Ex Parte Chowdhury

Patent Trial and Appeal Board

Nov 5, 2014

12336144 (P.T.A.B. Nov. 5, 2014)

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.
12/336,144 12/16/2008 Akbar Chowdhury P002351-FCA-CHE 1375
65798 7590 11/06/2014
MILLER IP GROUP, PLC
GENERAL MOTORS CORPORATION
42690 WOODWARD AVENUE
SUITE 300
BLOOMFIELD HILLS, MI 48304
EXAMINER
CHMIELECKI, SCOTT J
ART UNIT PAPER NUMBER
1729
MAIL DATE DELIVERY MODE
11/06/2014 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 AKBAR CHOWDHURY
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Appeal 2013-000760
Application 12/336,1441
Technology Center 1700
____________

Before SALLY G. LANE, DEBORAH KATZ, and TERRENCE W.
MCMILLIN, Administrative Patent Judges.

MCMILLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1–8. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellant, the Real Party in Interest is GM Global
Technology Operations LLC, a Delaware Limited Liability Company (App.
Br. 3).

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Application 12/336,144

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REJECTIONS ON APPEAL
Claims 1–4 and 7–8 were rejected under 35 U.S.C. § 102 (b) as
anticipated by US Patent Application Publication No. 2004/0001980 A1 to
Balliet et al, (“Balliet”). Ans. 3.
Claims 5 and 6 were rejected under 35 U.S.C. § 103 (a) as being
unpatentable over Balliet in view of U.S. Patent No. 6,627,338 B2 to St-
Pierre et al. (“St-Pierre”). Ans. 3.

DISCUSSION
The Claimed Invention
Claims 1–8 were rejected and are involved in this appeal. Claims 9–
20 were withdrawn from consideration based on a restriction requirement.
Claim 1 is the sole independent claim on appeal and is directed to a
fuel cell system. Claim 1 reads as follows (emphasis added):
1. A fuel cell system, comprising:
at least one fuel cell stack;
at least one anode bleed valve coupled to an anode output of
the at least one fuel cell stack and being operable to provide
an anode exhaust gas bleed from the anode side of the fuel
cell stack;
a hydrogen concentration sensor positioned to measure the
concentration of hydrogen being output from the at least one
fuel cell stack; and
a controller responsive to a hydrogen concentration signal
from the hydrogen concentration sensor, said controller
configured to control the at least one bleed valve to open
and close the bleed valve to provide a desired bleed duration
for bleeding nitrogen from the at least one fuel cell stack,
said controller configured to determine a region form the
hydrogen concentration signal where the concentration of
hydrogen is substantially constant and determining when the
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hydrogen concentration increases from being substantially
constant where the duration of the anode bleed is determined
based on when the hydrogen concentration increases from
the constant hydrogen concentration level.

The Section 102 Rejection
The Examiner rejected claims 1–4 and 7–8 as being anticipated by
Balliet. Balliet teaches a system for shutting down a fuel cell power plant,
including a fuel cell stack (¶ 22; #12 in Fig. 1), an anode exhaust valve
(¶ 24, # 76 in Fig. 1), and a hydrogen concentration sensor (¶ 28, # 89 in Fig.
1). The system of Balliet also teaches a controller to react to sensed
information and to control the functioning of the valves, blowers and
switches (¶ 42). According to the Examiner, the controller disclosed in
Balliet “would be capable of opening and closing the one bleed valve in
order to provide a desired bleed duration for bleeding nitrogen from the fuel
cell stack, determining when the hydrogen concentration is constant,
determining any hydrogen concentration for the constant value, and
calculating the bleed duration based on the hydrogen concentration.” Ans.
5.
Appellant argues that the claimed invention is distinguishable from
the prior art because of the way the controller is configured or programmed.
App. Br. 8–9. We are not persuaded. Claims 1–4 and 7–8 are apparatus
claims. With regard to sole independent claim 1 and dependent claims 2–4
and 8, Appellant does not identify any structural differences between the
claimed subject matter and what is disclosed in Balliet. The Examiner
found: “Since Applicant’s claimed controller is merely a general purpose
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computer, Balliet’s controller would be capable of performing all of the
functional language recited by the claims.” Ans. 8.
The limitations at issue are:
said controller configured to control the at least one bleed valve
to open and close the bleed valve to provide a desired bleed
duration for bleeding nitrogen from the at least one fuel cell
stack, said controller configured to determine a region from the
hydrogen concentration signal where the concentration of
hydrogen is substantially constant and determining when the
hydrogen concentration increases from being substantially
constant where the duration of the anode bleed is determined
based on when the hydrogen concentration increases from the
constant hydrogen concentration level. Claim 1(emphasis
added).

the controller determines that the bleed will stop after the
increase in the concentration of hydrogen from the constant
hydrogen concentration level at a time that is about 10% of the
duration of the entire anode bleed. Claim 2 (emphasis added).

the controller determines the duration of the anode bleed based
on an average of durations of constant hydrogen concentration
levels over multiple anode bleeds. Claim 3 (emphasis added).

the controller determines the duration of the anode bleed based
on the length of the constant hydrogen concentration level for
multiple current densities of the at least one fuel cell stack.
Claim 4 (emphasis added).

the controller increases the duration of the anode bleed as the at
least one fuel cell stack ages. Claim 8 (emphasis added).

Appellant argues that its controller has a specific physical structure
and is physically different because it is programmed to perform the functions
set forth in the claims. App. Br. 8–10. Appellant directs us to WMS Gaming
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Inc. v. Int’l Game Tech, 184 F.3d 1339, 1348 (Fed. Cir. 1999) arguing that
their computer is a special purpose computer with a specific physical
structure. However, Appellant does not provide persuasive argument or
evidence to establish that the computer of the invention is more than a
general purpose computer. In making its argument, Appellant relies entirely
upon the functional language in the claims and fails to identify any
algorithm or other disclosure of a program or structure in the specification.
App. Br. 8–10.
The Examiner found that, “the fuel system taught by Balliet would be
capable of performing all of the functional limitations found within the
claims.” Ans. 9. This finding is supported by Balliet which appears to show
the same structure as Appellant claims and includes a hydrogen sensor that
communicates with the controller. Ans. 8, citing Balliet ¶¶ 28 and 42.
Appellant argues that the Examiner is improperly relying on inherency.
App. Br. 7. However, even if the Balliet system was not designed
specifically to perform the claimed functions, Appellant has not shown that
it is not inherently capable of so performing so as to establish a structural
difference. We affirm the rejection of claims 1–4 and 8 as anticipated by
Balliet.
With regard to dependent claim 7, Appellant argues that the hydrogen
concentration sensor of Balliet is in an enclosure, not a line. App. Br. 10.
Claim 7 requires that the hydrogen concentration sensor be “positioned in a
system exhaust line that outputs a mixed cathode and anode exhaust.”
Independent claim 1, from which claim 7 depends, requires that the
hydrogen concentration sensor be “positioned to measure the concentration
of hydrogen being output from the at least one fuel cell stack.” Balliet
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discloses a hydrogen concentration sensor 89 positioned within the
ventilation enclosure 86 into which anode exhaust line 72 and cathode
exhaust line 62 output. See Fig. 1. The Examiner found that in Balliet’s
system any hydrogen exhausted by the fuel cell would therefore be measured
by the hydrogen concentration sensor located in the enclosure and the
exhaust enclosure is a part of the system exhaust line through which the fuel
cell exhaust gases travel. Ans. 9. We see no error in this factual finding and
are not persuaded by Appellant’s argument to the contrary. We affirm the
rejection of claim 7 as anticipated by Balliet.
We, therefore, affirm the 102 (b) rejection of claims 1–4 and 7–8.

The Section 103 Rejections
Claims 5 and 6 were rejected as obvious in view of Balliet and St-
Pierre. The Examiner relied on St-Pierre as teaching “a fuel cell system
comprising a fuel cell stack consisting of at least two sub-stacks…” Ans. 6.
In making its argument, Appellant does not dispute that St-Pierre provides
this teaching. App. Br. 11. Appellant argues that St-Pierre does not teach
the functional limitations of claim 1. This argument is misdirected. St-
Pierre was not cited by the Examiner for this purpose. Ans. 6–7. This
rejection was based upon a combination of Balliet and St-Pierre. Id.
Appellant has shown no error in the Examiner’s finding that this
combination teaches or suggests all the limitations of claims 5 and 6. We
reject this argument for the same reasons provided above with regard to the
functional limitations of claim 1. We, therefore, affirm the 103 (a) rejections
of claims 5 and 6.

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CONCLUSION
The rejections of claims 1–8 are 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

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