Ex Parte Maier et alDownload PDFPatent Trial and Appeal BoardOct 30, 201311304347 (P.T.A.B. Oct. 30, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/304,347 12/15/2005 Oliver Maier GP-306913 6064 65798 7590 10/30/2013 MILLER IP GROUP, PLC GENERAL MOTORS CORPORATION 42690 WOODWARD AVENUE SUITE 200 BLOOMFIELD HILLS, MI 48304 EXAMINER WEST, JEFFREY R ART UNIT PAPER NUMBER OPLA MAIL DATE DELIVERY MODE 10/30/2013 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 OLIVER MAIER, SASCHA SCHAEFER, THOMAS WEISPFENNING, PETER WILLIMOWSKI, and ROLF ISERMANN ____________ Appeal 2011-007405 Application 11/304,347 Technology Center 2800 ____________ Before EDWARD C. KIMLIN, TERRY J. OWENS, and CATHERINE Q. TIMM, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1 and 10 are illustrative: 1. A system for providing feed-forward flow control of a fluid being pumped through a pipe by a pump, said system comprising: a system resistance characteristic processor, said system resistance characteristic processor configured to: calculate a Reynolds number based on a velocity of the fluid, a diameter of the pipe and a kinematic viscosity of the fluid; Appeal 2011-007405 Application 11/304,347 2 calculate a pressure loss value based on a pressure loss number, a density of the fluid and the velocity of the fluid, wherein the pressure loss number is a function of the Reynolds number; and calculate a delivery head value based on the pressure loss value, the density of the fluid and a gravitational acceleration of the fluid; and a pump characteristic processor, said pump characteristic processor configured to determine a desired pump speed based on the delivery head value and a predetermined volume flow set-point value of the fluid. 10. A fuel cell system comprising: a fuel cell stack; a coolant loop for directing a cooling fluid through the stack; a radiator positioned in the coolant loop external to the stack; a pump for pumping the cooling fluid through the coolant loop and the stack; a by-pass valve positioned in the coolant loop for by-passing the radiator; and a controller for determining the speed of the pump to control the volume flow of the cooling fluid and the temperature of the stack, said controller employing a feed-forward flow control algorithm that calculates a delivery head value of the flow resistance in the coolant loop and the fuel cell stack and the position of the by-pass valve to determine the speed of the pump. The Examiner relies upon the following references in the rejection of the appealed claims: Bains 4,536,789 Aug. 20, 1985 Johnson, Jr. 4,681,264 Jul. 21, 1987 Kudou et al. (Kudou) US 2003/0165725 A1 Sep. 4, 2003 Appellants' claimed invention is directed to a system, e.g., a fuel cell, comprising feed-forward flow control of a fluid being pumped through a pipe. The system calculates a delivery head value based on the pressure loss value, the density of the fluid being pumped and a gravitation acceleration of Appeal 2011-007405 Application 11/304,347 3 the fluid, and uses the calculated delivery head value to determine a desired pump speed. Appealed claims 1-21 stand rejected under 35 U.S.C. § 112, first paragraph, enablement requirement. Claims 14-21 also stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Claim 10 stands rejected under 35 U.S.C. § 102(b) as being anticipated by Kudou. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Kudou in view of Bains, and claim 12 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Kudou in view of Bains and Johnson, Jr. We have thoroughly reviewed each of Appellants' arguments for patentability. However, we find that the Examiner's rejections are free of reversible error. We consider first the Examiner's rejection of all the appealed claims under § 112, first paragraph, enablement requirement.1 Claim 1 defines a pump characteristic processor configured to determine a desired pump speed based on the delivery head value and a predetermined volume flow set-point value of the fluid. Appellants' Specification sets forth an equation for calculating the delivery head value, H, which equation includes three unknown constants, a1, a2, and a3 (See equation 6 in Specification). However, the Examiner has articulated a reasonable position that "the specification does not define the variables a1, a2, or a3, and provides no other description to one have ordinary skill in the art the manner in which solve for the speed using formula (6) or the manner in which the units for 1 Since Appellants do not present separate arguments for any particular claim, claims 1-21 stand or fall together. Appeal 2011-007405 Application 11/304,347 4 unknown variables, a1, a2, and a3, units for speed, assume to be m/s, and the units for volume flow, m3/s, can be properly combined to obtain the delivery head value H in meters (length)" (Ans. 6, second para.). The Examiner further explains that "[w]ithout any such description and without any definition of the variable a1, a2, or a3, one having ordinary skill in the art would not be able to make/use the equation, and, consequently, would not be able to make/use the claimed 'determine a desired pump speed based on the delivery head value and a predetermined volume flow set-point value of the fluid'" (Id.). Hence, the Examiner takes the reasonable position that without prior knowledge of a1, a2, and a3, "the specification does not give clear guidance on how the claimed process is to be carried out" (Ans. 17, first para.). Accordingly, it is our view that the Examiner has effectively shifted the burden to Appellants to demonstrate that one of ordinary skill in the art would be able to practice the claimed invention of determining a desired pump speed based on the delivery head value and a predetermined volume flow set-point value of the fluid. Appellants, however, have not shouldered their burden but offer only the following conclusory remarks: In the present case, one of ordinary skill in the art knows and understands how to evaluate a quadratic polynomial, and if necessary, how to solve for the constant coefficients, which as also understood by one of ordinary skill in the art, are application specific. Appellants respectfully submit that solving for constant coefficients is a basic skill that is well within the capabilities for a person of ordinary skill in the art without any undue experimentation. (Reply Br. 3, penultimate para.). Appeal 2011-007405 Application 11/304,347 5 In our judgment, Appellants' conclusory remarks fall far short of establishing on the record that one of ordinary skill in the art would understand how to determine the values of the three unknown constants without undue experimentation and, consequently, calculate a delivery head value which enables a pump characteristic processor to determine a desired pump speed. Appellants have proffered no declaration by the inventors, or any other scientific evidence, which demonstrates that the claimed invention can be practiced by one of ordinary skill in the art without undue experimentation. In the absence of such, the Examiner's reasonable position stands unrebutted. Turning to the § 101 rejection of claims 14-21, we note that Appellants have not presented any substantive argument against the Examiner's rejection. Rather, Appellants argue that their amendment after final rejection should have been entered by the Examiner in order to place the claimed invention in statutory form. However, the Examiner's decision to not enter the amendment is a petitionable matter that is not properly before us for review. Accordingly, we will sustain the Examiner's § 101 rejection, pro forma. We will also sustain the Examiner's §102 rejection of claim 10. Kudou, like Appellants, discloses a control system for a fuel cell system comprising a fuel cell stack wherein the controller is configured to determine a desired speed of a pump which controls the volume flow of a cooling fluid which controls the temperature of the stack. As set forth by the Examiner, Kudou's system employs "a feed-forward flow control algorithm that calculates a delivery head value of the flow resistance in the coolant loop Appeal 2011-007405 Application 11/304,347 6 and the fuel cells stack to determine the speed of the pump (i.e., the controller determines a required speed of the pump based on a calculated delivery flow amount of cooling water and the open position of the bypass value [sic] valve] '23' (0086, lines 1-20 and 0092, lines 1-20))" (Ans. 8, last para.). Appellants do not dispute the Examiner's factual findings but set forth the singular argument that they "can find no mention [in Kudou] of a delivery head value, much less determining a desired speed of a pump based on a calculated delivery head value" (Prin. Br. 17, last para.). However, although Kudou does not use the expression "delivery head value" the reference uses the same parameters as Appellants for controlling the speed of the pump and, ultimately, the temperature of the fuel stack, i.e., the volume flow set-point of the fluid. We note that claim 10 on appeal does not recite any particular mathematical expression for determining the delivery head value, and Appellants acknowledge that Equations (5) and (6) are only two of many equations for calculating the delivery head value of a pump (Reply Br. 2, second para.). Consequently, since classifying a pump by its head is well-known and conventional in the art, and Kudou, like Appellants, controls the fluid flow and speed of the pump to regulate the cell temperature, we agree with the Examiner that the reference fairly describes a system which employs a control algorithm to calculate a so-called delivery head value in controlling the speed of the pump. Manifestly, an algorithm used by one of ordinary skill in the art to practice the control system of Kudou would necessarily involve a relationship between the pump speed and the volume flow set-point of the fluid, as well as other conventional Appeal 2011-007405 Application 11/304,347 7 parameters such as the viscosity of the fluid, the cross sectional area of the pipe, and the temperature of the fluid. Appellants have failed to provide any meaningful distinction between systems within the scope of the appealed claim for controlling the speed of the pump and the system disclosed by Kudou for effecting the same control. Reciting the expression "delivery head value" does not serve to establish a distinction over the control system of the reference. Appellants have not argued the Examiner's § 103 rejection of claims 11 and 12 which, therefore, we summarily affirm. In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner’s decision rejecting the appealed claims is affirmed. The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED cam Copy with citationCopy as parenthetical citation