Ex Parte Devall

Board of Patent Appeals and Interferences

Jun 21, 2012

11420852 (B.P.A.I. Jun. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFFREY E. DEVALL
____________

Appeal 2009-013333
Application 11/420,852
Technology Center 3700
____________

Before JOHN C. KERINS, CHARLES N. GREENHUT and
PATRICK R. SCANLON, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

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STATEMENT OF THE CASE
Jeffrey E. Devall (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s final rejection of claims 1-4, 6 and 20. Claims 7-14
and 17-19 have been withdrawn and claim 5 is objected to. Claims 15 and
16 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
Appellant’s invention is directed to a tank venting system.
Independent claim 1, reproduced below with emphasis added, is illustrative:
1. A tank venting system comprising

a flow controller including a flow-control housing formed to
include an internal space and an air/vapor flow regulator
located in the internal space of the flow-control housing, the
flow-control housing also being formed to include a tank port
opening into the internal space and a canister port opening into
the internal space and being adapted to communicate air and
fuel vapor to and from the internal space and a fuel vapor
recovery canister associated with the flow controller, and

a tank valve system coupled to the tank port formed in the flow-
control housing and adapted to communicate air and fuel vapor
to and from the internal space in the flow-control housing and a
vapor space in a fuel tank associated with the flow controller,
the tank valve system comprising a fluid-conducting
passageway communicating with the tank port and the vapor
space in the fuel tank and a first roll-over valve configured to
provide means in the fluid-conducting passageway for blocking
flow of pressurized fuel vapor discharged from the vapor space
of the fuel tank through the fluid-conducting passageway and
the tank port to the internal space formed in the flow-control
housing whenever the first roll-over valve is tilted at least a
selected number of degrees from a normal upright position so
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that fuel vapor from the vapor space of the fuel tank is unable to
flow through the fluid-conducting passageway to reach the
internal space of the flow-control housing, and

wherein the air/vapor flow regulator is configured to provide
means for blocking discharge of fuel vapor extant in a portion
of the fluid-conducting passageway located between the first
roll-over valve and the tank port and pressurized at a
magnitude below a predetermined pressure threshold during a
fuel tank refueling activity to establish a fuel tank overfill
protection system and a fuel tank pressure-relief system so that
the vapor space of the fuel tank associated with the flow
controller is not vented to the fuel vapor recovery canister
associated with the flow controller via the internal space formed
in the flow-control housing while the fuel tank is being filled
with liquid fuel unless fuel vapor pressure in the fuel tank
exceeds a predetermined minimum pressure that is higher than
a pressure associated with fuel tank refueling activities and for
allowing flow of air and fuel vapor through the internal space
formed in the flow-control housing between the canister and
tank ports to regulate admission of ambient air from the
atmosphere into the fuel tank through the flow-control housing
and the fluid-conducting passageway when a vacuum
characterized by at least a predetermined negative pressure has
developed in the vapor space of the fuel tank associated with
the flow controller to establish a fuel tank vacuum-relief
system.

Independent claim 20 replaces the phrase “means for” with the term
“flexible sealing member”.

THE REJECTIONS
The Examiner has rejected:
(i) claims 1 and 3 under 35 U.S.C. § 102(b) as being anticipated by
Roetker (US 5,666,989, issued Sep. 16, 1997);
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(ii) claims 1, 3, 4 and 20 under 35 U.S.C. § 103(a) as being
unpatentable over Roetker in view of Heyland (US 4,317,467, issued Mar. 2,
1982);
(iii) claims 1, 3, 4 and 20 under 35 U.S.C. § 103(a) as being
unpatentable over Roetker alone or further in view of Heyland and Benjey
(US 5,054,508, issued Oct. 8, 1991);
(iv) claim 2 under 35 U.S.C. §103(a) as being unpatentable over
Roetker alone or further in view of Heyland and Kondo (US 5,392,804,
issued Feb. 28, 1995); and
(v) claim 6 under 35 U.S.C. § 103(a) as being unpatentable over
Roetker in view of Heyland alone or further in view of Benjey.
ISSUES
Has the Examiner established that Roetker discloses an air/vapor flow
regulator having a “means for blocking discharge of fuel vapor . . . and for
allowing flow of air and fuel vapor” as set forth in greater detail in claim 1?
Has the Examiner provided an adequate rationale supported by
rational underpinnings for combining the teachings of Heyland with those of
Roetker in concluding that the subject matter of claim 1 would have been
obvious in view of those references?

ANALYSIS
Claims 1 and 3--Anticipation by Roetker
The Examiner’s initial findings relative to the limitation in claim 1
directed to a “means for blocking discharge of fuel vapor . . . and for
allowing flow of air and fuel vapor”, are that the Roetker “regulator includes
a ball 172 biased shut by gravity and a sealing disk 135, which respond to
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tank vacuum or overpressure (Fig. 5), and are thus seen as a means to block
discharge of vapor when the pressure is in between vacuum venting and
pressure venting pressures.” Ans. 3. This appears to be an attempt to
establish that Roetker discloses a ball and sealing disk, as does Appellant’s
embodiment disclosed in Figures 2-4 and the accompanying text in
Appellant’s Specification.1
Contrary to the Examiner’s assertion, neither ball 172 nor sealing disk
135 is responsive to tank vacuum conditions. Roetker, Fig. 6 (illustrating
that vacuum relief valve 146 is responsive to vacuum conditions in the fuel
tank). Further, while ball 172 of Roetker does play a part in blocking
discharge of vapor when a fuel tank is being filled, it neither seals against
the cited sealing disk 135, nor is it responsive to tank overpressure, as
maintained by the Examiner. The Examiner, as seen in the quotation from
the Answer provided above, points to Figure 5 of Roetker as evidence that
ball 172 is responsive to overpressure in the fuel tank. That figure does
depict such an overpressure situation, and also depicts ball 172 unseated
from aperture 168 at the center of conical ramp 166. Roetker, however,
explicitly discloses that pressure relief valve 135 reacts to the high pressure

1 It is not entirely clear whether the Examiner agrees with Appellant that the
claim limitation at issue is to be regarded as a “means plus function”
limitation under the sixth paragraph of 35 U.S.C. §112. While the Examiner
twice presents analysis directed to the alleged equivalence of the Roetker
structure to Appellant’s disclosed embodiment, in one of the instances, the
analysis appears to be conditioned on “[a]ssuming there is insufficient
structure to preclude invocation of 35 USC 112, 6th paragraph[.]” Ans. 6, 8.
We construe the limitation in claim 1 as a “means plus function” limitation,
the scope of which encompasses Appellant’s disclosed structures, and
equivalents thereto. See In re Donaldson, 16 F.3d 1189 (Fed. Cir.
1994)(establishing proper scope of “means plus function” limitations).
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conditions, and that, infrequently, “[i]n addition, rattle of the sealing ball
172 caused by lateral forces present during vehicle transit” will also allow
venting concurrently with operation of the pressure relief valve. Roetker,
col. 9, l. 66-col. 10, l. 14 (emphasis added). These findings thus fall short of
establishing that Roetker anticipates the subject matter of claim 1.
The Examiner further attempts to establish that the Roetker structure
is an equivalent to the structure disclosed by Appellant as performing the
functions set forth in the “means” clause of claim 1. Ans. 6-9. Appellant
presents counterarguments. Appeal Br., passim; Reply Br., passim.2
The Examiner’s position is that Roetker (1) performs the identical
function specified in the claim, in substantially the same way, achieving
substantially or identically the same result; (2) that persons of ordinary skill
in the art would have recognized the interchangeability of the Roetker device
and the embodiment disclosed in Appellant’s Specification; and (3) that the
Roetker device is a structural equivalent of Appellant’s disclosed structure.
With regard to (1) above, at page 6 of the Answer, the Examiner
discusses how the Heyland reference, but not the Roetker reference, operates
in substantially the same way as Appellant’s device. At page 9 of the
Answer, the Examiner further asserts that:
[b]oth devices are closed in the absence of pressure
differential, and both open one way to vent a tank
overpressure in essentially identical fashion (lifting
a ball from a seat) . . . . In the event of [a] vacuum,

2 The Examiner and Appellant, in presenting analysis and arguments
directed to equivalence and claim scope, do not appear to address at least
two embodiments in addition to that shown in Figures 2-4 of Appellant’s
disclosure. Notwithstanding, that omission is not seen as affecting our
treatment of the issues joined on appeal.
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Appellants disk 90 deflects downwardly to relieve
vacuum, and Roetker disk valve also moves down
((Fig. 6).
As noted previously, the Examiner’s position with respect to the
operation of ball 172 in Roetker is misguided--it is not lifted from a seat due
to overpressure, but is instead displaced from a seated position by lateral
forces arising from movement, i.e., acceleration or deceleration of the
vehicle. The Examiner’s position also fails to explain why, under vacuum
conditions, the deformation of a resilient disk in a direction away from a ball
supported on a post, would be considered as functioning in substantially the
same way as a seemingly rigid disk moving downwardly against a spring
bias force. The Examiner has thus not established that the Roetker device is
equivalent on the basis of a “function, way, result” analysis.
The Examiner’s assertions in (2) and (3) above are based solely on an
observation that the devices are designed to be used in the same
environment, are provided for the same purpose, and operate based upon the
pressure difference across the valve. Ans. 7, 9. The latter statement is not
probative of interchangeability or structural equivalence, as the same could
be said of virtually any pressure relief valve. As to the Examiner’s position
regarding alleged interchangeability, that position again appears to be
premised upon the Examiner’s erroneous interpretation as to the operation of
the ball 172 in Roetker. Finally, we have previously identified the
deficiencies in the Examiner’s position regarding the alleged structural
equivalence of Roetker and Appellant’s disclosed structure.
The rejection of claims 1 and 3 as anticipated by Roetker is not
sustained.
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Claims 1, 3, 4 and 20--Obviousness--Roetker/Heyland
The Heyland patent discloses a two-way pressure relief valve in which
a flexible diaphragm 34 and a ball element 42 are biased by springs into a
sealing engagement, with the seal being capable of being broken by a
pressure differential of a predetermined magnitude from one side of the seal
to the other. Heyland, Figs. 1-3; col. 3, ll. 13-19; col. 3, l. 41-col. 4, l. 52.
The Examiner concludes that “[i]t would have been obvious to replace the
Roetker air vapor valve with the equivalent Heyland structure because both
valves are bidirectional fuel tank valves, used in the same environment for
essentially the same purpose.” Ans. 4. The Examiner further maintains that
the combination is appropriate, “[b]ecause the devices are equivalent, they
are seen as interchangeable.” Ans. 10.
Appellant argues that Heyland’s valve could not be incorporated into
the structure of Roetker, without at least having to remove ramp portion 166
from Roetker, thus totally changing the operation of the Roetker valve.
Appeal Br. 9. In addition, Appellant questions how the Examiner proposes
to modify Roetker in view of Heyland, including questioning what parts of
the Roetker device are to be replaced, what parts of Heyland are to be added,
and why such modifications would have been obvious to a person of
ordinary skill in the art. Reply Br. 12.
While an Examiner need not, in every case, provide a detailed
explanation as to how a proposed modification is to be effected, in order to
support a conclusion of obviousness, the lack of such an explanation here is
seen as a failure to support the conclusion of obviousness with rational
underpinnings. The Examiner’s position throughout the rejections
miscomprehends the actual operation of the Roetker device in providing
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pressure relief under high pressure situations. Roetker provides three
pressure control functions, namely pressure relief and vacuum relief based
on predetermined over- and underpressures, as well as an intermittent
venting at pressures lower than the predetermined overpressure occasioned
by lateral forces exerted on ball 172 as a result of vehicular movement.
Roetker, Figs. 2-6, and related text. Heyland provides only the first two of
these. Accordingly, the devices as a whole are not equivalent or
interchangeable as asserted by the Examiner.
Neither has the Examiner adequately explained how a two-way
pressure relief valve of the type disclosed in Heyland would be incorporated
in the Roetker structure, such that the proposed modification would have
been obvious to a person of ordinary skill in the art. A straight substitution
would result in the loss of the venting function of the ball and ramp in
Roetker, and it is simply not clear what the Examiner might be proposing in
terms of modifying aspects of the Roetker structure to accommodate the
flexible disk and ball sealing arrangement of Heyland.
The rejection of claims 1, 3, 4 and 20 as being unpatentable over
Roetker in view of Heyland is not sustained.

Additional Obviousness Rejections--Roetker/Heyland Combination
The remaining rejections of the claims have as a foundation the
combination of the teachings of Roetker and Heyland. The Kondo and
Benjey references do not remedy the deficiencies noted above with respect
to the base combination of Roetker and Heyland. These rejections are thus
not sustained, as well.
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CONCLUSIONS
The Examiner has not established that Roetker discloses an air/vapor
flow regulator having a “means for blocking discharge of fuel vapor . . . and
for allowing flow of air and fuel vapor” as set forth in greater detail in claim
1.
The Examiner has not provided an adequate rationale supported by
rational underpinnings for combining the teachings of Heyland with those of
Roetker in concluding that the subject matter of claim 1 would have been
obvious in view of those references.
.
DECISION
The rejections of claims 1-4, 6 and 20 are reversed.

REVERSED

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