Ex Parte Budinski et al

Board of Patent Appeals and Interferences

Aug 28, 2012

11227771 (B.P.A.I. Aug. 28, 2012)

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.
11/227,771 09/15/2005 Michael K. Budinski GP-305499 8241
65798 7590 08/28/2012
MILLER IP GROUP, PLC
GENERAL MOTORS CORPORATION
42690 WOODWARD AVENUE
SUITE 200
BLOOMFIELD HILLS, MI 48304
EXAMINER
EGGERDING, ALIX ECHELMEYER
ART UNIT PAPER NUMBER
1729
MAIL DATE DELIVERY MODE
08/28/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
_________________

Ex parte MICHAEL K. BUDINSKI, BRIAN K. BRADY,
HUBERT A. GASTEIGER, and KEITH E. NEWMAN

_________________

Appeal 2011-000390
Application 11/227,771
Technology Center 1700
_________________

Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
DEBORAH KATZ, Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000390
Application 11/227,771

2
Appellants1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1-26. (App. Br. 5.) Claims 27-41 have
been withdrawn. (Id.) We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM.
The Examiner rejected claims 1, 2, 5-16, and 19-26 under 35 U.S.C.
§ 103(a) over Frank2 in view of Roth.3 (Ans. 3-5.) The Examiner also
rejected claims 3, 4, 17, and 18 under 35 U.S.C. § 103(a) over Frank in view
of Roth and further in view of Kolodziej.4 (Ans. 5-6.)
Appellants do not argue for the separate patentability of any of the
claims rejected over Frank in view of Roth. We focus on claim 1 as a
representative claim. See 37 C.F.R. § 41.37(c)(1)(vii). In addition,
Appellants do not present any further arguments against the rejection of
dependent claims 3, 4, 17, and 18 over Frank in view of Roth and further in
view of Kolodziej. Thus, the rejection of these claims stands or falls with
our decision on the rejection of claim 1.
Appellants’ claims are directed to a fuel cell with an arrangement of
components that is reported to reduce corrosion of bipolar plates. (Spec.,
¶¶ [0009] and [0031]5.) Appellants’ claim 1 is directed to fuel cells with a
region of stagnant flow and recites:

1 The real party in interest is said to be General Motors Corp. (App. Br. 4.)
2 Frank et al., U.S. Patent Application Publication 2003/0031914 A1,
published February 13, 2003.
3 Roth, U.S. Patent Application Publication 2004/0134292 A1, published
July 15, 2004.
4 Kolodziej, U.S. Patent 7,526,346 B2, issued April 28, 2009.
5 Citations to Appellants’ Specification in this Opinion refer to the as filed
application, not the published application.
Appeal 2011-000390
Application 11/227,771

3
A fuel cell, comprising:
a conductive member having a region of stagnant flow;
a diffusion media layer adjacent to the electrically conductive
member;
a membrane layer;
at least one catalyst layer adjacent to the membrane layer,
wherein the at least one catalyst layer is adjacent to the diffusion
media layer, wherein the at least one catalyst layer is spaced away
from the region of stagnant flow; and
at least one subgasket layer adjacent to the membrane layer,
wherein the at least one subgasket layer is adjacent to the diffusion
media layer, wherein the at least one subgasket layer is in proximity to
the region of stagnant flow, wherein the at least one catalyst layer and
the at least one subgasket layer are spaced away from one another.

(App. Br. 16, Claims App’x.)
Appellants dispute the Examiner’s prima facie case for obviousness
by arguing that Franks does not teach a region of stagnant flow, as required
in claim 1. (App. Br. 12-13.) According to Appellants, the region identified
by the Examiner in the cathode plate of Figure 9 of Frank would have some
type of flow because it includes transfer slots that provide a connection
between apertures and network channels. (Id. at 13.)
Appellants’ argument does not persuade us that the Examiner
incorrectly identified the region of stagnant flow in the fuel cell of Frank.
Appellants do not dispute that the region of the cathode plate highlighted by
the Examiner (see Ans. 4) includes perimeter lands that go from one channel
into two channels and, thus, would be wide. (Ans. 7.) Such perimeter
regions with wide lands are areas of stagnant flow, according to Appellants’
Specification. (Ans. 6-7, citing Spec. at ¶ [0038].) Even if this region has
some type of flow, as Appellants argue (App. Br. 13; Reply Br. 2),
Appellants have not directed us to evidence to persuade us that it is not a
Appeal 2011-000390
Application 11/227,771

4
“regent of stagnant flow” within the meaning Appellants provide in their
Specification. (See Ans. 7, citing Spec., ¶ [0011], which indicates that a
“stagnant flow regions” can be a “regions of reduced gas flow . . .”
(emphasis added).)
Appellants argue that even if the area is a region of stagnant flow, it is
not “spaced away” from the catalyst layer, as required in claim 1. (App. Br.
13-14.) Appellants also argue that the sealing layers of Frank, which the
Examiner found to be subgaskets do not meet the claim limitations of being
“adjacent to the diffusion media layer” or “in proximity to the region of
stagnant flow,” wherein the catalyst layer and the subgasket layer are spaced
away from each other. (App. Br. 14.) Appellants do not direct us to, and we
do not find, definitions of the claim terms “spaced away” and “in
proximity,” nor do they provide sufficient reason why, giving these terms
their broadest reasonable definition, the placement of the sealing layers of
Frank do not meet the recited limitations. See In re Bond, 910 F.2d 831, 833
(Fed. Cir. 1990) (during examination, “claims . . . are to be given their
broadest reasonable interpretation consistent with the specification, and . . .
claim language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.”). As Appellants note, their
claims do not recite a limitation on the direction in which the catalyst layer
should be spaced away from the region of the stagnant flow. (Reply Br. 3.)
Accordingly, the Examiner properly found that the distribution of the layers
in relation to the stacking direction of the fuel cell taught in Frank provides
the required arrangement of the subgasket, diffusion media layer, and
catalyst layer.
Appeal 2011-000390
Application 11/227,771

5
Accordingly, we are not persuaded that the teachings of Frank, in
view of Roth would not have rendered Appellants’ claimed fuel cell
obvious.
ORDER
Upon consideration of the record and for the reasons given, the
rejections of claims are sustained.
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED

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