Ex Parte Andersen et al

Patent Trial and Appeal Board

Mar 15, 2016

11852684 (P.T.A.B. Mar. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111852,684 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.
A2000-706319 1678
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 KLAUS MOTH 1
Appeal2014-009318
Application 11/852,684
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, and 3-18. 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 April 22, 2014. ("Br."), 3.
Appeal2014-009318
Application 11/852,684
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 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 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 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 valve during the second mode of operation
when the system is on standby, and
monitor a rate of pressure decay in the feed line during
the second mode of operation based on input from the pressure
sensor.
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Application 11/852,684
REJECTIONS2
The Examiner maintains the following grounds of rejection:
Claims 1 and 3-18 stand provisionally rejected on the ground of non-
statutory obviousness-type double patenting over claim 1 of copending U.S.
patent application 11/852,653 ("the '653 application").
Claims 1, 3-6, 9, 11-14, and 17 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 Al, published
September 11, 2008) ("Yoshida"). 3
Claim 18 stands rejected under 35 U.S.C. § 103(a) as obvious over
Pearson in view of Yoshida and Kolodziej et al. (US 7,087,335 B2, issued
August 8, 2006) ("Kolodziej").
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, 3-6, 9, 11-14, 17, and 18 are unpatentable for obviousness, and we
therefore sustain these rejections. In addition, we sustain the Examiner's
2 Final Office Action issued May 23, 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. 2-3; Appeal Brief, generally.
Accordingly, citations to Yoshida in this document refer to the U.S. national
stage application.
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Appeal2014-009318
Application 11/852,684
non-statutory obviousness-type double patenting because Appellants do not
contest it. We add the following for emphasis.
Rejection of Claims l, 3-6, 9, 11-14, and 17 as obvious over Pearson and
Yoshida
Appellants argue claims 1, 3-6, 9, 11-14, and 17 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. 2 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 comprises 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 ); a feed line 9 connecting the fuel cell stack 14 to a
fuel supply 11; a first valve 18 disposed along the feed line that regulates the
flow of fuel to the fuel cell stack; and a controller 28 in communication with
the valve 18. Final Act. 2-3 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 mention using 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 to monitor a rate of pressure decay, 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. 3 citing Yoshida
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Appeal2014-009318
Application 11/852,684
Abstract, Fig. 1. Specifically, referring to Figure 1 of Yoshida, the
Examiner relies on 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. 3. 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 7 4 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, P6 l to monitor the pressure in the fuel cell
supply path 7 4 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 monitor a
rate of pressure decay in the feed line when the back-up power system is on
standby based on input from 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
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Application 11/852,684
combination of references."); In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(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 P5, P6, and P61 to monitor the pressure in the feed
line 74 over time when fuel is not being supplied to the fuel cell 20.
Yoshida iii! 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 over
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Application 11/852,684
time when fuel is not being supplied to the fuel cell to monitor fuel supply
path function (this monitoring constitutes monitoring a rate of pressure
decay in the feed line based on input from the pressure sensor), 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, 3-6, 9, 11-
14, and 17 would have been obvious over the combined disclosures of
Pearson and Yoshida.
Rejection of Claim 18 as obvious over Pearson, Yoshida, and Kolodziej
Appellants rely on contentions that the Examiner erred in rejecting the
base claim, independent claim 1, from which claim 18 depends, and argue
that the Kolodziej reference relied upon by the Examiner in the rejection of
this claim fails to remedy the deficiencies of Pearson and Yoshida. Br. 7.
Because we are not persuaded of reversible error in the Examiner's rejection
of claim 1, we also sustain the rejection of claim 18 under 35 U.S.C.
§ 103(a).
Rejection of Claims 1 and 3-18 for non-statutory obviousness-type double
patenting
Appellants do not contest the Examiner's provisional rejection of
claims 1 and 3-18 on the ground of non-statutory obviousness-type double
patenting over claim 1 of the '653 application. Br., generally. We
accordingly summarily sustain this rejection without comment. 37 C.F.R.
§ 41.37(c)(l)(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
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Application 11/852,684
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.").
DECISION
The Examiner's rejections of claims 1, 3-6, 9, 11-14, 17, and 18
under 35 U.S.C. § 103(a), and provisional rejection of claims 1and3-18 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
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