Ex Parte Gerard et al

Patent Trial and Appeal Board

Jun 17, 2014

10591293 (P.T.A.B. Jun. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte YANNICK GERARD and PAUL PLISSART
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Appeal 2012-004783
Application 10/591,293
Technology Center 3700
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Before MICHAEL C. ASTORINO, JAMES P. CALVE, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Yannick Gerard and Paul Plissart (“Appellants”) appeal under
35 U.S.C. § 134 from the Examiner’s decision rejecting claims 11, 16–18,
and 20–32. We have jurisdiction under 35 U.S.C. § 6(b).
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Claimed Subject Matter
Claims 11 and 18 are the independent claims on appeal. Claim 11 is
illustrative of the claimed subject matter and is reproduced below.
11. A system for fastening, by welding, a component to a
motor vehicle fuel tank, the system comprising:
a component including a portion with a conical surface
profile, the component including a tubular shape;
a tank with an opening, a perimeter of which opening
includes a conical surface profile; and
a welded area between at least one portion of the conical
surface of the perimeter of the opening in the tank and at least
one portion of the conical surface of the component,
wherein the perimeter of the opening of the tank is a
deformed portion of a wall of the tank,
wherein the component and the tank are molded in one or
more molds including impressions corresponding to the conical
surfaces,
wherein the tank and component each include a
multilayer structure and, along the entire surface where the
component is fastened to the tank, a number of superposed
layers is equal to a sum of a number of layers in the component
and a number of layers in the tank, and
wherein the multilayer structure includes at least two
layers of high-density polyethylene (HDPE) between which a
layer comprising an ethylene/vinyl alcohol copolymer (EVOH)
is inserted.
Br. 19, Claims App’x.
References
The Examiner relies upon the following prior art references:
Goto US 2002/0017527 A1 Feb. 14, 2002
Abare US 6,627,016 B2 Sept. 30, 2003
Muirhead US 6,661,339 B2 Dec. 9, 2003
Brandner US 2005/0115973 A1 June 2, 2005
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Rejections
Appellants seek review of the following rejections:
I. Claims 11, 16–18, 21, 22, 24–26, and 28–32 are rejected under
35 U.S.C. § 103(a) as unpatentable over Muirhead and
Brandner;
II. Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Muirhead, Brandner, and Abare; and
III. Claims 23 and 27 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Muirhead, Brandner, and Goto.
SUMMARY OF DECISION
We AFFIRM.
OPINION
Rejection I
The Examiner concludes that the combination of Muirhead and
Brandner would have rendered the subject matter of claims 11, 16–18, 21,
22, 24–26, and 28–32 obvious to one of ordinary skill in the art at the time
of the invention. Ans. 5–10.
The Examiner finds that Muirhead discloses all of the elements of
claims 11, 16–18, 21, 22, 25, 26, and 29–32, except that Muirhead does not
disclose a “component includ[ing] a multilayer structure, wherein the
multilayer structure includes at least two layers of high-density polyethylene
(HDPE) between which a layer comprising an ethylene/vinyl alcohol
copolymer (EVOH) is inserted.” Id. at 6. The Examiner finds that Brandner
discloses a fuel tank and a component, wherein the component includes the
claimed multilayer structure to “help[] to prevent permeation.” Id. The
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Examiner concludes that it would have been obvious to one of ordinary skill
in the art at the time of the invention
to modify the system taught by Muirhead so as to form the
component from a multilayer structure, wherein the multilayer
structure includes at least two layers of high-density
polyethylene (HDPE) between which a layer comprising an
ethylene/vinyl alcohol copolymer (EVOH) is inserted, as taught
by Brandner, in order to help prevent fuel permeation.
Id. at 6–7.
Claims 11, 16–18, 21, 22, 25, 26, and 29–32
Appellants raise several arguments in response to this rejection.1 We
address each.
First, Appellants assert that “no reasonable combination of Muirhead
and Brandner would result in the unique arrangement recited in each of
Claims 11 and 18.” Br. 9. Appellants contend that Muirhead’s flange that
includes conical surfaces only makes sense in the context of a flange that is
utilized as an intermediate element to affix a component to a fuel tank. Id.
In particular, Appellants assert that “if one were to eliminate the flange plate
from the Muirhead tank and weld accessories directly to the tank as set forth
in Brandner, there would be no reason to keep the conical recess of
Muirhead.” Id. at 10. Thus, Appellants contend that the combination of
Muirhead and Brandner would not result in a “component including a

1 Appellants argue independent claims 11 and 18 together and do not
separately argue claims 16, 17, 21, 22, 25, 26, and 29–32. Br. 14;
see generally id. at 8–16. We select claim 11 as representative.
Accordingly, claims 16–18, 21, 22, 25, 26, and 29–32 stand or fall with
claim 11. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
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portion with a conical surface as well as a tank and component that each
include[s] a multilayer structure.” Id. at 11.
In response to Appellants’ argument, the Examiner explains that the
rejection did not propose replacing Brandner’s component (i.e., fill nipple)
for Murihead’s component 104 (i.e., flange plate); rather, Brandner “was
used for the teaching of the multilayer structures of a component in order to
prevent fuel permeation into the surrounding environment.” Ans. 13
(citation omitted). Thus, because component 104 (i.e., flange plate) of
Muirhead was “not being eliminated . . . the conical surface would still be
in[]tact and serve the purpose disclosed by Muirhead.” Id.
Appellants’ argument is premised upon an incorrect assumption that
the Examiner’s rejection proposed replacement of one component with the
other. As explained above, the rejection did not so propose. Accordingly,
Appellants’ argument is not responsive to the rejection and, hence, not
persuasive.
Second, Appellants assert that Muirhead’s plate 104 does not disclose
a component including a tubular shape. Br. 11-12.
In response to Appellants’ argument, the Examiner explains that plate
104 “includes tubular threaded portion 119.” Ans. 14 (citing Muirhead,
Figs. 13, 19, 20).
Claim 11 recites, in relevant part, “[a] system for fastening, by
welding, a component to a motor vehicle fuel tank, the system comprising: a
component including a portion with a conical surface profile, the component
including a tubular shape.” Br. 19, Claims App’x. While the claimed
component must “includ[e] a tubular shape,” the entire component need not
be tubular.
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Muirhead discloses that interior wall 118 of flange plate 104 “may
include a threaded aspect 119.” Muirhead, col. 11, l. 65 – col. 12, l. 2;
Fig. 13. “The threads receive a bushing 121 to that compresses [sic] a plate
122 against the interior wall to close the aperture.” Id. at col. 12, ll. 2–4.
In light of Muirhead’s disclosure, we agree with the Examiner that
Muirhead’s threaded aspect 119 included on flange plate 104 teaches that
component 104 includes a tubular shape.2 Accordingly, Appellants’ second
argument is not persuasive.
Third, Appellants contend that the combination of Muirhead and
Brandner does not lead to the system of claim 11, “in which along the entire
surface where the component is fastened to the tank, a number of superposed
layers is equal to a sum of a number of layers in the component and a
number of layers in the tank.” Br. 12–13. In particular, Appellants assert
that Brandner “describes that the fill nipple should be a multilayer structure
simply to avoid fuel diffusion through the walls of the fill nipple itself.” Id.
at 12. Appellants explain that fuel diffusion through the walls of the fill
nipple is “unrelated to the specific permeability problem occurring at the
weld.” Id. Appellants contend that to address permeability at the weld,
Brandner “provides an additional cover 66.” Id. As such, Appellants assert
that “any reasonable combination of Muirhead with Brandner would be a
monolayer flange plate, welded to the conical recess of the fuel tank, and
covered by an additional impermeable cover.” Id. Thus, Appellants contend
that when Brandner’s cover is included in the combination, “the number of

2 Appellants did not contest this finding by the Examiner.
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superposed layers is not equal to a sum of a number of layers in the
component and a number of layers in the tank.” Id.at 13.
Again, Appellants’ argument is not directed to the proposed
combination relied upon by the Examiner. First, Brandner essentially
provides two solutions to the problem of permeability: (1) including a
multilayer structure component (Brandner ¶ 20) and (2) providing a cover
(id. at ¶ 27). Second, that the Examiner relied on one proposed solution—
the multilayer structure—rather than the other proposed solution—a cover—
does not render the rejection erroneous because Brandner discloses that
either or both solutions can reduce permeability. Id. at ¶ 20 (indicating that
the multilayer component construction greatly reduces the potential for
permeation of fuel or fuel vapors through the wall); id. at ¶ 27 (indicating
that a cover can “further prevent fuel vapor from entering the atmosphere”).
Thus, the Examiner’s articulated reasoning has a rational underpinning and
supports the legal conclusion of obviousness. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007). Accordingly, because the Examiner’s
proposed combination did not include, and is not required to include, the
cover, Appellants’ third argument is not persuasive.
For the foregoing reasons, we sustain Rejection I as applied to claims
11, 16–18, 21, 22, 25, 26, and 29–32.
Claims 24 and 28
With respect to claims 24 and 28, the Examiner finds that Muirhead
“discloses the thickness of a wall portion of the tank forming the conical
surface of the tank is a same thickness as a thickness of a wall portion of the
tank surrounding the conical surface of the tank.” Ans. 7–8 (claim 24),
10 (claim 28) (citing Muirhead, Figs. 11, 13).
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Appellants assert that Brandner’s tank does not have the same
thickness as recited in claims 24 and 28, and that the Examiner “relies on the
thickness of the single layer flange described in Muirhead for the features
recited in Claims 24 and 28 without regard for how that thickness would
change once the materials of Brandner are utilized.” Br. 15. Thus,
Appellants contend the Examiner impermissibly picked and chose different
aspects from the different references without considering the impact of other
portions of the references. Id.
Claim 24, which depends from claim 21, and claim 28, which depends
from claim 25, each recite “wherein the thickness of a wall portion of a tank
forming the conical surface of the tank is a same thickness as a thickness of
a wall portion of the tank surrounding the conical surface of the tank.”
Br. 21-22, Claims App’x. Thus, it is the thickness of a wall portion of the
tank and not of the component that is recited in claims 24 and 28. Id.;
see also Ans. 15.
The Examiner’s proposed combination does not rely upon Brandner’s
tank; rather, it relies upon Muirhead’s tank. See, e.g., Ans. 5. Appellants’
argument does not persuade us that if one of ordinary skill in the art were
relying upon the multilayer construction of Brandner’s component to modify
Muirhead’s component, one of ordinary skill in the art must also modify
Muirhead’s tank in light of Brandner’s tank. Appellants have not
convincingly explained why one modification necessarily requires or
dictates that the other modification be made. Without more, we disagree
with Appellants that the Examiner’s proposed combination, relying solely on
the multilayer construction of Brandner’s component, was erroneous.
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Accordingly, Appellants’ argument is not persuasive and we thus
sustain Rejection I as applied to claims 24 and 28.
Rejections II and III
Appellants rely upon the dependency of claim 20 (Rejection II) and
claims 23 and 27 (Rejection III) from claims 11 and 18 in arguing the
patentability of claims 20, 23, and 27, and do not raise additional arguments
in response to Rejections II and III. Br. 16–17.
For the reasons we explained with respect to Rejection I, we sustain
Rejections II and III.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 11, 16–
18, and 20–32.
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).
AFFIRMED

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