Ex Parte Hagen

Patent Trials and Appeals Board

Mar 13, 2019

13328288 - (D) (P.T.A.B. Mar. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/328,288 12/16/2011
20151 7590 03/15/2019
HENRY M FEIEREISEN, LLC
HENRY M FEIEREISEN
35 West 35th Street
SUITE 900
NEW YORK, NY 10001
FIRST NAMED INVENTOR
Harald Hagen
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.
HAGEN-8 3442
EXAMINER
CAMPBELL, JOSHUA A
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
03/15/2019 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):
INFO@FEIEREISENLLC.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HARALD HAGEN 1
Appeal2017-005251
Application 13/328,288
Technology Center 3700
Before LINDA E. HORNER, LISA M. GUIJT, and LEE L. STEPINA,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 16, 22, 24, 30-32, 34, and 35. Appellant presented
arguments at an oral hearing on February 28, 2019. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Appeal Brief indicates that AUDI AG is the real party in interest. Br.
2.
Appeal2017-005251
Application 13/328,288
CLAIMED SUBJECT MATTER
The claims are directed to a device for ventilating and aerating a fuel
tank. Spec. ,r 1. Claim 16, reproduced below, is the sole independent claim
on appeal.
16. A device for ventilating and aerating a fuel tank of an
internal combustion engine, comprising
an activated carbon filter;
a controllable tank shut-off valve;
two tank pressure control valves, one of the two tank
pressure control valves configured to open in response to a
negative pressure in the fuel tank, and the other one of the two
tank pressure control valves configured to open in response to an
overpressure in the fuel tank,
wherein the two tank pressure control valves are
connected in parallel and together with the tank shut-off valve
form a valve unit arranged inside the fuel tank above a highest
fuel level in a gas or headspace of the fuel tank and having a
common tank connection extending from the valve unit
composed of the two tank pressure control valves connected in
parallel and the tank shut-off valve arranged in the fuel tank to a
liquid trap for separating liquid fuel located inside the fuel tank
and a common filter connection extending from the valve unit
composed of the two tank pressure control valves connected in
parallel and the tank shut-off valve arranged in the fuel tank out
of the fuel tank to the activated carbon filter located outside of
the fuel tank, and
an engine control unit connected with the tank shut-off
valve and configured to control the tank shut-off valve of the
valve unit so that during an operation of the internal combustion
engine the tank shut-off valve of the valve unit remains closed
and is opened during refueling of the fuel tank and a pressure in
the fuel tank is controlled only by the tank pressure control
valves of the valve unit during standstill and during the operation
of the internal combustion engine.
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Appeal2017-005251
Application 13/328,288
REFERENCES RELIED ON BY THE EXAMINER
Cook
Oeffling
Ehrman
Sanchez
us 4,703,737
us 4,869,283
US 2002/0121300 Al
EP 1 967 404 Al
REJECTIONS
Nov. 3, 1987
Sept. 26, 1989
Sept. 5, 2002
Sept. 10, 2008
I. Claims 16, 22, 24, 34, and 35 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Cook, Oeffling, and Ehrman.
II. Claims 30-32 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Cook, Oeffling, Ehrman, and Sanchez.
OPINION
Rejection I
Appellant makes arguments for the patentability of the claims subject
to the first ground of rejection, i.e., claims 16, 22, 24, 34, and 35, as a group.
Br. 4---6. We select claim 16 as representative of the group, and claims 22,
24, 34, and 35 stand or fall with claim 16. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Cook teaches many of the elements recited
by claim 16, but relies on Oeffling to teach a valve unit disposed inside a
fuel tank and located above a highest fuel level of the tank. Final Act. 4
(citing Oeffling, 2:3-10, 2:22-28, 2:49-58). The Examiner also finds that
Oeffling teaches that its tank shut-off valve is controlled so that during an
operation of the internal combustion engine to which it is connected, the
tank shut-off valve remains closed and is opened during refueling. Id.
( citing Oeffling, 4:55---68, 5: 12-20). The Examiner also finds that Oeffling
discloses that the above-noted shut-off valve location and operation provide
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Application 13/328,288
certain advantages, including allowing fuel vapors to pass to an activated
carbon filter during refilling and continued operation of the shut-off valve
during a vehicle accident. See id. at 5---6 (citing Oeffling, 1:14--29, 1:53---63,
2:3-21). Based on these advantages, the Examiner determines that it would
have been obvious to incorporate the shut-off valve location and operation
disclosed by Oeffling in the system of Cook. Id. at 6.
The Examiner relies on Ehrman to teach a common tank connection
extending from a valve unit in a fuel tank to a liquid trap for separating
liquid fuel located inside the fuel tank. Id. ( citing Ehrman ,r 25, Fig. 1 ). The
Examiner reasons that it would have been obvious to a person having
ordinary skill in the art to combine the liquid fuel trap disclosed by Ehrman
with the valve unit disclosed by Cook, such that a common tank connection
extends from the valve unit in the fuel tank to the liquid fuel trap, because
this modification would ensure that nothing but vapor is routed from the fuel
tank to the canister. Id. at 7 (citing Ehrman ,r,r 2-5). The Examiner finds
that such a modification would prevent impairment of canister operation and
decrease fuel consumption. Id.
Appellant's Brief includes a summary of the Examiner's findings (Br.
4--5), after which, Appellant provides the following argument.
The Examiner rejected the claims based on his findings in
individual references several, different, independent components
and connections, redesigning the valve units, and associating
with them connections to the activated carbon filter and to the
liquid trap inside or outside the fuel tank in a manner to copy the
appellant's invention. Physically, this re-designing of the
references is of course possible, and of course it is easy for the
Examiner who has been implementing this re-designing based on
his familiarization with the applicant's invention. However, for
one skilled in the art who did not familiarize himself/herself with
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Application 13/328,288
the appellant's invention, it cannot be obvious - for some
unknown and highly improbable reasons to dissect quite
complicated constructions disclosed in each of the references and
to reassemble them to miraculously obtain a carbon copy of the
appellant's device.
Br. 5. Thus, Appellant argues that the Examiner's proposed modification
redesigns the system in Cook based on familiarization with Appellant's
invention. Appellant next (i) repeats a majority of the required elements of
claim 16, as a list spanning through ten lines of a single sentence, (ii) asserts
that none of the references discloses all of these elements, and (iii)
concludes, without further explanation, that this combination of elements
would not have been obvious. Br. 5---6.
Appellant's argument in the Appeal Brief does not apprise us of
Examiner error because it amounts to a general statement that the Examiner
relied on improper hindsight without addressing any of the specific
reasoning the Examiner applied to the proposed modifications to Cook based
on each of Oeffling and Ehrman.
Filing a Board appeal does not, unto itself, entitle an
appellant to de nova review of all aspects of a rejection. If an
appellant fails to present arguments on a particular issue - or,
more broadly, on a particular rejection-the Board will not, as a
general matter, unilaterally review those uncontested aspects of
the rejection.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
The Examiner found that the proposed modifications to the system of Cook
would result in specific benefits, and the Examiner supported this finding
with citations to Figure 1 of Ehrman and various portions of the text in
Oeffling and Ehrman. See Final Act. 5-7. Appellant does not contest the
Examiner's findings of fact as to the benefits that would result from the
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proposed modification to Cook's system. See Br. 4---6. Nor does Appellant
explain how any of the Examiner's findings of fact as to what structure each
of Cook, Oeffling, and Ehrman teaches is in error.
In the Answer, the Examiner notes that the rejection does not rely on
any knowledge gleaned from Appellant's disclosure and reiterates where, in
each of Oeffling and Ehrman, support for the rationale for the proposed
modification to the system of Cook can be found. See Ans. 7-8. The
Examiner also notes that the rejection is based on a combination of the
teachings of Cook, Oeffling, and Ehrman and does not rely on Cook, by
itself, to disclose the entire arrangement recited in claim 16. Id. at 7.
Appellant did not file a reply brief, but sought to present arguments
specifically addressing alleged deficiencies in the Examiner's reasoning for
the proposed modification to Cook for the first time during the Oral Hearing
conducted on February 28, 2019. These arguments are untimely because
they were not presented in Appellant's briefing. "At the oral hearing,
appellant may only rely on Evidence that has been previously entered and
considered by the primary examiner and present argument that has been
relied upon in the brief or reply brief except as permitted by paragraph ( e )(2)
of this section." 3 7 C.F .R. § 41.4 7 ( e )(1 ). "Upon a showing of good cause,
appellant and/or the primary examiner may rely on a new argument based
upon a recent relevant decision of either the Board or a Federal Court." §
4I.47(e)(2). Appellant made no showing of good cause as to why the new
arguments presented at the Oral Hearing should be considered. Thus, we
will not consider these new arguments, and we base our decision on the
argument in Appellant's Appeal Brief.
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We have considered all of Appellant's timely arguments in support of
the patentability of claim 16, but find them unavailing. Accordingly, we
sustain the rejection of claim 16 and associated dependent claims 22, 24, 34,
and 35 as unpatentable over Cook, Oeffling, and Ehrman.
Rejection II
Appellant makes no arguments for the patentability of claims 30-32
apart from the argument discussed above regarding Rejection I. See Br. 6.
Thus, we sustain the rejection of claims 30-32 as unpatentable over Cook,
Oeffling, Ehrman, and Sanchez.
DECISION
The Examiner's decision to reject claims 16, 22, 24, 30-32, 34, and
3 5 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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