Ex Parte 5204819 et al

Patent Trial and Appeal Board

Jun 30, 2016

90012506 (P.T.A.B. Jun. 30, 2016)

MOD PTOL-90A (Rev.06/08)

APPLICATION NO./
CONTROL NO.
FILING DATE FIRST NAMED INVENTOR /
PATENT IN REEXAMINATION
ATTORNEY DOCKET NO.
EXAMINER
ART UNIT PAPER NUMBER
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UNITED STATES DEPARTMENT OF COMMERCE
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UNITED STATES PATENT AND TRADEMARK OFFICE
_____________________________________________________________________________________
90/012,506 09/12/2012 5204819 RYN-112.REX2
49637 7590 07/01/2016
OBLON, SPIVAK, MCCLELLAND
MAIER & NEUSTADT, LLC
1940 DUKE STREET
ALEXANDRIA, VA 22314
Fetsuga, Robert M
3993
MAIL DATE
07/01/2016 PAPER
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.
90/012,506 09/12/2012 5204819 RYN-112.REX2 1321
49637 7590 07/01/2016
Prudens Law LLC
P.O. Box 25006
PMB 27644
Phoenix, AZ 85002
EXAMINER
FETSUGA, ROBERT M
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
07/01/2016 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 MICHAEL C. RYAN
Appellant
____________

Appeal 2014-006228
Reexamination Control 90/012,506
Patent 5,204,819
Technology Center 3900
____________

Before EDWARD A. BROWN, ANNETTE R. REIMERS, and
BRANDON J. WARNER, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

STATEMENT OF THE CASE
In reply to the Decision on Appeal, mailed February 2, 2015
(“Decision”), Appellant filed a Request for Rehearing Under 37 C.F.R.
§ 41.52 on April 2, 2015 (“Request”), seeking reconsideration of our
decision to affirm the decision of the Examiner to reject claims 22 and 38 of
Ryan1 under 35 U.S.C. § 103(a) as unpatentable over Dease2 and Severin3.

1 U.S. Patent No. 5,204,819 to Ryan is referred to herein as the “’819
patent.”
2 GB 2,197,101 A, published May 11, 1988.
3 FR 2,600,318, published Dec. 24, 1987.
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For the reasons discussed below, the Request fails to establish that the
Board misapprehended or overlooked a point of fact or law in the Decision.
Consequently, the Request for Rehearing is denied.

ANALYSIS
Claim 22 recites, inter alia, the element “b. means associated with the
fluid delivery system for storing and retrieving information and capable of
being operatively linked to said personal identification means.” Appeal Br.
14, Claims App.4 Appellant argues that the Board’s decision overlooked the
interpretation of this element, and “specifically the meaning of a location in
close proximity to the vehicle being serviced and a remote location.”
Request 2.
As discussed in the Decision, we construe the fluid delivery system
information means as a means-plus-function element, invoking construction
under 35 U.S.C. § 112, sixth paragraph. Decision 5. The fluid delivery
system information means is modified by the functional language “for
storing and retrieving information and capable of being operatively linked to
said personal identification means.” Appeal Br. 14, Claims App. Element
(f) of claim 22 recites that the stored information is “information regarding
the fluid delivery transaction.” Id.
Appellant contends that “[t]he fuel pump module [24] stores and
retrieves information and is associated with the fuel delivery system.”
Appeal Br. 10. Appellant references description in the ’819 patent stating,

4 In claim 22, element (b) is also referred to as the “fluid delivery system
information means.”
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“the fuel pump module 24 controls the delivery of fuel from a fuel pump to a
vehicle and receives, transmits, and records information regarding the fuel
delivery operation and the operating history of the vehicle.” Request 3
(citing ’819 patent, col. 9, ll. 21–25). Appellant contends that
[t]he fuel pump module has its own CPU 532 and its own storage
and retrieval device 559 so that all the above-described functions
can be performed at the fuel pump module. No other structure is
needed to fully perform fueling operations and storage of the
fueling transaction according to the claimed invention.
Id. Accordingly, it is Appellant’s position that fuel pump module 24 has the
corresponding structure for the recited function of the fluid delivery system
information means.
Appellant contends that the claimed fluid delivery system information
means should be construed as having a certain spatial relationship to the
fluid delivery system. In this regard, Appellant contends that it
“distinguishes between a fluid delivery system that stores and retrieves
information at the fuel pump and a remote location that may process
information gathered at the fuel pump.” Appeal Br. 10 (quoting the ’819
patent, col. 5, ll. 13–24; Fig. 1) (emphasis added). Appellant also contends
that “Dease and Severin cannot store information at the fuel delivery system
as described.” Id. at 11 (emphasis added). Further, Appellant implies that
information is stored and retrieved at “a location in close proximity to the
vehicle being serviced” by the claimed fluid delivery system information
means. See Request 2. Accordingly, it is our understanding of Appellant’s
argument that the claimed fluid delivery system information means stores
and retrieves information at the fluid delivery system, and further that this
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information is stored and retrieved at the fuel pump and “in close proximity
to the vehicle being serviced.”
However, claim 22 does not recite that the fluid delivery system
information means stores and retrieves information, or is located, at the fluid
delivery system. The preamble of claim 22 recites “[a]n apparatus for
controlling and memorializing a fluid delivery transaction requested by a
person between a fluid container and a fluid delivery system.” Appeal Br.
14, Claims App. (emphasis added). Claim 22 does not recite the location of
the fluid delivery system information means in the apparatus. Id. The fluid
delivery system information means as claimed is only “associated with” the
fluid delivery system. Id. Appellant does not state explicitly that
“associated with” means “at.” However, it is our understanding of
Appellant’s argument that the fluid delivery system information means
would have to be physically located at the fluid delivery system to be able to
store and retrieve information at the fluid delivery system.
Appellant does not direct us to any disclosure in the ’819 patent that
establishes clearly the meaning of “associated with.” The ’819 patent
describes this phrase at multiple locations. For example, the ’819 patent
describes “an active communication module associated with a fluid delivery
device,” and “a second information storage and retrieval device associated
with a fluid delivery system.” See Abstr.; col. 1, ll. 31–32 (emphases
added). In these passages, the ’819 patent does not describe that “associated
with” has a particular meaning pertaining to the physical location of the
active communication module in relation to the fluid delivery device, or the
physical location of the second information storage and retrieval device in
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relation to the fluid delivery system. Neither passage states clearly that the
meaning of “associated with” is limited to physical location, and cannot
reasonably encompass, for example, “in communication with.”
We note the phrase “associated with” is also described in the ’819
patent at the following locations: col. 2, ll. 38–40, 66–68; col. 4, ll. 45–48;
col. 6, ll. 22–25; col. 8, ll. 40–43; col. 9, l. 66–col. 10, l. 3; col. 10, ll. 20–22,
45–47; col. 16, ll. 9–14; and col. 17, ll. 23–27. None of these other usages
appears to establish clearly that “associated with” means “at,” or even has
any particular, consistent meaning.5
As referenced by Appellant, the ’819 patent discloses that “[i]n a
preferred embodiment of the invention, a fuel pump module 24 (FIG. 1) is
located at the pump which is used to deliver fuel to the truck tractor 12.”
Request 2; ’819 patent, col. 4, ll. 40–42; Fig. 1 (emphasis added). This
description does not establish that “at” has the same meaning as “associated
with.” Moreover, claim 22 does not recite a fuel pump, and thus, does not
recite that the fluid delivery system information means has any spatial
relationship to a fuel pump.

5 Claims 39 and 40, which depend indirectly from claim 22, are not subject
to reexamination. Claim 39 recites that “the memory key comprises an
ignition key of a vehicle, the fluid delivery device comprises a fuel pump of
the vehicle, and the fluid container comprises fuel lines leading to an engine
of the vehicle,” and claim 40, which depends from claim 39, recites that “the
means associated with the fluid delivery system for storing and retrieving
information and the security means comprise ignition switch control
circuitry of the vehicle.” See Ex Parte Reexamination Certificate US
5,204,819 Cl, issued on November 21, 2006 (emphases added). Claims 39
and 40 appear to imply that the fluid delivery system information means
communicates with the fluid delivery device.
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Appellant argues that the ’819 patent describes a “mobile
application,” where “fuel may be delivered to vehicles by a mobile pump
truck.” Reply Br. 3 (citing ’819 patent, col. 9, ll. 60–61). Appellant asserts
that claim 22 must be construed to cover “the mobile fuel delivery
embodiment.” Request 3 (citing ’819 patent, col. 14, ll. 15–37). To the
extent Appellant’s position is that claim 22 must be construed to cover all
embodiments described in the ’819 patent, we disagree. See Baran v. Med.
Device Techs., Inc., 616 F.3d 1309, 1316 (Fed. Cir. 2010) (“It is not
necessary that each claim read on each embodiment.”). Appellant has not
cited any authority to support such position.
Appellant has not shown persuasively that Dease and Severin fail to
disclose or suggest all limitations of claim 22, including the fluid delivery
system information means. The Examiner finds that Dease discloses a fluid
delivery controlling apparatus including fluid delivery system information
means, and storing transaction information associated with delivery of fuel.
Final Act. 3 (citing Dease 2, ll. 32–38; 3, ll. 21–23).
Dease discloses:
In use, for example, to monitor fuel usage in a vehicle
fleet, each vehicle driven is provided with a key. The key may
identify the driver and/or the vehicle. If valid, the key, on
insertion into and checking by the terminal, will enable the
terminal to activate fuel dispensing means. The amount of fuel
dispensed can then be automatically logged against that
particular driver and/or vehicle. Other information can be
recorded as desired such as the time of delivery. The amount of
fuel dispensed can be read to the key so that the key carries that
information with it.
Dease 3, ll. 15–27 (emphasis added). This disclosure indicates that the
amount of fuel dispensed by the fuel dispensing means can be automatically
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“logged” and then read to the key operatively linked to the key terminal. We
understand that this information is “logged” by the key terminal, and the
“other information” is “recorded” by the key terminal. Thus, we understand
that the key terminal stores and retrieves this information. The Examiner
finds that Dease’s fluid delivery system information means includes
memory 24 and microprocessor 21, and thus, is not “incapable” of storing
information. Ans. 6 (see also Dease 2, ll. 32–38; Fig. 3A).6 The
information “logged” and “recorded” by the key terminal, including the
amount of fuel dispensed, the time of delivery, and the particular driver
and/or vehicle, can be considered to correspond to the recited “information
regarding the fluid delivery transaction.”
Appellant has not explained persuasively why Dease’s key terminal 1
is not “associated with” a “fuel delivery system.” Dease does not appear to
disclose where key terminal 1 is positioned in relation to the fuel dispensing
means in Dease’s vehicle fueling system. However, Appellant has not
established that “associated with” has a particular meaning in the context of
the ’819 patent that excludes the meaning “in communication with.”
Appellant has not established that “associated with” means physically “at,”
or that Dease’s key terminal 1 must be located physically at the location of
the fuel dispensing means to be considered “associated with” the fuel
dispensing means.
Dease discloses that key terminal 1 activates “fuel dispensing means”
for dispensing fuel to vehicles. Dease 3, ll. 18–21. Accordingly, key

6 Figure 3A of Dease illustrates a portion of a circuit diagram of a key
terminal, the circuit diagram including microprocessor 21 and program
memory chip 24. See also Dease 1, ll. 115–117.
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terminal 1 must communicate with the fuel dispensing means to provide this
activating function. The Examiner finds that memory 24 of Dease’s key
terminal 1 is responsive to information received from the fuel dispensing
means, indicating communication between these elements. Ans. 8.
Appellant has not explained persuasively why Dease does not disclose
or suggest locating key terminal 1 at, or “in proximity to,” the fuel
dispensing means. In operation, a driver inserts key 2 into key terminal 1,
key terminal 1 activates the fuel dispensing means, and the driver’s vehicle
can then receive fuel from the fuel dispensing means. Placing key
terminal 1 physically at, or “in proximity to,” the fuel dispensing means and
vehicle would provide an efficient fueling operation for the vehicle driver.
But even if we were to assume “associated with” in claim 22 means
“at,” Appellant does not direct us to any disclosure in the ’819 patent that
establishes clearly the extent of the recited “fluid delivery system.” We note
that a “fluid delivery system” is described in the ’819 patent Specification.7
In describing a preferred embodiment, the Specification states, “[w]hen the
fluid delivery system is delivering, e.g., a petroleum-based fuel to a vehicle,
usually via a fuel nozzle inserted into a fuel orifice of the vehicle, the data
communication antennae are in transmitting and receiving proximity.” See
’819 patent, col. 1, ll. 55–60 (emphasis added). This description indicates
that, in the preferred embodiment, the fluid delivery system usually includes
a fuel nozzle. This description does not indicate that the fluid delivery
system does not include other components in addition to the fuel nozzle.
Appellant has not established that “a fluid delivery system” recited in

7 See col. 1, ll. 5–10, 29–32, 36–39, and 55–60.
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claim 22 has a certain meaning that excludes Dease’s fuel dispensing means
and key terminal 1 from being considered, together, components of a “fluid
delivery system.” Appellant’s contention that “Severin and Dease disclose a
system where information is incapable of being stored at the fuel delivery
system and thus must send such information to a remote polling station” is
unpersuasive. Appeal Br. 9 (emphasis added).
The Examiner finds that Dease’s fluid delivery system information
means “may not” perform the function of storing and retrieving
“information,” as claimed, where “information” is “interpreted narrowly as
relating directly to information collected by the pump module.” Ans. 6. The
Examiner does not find that Dease’s key terminal 1 does not store and
retrieve information. And, as discussed above, Dease does appear to
disclose that key terminal 1 can store and retrieve “information regarding the
fluid delivery transaction.”
Although Dease appears to disclose the claimed fluid delivery system
information means, the Examiner finds that Severin teaches a fluid delivery
controlling apparatus including fluid delivery system information means for
storing and retrieving information. Ans. 3. Severin, like Dease, pertains to
fuel distribution to vehicles and managing the fuel distribution. Severin 1, ll.
2–5. In Severin, identification information for vehicle 4 is transmitted by
interconnection cables 2A, 9 from fuel distribution terminal 1 to polling
station 10 during a fueling operation. Id. at 2, ll. 17–31; Fig. 1. Polling
station 10 sends information regarding the service performed to data entry
station 12. Id. at 2, 1. 34–3, 1. 3; Fig. 1.
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Appellant contends that “Severin only has functionality that forwards
or receives information at the fuel delivery system (e.g., antennas)” (Appeal
Br. 12), and that polling station 10 is not part of the fuel delivery system (id.
at 9). Appellant asserts that polling station 10 is equivalent to a “remote
location” as this term is used in the Specification, and thus, is not equivalent
to the fluid delivery system information means. Request 2 (citing Decision
7).
However, the Examiner applies Severin in the rejection for teaching
storing and retrieving information, as claimed (i.e., “information regarding
the fluid delivery transaction”). The Examiner’s rejection combines
Severin’s teaching with Dease’s fluid delivery system information means
(Ans. 3), and the combination implements the storing and retrieving of
information with Dease’s computer (id. at 8). Dease’s computer is included
in key terminal 1. See Dease 1, ll. 115–117; Fig. 3A. In the combination,
the information could be stored and retrieved by key terminal 1.
In the Decision, we discuss how the ’819 patent describes the term
“remote.” Dec. 7–8. We note that the ’819 patent “appears to describe that
the ‘remote location’ is the location to which information is transmitted by
station computer or pump controller 30 over telephone lines.” Id. at 8 (citing
’819 patent, col. 5, ll. 13–24) (emphasis added)). We state that the ’819
patent “‘indicates that a ‘local’ personal computer or similar computer
device is not located at a ‘remote location.’ The ‘remote location’ is remote
from the service station and is accessed via telephone lines or cellular
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telephone intercommunication.” Id. (citing ’819 patent, col. 11, ll. 37–45).8
We note that “Severin does not appear to disclose that polling station 10
must be located at . . . a ‘remote location,’ as this term is described in the
’819 patent.” Id. at 12.
Severin discloses that “[t]he data entry station 12 may be equipped
with a keyboard to manually input vehicle data, thereby ensuring service
even if the transmitting/receiving antenna circuit on the nozzle and/or
responder on the vehicle were to be impaired.” Severin 3, ll. 13–16. “The
attendant will have a magnetic service card that will be read by a reader at
station 12.” Id. at 3, ll. 17–18. This description implies that data entry
station 12, and polling station 10, would be located at the fuel distribution
station. That is, this location would allow the attendant to visually identify
the vehicle and manually input the vehicle data. This location is in contrast
to a “remote location” accessed via telephone lines or cellular telephone
intercommunication.
Moreover, Appellant has not established that “a fluid delivery system”
in claim 22 has a particular meaning that excludes Severin’s fuel distribution
terminal 1, polling station 10, and data entry station 12 from, collectively,
being considered to correspond to, or be part of, a “fluid delivery system.”
Thus, Appellant has not established that Severin’s polling station 10 and
data entry station 12 are not “associated with” a “fluid delivery system.”

8 Appellant refers to “the described remote location (e.g., local computer or
remote location).” Request 4 (emphases added). However, the ’819 patent
distinguishes a local computer from a remote location. See, e.g., ’819
patent, col. 11, ll. 37–45.

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For the foregoing reasons, Appellant has not explained persuasively
why the combination of Dease and Severin could not store information
regarding a fluid delivery transaction and retrieve information by a fluid
delivery system information means “associated with” a “fluid delivery
system,” but rather, would have to send the information to a “remote
location” for storage.

DECISION
We have granted Appellant’s Request to the extent we have
reconsidered our Decision, but we deny the Request with respect to making
any changes therein.
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).

DENIED

CC: Third Party Requester

OBLON, SPIVAK, MCCLELLAND
MAIER & NEUSTADT, LLC
1940 DUKE STREET
ALEXANDRIA, VA 22314