Appeal No. 95-4002
Application 08/081,858
fuel level sensing. The particular spacing of the float in relation to the
pocket provides no novel or unexpected result and solves no stated
problem and thus would have been a mere matter of choice and therefor
obvious. See In re Kuhle, 526 F.2d 553, 118 USPQ 7 (CCPA 1975).
The examiner’s position in not well taken. Of course, if Durrett were to be
provided with a conventional fuel level sensor having a pivoted arm mounted float, and
if the sensor were to be located such that the float is positioned closely adjacent the
baffle wall, as proposed by the examiner, the resulting structure would lessen the float
movement due to fluid movement (sloshing). This fact, however, does not provide the
proper motivation for combining the teachings of these references. It is the teachings
of the prior art taken as a whole which must provide the motivation or suggestion to
combine the references. See Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044,
1051, USPQ2d 1434, 1438 (Fed. Cir. 1988); Interconnect Planning Corp. v. Feil, 774
F.2d 1132, 1143, 227 USPQ 543, 551 (Fed. Cir. 1985) and In re Deminski, 796 F.2d
436, 442-43, 230 USPQ 313, 315-16 (Fed. Cir. 1986). Here, only appellant has
suggested the fuel level sensor location called for in claims 17 and 22, and the benefit
to be derived therefrom. As the court stated in Uniroyal, 837 F.2d at 1051, 5 USPQ at
1438, “it is impermissible to use the claims as a frame and the prior art references as a
mosaic to piece together a facsimile of the claimed invention.”
The examiner’s reliance on In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA
1975), in an attempt to dismiss the particular claimed location for the fuel sender
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