Ex Parte Cochran et al

Patent Trial and Appeal Board

Jun 13, 2016

13667059 (P.T.A.B. Jun. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/667,059 11102/2012
25287 7590 04/01/2016
GEORGE LAWRENCE BOLLER
P.O. Box 530518
LIVONIA, MI 48153
FIRST NAMED INVENTOR
Gary D. Cochran
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.
RBOlCIPCONT 5159
EXAMINER
ROGERS, DAVID A
ART UNIT PAPER NUMBER
2856
MAILDATE DELIVERY MODE
04/01/2016 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 GARY D. COCHRAN,
RUDOLPH BERGSMA, DECEASED,
ROSEMARY BERGSMA, LEGAL REPRESENTATIVE,
and ROSEMARY BERGSMA
Appeal2014-007216
Application 13/667,059
Technology Center 2800
Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and
MONTE T. SQUIRE, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134 from a final rejection
of claims 1-20 under 35 U.S.C. § 102(b) as anticipated by Cochran et al. 1 We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 US 2005/0139003 Al, published June 30, 2005 (hereinafter "Cochran").
Cochran is the pre-grant publication of Application 11/052,155, filed February 7,
2005 (hereinafter the "Cochran Application").
Appeal2014-007216
Application 13/667,059
The claims on appeal are directed to a fuel level sender for signaling the
level of volatile liquid fuel in a fuel tank (claims 1-12) and a combination of a fuel
tank and a fuel level sender (claims 13-20). App. Br. 16-21.2
B. DISCUSSION
There is no dispute on this record that Cochran describes the claimed
invention. See Ans. 2 ("The appellant does not contest in their appeal brief that the
cited prior art, [Cochran], teaches each and every limitation of the pending
claims."). 3 Rather, the issue on appeal is whether Cochran is prior art under
35 U.S.C. § 102(b).
The instant Application was filed on November 2, 2012, and claims benefit
under 35 U.S.C. § 120 of the filing date of the Cochran Application. However, the
Examiner finds that the Cochran Application and the instant Application were not
co-pending at the time the instant Application was filed. Final Act. 4--5. 4 Indeed,
according to the Official file of the Cochran Application, proceedings in that
Application were terminated after a decision by the Court of Appeals for the
Federal Circuit dated December 13, 2011, affirming the rejections of all claims.
The decision issued as a mandate on February 3, 2012.
On appeal, the Appellants argue that the Cochran Application was never
abandoned, and for that reason, the rejection under 35 U.S.C. § 102(b) should be
reversed. App. Br. 11-14.
The issue of abandonment was previously raised in a "Petition to the
Director under 3 7 CPR § 1.181 and 3 7 CPR § 1.183," filed in the Cochran
Application and decided in a "Decision on Petitions under 37 CPR 1.181 and
2 Appeal Brief dated February 10, 2014.
3 Examiner's Answer dated April 10, 2014.
4 Final Office Action dated July 10, 2013.
2
Appeal2014-007216
Application 13/667,059
1.183," dated February 25, 2014. The Petition Decision affirmed the abandoned
status of the Cochran Application as of the Court's February 3, 2012 mandate.
Decision 7. The Board does not have jurisdiction to reconsider the Petition
Decision. See MPEP § 711.03(c) (8th ed., Rev. 9, Aug. 2012) (abandonment is a
petitionable matter); MPEP § 1201 (petitionable matters are not appealable to the
Patent Trial and Appeal Board.).5
On this record, the instant Application is not entitled to benefit under
35 U.S.C. § 120 of the February 7, 2005, filing date of the Cochran Application.
Therefore, Cochran is prior art under 35 U.S.C. § 102(b), and the rejection of
claims 1-20 under 35 U.S.C. § 102(b) is sustained.
C. DECISION
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
5 See Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1439 (Fed. Cir. 1984)
(the MPEP "is entitled to notice, so far as it is an official interpretation of statutes
or regulations with which it is not in conflict.").
3