Ex Parte Foster

Patent Trial and Appeal Board

Sep 17, 2018

13967777 (P.T.A.B. Sep. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/967,777 08/15/2013
22827 7590 09/19/2018
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
James C. Foster
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.
FTP-2 5275
EXAMINER
FRISTOE JR, JOHN K
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
09/19/2018 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):
USDOCKETING@DORITY-MANNING.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES C. FOSTER
Appeal2018-001800
Application 13/967,777 1
Technology Center 3700
Before LINDA E. HORNER, MICHAEL L. HOELTER, and
SEAN P. O'HANLON, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's rejections of claims 1, 3-5, 7, 9, 10, 12-18, 21, and 22, which
are all of the pending claims. Final Office Action ( mailed March 7, 2017)
(hereinafter "Final Act."). We have jurisdiction under 35 U.S.C. § 6(b ).
The claimed subject matter relates to "a valve assembly for use in a
fuel dispensing system" for minimizing spillage of fuel during testing.
Specification (filed August 15, 2013) (hereinafter "Spec."), ,r 1. The
1 Appellant identifies James C. Foster as the real party in interest. Appeal
Brief (filed August 3, 2017) (hereinafter "Br.") 1.
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Application 13/967,777
Examiner rejected the claims as obvious over the prior art. Appellant
contests the rejections based on prior art and presents declaration evidence
of secondary considerations of non-obviousness. For the reasons explained
below, the evidence in support of the Examiner's determination of
obviousness outweighs the evidence and arguments provided by Appellant
in support of non-obviousness.
Accordingly, we AFFIRM.
CLAIMED SUBJECT MATTER
Claims 1 and 10 are the independent claims. Claim 1 is illustrative of
the subject matter on appeal and is reproduced below with disputed claim
language shown in italics for emphasis.
1. A valve assembly for a fuel dispensing system,
compnsmg:
a valve body defining a fluid inlet in fluid communication
with a fuel source of the fuel dispensing system, a fluid outlet in
fluid communication with a fuel dispenser, and a channel for a
flow of fuel from the fluid inlet to the fluid outlet, wherein the
fluid outlet of the valve body defines a top plane;
a shutoff valve positioned in the valve body and moveable
between an open position and a closed position, the shutoff valve
configured to block the flow of fuel from the fluid outlet when in
the closed position;
a connection member defining a fail point and being
attached to the valve body, the shutoff valve being in
communication with the connection member at a position
opposite the fail point from the valve body;
a test port extending from the valve body and defining a
downstream end, the test port in fluid communication with the
channel in the valve body at a location upstream from the shutoff
valve and formed integrally with the valve body, wherein the
valve body defines a fluid flow direction, and wherein the test
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port extends in a direction defining an acute angle with the fluid
flow direction of the valve body;
a first valve positioned at the downstream end of the test
port, the first valve and downstream end of the test port
positioned below the top plane; and
a test port valve positioned upstream from the downstream
end of the test port, the test port valve moveable between an open
position wherein fluid may flow through the test port and a
closed position wherein the test port valve blocks fluid from
flowing through the test port.
Br. 28 (Claims Appendix).
Nelson
Moore et al. ("Moore")
Meyer et al. ("Meyer")
Parker et al. ("Parker")
Recking
Clayton et al. ("Clayton")
EVIDENCE
us 3,811,456
us 5,193,569
us 5,295,503
US 6,363,920 Bl
US 2006/0185744 Al
US 2007 /0204917 Al
REJECTIONS
May 21, 1974
Mar. 16, 1993
Mar. 22, 1994
Apr. 2, 2002
Aug. 24, 2006
Sept. 6, 2007
The Final Office Action includes the following rejections under
35 U.S.C. § 103:
1. Claims 1, 3, 4, 7, 9, 10, 12-15, 18, 21, and 22 stand rejected as
unpatentable over Nelson, Clayton, and Parker, or in the
alternative, Nelson, Clayton, Parker, and Meyer.
2. Claims 5, 16, and 17 stand rejected as unpatentable over Nelson,
Clayton, and Parker, or in the alternative, Nelson, Clayton, Parker,
and Meyer, and further in view of Recking.
3. Claims 1, 3, 4, 7, 9, 10, 12-15, 18, 21, and 22 stand rejected as
unpatentable over Moore, Clayton, and Parker, or in the
alternative, Moore, Clayton, Parker, and Meyer.
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4. Claims 5, 16, and 17 stand rejected as unpatentable over Moore,
Clayton, and Parker, or in the alternative, Moore, Clayton, Parker,
and Meyer, and further in view of Recking
ISSUES
Appellant argues all of the claims subject to both the first and third
grounds of rejection as a group. Br. 26 (asserting that the arguments
presented for independent claim 1 also apply to independent claim 10 and
that all claims depending from claims 1 and 10 are patentable for the reasons
presented for claim 1 ). We select claim 1 as representative of the group for
each ground of rejection. Claims 3, 4, 7, 9, 10, 12-15, 18, 21, and 22 stand
or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv). Appellant does not present
arguments specifically contesting the second and fourth grounds of rejection
of claims 5, 16, and 17. Br. 26. As such, this appeal turns on the outcome
of our review of the rejection of claim 1 under the first and third grounds of
rejection.
In the first ground of rejection, the Examiner found that Nelson
discloses substantially all of the valve assembly of claim 1, including a test
port and a first valve, but does not disclose a test port valve positioned
upstream from the downstream end of the test port. Final Act. 4-5. The
Examiner found that Clayton discloses a valve assembly including a test port
valve positioned upstream from the downstream end of the test port, and
Parker teaches a test port having both a first valve positioned at the
downstream end of the test port and a test port valve positioned upstream
from the first valve. Id. at 5. The Examiner determined that it would have
been obvious to add a test port valve, as taught by Clayton, in addition to the
first valve in the test port of Nelson, as taught by Parker, as an application of
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a known technique to a known device ready for improvement to yield the
predictable result of being able to selectively permit fluid within the inlet to
pass through the test port with more control in order to perform the desired
test. Id. (citing Meyer, col. 9, 11. 3-7). The Examiner further found that
because Nelson already teaches the test port well below the top plane
defined by the fluid outlet of the valve body, it would have been an obvious
matter of choice to make the size of the components in Nelson, as modified
to add the test port valve, so that the test port remains below the top plane.
Id. at 5-6.
Similarly, in the third ground of rejection, the Examiner found that
Moore discloses substantially all of the valve assembly of claim 1, including
a test port and a first valve, but does not disclose a test port valve positioned
upstream from the downstream end of the test port. Final Act. 8-9. The
Examiner relied on the same findings as to the teachings of Clayton, Parker,
and Meyer, as discussed above in the first ground of rejection. Id. at 9. The
Examiner also relied on the same reasoning discussed above to explain why
one having ordinary skill in the art at the time of Appellant's invention
would have been led to modify the valve assembly of Moore to add the test
port valve, based on the teachings of Clayton, Parker, and Meyer, in the
manner claimed.
Appellant presents substantially the same arguments in support of
patentability of claim 1 over both grounds. First, Appellant contends that
the combination of either Nelson or Moore, with the teachings of Clayton,
Parker, and Meyer, fails to teach or suggest each and every limitation of
claim 1. Br. 9-14, 24. Second, Appellant contends that the Examiner erred
in relying on Parker because this reference is not analogous art to the
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claimed subject matter. Id. at 14-15, 24. Third, Appellant argues that the
Examiner has failed to articulate sufficient reasoning to modify either
Nelson or Moore with the teachings of Clayton, Parker, and Meyer in the
manner claimed. Id. at 16-18, 24-26. Fourth, Appellant contends that
evidence proffered to demonstrate the existence of a long-felt need
outweighs the evidence of obviousness proffered by the Examiner. Id. at
18-24, 26 (citing Rule 132 Declaration of James C. Foster (hereinafter
"Foster Dec.")).
Thus, the issues presented by this appeal are: (1) is Parker analogous
art to the claimed subject matter; (2) has the Examiner articulated adequate
reasoning based on rational underpinnings to explain why the teachings of
the prior art would have led one having ordinary skill in the art to the subject
matter of claim 1; (3) if combined, do the proposed prior art teachings
disclose all the limitations of claim 1; and ( 4) does the evidence of long-felt
need outweigh the evidence in support of obviousness. We address each
issue under separate headings below.
ANALYSIS
Analogous Art
"Two separate tests define the scope of analogous prior art:
(1) whether the art is from the same field of endeavor, regardless of the
problem addressed and[;] (2) if the reference is not within the field of the
inventor's endeavor, whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved." In re Bigio, 3 81
F.3d 1320, 1325 (Fed. Cir. 2004). The field of endeavor test requires the
PTO to determine the appropriate field of endeavor by reference to
explanations of the invention's subject matter in the patent application,
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including the embodiments, function, and structure of the claimed invention.
Id. (citing In re Wood, 599 F.2d 1032, 1036 (CCPA 1979) (confining the
field of endeavor to the scope explicitly specified in the background of the
invention) and In re Deminski, 796 F.2d 436,442 (Fed. Cir. 1986)
( determining that the cited references were within the same field of endeavor
where they "have essentially the same function and structure")).
The Examiner found that "Parker is related to the instant application
since it belongs to the field of test ports." Ans. 11. Appellant argues that
Parker is not in the same filed of endeavor because Parker relates to "a
proportional solenoid for purging fuel vapors in electronically-controlled
fuel vapor management valves," and Appellant's claimed invention relates
to "fuel dispensing systems for gas stations." Br. 15 (citing Parker, col. 2,
11. 15-20). We look to the field of invention identified in Appellant's
Specification and the field of invention of Parker.
Appellant's Specification describes the field of invention as related
specifically to "a valve assembly for use in a fuel dispensing system, or
more particularly, a valve assembly configured to minimize spillage of fuel
during testing." Spec. ,r 1. Thus, Appellant defines the field as directed to
the valve assembly, and specifically as directed to the improvement to the
test port of the valve assembly. Parker is directed to "electronically-
controlled fuel vapor management valves." Parker, col. 1, 11. 19-20.
Although we agree with the Examiner's characterization of the field
of Appellant's invention as being directed to test ports, we disagree with the
Examiner that Parker is from the same field of endeavor. Although Parker
discloses the use of a test port in its solenoid valve assembly, the structure
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and function of Parker's valve assembly is for purging fuel vapor. Thus,
Parker is not from the same field of endeavor as the invention.
The Examiner found that Parker is also reasonably pertinent to the
problem facing Appellant under the second test discussed above. Ans. 11.
"A reference is reasonably pertinent if, even though it may be in a different
field from that of the inventor's endeavor, it is one which, because of the
matter with which it deals, logically would have commended itself to an
inventor's attention in considering his problem." In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992). The Examiner found that Parker is "pertinent to the
problem of using a valve for controlling the amount of fluid flowing from
the inside of a test port while conducting testing[,] as well as using a second
valve for sealing the test port to [the] outside environment." Ans. 11 ( citing
Parker, col. 4, 11. 20-22). We agree with the Examiner that Parker's
disclosure is reasonably pertinent to the problem of minimizing spillage of
fluid (fuel) during testing via the test port. Ans. 11; see also Spec. ,r 4
(identifying the problem facing the inventor as designing a valve assembly
for use in a fuel dispensing system that could reduce spillage of fuel during
the testing of the fuel dispensing system).
Parker's valve assembly includes a test port used for testing pressure
in the valve to check the system for leaks. Parker, col. 4, 11. 9-26, Fig. 1.
Parker's disclosure of a test port used to test pressure in a valve assembly
would have been reasonably pertinent to the problem facing the inventor of
designing an improved test port for use in a valve assembly of a fuel
dispensing system. As such, we agree with the Examiner's finding that
Parker is analogous art.
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Examiner's reason to combine
Appellant argues that it would not have been obvious to combine the
teachings of Clayton with either Nelson or Moore in the manner claimed
because when the add-on valves of Clayton are added to the ends of the
existing test ports of either Nelson or Moore, they would extend past the top
plane. Br. 16-18, and 25-26. The Examiner noted that Parker and Meyer
teach test ports in which the test port valve is integrally included in the test
port. Ans. 11. The Examiner determined that even if the test port valve of
Clayton is considered to be an add-on valve, a person having ordinary skill
in the art applying the teachings of all the prior art, and in light of the fact
that both Nelson and Moore teach test ports having a downstream end lower
than the top plane and in light of the fact that Parker teaches a test port valve
integrally included in the test port, would have incorporated the test port
valve in the test port of either Nelson or Moore such that the end is lower
than the top plane.
We agree with the Examiner that Nelson and Moore suggest to one
having ordinary skill in the art to position the test port below the top plane.
Nelson, Fig. 2; Moore, Fig. 4. We also agree with the Examiner that Parker
teaches a test port that incorporates a test port valve integrally within the test
port. Parker, Fig. 1, col. 4, 11. 9-22.
Appellant's argument amounts to one of bodily incorporation of
Clayton's test port valve to the downstream end of Nelson's or Moore's test
port.
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
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the references would have suggested to those of ordinary skill
in the art.
In re Keller, 642 F.2d 413,425 (CCPA 1981); see also KSR Int'! Co. v.
Teleflex, Inc., 550 U.S. 398, 421 ("A person of ordinary skill is also a person
of ordinary creativity, not an automaton."). Appellant's argument also does
not address the Examiner's reliance on Parker or the additional teachings of
Nelson, Moore, and Parker discussed above. Appellant's argument does not
identify error in the Examiner's rejections because the argument does not
address the proper inquiry for an obviousness determination.
Combined teachings
Akin to the prior argument, Appellant further argues that because
Clayton's test port valves are add-on valves that are attached to the test ports
downstream of the downstream end of each port, if Clayton's test port valves
are incorporated into the valve assembly of Nelson or Moore, the test port
valve "would replace the cap at the downstream end of the test port."
Br. 13, 24. This argument fails to address the Examiner's reliance on
Parker, which teaches a test port that includes both a test port valve
integrally located within the test port and upstream of the downstream end of
the test port, and a cap ( first valve) positioned at the downstream end of the
test port. Final Act. 5 ( citing Parker, col. 4, 11. 9-26); see also Parker, Fig. 1.
The Examiner's proposed modification is "to add ... the test port valve (ball
valve) as taught by Clayton and fitted into the test port of [Nelson or Moore]
as taught by Parker." Final Act. 5, 9 (emphasis added).
As to the Examiner's reliance on Parker, Appellant argues, "nowhere
does Parker[] teach or suggest a valve assembly having a first valve
positioned at a downstream end of a test port, the downstream end of the test
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port positioned below a top plane T, with a test port valve positioned
upstream from the downstream end of the test port." Br. 14. The Examiner,
however, did not rely on Parker to teach the downstream end of the test port
positioned below a top plane T because this aspect of the claim already was
present in both Nelson and Moore. Ans. 11. As discussed above, we agree
with the Examiner's finding that Parker teaches a test port having a first
valve positioned at a downstream end of a test port and a test port valve
positioned upstream from the downstream end of the test port. Parker,
col. 4, 11. 19-22, Fig. 1.
Further, Appellant asserts that the Foster Declaration supports the
contention that "when add-on valves are implemented onto existing test
ports, they are added on the end of the test port and extend past the break-
away point (i.e. the top plane)." Br. 25-26 ( citing Foster Dec. ,r 8). This
evidence is not persuasive for two reasons. First, the Examiner's rejection
does not propose to implement an add-on valve. As explained above, the
Examiner's rejection incorporates the teachings of Parker to implement the
test port valve as an internal component of the test port. Second, the
declaration evidence addresses a single instance in which someone added an
"add-on" valve to an existing test port. This evidence does not persuade us
that a hypothetical person having ordinary skill in the art at the time of the
invention, with the benefit of the prior art teachings relied on by the
Examiner, would have been led to implement a solution to the spillage
problem by simply adding an "add-on" valve to the end of the test port in a
manner so that the "add-on" valve extends above the top plane, as argued by
Appellant. As such, Appellant's arguments have not demonstrated error in
the Examiner's prima face case of obviousness.
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Mr. Foster further states his opinion that "it would not have been
obvious to a person having ordinary skill in the fields of fuel dispensing
system installation, maintenance, and/ or testing to combine the elements
present in [the disclosures of Moore, Clayton, and Parker] to arrive at the
valve claimed in the present application." Foster Dec. ,r 11. Mr. Foster
provides no explanation of the basis for this opinion. We give little weight
to opinion testimony that does not disclose the underlying facts or data on
which the opinion is based. This conclusory opinion by the inventor of the
non-obviousness of the claimed invention does not demonstrate an error in
the Examiner's prima facie case of obviousness.
Long-Felt Need
Inasmuch as we have concluded that the subject matter of Appellant's
claim 1 is prima facie obvious, and because Appellant has furnished
evidence of secondary considerations of non-obviousness, we now tum to
consider this evidence. When such evidence is presented, it is our duty to
consider all evidence anew carefully evaluating and weighing both the
evidence relied upon by the Examiner and the objective evidence of non-
obviousness provided by the Appellant. See, e.g., In re Eli Lilly and Co.,
902 F.2d 943 (Fed. Cir. 1990). We are also mindful that objective evidence
of non-obviousness in any given case may be entitled to more or less weight
depending on its nature and its relationship with the merits of the invention.
See Stratoflex Inc. v. Aeroquip Corp., 713 F.2d 1530 (Fed. Cir. 1983).
Appellant submits the Foster Declaration in an attempt to show a
long-felt need met by the claimed valve assembly. Br. 18-24. The
declaration, however, fails to establish the existence of a long-felt need in
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the industry. Establishing long-felt need requires objective evidence that an
art-recognized problem existed in the art for a long period of time without
solution. In particular, the evidence must show that the need was a
persistent one that was recognized by those of ordinary skill in the art. In re
Gershon, 372 F.2d 535, 539 (CCPA 1967). "[L]ong-felt need is analyzed as
of the date of an articulated identified problem and evidence of efforts to
solve that problem." Texas Instruments, Inc. v. ITC, 988 F.2d 1165, 1178
(Fed. Cir. 1993).
The Foster declaration states that "[s]ince at least as early as 1973,
sheer valves have been available for fuel dispensing systems having
underground fuel storage tanks providing fuel to above ground fuel
dispensers." Foster Dec. ,r 6. Indeed, the Nelson patent, which was filed in
1972 and published in 1974, discloses such a sheer valve. Nelson, Abstract
(teaching an impact responsive shut-off valve assembly that has a weakened
break-away means). Based on Mr. Foster's personal experience from 1973
through 2000 installing and maintaining fuel dispensing systems throughout
South Carolina (Foster Dec. ,r 4) and his personal experience from 2000
through 2013 conducting testing of fuel dispensing systems throughout
South Carolina (Foster Dec. ,r 5), he testifies that "since at least as early as
1973, testing a fuel dispensing system via a testing port on a sheer valve
involved one or more of an undesirable amount of fuel spillage when
connecting testing equipment, or downtime in the dispensing system to
prevent spillage when connecting testing equipment." Foster Dec. ,r 7. The
opinion of one person in the art that an undesirable amount of fuel spillage
occurs when connecting testing equipment is not adequate to establish a
long-felt need industry-wide. For instance, Appellant does not present
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evidence (a) that others considered the amount of fuel that may spill during
valve testing is undesirable or (b) that others considered this spillage a
problem in need of a solution. As such, Mr. Foster's testimony is not
sufficient to establish an industry-recognized problem existed in the art. At
most, the testimony establishes that Mr. Foster considered fuel spillage that
occurs while connecting testing equipment undesirable and in need of a
solution.
The Foster Declaration also recounts "[ o ]ne prior attempt" at solving
the problem was to include an "add-on" valve to the existing test port.
Foster Dec. ,r 8. The declaration, however, lacks sufficient detail about this
prior attempt. For instance, the declaration does not explain who made this
attempt. If Mr. Foster himself attempted the solution, then the evidence does
not show that others in the industry considered spillage during testing a
problem. Also, the declaration does not explain when this attempt was
made. This information is relevant because a single recent attempt to solve
an asserted problem cannot alone show long-felt need. Also, one cannot
establish long-felt need by showing only that the inventor made a single
unsuccessful attempt to solve the problem prior to the inventor coming up
with the claimed invention. Thus, Mr. Foster's evidence of one prior
attempt does not provide an adequate showing of when this attempt was
made and how long others have been working on solving the problem.
The Foster Declaration also explains that this attempted solution
failed because the add-on valves extended past the sheer points and
"potentially negated the functionality of the sheer valve." Foster Dec. ,r 8.
This statement by Mr. Foster shows that the attempted solution actually
solved the problem with spillage during testing, but created a different
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problem of interference with the operation of the sheer valve. Thus, even if
the prior attempt to solve the problem was an attempt made by another, the
problem of spillage was solved by this attempt and, thus, the evidence is a
weak showing of failure of others to solve the problem.
In conclusion, the evidence of long-felt need provided in the Foster
Declaration is weak. The Declaration does not show adequately that the
need for a test port that avoided spillage of fuel during testing was a
persistent one or that others tried to meet the need and failed. The declarant
fails to establish adequately how long the need existed in the industry and
whether any attempts to meet the need were made by others in the industry.
CONCLUSION
In this case, we find that the strong evidence demonstrating that the
claimed subject matter is nothing more than the application of a known
technique to a known device ready for improvement to yield predictable
results is not outweighed by Appellant's weak evidence of long-felt need.
"[W]eak secondary considerations generally do not overcome a strong prima
facie case of obviousness." W. Union Co. v. MoneyGram Payment Sys.,
Inc., 626 F.3d 1361, 1373 (Fed. Cir. 2010) (citations omitted). This is
particularly true when an invention involves nothing more than "the
predictable use of prior art elements according to their established
functions." Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010)
(quoting KSR, 550 U.S. at 417); see also Ohio Willow Wood Co. v. Alps
South, LLC, 735 F.3d 1333, 1344 (Fed. Cir. 2013) ("[W]here a claimed
invention represents no more than the predictable use of prior art elements
according to established functions, ... evidence of secondary indicia are
frequently deemed inadequate to establish non-obviousness."). Accordingly,
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we do not find error in the Examiner's obviousness rejections of the claims
on appeal.
DECISION
The decision of the Examiner rejecting claims 1, 3-5, 7, 9, 10, 12-18,
21, and 22 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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