Ex Parte Andersen et alDownload PDFPatent Trial and Appeal BoardMar 15, 201611852653 (P.T.A.B. Mar. 15, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111852,653 09/10/2007 37462 7590 03/17/2016 LANDO & ANASTASI, LLP ONE MAIN STREET, SUITE 1100 CAMBRIDGE, MA 02142 FIRST NAMED INVENTOR Claus Aabjerg Andersen 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. A2000-706219 1620 EXAMINER Y ANCHUK, STEPHEN J ART UNIT PAPER NUMBER 1723 NOTIFICATION DATE DELIVERY MODE 03/17/2016 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): docketing@LALaw.com gengelson@LALaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CLAUS AABJERG ANDERSEN and THOMAS ENNE HJORT 1 Appeal2014-009317 Application 11/852,653 Technology Center 1700 Before CHUNG K. PAK, JEFFREY T. SMITH, and WESLEY B. DERRICK, Administrative Patent Judges. DERRICK, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134(a) from the Examiner's maintained final rejection of claims 1-16. We have jurisdiction pursuant to 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Appellants' claimed invention is directed to a power supply system for providing back-up power to a data center electrical load. Claim 1. 1 Appellants identify Schneider Electric IT Corporation as the Real Party in Interest. Appeal Brief filed May 19, 2014 ("Br."), 3. Appeal2014-009317 Application 11/852,653 Claim 1 is illustrative: 1. A back-up power supply system for providing power to a datacenter electrical load, the system having a first mode of operation when the system is online to provide back-up power to the data center electrical load, and a second mode of operation when the system is on standby and not providing back-up power to the data center electrical load, the system compnsmg: a first power input to receive power from a first power source; a back-up power input to receive power from a back-up power source; a power output configured to provide power from at least one of the first power source and the back-up power source to the data center electrical load; a fuel cell stack electrically connected to the back- up power input; a feed line fluidly connecting the fuel cell stack to a fuel supply; a pressure sensor disposed along the feed line, configured to detect a pressure within the feed line; a first valve disposed along the feed line, configured to regulate flow of fuel to the fuel cell stack; and a control system, in communication with the pressure sensor and the first valve, configured to: selectively provide power at the power output and control the back-up power supply system to provide power at the power output from the fuel cell stack in the first mode of operation and to provide power from the first power source at the power output in the second mode of operation, actuate the first valve to supply fuel to the fuel cell stack during the first mode of operation to provide back- up power from the fuel cell stack when the system is online, close the first valve during the second mode of operation when the system is on standby, and 2 Appeal2014-009317 Application 11/852,653 induce a feed line condition during the second mode of operation to verify feed line functionality with the pressure sensor. REJECTIONS2 The Examiner maintains the following grounds of rejection: Claim 1 stands provisionally rejected on the ground of non-statutory obviousness-type double patenting over claim 1 of copending U.S. patent application 11/852,684 ("the '684 application"). Claims 1, 11, and 14 stand rejected under 35 U.S.C. § 103(a) as obvious over Pearson (US 2004/0126635 Al, published July 1, 2004) ("Pearson") in view of Yoshida (US 2008/0220303 A 1, published September 11, 2008) ("Yoshida"). 3 Claims 2-10, 12, 13, 15, and 16 stand rejected under 35 U.S.C. § 103(a) as obvious over Pearson in view of Yoshida and Kotani et al. (US 2006/0115700 Al, published June 1, 2006) ("Kotani"). DISCUSSION Having carefully reviewed the Examiner's rejections under 35 U.S.C. § 103(a) in light of arguments advanced by Appellants in the Appeal Brief, we are not persuaded that the Examiner erred reversibly in concluding that claims 1-16 are unpatentable for obviousness, and we therefore sustain these 2 Final Office Action issued July 18, 2013 ("Final Act."); Examiner's Answer issued June 19, 2014 ("Ans."). 3 Appellants do not contest the Examiner's reliance on the published U.S. national stage application of WO 2005/088755 Al (US 2008/0220303 Al, published September 11, 2008). Final Act. 3--4; Appeal Brief, generally. Accordingly, citations to Yoshida in this document refer to the U.S. national stage application. 3 Appeal2014-009317 Application 11/852,653 rejections. In addition, we sustain the Examiner's non-statutory obviousness-type double patenting because Appellants do not contest it. We add the following for emphasis. Rejection of Claims l, 11, and 14 as obvious over Pearson and Yoshida Appellants argue claims 1, 11, and 14 as a group on the basis of claim 1, to which we limit our discussion. Br. 4-7. The Examiner finds that Pearson discloses a back-up power supply system for a data center. Final Act. 4 citing Pearson Abstract, ,-i,-i 151-154. Referring to Figure 1 of Pearson, the Examiner relies on the disclosure of a back-up power supply system comprising a battery 24 (corresponding to the first power source and input recited in claim 1) and a fuel cell stack 14 (corresponding to the back-up power source and input recited in claim 1) that both provide power to a data center load 12 (corresponding to the power output recited in claim 1 ); feed line 9 connecting the fuel cell stack 14 to a fuel supply 11; valve 18 disposed along the feed line that regulates the flow of fuel to the fuel cell stack; and controller 28 in communication with the valve 18. Final Act. 4 citing Pearson Fig. 1, ,-i 51. Pearson discloses that the controller 28 provides a signal to an actuator 30 in order to adjust the flow of reactant (fuel) to the fuel cell stack 14 via the valve 18. Pearson ,-i 66. Although Pearson does not specifically mention a controller configured to control and adjust the flow of fuel in a supply path from a fuel source to a fuel cell stack, while pressure sensors measure the gas pressure in the supply path, the Examiner finds that Yoshida discloses a fuel cell system in which the pressure of fuel in a supply path from a fuel source to a fuel cell is regulated. Final Act. 4 citing Yoshida Abstract, Fig. 1. Specifically, referring to Figure 1 of Yoshida, the Examiner relies on 4 Appeal2014-009317 Application 11/852,653 Yoshida' s disclosure that valves (H201, H200, H2 l) and pressure sensors (P5, P6, P61) in a fuel supply path 74 from a fuel source 30 to a fuel cell 20 adjust and regulate the flow of fuel gas along the supply path 74. Final Act. 4. Yoshida discloses that the quantity of fuel supplied to the fuel cell is controlled by a computer control unit 50, which sends a signal that results in adjustment of the degree to which an on-off valve H200 in the supply line 74 is opened. Yoshida Abstract, iii! 46, 51. Yoshida also discloses that the computer control unit 50 utilizes measurements provided by the pressure sensors P5, P6, P61 to monitor the pressure in the fuel cell supply path 74 over time when the supply of fuel to the path is turned off. Yoshida Figs. 3, 4; iii! 51, 59-69. Appellants argue that Pearson's controller is not capable of performing the functions recited in claim 1 without further programming, and Pearson's controller therefore differs structurally from the recited controller. Br. 5-6. Specifically, Appellants contend that Pearson does not disclose or suggest a control system configured to actuate a valve to supply fuel to a fuel cell stack when the back-up power system is online, to close the valve when the back-up power system is on standby, and to induce a feed line condition when the back-up power system is on standby to verify feed line functionality with a pressure sensor. Br. 6. We are unpersuaded by this argument because it is based only on Pearson and therefore does not take into account the combined disclosures of Pearson and Yoshida. Br. 5-6; In re Merck & Co., 800 F .2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references."); In re Keller, 642 F.2d 413, 425 (CCPA 1981) 5 Appeal2014-009317 Application 11/852,653 (The test for obviousness "is what the combined teachings of the references would have suggested to those of ordinary skill in the art."). As discussed above, Pearson's controller 28 is configured to adjust the flow of fuel to the fuel cell stack 14 by providing a signal to the actuator 30 for valve 18. Pearson iJ 66. Consistent with this functionality of Pearson's controller, Yoshida's computer control unit 50 is configured to control and adjust the flow of fuel in a supply path from a fuel source to a fuel cell stack, while pressure sensors measure the gas pressure in the supply path. Yoshida Abstract, iii! 46, 51. Specifically, Yoshida' s computer control unit 50 is configured to send a signal that results in an on-off valve H200 (degree of opening adjustment valve) being opened in order to supply fuel to the fuel cell 20, and is configured to send a signal that results in closure of the on-off valve H200 to end the supply of fuel to the fuel cell 20, while pressure sensors P6, P61, and P5 measure the pressure along the supply line 74. Id. In addition, Yoshida's computer control unit 50 utilizes measurements taken by the pressure sensors P6, P6 l, and P5 to verify the functionality of the fuel supply path 74 when no fuel is being supplied to the fuel cell 20. Yoshida iJiJ 59-69, Figs. 3, 4. One of ordinary skill in the art seeking to generate back-up power for a data center electrical load reasonably, therefore, would have been led, through no more than ordinary skill and creativity, to utilize Yoshida's computer control unit and pressure sensors in the back-up power supply system disclosed in Pearson in order to generate back-up power from the fuel cells only when it is needed by controlling the supply of reactant gas to the fuel cells, and to monitor the fuel gas pressure in the supply line when no 6 Appeal2014-009317 Application 11/852,653 fuel is being supplied to the fuel cell to ensure that the fuel supply path is functioning properly, as recited in claim 1. Accordingly, on this record, we are unpersuaded of reversible error in the Examiner's determination that the subject matter of claims 1, 11, and 14 would have been obvious over the combined disclosures of Pearson and Yoshida. Rejection of Claims 2-10, 12, 13, 15, and 16 as obvious over Pearson, Yoshida, and Kotani Appellants rely on contentions that the Examiner erred in rejecting the base claim, independent claim 1, from which claims 2-10, 12, 13, 15, and 16 depend, and argue that the Kotani reference relied upon by the Examiner in the rejections of these claims fails to remedy the deficiencies of Pearson and Yoshida. Br. 6-7. Because we are not persuaded of reversible error in the Examiner's rejection of claim 1, we also sustain the rejection of claims 2- 10, 12, 13, 15, and 16 under 35 U.S.C. § 103(a). Rejection of Claim 1 for non-statutory obviousness-type double patenting Appellants do not contest the Examiner's rejection of claim 1 on the ground of non-statutory obviousness-type double patenting over claim 1 of the '684 application. Br., generally. We accordingly summarily sustain this rejection without comment. 37 C.F.R. § 41.37( c )(1 )(iv); see also Manual of Patent Examining Procedure (MPEP) § 1205.02 (9th ed. Mar. 2014) ("If a ground of rejection stated by the examiner is not addressed in the appellant's brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it, unless the examiner subsequently withdrew the rejection in the examiner's answer."). 7 Appeal2014-009317 Application 11/852,653 DECISION The Examiner's rejections of claims 1-16 under 35 U.S.C. § 103(a), and provisional rejection of claim 1 for non-statutory obviousness-type double patenting, are AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 ). AFFIRMED 8 Copy with citationCopy as parenthetical citation