Volkswagen AGDownload PDFPatent Trials and Appeals BoardNov 13, 20202020000887 (P.T.A.B. Nov. 13, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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. 15/148,583 05/06/2016 Peter Bach 1901.1010 8472 23280 7590 11/13/2020 Davidson, Davidson & Kappel, LLC 589 8th Avenue 22nd Floor New York, NY 10018 EXAMINER SLAWSKI, MAGALI P ART UNIT PAPER NUMBER 1721 NOTIFICATION DATE DELIVERY MODE 11/13/2020 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): ddk@ddkpatent.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER BACH and SAMUEL YEW Appeal 2020-000887 Application 15/148,583 Technology Center 1700 Before ROMULO H. DELMENDO, JEFFREY B. ROBERTSON, and SHELDON M. MCGEE, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 1 This Decision includes citations to the following documents: Specification filed May 6, 2016 and amended on November 8, 2018 (“Spec.”); Final Office Action mailed February 21, 2019 (“Final Act.”); Appeal Brief filed August 29, 2019 (“Appeal Br.”) (The Appeal Brief does not contain page numbers after the first page. As such, our reference to page numbers is from the pages as consecutively numbered following page 1.); Examiner’s Answer mailed September 18, 2019 (“Ans.”); and Reply Brief filed November 11, 2019 (“Reply Br.”). Appeal 2020-000887 Application 15/148,583 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1 and 4–17. Appeal Br. 5.3 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. CLAIMED SUBJECT MATTER Appellant states that the invention relates to a method for adjusting an operating gas flow in a fuel cell system, as well as a fuel cell system for carrying out the method. Spec. ¶ 2. Claim 1, the only independent claim on appeal, is reproduced below, and is illustrative of the claimed subject matter (Appeal Br., Claims Appendix 10): 1. A method for adjusting an operating gas flow in a fuel cell system, the fuel cell system including a fuel cell stack, a supply path for feeding operating gas to the fuel cell stack, an exhaust gas path for removing the operating gas from the fuel cell stack, as well as a recirculation line, including a conveyor for conveying flow of the operating gas, the recirculation line connecting the supply path and the exhaust gas path to each other, the method comprising the following steps: measuring a pressure p1 and a temperature T1 in the supply path upstream from a junction point between the recirculation line and the supply path; measuring a pressure p2 and a temperature T2 in the recirculation line upstream from the junction point; measuring a pressure p3 and a temperature T3 in the supply path downstream from the junction point; 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Volkswagen Aktiengesellschaft and Audi Aktiengesellschaft, as the real parties in interest. Appeal Br. 2. 3 Claims 2 and 3 have been cancelled. Appeal Br. 2. Appeal 2020-000887 Application 15/148,583 3 determining a recirculation ratio as a function of parameters T1, T2, T3, p1, p2 and p3; and adjusting the operating gas flow through the recirculation line as a function of the recirculation ratio. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Clawson et al. hereinafter “Clawson” US 2003/0170518 A1 September 11, 2003 Guenther et al. hereinafter “Guenther” US 2010/0104898 A1 April 29, 2010 Katano et al. hereinafter “Katano” US 2013/0202979 A1 August 8, 2013 Mazumder et al. hereinafter “Mazumder” US 2014/0144124 A1 May 29, 2014 REJECTIONS 1. The Examiner rejected claims 1 and 4–144 under 35 U.S.C. § 103 as unpatentable over Guenther and Mazumder. Final Act. 3–9. 2. The Examiner rejected claim 15 under 35 U.S.C. § 103 as unpatentable over Guenther, Mazumder, and Clawson. Final Act. 9–10. 4 Although the Examiner does not explicitly mention claim 14 in the statement of rejection or in the body of the rejection, it is clear the Examiner intended to reject claim 14. Final Act. 1. Appellant appears to understand the Examiner’s rejection applies to claims 1 and 4–14. Appeal Br. 2. Thus, the Examiner’s error is harmless. Appeal 2020-000887 Application 15/148,583 4 3. The Examiner rejected claims 16 and 17 under 35 U.S.C. § 103 as unpatentable over Guenther, Mazumder, Clawson, and Katano. Final Act. 10–11. OPINION Rejection 1 Appellant does not present separate arguments with respect to the claims subject to this rejection. See Appeal Br. 3–8. Accordingly, we select claim 1 as representative for disposition of this rejection. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner’s Rejection In rejecting claim 1 over Guenther and Mazumder, the Examiner found Guenther discloses a fuel cell system including a fuel cell stack 22 with a recirculation conduit 30, and a merging position 18, which is a junction point between the recirculation conduit or recirculation line and the supply path. Final Act. 3–4 citing Guenther ¶¶ 9, 16, 17; Fig. 1. The Examiner found Guenther discloses a flow control valve that may be controlled by suitable control algorithms to adjust operating gas flow. Id. at 4 citing Guenther ¶ 17. The Examiner found Guenther discloses the ratio of fresh fuel to recirculated gas in the mixture influences the temperature of the reformer and that adjusting the temperature of the gas mixture allows the reformer to operate in a desired temperature range. Id. citing Guenther ¶ 9. The Examiner found Guenther discloses adjusting the fuel ratio in response to load changes. Id. at 4–5 citing Guenther ¶¶ 9, 17. Appeal 2020-000887 Application 15/148,583 5 The Examiner found Guenther does not disclose measuring pressures and temperatures as claimed. Id. at 4. The Examiner found Mazumder discloses moving gaseous fuel through a circuit in order to make electricity, including recirculating exhaust gas and mixing it with freshly compressed air for reuse in the system. Id. at 5 citing Mazumder ¶ 2, Fig. 2. The Examiner found Mazumder discloses an ejector 38, which is at the junction point between Mazumder’s exhaust or recirculation line and air supply line. Id. citing Mazumder Figs. 2, 3. The Examiner found Mazumder discloses a controller 82 to open or close a control valve 80 to regulate flow rates of the first mixture, where the controller uses feedback from temperature sensors 88, 92, 96, and pressure sensors 86, 90, and 94 located around the ejector 38, which is a junction point. Id. at 5–6 citing Mazumder ¶¶ 24, 25; Fig. 2. The Examiner stated “[a] plain reading of Mazumder (figure 2) is that the pressure and temperature sensors measure pressure and temperature where the sensors are located and that the controller (82) determines an exhaust, or recirculation, ratio, as a function of the measured parameters.” Id. at 6. The Examiner concluded “in order to collect data with which to feed Guenther’s ratio- adjustment algorithms, it would have been obvious to one of ordinary skill in the art to measure three sets of temperature and pressure values around the junction point as claimed.” Id. Appellant’s contentions Appellant contends Mazumder is concerned with high temperature gases and flow for a gas turbine compressor, which is not anything like a fuel stack, and Mazumder discloses structures and components related to Appeal 2020-000887 Application 15/148,583 6 temperatures and pressures to deal with anti-icing, which is not identified as an issue in Guenther. Appeal Br. 6. Appellant argues neither Guenther nor Mazumder discloses determining a recirculation ratio as a function of parameters T1, T2, T3, p1, p2, and p3, and does not control the flow of the recirculating line as a function of it. Id. Appellant argues the Examiner’s rejection is based on hindsight because Guenther does not require any temperature and pressure data to determine its ratio, and Mazumder does not teach any data to determine a ratio based on all the parameters recited in claim 1. Id. at 6–8. Issue Did Appellant demonstrate reversible error in the Examiner’s determination that the method of claim 1 would have been obvious over Guenther and Mazumder? Discussion At the outset, we are not persuaded by Appellant’s argument that Mazumder is not structurally similar to the claimed invention. The Examiner relies on Mazumder for the arrangement of pressure and temperature sensors in order to provide information to regulate flow in fuel apparatuses containing with recirculation systems. See Ans. 10. Indeed, it is well established that “it is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.” In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983). In addition, “[c]ombining the teachings of references does not involve an ability to combine their Appeal 2020-000887 Application 15/148,583 7 specific structures.” In re Nievelt, 482 F.2d 965, 968 (CCPA 1973). Moreover, the Supreme Court in KSR stated [a]s our precedents make clear, however, the analysis [under 35 U.S.C. § 103] need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). That Mazumder discloses regulating flow for anti-icing purposes does not demonstrate error in the Examiner’s position. As found by the Examiner, Guenther discloses regulating the ratio of fuel to the recirculation flow via the electronic control unit. Guenther ¶¶ 9, 17. However, Guenther is silent as to the particular details of how to monitor and determine such regulation. Thus, the Examiner’s reliance on Mazumder for further details on how one of ordinary skill in the art would have provided information on how to regulate the system of Guenther is reasonable. KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“[w]hen a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.”). To the extent Appellant is arguing that because Mazumder relates to anti-icing, Mazumder is non-analogous art, we agree with the Examiner that Mazumder is reasonably pertinent to the problem with which the inventor is concerned. Ans. 10–11. Mazumder, like Appellant, is concerned with monitoring, and recirculating of a fuel-containing gas mixture moving through a circuit. Spec. ¶¶ 7–10; Mazumder ¶¶ 24–30. Thus, Mazumder would have commended itself to the inventor in considering parameters for Appeal 2020-000887 Application 15/148,583 8 regulating recirculation of fuels. In re ICON Health and Fitness, 496 F.3d 1374, 1379–80 (Fed Cir. 2007) (“‘A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.’” (quoting In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992)). We are also not persuaded by Appellant’s argument that Mazumder does not determine a recirculation ratio as recited in claim 1. Mazumder discloses temperature sensors 88, 92, and 96, and pressure sensors 86, 90, and 94 provide information to controller 82 to regulate control valve 80. Mazumder ¶¶ 25, 26, 30; Fig. 2. Such temperature and pressure data correspond to three sets of values around a junction point as found by the Examiner. Although Appellant argues Mazumder does not disclose determining a ratio from the pressure and temperature measurements, we agree with the Examiner that these disclosures in Mazumder indicate that Mazumder does determine a recirculation ratio. Ans. 12. In disclosing such pressure and temperature values around the ejector or junction point are used to regulate the control valve, Mazumder must necessarily determine the relationship between such values in order for the controller to regulate the control valve. As such, the Examiner’s rationale is not based on improper hindsight as argued by Appellant. In this regard, we observe that claim 1 does not recite any particular ratio to be determined from each of the pressures and temperatures measured in claim 1, only that a recirculation ratio be determined. Thus, we are not Appeal 2020-000887 Application 15/148,583 9 persuaded there is any patentable difference between the use of temperature and pressures disclosed in Mazumder and the method recited in claim 1. As to Appellant’s argument that Guenther discloses only that a temperature of the reformer is influenced by the recirculation flow and does not require temperature and pressure data to determine the ratio, we are also not persuaded. Guenther discloses adjusting flow control valves via a control unit. Guenther ¶ 17. Although Guenther discusses temperature (Guenther ¶ 9), Guenther does not exclude the use of other measurements, such as pressure, in order to provide suitable information regarding recirculation flow. As are result, we affirm the Examiner’s rejection of claim 1. Rejections 2 and 3 Appellant does not separately argue claim 15, the subject of Rejection 2, and claims 16 and 17, the subject of Rejection 3, but relies on the dependency thereof with respect to claim 1 as a basis for patentability. See Appeal Br. 8. Thus, we affirm the Examiner’s rejections of claims 15–17 for the similar reasons as discussed above for claim 1. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4–13 103 Guenther, Mazumder 1, 4–14 15 103 Guenther, Mazumder, Clawson 15 Appeal 2020-000887 Application 15/148,583 10 16, 17 103 Guenther, Mazumder, Clawson, Katano 16, 17 Overall Outcome 1, 4–17 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation