WALBRO ENGINE MANAGEMENT, L.L.C.

Patent Trials and Appeals Board

Dec 1, 2020

2020002358 (P.T.A.B. Dec. 1, 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.
14/190,629 02/26/2014 Kenneth J. Cotton 2630.3336.002[1084] 1034
23399 7590 12/01/2020
REISING ETHINGTON P.C.
755 W. BIG BEAVER ROAD
SUITE 1850
TROY, MI 48084
EXAMINER
LETTMAN, BRYAN MATTHEW
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
12/01/2020 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):
USPTOmail@gmx.com
USPTOmail@reising.com
docketing@reising.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KENNETH J. COTTON, ELTON J. FISCH,
DAVID D. HACKER, JEFFREY D. HANBY, KEVIN L. ISRAELSON,
and ROGER N. SMITH
____________

Appeal 2020-002358
Application 14/190,629
Technology Center 3700
____________

Before DANIEL S. SONG, STEFAN STAICOVICI, and
EDWARD A. BROWN, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE.
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Final Office Action (dated Feb. 19, 2019, hereinafter “Final
Act.”) rejecting claims 3, 10, 11, and 14–25.2 We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Walbro Engine Management, L.L.C. is identified as the real
party in interest in Appellant’s Appeal Brief (filed Aug. 2, 2019, hereinafter
“Appeal Br.”). Appeal Br. 2.
2 Claims 1, 2, 4–9, 12, and 13 are canceled. Appeal Br. 22, 24 (Claims
App’x.).
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Application 14/190,629

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SUMMARY OF DECISION
We REVERSE.

INVENTION
Appellant’s invention is directed to a fuel pump including a venturi, a
pump inlet, and a flow controller. Spec. para. 4.
Claims 10 and 25 are independent. Claim 10 is illustrative of the
claimed invention and reads as follows:
10. A fuel pump assembly for a fuel tank with an interior,
comprising:
a fuel pump having an inlet through which fuel
enters the fuel pump and an outlet through which fuel is
discharged under pressure for delivery to an engine;
a nozzle having an inlet in communication with the outlet
of the fuel pump through which fuel is discharged under
pressure so that at least some of the fuel under pressure
discharged from the fuel pump outlet flows into the nozzle
inlet, the nozzle also having an orifice through which fuel is
ejected from the nozzle;
a venturi downstream of the nozzle and having an inlet
through which fuel discharged from the orifice flows, a passage
downstream of the inlet through which fuel flows to create a
drop in pressure, and an outlet through which fuel is discharged
from the venturi;
a mounting flange configured to be carried by the fuel
tank and disposing the nozzle, orifice, venturi inlet, passage,
and outlet in a top portion of the interior of the fuel tank;
a fuel inlet through which fuel is drawn from the fuel
tank into the venturi passage by the drop in the pressure created
in an area of the venturi;
a flow controller downstream of the venturi outlet and
having an inlet into which at least some of the fuel discharged
from the venturi outlet is directed, an outlet, and an inclined
surface oriented at an angle between 10 degrees and 90 degrees
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Application 14/190,629

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relative to a direction of fuel flow through the venturi outlet to
direct fuel to the outlet of the flow controller;
the outlet of the flow controller is disposed above the
venturi outlet relative to the direction of gravity so that fuel
exits the flow controller outlet at a location above the
outlet of the venturi passage to thereby improve the pressure
drop generated in the area of the venturi;
a fuel reservoir in the interior of the fuel tank and having
an interval volume; and
the fuel pump inlet communicating with the internal
volume of the fuel reservoir and the outlet of the flow controller
communicating with the internal volume of the fuel reservoir
adjacent the top portion of the fuel tank, wherein the fuel
reservoir is coupled to the mounting flange and wherein the
nozzle, venturi and flow controller are carried by the mounting
flange separately from the fuel reservoir and located within the
internal volume of the fuel reservoir.

REJECTION

The Examiner rejects claims 3, 10, 11, and 14–25 under 35 U.S.C.
§ 103(a) as being unpatentable over Mason3 and Kato.4

ANALYSIS
The Examiner finds Mason discloses a fuel pump assembly for a fuel
tank 28 including, inter alia, a fuel pump 32 having an inlet 32A and an
outlet 32B, a nozzle 60 having an orifice that ejects fuel into a venturi
portion having an inlet, a passage, and an outlet downstream of nozzle 60, a
fuel inlet 72 for drawing fuel from fuel tank 28 into the venturi passage, a
flow controller downstream of the venturi outlet and having outlet(s) 80

3 Mason, US 2013/0047966 A1, published Feb. 28, 2013.
4 Kato et al., US 2010/0139778 A1, published June 10, 2010.
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Application 14/190,629

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inclined at an angle of 10–90 degrees relative to the fuel flow direction and
located above the venturi outlet, and a fuel reservoir 44 located in the
interior of fuel tank 12, wherein each of fuel pump inlet 32A and outlet 80 of
the flow controller communicates with internal volume of fuel reservoir 44.
Final Act. 3–4 (citing Mason, Fig. 1). To better illustrate the above noted
findings, the Examiner provides an annotated Figure 1 of Mason, which is
reproduced below:

The Examiner’s annotated Figure 1 of Mason illustrates a venturi
portion having an inlet, a passage, and an outlet, and a flow controller
having an inlet 72, a chamber, and an outlet 80 inclined at an angle of 10–90
degrees relative to the fuel flow direction and located above the venturi
outlet. Id. at 6.
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Application 14/190,629

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However, the Examiner finds that Mason “is silent as to how the
nozzle, orifice, and the venturi inlet, passage, and outlet are supported in the
fuel tank.” Id. Nonetheless, the Examiner finds Kato discloses, inter alia, a
mounting flange 22 coupled to fuel reservoir 23 and, separately, carrying a
nozzle 25 with an orifice, a venturi 11, and a flow controller 27, 28, located
within the internal volume of fuel reservoir 23. Id. at 6–7 (citing Kato, para.
49, Figs. 1, 2). Thus, the Examiner concludes that it would have been
obvious to a person of ordinary skill in the art “to modify the fuel pump
assembly taught by Mason with the mounting flange taught by Kato in order
to support and secure the nozzle, orifice, venturi inlet, passage, and outlet in
the fuel tank.” Id. at 7.
Appellant argues that Mason’s disclosure of outlets 80 being
positioned above channel 64 constitutes a teaching away from the
Examiner’s modification to secure Mason’s nozzle 60, venturi, and flow
controller (with outlets 80) to Kato’s set plate (flange) 22. Appeal Br. 13.
According to Appellant, “there is no teaching of how to suspend such an
arrangement from an overhead plate 22 as in Kato.” Id. Thus, Appellant
asserts that the Examiner’s “rejection is entirely based on hindsight.” Reply
Brief (filed Jan. 31, 2020, hereinafter “Reply Br.”) 4.
In response, the Examiner contends “that using the mounting flange
(22) of Kato to support the nozzle (60), orifice (in 60), venturi . . . flow
controller . . . and reservoir (44) of Mason will not change the operation of
Mason in any negative way.” Examiner’s Answer (dated Dec. 2, 2019,
hereinafter “Ans.”) 12. To better illustrate the modification, the Examiner
relies on annotated Figures 1 and 2 of Mason and Kato, respectively, as
shown below:
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Application 14/190,629

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The Examiner’s annotated Figures 1 and 2 of Mason and Kato,
respectively, purports to illustrate using Kato’s mounting flange 22 to
support and secure Mason’s nozzle 60, venturi, flow controller (with outlets
80), and reservoir 44. Id. at 13. According to the Examiner, “one of
ordinary skill in the art at the time of filing would know how to mount the
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Application 14/190,629

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components of Mason to the mounting flange of Kato, while also suspending
the outlets [80] above the channel [64].” Id. at 14.
The reason proffered by the Examiner to combine the teachings of
Mason and Kato, i.e., “to support and secure the nozzle, orifice, venturi inlet,
passage, and outlet in the fuel tank,” appears to already be performed by
Mason, and, thus, we agree with Appellant that the rejection appears to
improperly rely on hindsight reconstruction using the claims as a guide. See
St. Jude Med., Inc. v. Access Closure, Inc., 729 F.3d 1369, 1381 (Fed. Cir.
2013) (reminding us that “we must guard against ‘hindsight bias’ and ‘ex
post reasoning’” in making obviousness determinations (quoting KSR Int’l
Co v. Teleflex Inc., 550 U.S. 398, 421 (2007))).
In particular, Mason discloses jet pump 40 as including, inter alia,
body 46, main inlet 48, mixing tube channel 64 (venturi), nozzle 60, suction
inlet 68, and outlet conduit 76 with outlets 80 (flow controller). Mason,
paras. 11, 12, Fig. 2. Mason further discloses jet pump 40 as being
physically and fluidly coupled with outlet 32B of fuel supply pump 32, via
main inlet 48, and with suction tube 72, via suction inlet 68. Id., paras. 11,
13, Fig. 2. In other words, Mason’s nozzle 60, tube channel 64 (venturi),
and outlet conduit 76 with outlets 80 (flow controller) are supported by fuel
supply pump 32, via main inlet 48, and by suction tube 72, via suction inlet
68. Hence, we do not agree with the Examiner’s position that Mason does
not disclose how the nozzle 60, the venturi, and the flow controller 76, 80
are secured and supported by fuel tank 28. See Ans. 11. The Examiner has
not provided any findings that Mason recognized a problem with using fuel
supply pump 32 and suction tube 72 to support nozzle 60, tube channel 64
(venturi), and outlet conduit 76 with outlets 80 (flow controller) of jet pump
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40. Accordingly, the Examiner fails to articulate an adequate reason, with
rational underpinnings, why, in the absence of hindsight gleaned improperly
from Appellant’s underlying disclosure, a person having ordinary skill in the
art would have modified Mason to include Kato’s mounting flange 22. See
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR,
550 U.S. at 418) (“rejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness”).
Furthermore, Appellant is correct that the Examiner’s position
regarding a skilled artisan knowing how to mount Mason’s nozzle 60, tube
channel 64 (venturi), and outlet conduit 76 with outlets 80 (flow controller)
to Kato’s mounting flange 22 “amounts to nothing more than, ‘I think it
could be done’.” Reply Br. 5. In particular, the Examiner has not made any
findings or provided an adequate explanation to establish how to couple
Kato’s flat mounting flange 22, which is “immediately adjacent” nozzle 25,
venturi 11, and flow controller 27, 28, to Mason’s outlet conduit 76, 80
(flow controller), which is located above nozzle 60 and mixing tube channel
64 (venturi). See id. at 3. Moreover, the Examiner’s position does not
adequately explain how to couple Kato’s flat mounting flange 22 so as to
maintain Mason’s channel 64 in communication with air above the fuel level
in fuel tank 28, via outlets 80, in order to prevent fuel from siphoning back
from reservoir 44 into fuel tank 28 through suction tube 72. See Mason,
para. 15, Fig. 2. As such, for the foregoing reasons, we find that the
Examiner’s legal conclusion of obviousness, based upon the combined
teachings of Mason and Kato, is not supported by sufficient factual
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Application 14/190,629

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evidence, and thus, 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
claims 3, 10, 11, and 14–25 as unpatentable over Mason and Kato.

CONCLUSION

Claim(s)
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
3, 10, 11,
14–25
103(a) Mason, Kato

3, 10, 11,
14–25

REVERSED