McNeil, Gilbert

Patent Trials and Appeals Board

Jan 16, 2020

14120472 - (D) (P.T.A.B. Jan. 16, 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.
14/120,472 05/23/2014 Gilbert McNeil SR. 4131
7590 01/16/2020
KENNETH D. BAUGH
2413 Blodgett
Houston, TX 77004
EXAMINER
NEJAD, MAHDI H
ART UNIT PAPER NUMBER
3723
MAIL DATE DELIVERY MODE
01/16/2020 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 GILBERT MCNEIL SR.
____________________

Appeal 2019-0042401
Application 14/120,472
Technology Center 3700
____________________

Before PHILLIP J. KAUFFMAN, TARA L. HUTCHINGS, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

FINAMORE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3, and 6–8. We have jurisdiction
under 35 U.S.C. § 6(b). We REVERSE.

1 We reference herein the Specification filed May 23, 2014 (“Spec.”), Final
Office Action mailed June 8, 2017 (“Final Act.”), Appeal Brief filed
December 3, 2018 (“Appeal Br.”), and Examiner’s Answer mailed
February 27, 2019 (“Ans.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the inventor, Gilbert McNeil, Sr., as the real party in interest.
Appeal Br. 1.
Appeal 2019-004240
Application 14/120,472

2
SUBJECT MATTER ON APPEAL
“This invention relates to brake systems and more particularly to a
brake bleeding apparatus to be used when changing the brakes of an
automobile.” Spec. 1:6–8. Claim 1, reproduced below, is the sole
independent claim on appeal and representative of the claimed subject
matter.
1. A brake bleeder apparatus for a vehicle including:
an elongated housing means having an elongated aperture
formed therein;
a longitudinally extending spring aligned for slidable
movement in the aperture of the housing;
a first cylindrical shaped cap coupled to lowermost
portions of the elongated housing means for holding the
longitudinally extending spring in the housing means in a
predetermined position and for engaging a brake pedal of the
vehicle;
an elongated plunger aligned in the elongated aperture in
the housing means for slidably engaging upper portions of the
longitudinally extending spring to selectively move and
compress the longitudinally extending spring;
an upper cap having an aperture formed therethrough
coupled to uppermost portions of the elongated housing for
aligning the elongated plunger in the elongated housing for
slidable movement therein; and
a second cylindrical shaped cap coupled to uppermost
portions of the elongated plunger for engaging a steering wheel
of the vehicle so that when the first cylindrical shaped cap is
aligned to engage the brake pedal and the second cylindrical
shaped cap is aligned to engage the steering wheel, the
longitudinally extending spring can be selectively compressed
and released to expand as desired.
Appeal Br., Claims App. (claim status identifier omitted).
Appeal 2019-004240
Application 14/120,472

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REJECTIONS
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis
1 103 Avery,3 Digman4
1, 3, 6 103 Digman, Lee5
7, 8 103 Digman, Lee, Menten6

ANALYSIS
Obviousness Based on Avery and Digman
Appellant contends that neither Avery nor Digman teaches the second
cylindrical shaped cap recited in independent claim 1. Appeal Br. 8–9.
Appellant similarly contends the combined teachings of Avery and Digman
would not result in the recited second cylindrical shaped cap. Id. at 9.
Appellant’s contentions are persuasive.
Independent claim 1 recites a first cylindrical cap for engaging a brake
pedal of a vehicle and a second cylindrical cap for engaging the steering
wheel. Namely, independent claim 1 recites:
a second cylindrical shaped cap coupled to uppermost
portions of the elongated plunger for engaging a steering wheel
of the vehicle so that when the first cylindrical shaped cap is
aligned to engage the brake pedal and the second cylindrical
shaped cap is aligned to engage the steering wheel, the
longitudinally extending spring can be selectively compressed
and released to expand as desired.
Appeal Br., Claims App. (emphasis added).

3 US 2,932,504, issued Apr. 12, 1960.
4 US 2,513,850, issued July 4, 1950.
5 US 2012/0187358 A1, published July 26, 2012.
6 US 2013/0284015 A1, published Oct. 31, 2013.
Appeal 2019-004240
Application 14/120,472

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Avery describes a pressure exerting strut for use in the repair or
conditioning of a vehicle brake system. Avery 1:44–47, 2:9–11. Strut X
includes member A, i.e., elongated housing, and member B, i.e., elongated
plunger. Id. at 2:40–46, 60–63, Fig. 2. Spring 25 biases member B out of
member A. Id. at 3:48–55, Fig. 2. The ends of elongated members A, B are
closed by bumpers 22, 23, respectively. Id. at 2:63–69, Fig. 2. Plate 45
grips forward surface 14 of seat Y to provide a reaction force pressing one of
bumpers 22, 23 against brake pedal Z. Id. at 3:61–4:5, 4:38–42, 6:13–16
(claim 6), Fig. 1.
Digman describes a tool for holding a pedal in a selected elevated or
depressed position. Digman 1:1–8. The tool includes shaft member 21, i.e.,
elongated plunger, which is slidable within upright tubular member 10, i.e.,
elongated housing. Id. at 2:3–10, 23–26, Fig. 2. Spring 24 biases shaft
member 21 out of tubular member 10. Id. at 2:33–39, Fig. 2. A lower end
of tubular member 10 terminates in base 11, and an upper end of shaft
member 21 terminates in head 22. Id. at 2:3–10, 23–26, 3:44–50, Fig. 1. In
one embodiment, movable abutment 30 coupled to the upper portion of shaft
member 21 engages beneath dashboard 36 of a motor vehicle to provide a
reaction force pressing base 11 against brake pedal 37. Id.at 3:18–36, Fig. 3.
In another embodiment, head 22 engages beneath dashboard 36 to provide
the reaction force pressing base 11 against brake pedal 37. Id. at 3:44–50.
Each of Avery’s bumper 23 and Digman’s head 22 is attached to a
plunger. Avery discloses that bumper 22 engages brake pedal Z.
Avery 2:69–71, Fig. 1. Digman teaches that head 22 engages beneath
dashboard 36 or against the brake pedal. Digman 3:44–50. Given that
neither Avery’s bumper 23, nor Digman’s head 22 engages the steering
Appeal 2019-004240
Application 14/120,472

5
wheel of the vehicle, the Examiner has not shown persuasively that the
combined teachings of Avery and Digman would result in the second
cylindrical shaped cap recited in independent claim 1. Therefore, we do not
sustain the rejection of independent claim 1 under 35 U.S.C. § 103 as
unpatentable over Avery and Digman.

Obviousness Based on Digman and Lee
Appellant argues that neither Digman nor Lee teaches “a first
cylindrical shaped cap coupled to lowermost portions of the elongated
housing means for holding the longitudinally extending spring in the
housing means in a predetermined position and for engaging a brake pedal
of the vehicle,” as recited in independent claim 1. Appeal Br. 10–11.
Appellant’s argument is persuasive.
The Examiner relies on Digman’s base 11 for disclosing the recited
first cylindrical shaped cap. Final Act. 9–10. According to the Examiner,
base 11 has an inner cylindrical shaped feature to threadingly engage with
the lowermost portions of tubular member 10. Id. at 9. Even if Digman’s
base 11 includes a cylindrically shaped opening to threadingly receive
tubular member 10, base 11 has a rectangular, not cylindrical, shape, as
shown in Figure 1. There is insufficient support for the Examiner’s finding
that Digman’s base 11 discloses the first cylindrical shaped cap recited in
independent claim 1, and the Examiner does not explain why the recited first
cylindrical shaped cap would have been obvious. We, therefore, do not
sustain the rejection of independent claim 1, as well as claims 3 and 6
depending therefrom, under 35 U.S.C. § 103 as unpatentable over Digman
and Lee.
Appeal 2019-004240
Application 14/120,472

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Obviousness Based on Digman, Lee, and Menten
The Examiner does not cite Menten for any teaching that might
remedy the deficiency in the combined teachings of Digman and Lee as
applied to independent claim 1. Therefore, we do not sustain the rejection of
claims 7 and 8 under 35 U.S.C. § 103 as unpatentable over Digman, Lee,
and Menten.
CONCLUSION
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1 103 Avery, Digman 1
1, 3, 6 103 Digman, Lee 1, 3, 6
7, 8 103 Digman, Lee,
Menten
7, 8
Overall
Outcome
1, 3, 6–8

REVERSED