Ex Parte Andersen et alDownload PDFPatent Trial and Appeal BoardMar 15, 201611852684 (P.T.A.B. Mar. 15, 2016) Copy Citation 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. 2 Appeal2014-009318 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. 3 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 4 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 5 Appeal2014-009318 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 6 Appeal2014-009318 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 7 Appeal2014-009318 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 8 Copy with citationCopy as parenthetical citation