941 15
Moore US 2,292,648 Aug. 11, 1942 16
17
The following rejections by the Examiner are before us: 18
1. Claims 1-4, 7-101, 12, 13 and 16-18 are rejected under 35 U.S.C. § 19
102(b) as being anticipated by Davis. 20
2. Claims 5, 6, 14 and 15 are rejected under 35 U.S.C. § 103(a) as being 21
unpatentable over Davis in view of Moore. 22
23
ISSUE 24
The issue before us is whether the Examiner erred in finding that 25
Davis describes the location of a discriminating apparatus as called for in 26
claims 1 and 10. 27

1 The Examiner’s statement of the rejection in the section Grounds of
Rejection (Ans. 4) incorrectly includes previously canceled claim 11 as
being anticipated by Davis.
Appeal 2009-001698
Application 11/131,526

4
ANALYSIS 1
Appellant contends that Davis does not describe a discriminating 2
apparatus disposed in a filler tube as called for in the claims (Reply Br. 3 3
and App. Br. 8, 10). 4
The Examiner found that Davis describes a filler tube 11 and an 5
apparatus comprising a discriminating apparatus 15 disposed in an inlet of 6
the filler tube 11 (Ans. 3). 7
Figure 1 of Davis shows diaphragm 15 as being both spaced from an 8
inlet to supply pipe 11 and also spaced from supply pipe 11. Therefore, 9
diaphragm 15 is neither located in an inlet of a supply pipe 11, nor located in 10
the supply pipe 11. Therefore, Davis does not describe the particular 11
location of the discriminating apparatus as called for in independent claims 1 12
and 10. 13
Accordingly, Davis does not anticipate claims 1 and 10. For the same 14
reasons, Davis does not anticipate claims 2-4, 7-9, 12, 13 and 16-18, which 15
depend from claims 1 and 10, respectively. 16
The Examiner has not relied on Moore for any teaching that would 17
remedy the deficiency in Davis (Ans. 4-5). We thus conclude that the 18
Examiner also erred in rejecting claims 5, 6, 14 and 15 over Davis in view of 19
Moore. 20
21
22
CONCLUSION OF LAW 23
Appellant has established that the Examiner erred in finding that 24
Davis describes the location of the discriminating apparatus as called for in 25
claims 1 and 10. 26
Appeal 2009-001698
Application 11/131,526

5
DECISION 1
The decision of the Examiner to reject claims 1-4, 7-10, 12, 13, and 2
16-18 over Davis and claims 5, 6, 14 and 15 over Davis in view of Moore is 3
reversed. 4
5
REVERSED 6
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Klh 11
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DENNIS F ARMIJO 13
DENNIS F. ARMIJO, P.C. 14
6300 MONTANO RD. NW 15
SUITE D 16
ALBUQUERQUE, NM 87120 17