Ex Parte Cochran et alDownload PDFPatent Trial and Appeal BoardMar 31, 201613667059 (P.T.A.B. Mar. 31, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/667,059 11102/2012 25287 7590 04/01/2016 GEORGE LAWRENCE BOLLER P.O. Box 530518 LIVONIA, MI 48153 FIRST NAMED INVENTOR Gary D. Cochran 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. RBOlCIPCONT 5159 EXAMINER ROGERS, DAVID A ART UNIT PAPER NUMBER 2856 MAILDATE DELIVERY MODE 04/01/2016 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 GARY D. COCHRAN, RUDOLPH BERGSMA, DECEASED, ROSEMARY BERGSMA, LEGAL REPRESENTATIVE, and ROSEMARY BERGSMA Appeal2014-007216 Application 13/667,059 Technology Center 2800 Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and MONTE T. SQUIRE, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE The Appellants filed an appeal under 35 U.S.C. § 134 from a final rejection of claims 1-20 under 35 U.S.C. § 102(b) as anticipated by Cochran et al. 1 We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 US 2005/0139003 Al, published June 30, 2005 (hereinafter "Cochran"). Cochran is the pre-grant publication of Application 11/052,155, filed February 7, 2005 (hereinafter the "Cochran Application"). Appeal2014-007216 Application 13/667,059 The claims on appeal are directed to a fuel level sender for signaling the level of volatile liquid fuel in a fuel tank (claims 1-12) and a combination of a fuel tank and a fuel level sender (claims 13-20). App. Br. 16-21.2 B. DISCUSSION There is no dispute on this record that Cochran describes the claimed invention. See Ans. 2 ("The appellant does not contest in their appeal brief that the cited prior art, [Cochran], teaches each and every limitation of the pending claims."). 3 Rather, the issue on appeal is whether Cochran is prior art under 35 U.S.C. § 102(b). The instant Application was filed on November 2, 2012, and claims benefit under 35 U.S.C. § 120 of the filing date of the Cochran Application. However, the Examiner finds that the Cochran Application and the instant Application were not co-pending at the time the instant Application was filed. Final Act. 4--5. 4 Indeed, according to the Official file of the Cochran Application, proceedings in that Application were terminated after a decision by the Court of Appeals for the Federal Circuit dated December 13, 2011, affirming the rejections of all claims. The decision issued as a mandate on February 3, 2012. On appeal, the Appellants argue that the Cochran Application was never abandoned, and for that reason, the rejection under 35 U.S.C. § 102(b) should be reversed. App. Br. 11-14. The issue of abandonment was previously raised in a "Petition to the Director under 3 7 CPR § 1.181 and 3 7 CPR § 1.183," filed in the Cochran Application and decided in a "Decision on Petitions under 37 CPR 1.181 and 2 Appeal Brief dated February 10, 2014. 3 Examiner's Answer dated April 10, 2014. 4 Final Office Action dated July 10, 2013. 2 Appeal2014-007216 Application 13/667,059 1.183," dated February 25, 2014. The Petition Decision affirmed the abandoned status of the Cochran Application as of the Court's February 3, 2012 mandate. Decision 7. The Board does not have jurisdiction to reconsider the Petition Decision. See MPEP § 711.03(c) (8th ed., Rev. 9, Aug. 2012) (abandonment is a petitionable matter); MPEP § 1201 (petitionable matters are not appealable to the Patent Trial and Appeal Board.).5 On this record, the instant Application is not entitled to benefit under 35 U.S.C. § 120 of the February 7, 2005, filing date of the Cochran Application. Therefore, Cochran is prior art under 35 U.S.C. § 102(b), and the rejection of claims 1-20 under 35 U.S.C. § 102(b) is sustained. C. DECISION The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l). AFFIRMED 5 See Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1439 (Fed. Cir. 1984) (the MPEP "is entitled to notice, so far as it is an official interpretation of statutes or regulations with which it is not in conflict."). 3 Copy with citationCopy as parenthetical citation