Ex Parte Brandt et al

Patent Trial and Appeal Board

Oct 26, 2016

12867568 (P.T.A.B. Oct. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/867,568 08/13/2010
27350 7590 10/28/2016
LERNER GREENBERG STEMER LLP
Box SA
P.O. BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
Torsten Brandt
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.
2008P02338 1931
EXAMINER
CARRICO, ROBERT SCOTT
ART UNIT PAPER NUMBER
1727
NOTIFICATION DATE DELIVERY MODE
10/28/2016 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):
boxsa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TORSTEN BRANDT, ARMIN DATZ,
ALBERT HAMMERSCHMIDT, SILKE LATZEL, JOSEF LERSCH,
ARNOMATTEJAT, WALTERSTUEHLER,
and OTTMAR VOITLEIN
Appeal2015-004417
Application 12/867,568
Technology Center 1700
Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 11-14, 16, 19-26, and 28-35. We have jurisdiction under 35 U.S.C.
§ 6.
We REVERSE.
Appeal2015-004417
Application 12/867,568
Appellants' appealed invention is illustrated by independent claim 11,
reproduced below:
11. A humidification cell of a fuel cell apparatus, the
humidification cell comprising:
a first outer plate and a second outer plate;
a gas chamber;
a humidification water chamber;
a water-permeable membrane separating said gas and
humidification water chambers;
starting from said first outer plate, said gas chamber, said
humidification water chamber and said water-permeable
membrane, being disposed between said first outer plate and
said second outer plate; and
a first water-permeable support element disposed
between said first outer plate and said membrane, said first
support element being made from a screen fabric;
said membrane having a rigidity;
said screen fabric and said membrane being matched to
one another and to pressures in said chambers adjoining said
membrane with regard to said thickness and said diameter of
said pores of said screen fabric and with regard to said rigidity
of said membrane, for preventing said membrane from
squeezing through said pores and coming into contact with at
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Application 12/867,568
least one of said outer plates, during operation of the
humidification cell;
said screen fabric having a thickness and pores with a
diameter; and
said diameter of said pores and said thickness of said
screen fabric being in a ratio of from 1 :2 to 1 :5.
Appellants (see Appeal Brief, generally) request review of the
following rejections from the Examiner's Final Office Action:
I. Claims 11-13, 19-25, and 29-35 rejected under 35 U.S.C. §
103(a) as unpatentable over Hartnack (US 2004/0234833 Al, published
November 25, 2004), Guo (US 2007 /0092773 Al, published April 26,
2007), and Kondo (US 2007/0287036 Al, published December 13, 2007).
II. Claims 14 and 26 rejected under 35 U.S.C. § 103(a) as
unpatentable over Hartnack, Guo, Kondo, and Ono (JP 10172591 A,
published June 26, 1998).
III. Claims 16 and 28 rejected under 35 U.S.C. § 103(a) as
unpatentable over Hartnack, Guo, Kondo, and Fenton (US 6,465,136 Bl,
issued October 15, 2002).
OPINION
Rejection 1 1
After review of the respective positions provided by Appellants and
the Examiner, we REVERSE the Examiner's prior art rejection of claims
11-13, 19-25, and 29-35 for the reasons presented by Appellants. We add
the following.
1 We limit our discussion to independent claim 11.
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Appeal2015-004417
Application 12/867,568
Independent claim 11 is directed to a humidification cell comprising a
first water-permeable support element made from a screen fabric having a
thickness and pores with a diameter, wherein the ratio of the diameter of said
pores and the thickness of said screen fabric ranges from 1 :2 to 1 :5.
The Examiner found Hartnack discloses a humidification cell that
differs from the claimed invention in that Hartnack does not disclose the
pore diameter, the thickness of the screen fabric, or that the ratio of the two
is from 1:2 to 1:5. Final Act. 3-5; Hartnack Figures 1-3. To remedy this
deficiency, the Examiner relies on Guo and Kondo as respectively teaching
the pore diameter of a permeable fabric and the thickness of a permeable
fabric as result effective variables that affect the fluid transfer rate through
the screen fabric. Final Act. 5---6; Guo i-f 59; Kondo i-f 104. While the
Examiner recognizes that that the cited art does not disclose a ratio of the
pore diameter to the thickness of the screen fabric, the Examiner determined
it would have been obvious to one skilled in the art that optimizing each of
the pore diameter and the thickness of the screen fabric necessarily results in
the claimed ratio of the pore diameter to the thickness of the screen fabric.
Final Act. 7; Ans. 3-5.
Appellants argue one skilled in the art would not know what the ratio
will be when the pore diameter and the thickness are each independently
optimized according to some criteria that is not immediately evident from
the cited prior art. App. Br. 7-8. According to Appellants, the possible
combinations of the very large possible ranges for the pore diameter and the
thickness of the fabric respectively disclosed by Guo and Kondo would be
too great to conclude that the ratio required by claim 11 would have been
obvious. Id. at 8. Appellants also argue the cited prior art does not
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Application 12/867,568
recognize that one can optimize a ratio of the pore diameter and the
thickness of said screen fabric or that such a ratio is a result effective
variable. Id. at 9, 11-12.
We agree with Appellants that the Examiner has not adequately
established how the claimed ratio of the pore diameter to the thickness of the
screen fabric ratio is reached.
Moreover, as noted by Appellants, Guo is directed to a fluid that is not
the same as the fluid in Hartnack. App. Br. 5. Guo is directed to a porous
material that permits liquid fuel (methanol/water mixture) to be drawn into
the liquid fuel cavity or passage 40 of a fuel cell. Guo i-fi-1 20, 59. On the
other hand, Hartnack and Kondo are directed to a humidification cell having
a water permeable supporting fabric element. Hartnack i-fi-f 12-17;
Kondo i-f l. Assuming arguendo that the prior art is combined as proposed
by the Examiner, the Examiner has not adequately explained how one
skilled in the art would arrive to the optimum pore diameter for a water
permeable screen fabric used in a humidification cell based on the pore
diameter for a liquid fuel permeable screen fabric used in a fuel cell. Thus,
the Examiner has not adequately explained how one skilled in the art would
necessarily arrive to the claimed pore diameter to screen fabric thickness
ratio.
Under these circumstances, we cannot conclude that the Examiner has
met the minimum threshold of establishing obviousness under 35 U.S.C.
§ 103(a). See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); KSR Int'!
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)).
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Application 12/867,568
Accordingly, we reverse the Examiner's prior art rejection under
35 U.S.C. § 103(a) for the reasons presented by Appellants and given above.
Rejections II and III
The Examiner's prior art rejections of claims 14, 16, 26 and 28 under
35 U.S.C. § 103(a) (Rejections II and III) are premised on the teachings of
Hartnack, Guo, and Kondo the humidification cell of a fuel cell apparatus of
the subject matter of independent claim 11 obvious to one skilled in the art.
Final Act. 8-10. As discussed above, such is not the case. The Examiner
did not rely on the additionally cited secondary references to overcome the
previously noted deficiencies of Hartnack, Guo, and Kondo. Id.
Accordingly, we also reverse the Examiner's prior art rejections of
claims 14, 16, 26, and 28 for the reasons presented by Appellants and given
above.
ORDER
The Examiner's prior art rejections under 35 U.S.C. § 103(a) are
reversed.
REVERSED
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