Ex Parte SchulzeDownload PDFPatent Trial and Appeal BoardMay 23, 201613018705 (P.T.A.B. May. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/018,705 02/01/2011 65764 7590 05/25/2016 FRASER CLEMENS MARTIN & MILLER LLC 28366 KENSINGTON LANE PERRYSBURG, OH 43551-4163 JORG SCHULZE 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. P014699-FCA-CHE (1-41380) CONFIRMATION NO. 9011 EXAMINER KELLY, TIMOTHY PATRICK ART UNIT PAPER NUMBER 3754 NOTIFICATION DATE DELIVERY MODE 05/25/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): lopez@fraser-ip.com howard@fraser-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JORG SCHULZE Appeal2014-006042 Application 13/018,705 Technology Center 3700 Before JENNIFER D. BAHR, WILLIAM A. CAPP, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-20. Claims 1, 2, 5-9, 12-18, and 202 are currently pending. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellant submits the real party in interest is GM Global Technology Operations, LLC. 2 Appellant cancelled claims 3--4, 10-11 and 19 in an amendment after Final Rejection filed October 28, 2013 and entered by the Examiner. See Adv. Act. 1. Appeal2014-006042 Application 13/018,705 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A fueling nozzle for dispensing a gaseous fuel to a vehicle, comprising: a main body having a conduit formed therein and configured to permit the gaseous fuel to flow therethrough, the conduit terminating at a dispensing end of the main body, the dispensing end of the main body forming an interface with a fuel inlet of the vehicle during a fueling operation, the fuel inlet of the vehicle receiving the dispensing end, wherein a terminal surface of the dispensing end is oriented transverse to the conduit, the terminal surface is configured to contact the fuel inlet of the vehicle at the interface, and the terminal surface is located at a distal end of the main body; and a sensor disposed at the terminal surface of the dispensing end of the main body, the sensor configured to detect a leakage of the gaseous fuel during the fueling operation. REJECTIONS 1) Claims 1-14 and 16-20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cohen (US 7,028,724, iss. Apr. 18, 2006). 2) Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable over Cohen in view of Hartsell (US 5,992,395, iss. Nov. 30, 1999). DISCUSSION The Examiner found that Cohen discloses all the limitations of claim 1 other than "the specific location of the sensor in relation to the specific transverse terminal surface at the dispensing end that contacts the fuel inlet of the vehicle." Final Act. 3. The Examiner concluded that it would have been obvious "to change the shape of the [Cohen] nozzle to 2 Appeal2014-006042 Application 13/018,705 arrive at the claimed invention." Id. The Examiner did not specify any features of Cohen's nozzle that it is asserted it would have been obvious to change. Appellant contends that Cohen's terminal surface of the dispensing end (identified in Figure 5 of Cohen as element 25) is "angled" to the conduit rather than transverse as recited in claim 1. Appeal Br. at 12. Appellant further contends that this terminal surface in Cohen is not located "at a distal end of the main body" as required by claim 1. Id. The Examiner initially found that the recited "dispensing end of the main body" is the left end of Cohen's nozzle 20. Final Act. 3; see Cohen, Fig. 3. We understand this finding to require the recited "terminal surface" is the surface at the extreme left of nozzle body 20 in Cohen's Figure 3. The Examiner also found that Cohen's sensor lOOP corresponds to the "sensor" of claim 1. Final Act. 3. In the Answer, the Examiner interposes a different reading of Cohen and indicates that the surface identified as element 25 in Cohen's Figure 5 is the terminal surface. Ans. 7. The Examiner does not articulate any change in the initial reading of the claimed "sensor" on Cohen's sensor 1 OOP. Claim 1 recites that the terminal surface is "located at a distal end of the main body." The Examiner submits this limitation is satisfied by Cohen's element 25 because distal "is defined as being situated away from a central point. The terminal surface (25) is away from the very center of the main body of the fueling nozzle." Ans. at 7. For the following reasons, we do not sustain the Examiner's rejection. Appellant's Figure 2 shows that terminal surface 18 is located at the actual end of main body 14. The Specification discloses that the sensor is disposed at the terminal surface to detect gaseous fuel leaks in a gap 26 3 Appeal2014-006042 Application 13/018,705 between the nozzle and the vehicle's fueling port. Spec. i-f20; see also Fig. 4. In light of these teachings in the Specification, and the Examiner's finding that Cohen's sensor lOOP corresponds to the claimed "sensor disposed at the terminal surface of the dispensing end of the main body," we cannot agree with the Examiner's finding that Cohen's surface 25 is "located at a distal end of the main body." Rather, Cohen's element 25 is located substantially inward from the left end of the nozzle body (i.e., the end of the nozzle body adjacent which sensor lOOP is disposed). Cohen, Figs. 3, 5. The Examiner's finding that Cohen discloses "a terminal surface of the dispensing end ... located at a distal end of the main body" with "a sensor disposed at the terminal surface" is not supported by a preponderance of the evidence. As the rejection is based on an erroneous factual finding, the conclusion of obviousness cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (holding that "[t ]he legal conclusion of obviousness must be supported by facts. Where the legal conclusion is not supported by facts it cannot stand."). Therefore, we do not sustain the rejection, under 35 U.S.C. § 103(a), of claim 1 and claims 2, 5, 6, and 7 which depend thereon. Independent claims 8 and 16 contain the same limitations concerning the placement and orientation of the terminal surface and sensor as claim 1. For the same reasons as for claim 1, we do not sustain the rejections of claims 8 and 16 and claims 9, 12-14, and 17-18, and 20 which depend thereon. The Examiner rejected dependent claim 15 in view of Cohen in combination with Hartsell. Final Act. 6. Hartsell fails to cure the 4 Appeal2014-006042 Application 13/018,705 deficiencies in Cohen noted above. For the same reasons as for claim 1, we do not sustain the rejection of claim 15. DECISION The Examiner's decision rejecting pending claims 1, 2, 5-9, 12-18, and 20 is REVERSED. REVERSED 5 Copy with citationCopy as parenthetical citation