Ex Parte Bierl et al

Patent Trial and Appeal Board

Jul 16, 2018

13133019 (P.T.A.B. Jul. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/133,019 08/22/2011
27799 7590 07/18/2018
Cozen O'Connor
277 Park A venue, 20th floor
NEW YORK, NY 10172
FIRST NAMED INVENTOR
Rudolf Bierl
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.
502901-814PUS-302626.000 9721
EXAMINER
ANDERSON II, STEVENS
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
07/18/2018 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):
patentsecretary@cozen.com
patentdocket@cozen.com
patentsorter@cozen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUDOLF BIERL, STEPHAN HEINRICH, and
ANDREAS WILDGEN 1
Appeal2017-001229
Application 13/133,019
Technology Center 3700
Before JILL D. HILL, ERIC C. JESCHKE, and
BRENT M. DOUGAL, Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Rudolf Bierl et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's final decision rejecting claims 4--9. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Appellants identify the Real Party in Interest as Continental Automotive
GmbH. Appeal Br. 2.
Appeal2017-001229
Application 13/133,019
BACKGROUND
Sole independent claim 4, reproduced below, represents the claimed
invention, with a disputed limitation emphasized.
4. A tank ventilation system, comprising:
a purge line, off which a first end of a bypass line
branches at a branch off and into which a second end of the
bypass line opens downstream of the branch off, wherein the
bypass line has only one input, the only one input arranged at
the first end of the bypass line and only one output arranged at
the second end of the bypass line opposite the first end of the
bypass line;
a sensor, arranged in the bypass line and configured to
determine a concentration of hydrocarbons in a fluid in the
purge line; and
a hydrocarbon storage device having a first and a second
connection, the first connection coupled to a first end of the
purge line, the second connection configured for connection to
a tank.
REJECTIONS
I. Claims 4--9 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Everingham (US 7,146,970 B2, iss. Dec. 12, 2006) and
Baldwin (US 2009/0141769 Al, pub. June 4, 2009) "as evidenced by" Shoji
(US 6,589,410 Bl, iss. July 8, 2003) and Masaki (US 5,957,113, iss. Sept.
28, 1999). Final Act. 3.
II. Claims 6-9 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Everingham, Baldwin, and Kidokoro (US 6,176,118 B 1,
iss. Jan. 23, 2001) "as evidenced by" Shoji and Masaki. Final Act. 5.
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Appeal2017-001229
Application 13/133,019
ANALYSIS
Rejection I
Regarding claim 4, the Examiner finds that Everingham discloses the
limitations of the claimed invention including, inter alia, "a purge line (20c
and 42a, Figures 1 and 2), off which a bypass line (46, Figure 2) branches."
Final Act. 3. The Examiner finds that "Everingham is silent on the bypass
line including only one inlet," but relies on Baldwin for disclosing "a sensor
(28, Figure 2) in a bypass line with only one inlet at the first end (22, Figure
2) which measures gas composition in an exhaust line." Id. The Examiner
contends that modifying Everingham to remove the extra bypass line inlet,
as in Baldwin, would have been obvious because "there is no need for it"
since (1) "Everingham uses the air inlet (50) to dilute the gas that the sensor
receives," (2) "there is another air inlet," and (3) "only .5% of the fuel vapor
flows through this bypass line" such that "the air added through the bypass
line has minimal effect if any on the operation of the engine." Id. at 3--4.
The Examiner further concludes that it would have been obvious to modify
Everingham to "provide greater accuracy when measuring the gas
composition by allowing the sensor to operate at its optimal temperature ...
and by preventing the addition of other gases." Id. at 4. According to the
Examiner, Masaki discloses (1) "that hydrocarbon sensors will operate
without ... dilution ... thus ensuring that the above modification is
possible," (2) that "the addition of air in the bypass loop is not necessary,"
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Appeal2017-001229
Application 13/133,019
and (3) that there are advantages such as increased accuracy of the
hydrocarbon sensor in keeping the sensor in the bypass line." Id.
Appellants initially argue, inter alia, that Baldwin's sensor is in its
exhaust system, and that "there is no reason to combine Masaki' s teaching
with that of Everingham and Baldwin." Appeal Br. 6-7.
The Examiner responds that the dilution provided by Everingham's
bypass air port 50 "is not necessary when using a sensor that does not
require dilution of a gas stream," that "[t]here is no air port included in the
bypass of Baldwin indicating that dilution is not necessary," and that Masaki
evidences that "hydrocarbon sensors do not require air dilution in order to
operate since the modification of Baldwin removes the air dilution of
Everingham." Ans. 6-7.
Appellants reply that "Everingham's method relies on the dilution of
the fuel vapor by fresh air FA introduced by the check valve 48," and
"Everingham would not function properly if the check valve were removed
because the sensor would not be saturated with the air volume" because
"Everingham is designed specifically ... to saturate the fuel vapor with the
air volume prior to being delivered to the sensor using the check valve 48."
Reply Br. 2-3 ( citing Everingham 6: 18-32). According to Appellants, "the
combination of Everingham and Baldwin would require ... a change in the
basic principles under which Everingham's sensor is designed to operate."
Id. at 3.
We agree with Appellants. The Examiner's proposed modification of
Everingham with Baldwin to arrive at a ventilation tank system with a purge
line having a bypass line with a single input would leave Everingham with a
system having a sensor that relies on dilution of the fuel vapor with fresh air,
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Appeal2017-001229
Application 13/133,019
but there would be no fresh air input. Thus, Everingham would not operate
as intended. 2 That Everingham may still work without the fresh air input is
not supported by any evidence. To the extent the Examiner relies on Masaki
for disclosing a sensor that does not rely on dilution of the fuel vapor with
fresh air, we are not persuaded that Masaki's schematically illustrated
sensors 7 a and 7b, which are only generally disclosed as detecting
hydrocarbon contained in fuel vapor G in a vehicle exhaust, evidence a
sensor that would perform adequately in Everingham's system. Further,
even if Masaki's sensors would perform adequately in Everingham's system,
the Examiner has not provided a rationale for replacing Everingham' s sensor
with Masaki's sensor.
For this reason, prima facie obviousness of independent claim 4 has
not been established. Claims 5-9 depend from claim 4. Prima facie
obviousness of claims 5-9 has also therefore not been established. We do
not sustain Rejection I.
Rejection II
The Examiner bases Rejection II on Everingham and Baldwin
teaching claims 4 and 5. The Examiner does not find that Kidokoro cures
the above-noted deficiency of Rejection I. Because prima facie obviousness
of independent claim 4 over Everingham and Baldwin has not been
established, we do not sustain Rejection II for the reason set forth above
regarding Rejection I.
2 We further note that contrary to the Examiner's finding, Everingham is not
"silent on the bypass line including only one inlet." Final Act. 3. Rather,
Everingham expressly teaches two inlets so that fresh air can be directed to
the sensor. See Everingham 3 :58-64, 4:4--5: 14.
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Application 13/133,019
DECISION
We REVERSE the rejection of claims 4--9 under 35 U.S.C. § 103(a)
as unpatentable over Everingham and Baldwin as evidenced by Shoji and
Masaki.
We REVERSE the rejection of claims 6-9 under 35 U.S.C. § 103(a)
as unpatentable over Everingham, Baldwin, and Kidokoro as evidenced by
Shoji and Masaki.
REVERSED
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