Jeffrey Morris

Patent Trials and Appeals Board

Aug 31, 2020

2019006182 (P.T.A.B. Aug. 31, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
14/756,700 10/01/2015 Jeffrey Morris 8242 5266
77083 7590 08/31/2020
Paul M. Denk
763 South New Ballas
Ste. 305
St. Louis, MO 63141
EXAMINER
NGUYEN, QUANG X.L.
ART UNIT PAPER NUMBER
2853
MAIL DATE DELIVERY MODE
08/31/2020 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 JEFFREY MORRIS
Appeal 2019-006182
Application 14/756,700
Technology Center 2800

Before CATHERINE Q. TIMM, GEORGE C. BEST, and
MICHAEL G. McMANUS, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claim 21. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as the inventor,
Jeffrey Morris, and the company to which he has assigned the ’700
Application, Husky Corporation. Appeal Br. 1.
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Application 14/756,700
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CLAIMED SUBJECT MATTER
The claims are directed to a drum tank gauge device. The gauge
device is depicted in Figures 1 to 4. Claim 21, the only pending claim, is
reproduced below with reference numerals from the figures to illustrate the
structure of the claim:
21. A drum tank gauge device of unitary construction for
use in measuring the quantity of liquid petroleum products in a
steel drum tank, comprising:
a housing [Fig. 1:12] having a level indication display
[14], an audible alarm [speaker or buzzer 16], and a visual
alarm [LED 18];
a level sensor shaft [20] having a capacitance sensor [24]
positioned at a lower end of said shaft when inserted furtherest
into a drum tank;
a threaded cap [22] for securing the housing [12] and the
level sensor shaft [20] in place within a drum tank;
said level indication display [14] responsive to the
detections of said capacitance sensor located at the lower end of
said level sensor shaft comprising a first LED [26] for
indicating an approximate 90% capacity of liquid petroleum
within said drum tank, a second LED [28] for indicating an
approximate 75% capacity, a third LED [30] for indicating an
approximate 50% capacity, a fourth LED [32] for indicating an
approximate 25% capacity, and a fifth LED [34] for indicating
an approximate a low 5% capacity of liquid petroleum
remaining within the drum tank, said LED’s [sic] being
vertically aligned;
said level indicator [sic, indication] display [14] and
associated alarms [16, 18] provided for alerting an operator that
additional petroleum products needs to be added in the event
that the low level indicator displays that there is 5% or less
capacity remaining in the tank;
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Application 14/756,700
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said visual alarm [18] is an LED provided at the top of
said housing;
said audible alarm is one of a speaker and buzzer [16],
and said housing [12] further comprises a switch [Fig. 4:70] for
muting the operation of the audible alarm;
said housing [12] further having a pair of sides [Figs. 2–
3:38, 42], and each side [38, 42] having a touch sensitive switch
[40, 44] connected to an integrated circuit [Fig. 4:50] and when
one or both switches [40, 44] are initiated, activating said
capacitance sensor [Fig. 1:24] for operating the drum tank
gauge device;
a battery [Fig. 4:52] positioned within the housing [12]
for electrically powering the drum tank gauge device during
application;
the integrated circuit [50] provided within the housing
[12] and incorporating a programmable microprocessor and
which when initiated, providing for the liquid level indication
display [14], the operations of the audible alarm, the operations
of the visual alarm, and the capacitance sensor [24] provided at
the lower end of said level sensor shaft [20];
said touch sensitive switches [40, 44] connected to the
integrated circuit [50], and upon operation of said switches [40,
44] provided for actuating the capacitance sensor [24] for
providing a signal to the integrated circuit [50] for the
integrated circuit [50] and its microprocessor to determine the
level of contents of the liquid petroleum within said drum, and
for display of the liquid petroleum content upon the level
indication display [14].
Appeal Br. 12–13 (Claims Appendix).
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Shefsky US 5,065,139 Nov. 12, 1991
Mazurek US 2002/0166803 A1 Nov. 14, 2002
Ross, Jr. US 2009/0301190 A1 Dec. 10, 2009
REJECTIONS
The Examiner maintains the following rejections.
Claim 21 is rejected under 35 U.S.C. § 112(a) as failing to comply
with the written description requirement. Final Act. 2.
Claim 21 is rejected under 35 U.S.C. § 103 as being unpatentable over
Mazurek in view of Shefsky, and further in view of Ross, Jr. Final Act. 3.
OPINION
Written Description
The Examiner maintains the rejection of claim 21 under 35 U.S.C.
§ 112(a) as failing to comply with the written description requirement, Ans.
3, but Appellant fails to address it. Appeal Br. 7–11. Because Appellant fails
to address the rejection, Appellant has failed to identify a reversible error in
it. Thus, we sustain the rejection.

Obviousness
In arguing against the Examiner’s rejection of claim 21 as obvious
over Mazurek in view of Shefsky and Ross, Jr., Appellant highlights
differences between the teachings of each of the references and the claimed
invention and then contends the Examiner’s rejection is based on hindsight
because the “claimed invention is of a different structure, which functions
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differently, having touch sensitive switches on either side of its control
housing, for determining the level of petroleum products remaining within
his storage tank, when operating.” Appeal Br. 8–9. Appellant further
contends that claim 21 is quite detailed in describing the use of all the
various components and the prior art, even in combination, does not identify
the level of structure provided in Appellant’s gauge as set forth in the claim.
Appeal Br. 9–10. Appellant, however, does not identify reversible error in
the Examiner’s specific findings and determinations as presented in the Final
Action. Appeal Br. 8–11. Nor does Appellant reply to the Examiner’s well-
reasoned responses to Appellant’s arguments. No reply brief was filed. After
considering Appellant’s arguments against the Examiner’s findings and
conclusions, we determine that Appellant has not identified a reversible error
in the Examiner’s rejection. We adopt the Examiner’s findings, reasoning,
responses, and conclusion as set forth in the Final Office Action and
Answer. We add the following primarily for emphasis.
Appellant’s claim is directed to a drum tank gauge device of unitary
construction that includes a housing, a level sensor shaft with a capacitance
sensor in its lower end, and a threaded cap. See claim 21; see also Fig. 1
(depicting a gauge with a housing 12, level sensor shaft 20 with capacitance
sensor 24, and threaded cap 22).
There is no dispute that all three references, Mazurek, Shefsky, and
Ross, Jr., disclose or suggest gauges containing capacitive level sensors for
measuring the level of liquid in containers, but the uses of the various
sensing devices is different. Compare Final Act. 3–8, with Appeal Br. 8.
As pointed out by Appellant, Mazurek discloses using the gauge “for
gauging the level of grease that accumulates in a grease separator.” Appeal
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Br. 8; Mazurek ¶ 2. Appellant contends that Mazurek’s gauge “is not related
to gauging the level of petroleum product, such as gasoline, contained within
a tank, to provide for an indication of the various levels of product
remaining, and when a significant low level of product remains, and needs to
be replenished.” Appeal Br. 8. Although that is true, this difference in use
alone does not provide evidence that the structure of the claimed gauge is
patentably distinguishable from the gauges of the prior art. It is the structure
that must be different, not the use. Hewlett-Packard Co. v. Bausch & Lomb
Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (“apparatus claims cover what a
device is, not what a device does.”); In re Michlin, 256 F.2d 317, 320
(C.C.P.A. 1958) (“It is well settled that patentability of apparatus claims
must depend upon structural limitations and not upon statements of
function.”).
That the differences in uses does not alone patentability distinguish
the devices structurally is supported by Ross, Jr. Ross, Jr. provides evidence
that using such gauges is for generally sensing the movement of liquid
within containers. These containers can be of various types and hold various
liquids as evidenced by the prior art. See Mazurek ¶ 9 (capacitance sensor
senses amount of water of effluent to determine amount of grease in the
effluent in a tank); Shefsky col. 1, ll. 6–10 (“The . . . invention relates
generally to level sensing devices, and more particularly to devices for
sensing the level of fluids in a container and reporting visually and audibly
when a desired level is reached.”); Ross, Jr. ¶¶ 2, 33 (stating the invention as
relating in part to capacitance sensors “for determining relative position or
movement between objects, such as movement of liquid within a tank” and a
suggested use of measuring fuel and other liquid levels in vehicle tanks).
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Contrary to Appellant’s argument, the difference in function does not
provide persuasive evidence that the structure of Mazurek’s gauge is
patentably different. This is especially true given the teachings of Shefsky
and Ross, Jr.
Appellant’s housing includes a level indictor display and two alarm
devices responsive to the level of liquid detected by the sensor. Claim 21;
see also Fig. 1. The level indicator display is a set of five LEDs. Fig. 1 at 26,
28, 30, 32, 34). One alarm device (16) emits an audible alarm and is either a
speaker or buzzer. Fig. 1. The other alarm device (18) is a LED on the top of
the housing that provides a visual alarm. Fig. 1. The housing has a pair of
sides, each side having a touch sensitive switch (40). Figs. 2–3. Within the
housing are an integrated circuit that provides signals to and from the
display and alarm devices and a battery powering the gauge. Fig. 4
(integrated circuit 50 and battery 52).
The Examiner finds that Mazurek teaches or suggests a number of the
display and alarm elements, but acknowledges that Mazurek does not teach a
battery positioned within a housing and turns to Shefsky to support a finding
of a suggestion within the prior art to include a battery. Final Act. 6. The
Examiner also relies on Shefsky as evidence supporting a finding of a
suggestion of including a threaded cap for securing the gauge to a drum
tank. Id.
Appellant points out that Shefsky does not use a series of LEDs and is
“just the opposite, functional-wise,” from what Appellant claims. Appeal Br.
8. But Appellant’s argument does not identify a reversible error in the
Examiner’s findings as to the series of LEDs. The Examiner did not rely on
Shefsky for a teaching of a series of LEDs. The Examiner relied on Mazurek
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for that teaching. Final Act. 5; Ans. 5; Mazurek Fig. 8, ¶ 82 (series of five
“Level” lights or LEDs 194). As for the argument that Shefsky is “just the
opposite functional-wise,” the Examiner does not rely on the function of
Shefsky nor has Appellant advanced any argument against the combinability
of the teachings of Mazurek and Shefsky based on the difference in function.
The Examiner acknowledges that Mazurek and Shefsky do not teach
touch sensitive switches on the sides of the housing and turns to Ross, Jr. as
evidence to support a finding of a suggestion for using touch sensitive
switches. Final Act. 7. Appellant contends that Ross, Jr.’s capacitive sensor
has a different structure than that of the claim. Appeal Br. 9. But, again, the
Examiner did not rely on Ross, Jr. for the structure of the capacitive sensor,
the Examiner relied on Ross, Jr. for its teaching of using touch sensitive
switches in gauge devices that rely on capacitive sensors to measure the
movement of liquid levels. Final Act. 7; Ans. 5–6. Again, Appellant’s
argument does not identify a reversible error in the Examiner’s findings.
As to Appellant’s argument that the claim is quite detailed in
describing the use of all the various components and the prior art does not
identify to the level of structure provided in Appellant’s gauge, this
generalized argument does not identify a reversible error in any of the
specific findings or the conclusion of the Examiner. The Examiner has
provided specific rationales to support each of the findings of reasons for
making the modifications. Appellant has not persuaded us of error in those
rationales. Nor has Appellant demonstrated that the specific differences
between the claimed invention and the prior art would not have been
obvious to a person having ordinary skill in the art at the time of the
invention.
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CONCLUSION
The Examiner’s decision to reject claim 21 is AFFIRMED.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21 112(a) Written
Description
21
21 103 Mazurek, Shefsky,
Ross, Jr.
21
Overall
Outcome
21

TIME PERIOD FOR RESPONSE
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)(1)(iv) (2018).
AFFIRMED