Jeffrey MorrisDownload PDFPatent Trials and Appeals BoardAug 31, 202014756700 - (D) (P.T.A.B. Aug. 31, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/756,700 10/01/2015 Jeffrey Morris 8242 5266 77083 7590 08/31/2020 Paul M. Denk 763 South New Ballas Ste. 305 St. Louis, MO 63141 EXAMINER NGUYEN, QUANG X.L. ART UNIT PAPER NUMBER 2853 MAIL DATE DELIVERY MODE 08/31/2020 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 JEFFREY MORRIS Appeal 2019-006182 Application 14/756,700 Technology Center 2800 Before CATHERINE Q. TIMM, GEORGE C. BEST, and MICHAEL G. McMANUS, Administrative Patent Judges. TIMM, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claim 21. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as the inventor, Jeffrey Morris, and the company to which he has assigned the ’700 Application, Husky Corporation. Appeal Br. 1. Appeal 2019-006182 Application 14/756,700 2 CLAIMED SUBJECT MATTER The claims are directed to a drum tank gauge device. The gauge device is depicted in Figures 1 to 4. Claim 21, the only pending claim, is reproduced below with reference numerals from the figures to illustrate the structure of the claim: 21. A drum tank gauge device of unitary construction for use in measuring the quantity of liquid petroleum products in a steel drum tank, comprising: a housing [Fig. 1:12] having a level indication display [14], an audible alarm [speaker or buzzer 16], and a visual alarm [LED 18]; a level sensor shaft [20] having a capacitance sensor [24] positioned at a lower end of said shaft when inserted furtherest into a drum tank; a threaded cap [22] for securing the housing [12] and the level sensor shaft [20] in place within a drum tank; said level indication display [14] responsive to the detections of said capacitance sensor located at the lower end of said level sensor shaft comprising a first LED [26] for indicating an approximate 90% capacity of liquid petroleum within said drum tank, a second LED [28] for indicating an approximate 75% capacity, a third LED [30] for indicating an approximate 50% capacity, a fourth LED [32] for indicating an approximate 25% capacity, and a fifth LED [34] for indicating an approximate a low 5% capacity of liquid petroleum remaining within the drum tank, said LED’s [sic] being vertically aligned; said level indicator [sic, indication] display [14] and associated alarms [16, 18] provided for alerting an operator that additional petroleum products needs to be added in the event that the low level indicator displays that there is 5% or less capacity remaining in the tank; Appeal 2019-006182 Application 14/756,700 3 said visual alarm [18] is an LED provided at the top of said housing; said audible alarm is one of a speaker and buzzer [16], and said housing [12] further comprises a switch [Fig. 4:70] for muting the operation of the audible alarm; said housing [12] further having a pair of sides [Figs. 2– 3:38, 42], and each side [38, 42] having a touch sensitive switch [40, 44] connected to an integrated circuit [Fig. 4:50] and when one or both switches [40, 44] are initiated, activating said capacitance sensor [Fig. 1:24] for operating the drum tank gauge device; a battery [Fig. 4:52] positioned within the housing [12] for electrically powering the drum tank gauge device during application; the integrated circuit [50] provided within the housing [12] and incorporating a programmable microprocessor and which when initiated, providing for the liquid level indication display [14], the operations of the audible alarm, the operations of the visual alarm, and the capacitance sensor [24] provided at the lower end of said level sensor shaft [20]; said touch sensitive switches [40, 44] connected to the integrated circuit [50], and upon operation of said switches [40, 44] provided for actuating the capacitance sensor [24] for providing a signal to the integrated circuit [50] for the integrated circuit [50] and its microprocessor to determine the level of contents of the liquid petroleum within said drum, and for display of the liquid petroleum content upon the level indication display [14]. Appeal Br. 12–13 (Claims Appendix). Appeal 2019-006182 Application 14/756,700 4 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Shefsky US 5,065,139 Nov. 12, 1991 Mazurek US 2002/0166803 A1 Nov. 14, 2002 Ross, Jr. US 2009/0301190 A1 Dec. 10, 2009 REJECTIONS The Examiner maintains the following rejections. Claim 21 is rejected under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Final Act. 2. Claim 21 is rejected under 35 U.S.C. § 103 as being unpatentable over Mazurek in view of Shefsky, and further in view of Ross, Jr. Final Act. 3. OPINION Written Description The Examiner maintains the rejection of claim 21 under 35 U.S.C. § 112(a) as failing to comply with the written description requirement, Ans. 3, but Appellant fails to address it. Appeal Br. 7–11. Because Appellant fails to address the rejection, Appellant has failed to identify a reversible error in it. Thus, we sustain the rejection. Obviousness In arguing against the Examiner’s rejection of claim 21 as obvious over Mazurek in view of Shefsky and Ross, Jr., Appellant highlights differences between the teachings of each of the references and the claimed invention and then contends the Examiner’s rejection is based on hindsight because the “claimed invention is of a different structure, which functions Appeal 2019-006182 Application 14/756,700 5 differently, having touch sensitive switches on either side of its control housing, for determining the level of petroleum products remaining within his storage tank, when operating.” Appeal Br. 8–9. Appellant further contends that claim 21 is quite detailed in describing the use of all the various components and the prior art, even in combination, does not identify the level of structure provided in Appellant’s gauge as set forth in the claim. Appeal Br. 9–10. Appellant, however, does not identify reversible error in the Examiner’s specific findings and determinations as presented in the Final Action. Appeal Br. 8–11. Nor does Appellant reply to the Examiner’s well- reasoned responses to Appellant’s arguments. No reply brief was filed. After considering Appellant’s arguments against the Examiner’s findings and conclusions, we determine that Appellant has not identified a reversible error in the Examiner’s rejection. We adopt the Examiner’s findings, reasoning, responses, and conclusion as set forth in the Final Office Action and Answer. We add the following primarily for emphasis. Appellant’s claim is directed to a drum tank gauge device of unitary construction that includes a housing, a level sensor shaft with a capacitance sensor in its lower end, and a threaded cap. See claim 21; see also Fig. 1 (depicting a gauge with a housing 12, level sensor shaft 20 with capacitance sensor 24, and threaded cap 22). There is no dispute that all three references, Mazurek, Shefsky, and Ross, Jr., disclose or suggest gauges containing capacitive level sensors for measuring the level of liquid in containers, but the uses of the various sensing devices is different. Compare Final Act. 3–8, with Appeal Br. 8. As pointed out by Appellant, Mazurek discloses using the gauge “for gauging the level of grease that accumulates in a grease separator.” Appeal Appeal 2019-006182 Application 14/756,700 6 Br. 8; Mazurek ¶ 2. Appellant contends that Mazurek’s gauge “is not related to gauging the level of petroleum product, such as gasoline, contained within a tank, to provide for an indication of the various levels of product remaining, and when a significant low level of product remains, and needs to be replenished.” Appeal Br. 8. Although that is true, this difference in use alone does not provide evidence that the structure of the claimed gauge is patentably distinguishable from the gauges of the prior art. It is the structure that must be different, not the use. Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (“apparatus claims cover what a device is, not what a device does.”); In re Michlin, 256 F.2d 317, 320 (C.C.P.A. 1958) (“It is well settled that patentability of apparatus claims must depend upon structural limitations and not upon statements of function.”). That the differences in uses does not alone patentability distinguish the devices structurally is supported by Ross, Jr. Ross, Jr. provides evidence that using such gauges is for generally sensing the movement of liquid within containers. These containers can be of various types and hold various liquids as evidenced by the prior art. See Mazurek ¶ 9 (capacitance sensor senses amount of water of effluent to determine amount of grease in the effluent in a tank); Shefsky col. 1, ll. 6–10 (“The . . . invention relates generally to level sensing devices, and more particularly to devices for sensing the level of fluids in a container and reporting visually and audibly when a desired level is reached.”); Ross, Jr. ¶¶ 2, 33 (stating the invention as relating in part to capacitance sensors “for determining relative position or movement between objects, such as movement of liquid within a tank” and a suggested use of measuring fuel and other liquid levels in vehicle tanks). Appeal 2019-006182 Application 14/756,700 7 Contrary to Appellant’s argument, the difference in function does not provide persuasive evidence that the structure of Mazurek’s gauge is patentably different. This is especially true given the teachings of Shefsky and Ross, Jr. Appellant’s housing includes a level indictor display and two alarm devices responsive to the level of liquid detected by the sensor. Claim 21; see also Fig. 1. The level indicator display is a set of five LEDs. Fig. 1 at 26, 28, 30, 32, 34). One alarm device (16) emits an audible alarm and is either a speaker or buzzer. Fig. 1. The other alarm device (18) is a LED on the top of the housing that provides a visual alarm. Fig. 1. The housing has a pair of sides, each side having a touch sensitive switch (40). Figs. 2–3. Within the housing are an integrated circuit that provides signals to and from the display and alarm devices and a battery powering the gauge. Fig. 4 (integrated circuit 50 and battery 52). The Examiner finds that Mazurek teaches or suggests a number of the display and alarm elements, but acknowledges that Mazurek does not teach a battery positioned within a housing and turns to Shefsky to support a finding of a suggestion within the prior art to include a battery. Final Act. 6. The Examiner also relies on Shefsky as evidence supporting a finding of a suggestion of including a threaded cap for securing the gauge to a drum tank. Id. Appellant points out that Shefsky does not use a series of LEDs and is “just the opposite, functional-wise,” from what Appellant claims. Appeal Br. 8. But Appellant’s argument does not identify a reversible error in the Examiner’s findings as to the series of LEDs. The Examiner did not rely on Shefsky for a teaching of a series of LEDs. The Examiner relied on Mazurek Appeal 2019-006182 Application 14/756,700 8 for that teaching. Final Act. 5; Ans. 5; Mazurek Fig. 8, ¶ 82 (series of five “Level” lights or LEDs 194). As for the argument that Shefsky is “just the opposite functional-wise,” the Examiner does not rely on the function of Shefsky nor has Appellant advanced any argument against the combinability of the teachings of Mazurek and Shefsky based on the difference in function. The Examiner acknowledges that Mazurek and Shefsky do not teach touch sensitive switches on the sides of the housing and turns to Ross, Jr. as evidence to support a finding of a suggestion for using touch sensitive switches. Final Act. 7. Appellant contends that Ross, Jr.’s capacitive sensor has a different structure than that of the claim. Appeal Br. 9. But, again, the Examiner did not rely on Ross, Jr. for the structure of the capacitive sensor, the Examiner relied on Ross, Jr. for its teaching of using touch sensitive switches in gauge devices that rely on capacitive sensors to measure the movement of liquid levels. Final Act. 7; Ans. 5–6. Again, Appellant’s argument does not identify a reversible error in the Examiner’s findings. As to Appellant’s argument that the claim is quite detailed in describing the use of all the various components and the prior art does not identify to the level of structure provided in Appellant’s gauge, this generalized argument does not identify a reversible error in any of the specific findings or the conclusion of the Examiner. The Examiner has provided specific rationales to support each of the findings of reasons for making the modifications. Appellant has not persuaded us of error in those rationales. Nor has Appellant demonstrated that the specific differences between the claimed invention and the prior art would not have been obvious to a person having ordinary skill in the art at the time of the invention. Appeal 2019-006182 Application 14/756,700 9 CONCLUSION The Examiner’s decision to reject claim 21 is AFFIRMED. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21 112(a) Written Description 21 21 103 Mazurek, Shefsky, Ross, Jr. 21 Overall Outcome 21 TIME PERIOD FOR RESPONSE 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)(1)(iv) (2018). AFFIRMED Copy with citationCopy as parenthetical citation