McTaggart, Ingrid

Patent Trials and Appeals Board

Sep 25, 2020

13711188 - (D) (P.T.A.B. Sep. 25, 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.
13/711,188 12/11/2012 Neal Keefer TEM676 7547
7590 09/25/2020
Ingrid McTaggart
3021 S.E. 56th Avenue
Portland, OR 97206
EXAMINER
KHARE, ATUL P
ART UNIT PAPER NUMBER
1742
MAIL DATE DELIVERY MODE
09/25/2020 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 NEAL KEEFER

Appeal 2019-005513
Application 13/711,188
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, DONNA M. PRAISS, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 4–7, and 21–25. 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 MFB Patents,
Inc. Appeal Br. 3.
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Appellant’s invention is directed to a molded fuel tank made from
synthetic material having one or more metal components in the synthetic
material and methods of rotationally molding the fuel tank (Spec. 2:7–13;
Claim 1).
Claim 1 is representative of the subject matter on appeal:
1. (amended) A method of manufacturing a fuel tank, the method
comprising:
providing a mold having an interior surface that
corresponds to an exterior shape of a molded fuel tank and that
defines an interior of said mold;
securing on said interior surface of said mold, in an
intended final position with respect to the fuel tank, a fuel tank
component;
after said securing step, loading a synthetic material into
said interior of said mold;
heating said mold until said synthetic material is melted;
rotating said mold until said synthetic material is adhered
to said interior surface of said mold;
allowing said melted material to cool so as to form a
molded one-piece fuel tank body; and
removing said molded fuel tank body from said mold,
wherein said molded fuel tank one-piece tank body
includes said fuel tank component secured by solidified
polymer around the component and formed integral within and
extending through and outwardly from an exterior surface of
said molded fuel tank body in a final position corresponding to
the intended final position, wherein said fuel tank component
extends inwardly into an interior of said molded fuel tank from
and past an interior surface of said molded fuel tank body, such
that said tank component is uncoated with the molded synthetic
material in a first region extending outwardly from said exterior
wall of said molded fuel tank body and is uncoated with the
molded synthetic material on a side surface of a second region
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extending inwardly from and past said interior surface of said
molded fuel tank body such that said component allows open
fluid communication between said interior and an exterior of
said fuel tank.
Appellant appeals the following rejections:
1. Claims 1, 4–7, and 21–25 are rejected under 35 U.S.C. § 112, ¶ 1
as lacking written description.
2. Claims 1 and 4–7, 232 are rejected under 35 U.S.C. § 112, ¶ 2 as
being indefinite.
3. Claims 1, 4–7, and 21–25 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Evanovich (US 6,508,271 B2, issued Jan.
21, 2003) in view of Hyde (US 5,103,865, iss. Apr. 14, 1992) or
Gatley (US 4,976,910, iss. Dec. 11, 1990).
4. Claims 1, 4–7, and 21–25 are rejected under 35 U.S.C. § 102(b)
as anticipated by Ziegler (US 5,211,900, iss. May 18, 1993), or,
in the alternative, under 35 U.S.C. § 103(a) as obvious over
Ziegler in view of Gatley.
5. Claims 1, 4, 6, 7, and 21–25 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Gatley.
6. Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Gatley in view of Evanovich.

2 The 35 U.S.C. § 112, ¶ 2 rejection of independent claims 21 and 22 and
claims 24 and 25 dependent therefrom were withdrawn by the Examiner
(Ans. 3). As we understand the rejection, claim 1 and the claims dependent
therefrom remain rejected based on the lack of antecedent basis issue with
claim 1.
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Appellant also argues the Examiner’s objections to the claims (Appeal
Br. 16-17). The recourse for objections is by petition to the Director and not
appeal to the Board. See, Manual of Patent Examining Procedure § 1201.
We will not consider arguments made with respect to the Examiner’s
objections.

FINDINGS OF FACT & ANALYSIS
Rejection (1): Written Description
The Examiner’s findings regarding the written description rejection
are located on pages 7 to 9 of the Final Office Action. The Examiner finds
that there is no written descriptive support for an uncoated component region
extending outwardly or inwardly from the tank or tank body (i.e., either the
exterior wall or interior surface) (Final Act. 7, 8). The Examiner finds that
Appellant’s Figures 1 and 2 do not depict the tank, tank wall, or tank body in
close enough detail with respect to the tank components to clearly convey
that any particular region of an outward extension of the component is
uncoated (Final Act. 7, 8).
Appellant argues the figures in the provisional application filed
December 12, 2011, show components 20 and 22 extending outwardly from
a fuel tank side wall 12 (Appeal Br. 18). Appellant contends the provisional
application figures show a cross-hatched side wall of the tank in cross
section and components 20, 22, and 28 extending through the tank wall and
into the interior of the tank (Appeal Br. 18). Appellant argues the figures in
the provisional application show “clean corners defined between the fuel
tank wall and the side surface of each component that extends through the
fuel tank wall” (Appeal Br. 18). Appellant contends the figures show no
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tank wall material extending upwardly along or accumulating at the corners
where the components 20, 22, and 28 extend through the fuel tank wall
(Appeal Br. 18). Appellant argues provisional application Figure 2 shows an
open aperture of component 28 positioned inside the tank, which shows that
there is communication between an exterior and an interior of the tank
through component 28 (Appeal Br. 19). Appellant contends the
Specification discloses the tank material deposited in the mold adheres to the
heated mold during rotational molding (Appeal Br. 19). Appellant argues
the Specification does not indicate that the component is heated, and thus the
tank material would not adhere to the component (Appeal Br. 20).
Appellant argues the provisional application Figures 1 and 2 show that the
components extend outwardly from side wall 12 and are not in contact with
the softened material inside the mold during molding and would not be
coated (Appeal Br. 20).
An appellant satisfies the written description requirement by showing
the Specification reasonably conveys to those skilled in the art that
Appellant had possession of the subject matter recited in the claims. Ariad
Pharmaceuticals, Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir.
2010). In the present case, we find that Appellant’s reliance on provisional
application Figures 1 and 2 and the Specification disclosure that the molding
material adheres to a heated mold fails to establish they had possession of
the components being uncoated by the tank molding material. Regarding the
Specification, Appellant contends that Figures 1 and 2 show that the
components extend outwardly from the tank wall and that showing coupled
with the disclosure that the tank wall material adheres to the heated mold
establishes descriptive support (Appeal Br. 19–20). The Examiner
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reasonably finds that the figures do not convey via different hatching or
expanded views of the components that the portion of the component
extending outward from the outer tank wall or inward from the interior of
the tank wall would have no coating of tank wall material on them (Ans. 4–
5). We find that the provisional application figures, which appear to be
identical to the those in the present application, do not provide any sort of
expanded view of the components that would have established possession of
no coating of tank wall material on the portion of the components extending
outward from the tank wall or extending inward from the tank wall.
Appellant’s Specification may disclose that the tank wall material
adheres to the heated mold, but that does not necessarily describe that none
of the tank wall material adheres to the component as recited in claim 1.
Appellant fails to provide any figure or description showing the method used
or how the component would have been positioned in the mold to convey
reasonably that they had possession of no tank wall material on the portion
of the components extending outwardly or inwardly from the tank wall.
Notably, Appellant does not provide any argument or evidence that the
portion of the components extending inwardly from the tank wall would be
free of tank wall material (Appeal Br. 20).
We find that Appellant has not established possession of the claimed
subject matter. We affirm the Examiner’s § 112, ¶ 1 written description
rejection.

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Rejection (2): Indefiniteness
The only remaining rejection under this rejection is the lack of
antecedent basis rejection for the phrase “said exterior wall” in claim 13
(Final Act. 10; Ans. 3).
Appellant concedes that there is a lack of antecedent basis for the
phrase (Appeal Br. 28). Appellant argues an amendment submitted on June,
13, 2017 changed “from an exterior wall” to “from an exterior surface” but
failed to change “exterior wall” in all instances in claim 1 (Appeal Br.
27–28). Appellant contends the Examiner did not object to the phrase
“exterior wall” in the non-final rejection dated September 8, 2017 (Appeal
Br. 28). Appellant argues if the Examiner had rejected claim 1 under 35
U.S.C. § 112, ¶ 2 based on lack of antecedent basis in the non-final action,
Appellant would have had the opportunity to amend the claim (Appeal Br.
28). Appellant requests the Board to enter an amendment to claim 1, line 26
to replace “exterior wall” with “exterior surface” (Appeal Br. 28).
Contrary to Appellant’s request or argument, the Board does not enter
amendments. The authority to enter or deny entry of amendments after final
rejection resides with the Examiner. See Manual of Patent Examining
Procedure § 1206. Our review of the electronic record in the Patent Office
does not show that any formal amendment was filed to correct this issue. An
Applicant Initiated Interview Summary form (PTO-413) dated March 7,

3 The Examiner does not state which claims are still rejected under 35
U.S.C. § 112, ¶ 2 after withdrawing some of the bases for the rejection. It
appears that only claim 1 is affected by the antecedent basis issue that
remains (Final Act. 10). Therefore, we understand that claims 1, 4–7, and
23 are rejected under 35 U.S.C. § 112, ¶ 2.
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2019 states that the Examiner told Appellant that the matter could be
resolved by an amendment after Board decision.
Because it is uncontested that the claims before us contain the
antecedent basis problem, we affirm the Examiner’s § 112, ¶ 2 rejection of
claims 1, 4–7, and 23.

Rejection (3): Obviousness
Appellant’s arguments focus primarily on claim 1 (Appeal Br. 30–36).
Appellant quotes portions of independent claims 21 and 22 (Appeal Br. 33,
36–37). Appellant’s claim quotations do not amount to a separate argument
regarding claims 21 and 22. Rather, the same limitations from claims 1, 21
and 22 are argued. Accordingly, we select claim 1 as representative of the
claim group. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner’s findings and conclusions regarding Evanovich, Hyde,
and Gatley as applied to claim 1 are located on pages 11–13 of the Final
Office Action.
Appellant agrees with the Examiner that Evanovich does not teach the
claimed inward, uncoated extension of the component (Appeal Br. 34).
Appellant contends Hyde’s vent 24 is placed in the recess of a blow mold
which is a very different process than the claimed rotational molding
(Appeal Br. 34–35). Appellant contends a person skilled in the art would
not look to Hyde’s blow molding method where the vent uses a cutter to
pierce a preformed wall to modify Evanovich’s rotational molding method
where the wall is formed during rotation of the mold (Appeal Br. 35).
Appellant argues if Hyde’s vent 24 having small apertures 34 is used in
Evanovich’s rotational molding process, the apertures would likely be
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clogged by the small particulate used during rotational molding to form the
walls (Appeal Br. 35).
Contrary to Appellant’s arguments, the Examiner find that person of
ordinary skill in the art would have recognized the benefits of using Hyde’s
venting valve in Evanovich’s tank structure (Final Act. 12). The Examiner
finds that it would have been within the skill level of the ordinary artisan to
provide whatever measures are required to ensure the valve is properly fixed
to Evanovich’s one piece molded product (Final Act. 12). Appellant’s
arguments about the difference in molding techniques does not address this
finding of the Examiner. Appellant’s argument that the vent apertures in the
vent valve 24 would have been filled by the particulate synthetic material
used to form the rotational molded tank wall is not persuasive. Appellant
provides no evidence that the particle size of the particulate is such that it
would have blocked the vent holes. Moreover, as noted above, Appellant
does not dispute specifically that a person skilled in the art would have been
capable of attaching securely the valve to the rotationally molded structure
in Evanovich (Final Act. 12).
Regarding Gatley, Appellant argues that Gatley’s boss 18 and fitting
56 each include a polytetrafluoroethylene (PTFE) sleeve to assist with
relative sliding movement of the components (Appeal Br. 35–36). Appellant
argues that Gatley’s components are coated with synthetic material and,
thus, are not uncoated with the molded synthetic material extending
inwardly from and past the interior surface of the molded fuel tank (Appeal
Br. 35). Appellant contends Gatley’s PTFE sleeve prevents the components
from being secured by solidified polymer around the component (Appeal Br.
36). Appellant argues Gatley’s fitting 56 includes a flange 61 positioned on
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an exterior surface of the housing (Appeal Br. 36). Appellant contends the
exteriorly positioned flange 61 would result in the fitting 56 popping
outward if the housing is placed under any pressure (Appeal Br. 36).
Appellant’s arguments are not persuasive because no evidence has
been provided to substantiate the attorney argument that Gatley’s fitting 56
with the flange 61 would pop out and fail if the tank was placed under
pressure. In any event, Gatley teaches that tank 6 is filled with eutectic fluid
(e.g., brine) through fitting 56 and sealed using cap 58 (Gatley, col. 4, ll.
26–29). If Gatley’s fitting 56 was not sealed properly with the tank wall it
would leak. In other words, if Appellant’s argument is alleging that Gatley’s
fitting is not enabled for providing a liquid tight fitting assembly in the tank
wall, then clear and convincing evidence must be provided to challenge the
operability of the patentee’s disclosure. See In re Spence, 261 F.2d 244, 246
(CCPA 1958) (explaining that inventions disclosed in prior art references
enjoy a statutory presumption of validity since the applied prior art
references are U.S. Patents).
Appellant’s arguments regarding the PTFE sleeve do not appear to be
germane to the Examiner’s rejection. Gatley’s PTFE sleeve 21 concerns
boss 18, not the fitting 56 attachment (Gatley, col. 4, ll. 1–5). Appellant has
not directed us and we have not found any disclosure in Gatley where a
PTFE sleeve is formed around fitting 56. Rather, Gatley shows in Figure 2
that fitting 56 is placed in mold 3 and tank walls 8, 10, 12 are formed by
rotational molding the tank wall material around fitting 56, mounting device
14, and threaded bosses 38 (Gatley col. 4, ll. 30–68, col. 5, ll. 1–5). Gatley
embeds fitting 56 in tank wall 10 by rotational molding as plainly shown in
Figure 2.
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We are not persuaded by Appellant’s argument that Gatley’s
components are covered in tank wall material after rotational molding and so
are not free of coating material extending inward or outward from the
molded tank wall. Gatley discloses that boss 18 and threaded bosses 38 are
covered in rotational molded material to provide an extra seal (col. 4, ll.
58–68). Gatley does not state or show in Figure 1 that fitting 56 is covered
on either the internally extending portion or externally extended portion by
the rotational molded coating material.
On this record, we affirm the Examiner’s § 103 rejection of claims 1,
4–7, and 21–25 over Evanovich in view of Hyde or Gatley.

Rejection (4): Anticipation/Obviousness
Appellant’s arguments focus on subject matter common to claims 1,
21, and 22 (Appeal Br. 40). Claims 1, 21, and 22 are argued as a group.
Accordingly, we select claim 1 as representative of the claim group. 37
C.F.R. § 41.37(c)(1)(iv).
The Examiner’s findings and conclusions regarding Ziegler and
Gatley under §102 and § 103 are located on pages 17–18 of the Final Office
Action. Regarding the § 102 rejection, the Examiner finds that the broadest
reasonable interpretation of “open fluid communication between said
interior and an exterior of the fuel tank” includes any component as part of
the tank thereby permitting said interior to be defined as the interior of the
component (Final Act. 17). The Examiner finds that the fluid within
Ziegler’s tube 18 is reasonably construed as existing within the interior of
Ziegler’s tank 12 (Ans. 11). The Examiner finds that the integrated tube and
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tank structure in Ziegler and Appellant’s integrated component/tank
structure makes each of them inseparable from one another (Ans. 11).
Appellant argues that Ziegler’s tube 18 is closed and, thus, does not
show a tube that “allows open fluid communication between said interior
and an exterior of said fuel tank” as recited in claims 1, 21, and 22 (Appeal
Br. 40). Appellant contends that the Examiner’s claim interpretation is
based upon a misreading of the plain meaning of Appellant’s claims as
currently written (Appeal Br. 38). Appellant argues that the plain meaning
of the claims was recited in the Response dated December 7, 2017, along
with the claim amendment (Appeal Br. 39). Appellant contends that
Appellant’s Figure 2 shows an aperture above reference number 24 at the
end of a fuel draw and return tube 28 (Appeal Br. 39). Appellant argues that
components 20 and 22 are a fuel filler neck and a vent port which allow
open communication with the interior of the fuel tank to an exterior of the
fuel tank (Appeal Br. 39). Appellant argues that an interior of the fuel tank
does not encompass the interior of the component itself (Appeal Br. 39).
Claim 1 recites “said component allows open fluid communication
between said interior and an exterior of said fuel tank.” Claim 1 does not
recite what constitutes a “component” other than to recite that the
component is a “fuel tank component.” In other words, claim 1 is not
limited to any particular fuel tank component other than components that
permit open fluid communication. The Specification does not define what is
meant by “open fluid communication.” Appellant contends that the
components may include a fuel filler neck 20 and vent port 22, which would
constitute open fluid communication (Appeal Br. 39). We have reviewed
Appellant’s December 7, 2017, dated response to the Examiner’s Non-Final
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Rejection. In the Response, Appellant amends claim 1 to recite “open fluid
communication” and argues that the fuel supply and return lines 28 shows
that the tube is open so that fluid may flow into and out of the interior of
Applicant’s fuel tank (Response, 14). The recitation of a fuel fill neck
would require a tube that opens at each end to permit open fluid
communication between the interior and exterior of the fuel tank.
We agree with Appellant the Examiner’s claim interpretation under
the § 102 rejection over Ziegler is unreasonable. In light of the
Specification, we construe open fluid communication as permitting the fluid
to contact freely and openly with the interior of the tank as a fuel filler neck
would do, for example. Ziegler’s closed tube 18 does not permit open fluid
communication between the interior and exterior of the tank in that the fluid
in the tube is not free to enter the interior of the fuel tank.
We reverse the Examiner’s § 102 rejection over Ziegler.
Regarding the alternative § 103 rejection over Ziegler in view of
Gatley, Appellant makes similar arguments made previously with respect to
the § 103 rejection over Evanovich in view of Gatley (Appeal Br. 40–41).
We are unpersuaded by those arguments for the same reasons discussed
above. We refer to our discussion above regarding Gatley to respond to
these arguments.
Appellant further argues that one skilled in the art would not add
Gatley’s fitting 56 to Zeigler’s housing because Ziegler teaches away from a
system that allows open fluid communication from the exterior of the tank to
the interior of the tank (Appeal Br. 42). Appellant contends that Ziegler’s
tube 18 is enclosed so that the fluid contained therein will never mix with
fluid contained within its housing 26 (Appeal Br. 42).
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Appellant’s teaching away argument is unpersuasive because it fails
to address the Examiner’s stated rejection. In particular, the Examiner is not
suggesting to modify Ziegler’s tube 18 to permit discharge of the fluid
contained therein to the tank. Rather, the Examiner proposes to modify
Ziegler’s tank to include a fitting 56 as in Gatley to permit the tank to be
filled with an eutectic fluid (Final Act. 18). The Examiner finds that Ziegler
teaches that an inlet may be included in the tank but such inlet is not shown
in the drawings (Ans. 12). We do not find that Ziegler teaches away from
the modification proposed by the Examiner.
We affirm the Examiner’s § 103 rejection over Ziegler in view of
Gatley.

Rejection (5): Anticipation over Gatley
The Examiner’s findings regarding Gatley are located on page 20 of
the Final Office Action.
Appellant argues that Gatley does not disclose a component that is
“uncoated with the molded synthetic material on a side surface of a second
region extending inwardly from and past said exterior surface of said molded
fuel tank” (Appeal Br. 42). Appellant argues that Gatley’s components are
not secured by solidified polymer around the component (Appeal Br.
42–43). Appellant contends that Gatley’s fitting 56 includes flange 61 that
is positioned in an exterior surface of the housing which would cause the
fitting to be popped outwardly from Gatley’s housing (Appeal Br. 43).
We find that these arguments are the same unpersuasive arguments
made regarding Gatley in the § 103 rejection over Evanovich in view of
Gatley. We refer to the discussion above in the context of the Evanovich in
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view of Gatley rejection. We add that Gatley’s Figure 1 shows that fitting
56 includes an inwardly extending, albeit small, section that is not
apparently covered by the tank wall material. Gatley discloses in Figure 2
that the fitting 56 is mounted on mold 2 and then rotationally molded so that
the fitting is imbedded in the tank wall (col. 4, ll. 30–68). Gatley does not
disclose that the fitting 56 is covered by the tank wall material during
rotational molding (col. 4, ll. 30–68).
We affirm the Examiner’s § 102(b) rejection over Gatley.

Rejection (6): Claim 5 Obviousness4 over Gatley in view of Evanovich
The Examiner’s findings and conclusions regarding Gatley and
Evanovich are located page 21 of the Final Action.
Appellant argues the same unpersuasive arguments made regarding
Gatley and Evanovich (Appeal Br. 44–45). We add that Appellant’s
arguments also fail to address the Examiner’s rejection which relies on
Evanovich to teach materials used to make the fittings and the determination
that it would have been obvious to use Evanovich’s fitting material to make
Gatley’s fitting. Appellant has not shown reversible error with the
Examiner’s stated rejection.
We affirm the Examiner’s § 103 rejection over Gatley in view of
Evanovich.

4 The Examiner’s statement of the rejection on page 21 of the Final Office
Action indicates that this rejection is under 35 U.S.C. § 102(b). The body of
the rejection, however, includes an obviousness conclusion. It is clear that
the Examiner’s mistake in the statement of the rejection is harmless error.
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CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1, 4–7, 21–25 112, ¶ 1 Written Description
1, 4–7,
21–25
1, 4–7, 23 112, ¶ 2 Indefiniteness 1, 4–7, 23
1, 4–7, 21–25 103(a) Evanovich, Hyde, Gatley
1, 4–7,
21–25
1, 4–7, 21–25 102(b) Zeigler 1, 4–7, 21–25
1, 4–7, 21–25 103(a) Zeigler, Gatley 1, 4–7, 21–25
1, 4, 6, 7, 21–
25 102(b) Gatley
1, 4, 6, 7,
21–25
5 103(a) Gatley, Evanovich 5
Overall
Outcome
1, 4–7,
21–25

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED