Ex Parte Fuss et al

Board of Patent Appeals and Interferences

Jun 5, 2009

10827699 (B.P.A.I. Jun. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT L. FUSS, ROBERT N. CARTER,
and BRUCE J. CLINGERMAN
____________

Appeal 2009-002306
Application 10/827,699
Technology Center 1700
____________

Decided:1 June 05, 2009
____________

Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and
LINDA M. GAUDETTE, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 2, and 5-13. We

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-002306
Application 10/827,699

have jurisdiction under 35 U.S.C. § 6(b).
Claim 1 is illustrative:
1. A fuel cell system comprising:

a fuel cell stack including a cathode input receiving a cathode
input gas and a cathode output outputting a cathode exhaust gas;

an oxygen sensor responsive to the cathode exhaust gas, said
oxygen sensor generating a sensor signal indicative of the oxygen
concentration in the cathode exhaust gas;

an air flow meter responsive to the cathode input gas and
providing an air flow signal indicative of the flow of the cathode input gas to
the stack; and

a system controller responsive to the sensor signal from the
oxygen sensor and the air flow signal from the air flow meter, said controller
controlling the flow of the cathode input gas applied to the stack so as to
provide a cathode lambda, said controller using a combination of the sensor
signal and the air flow signal to determine whether a leak exists between the
air flow meter and the oxygen sensor based on whether a desired cathode
lambda is being provided for a certain cathode input flow rate.

The Examiner relies upon the following references in the rejection of
the appealed claims (Ans. 3):
Scheffler 4,859,545 Aug. 22, 1989
Lamm 6,759,153 B1 Jul. 06, 2004
Rainville 2004/0161647 A1 Aug. 19, 2004
Schmidt 6,783,882 B2 Aug. 31, 2004
Penev 6,881,508 B2 Apr. 19, 2005

Appellants’ claimed invention is directed to a fuel system comprising
a fuel cell stack, an oxygen sensor for the cathode exhaust gas, an air flow
meter for the cathode input gas, and a system controller responsive to the
2
Appeal 2009-002306
Application 10/827,699

oxygen sensor signal and the flow meter signal. The controller controls the
flow of input gas to the cathode so as to provide a cathode lambda. The
cathode lambda is a relationship between the oxygen concentration in the
input gas to the cathode and the oxygen consumed by the fuel stack. Based
on the desired cathode lambda, the controller uses the oxygen sensor and air
flow signals to determine whether a leak exists between the air flow meter
and the oxygen sensor.
Appealed claims 1, 2, and 13 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Scheffler. The claims also stand rejected under 35
U.S.C. § 103(a) as follows:
(a) claims 5, 9, and 11 over Scheffler in view of Schmidt,
(b) claims 6 and 8 over Scheffler in view of Penev,
(c) claim 7 over Scheffler in view of Lamm,
(d) claim 10 over Scheffler in view of Rainville, and
(e) claim 12 over Scheffler alone.
Appellants do not present separate, substantive arguments for any
particular claim on appeal. Accordingly, all the appealed claims stand or fall
together with claim 1.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner
that Scheffler describes the subject matter of claim 1 on appeal within the
meaning of 35 U.S.C. § 102. Accordingly, we will sustain the Examiner’s
rejections for the reasons set forth in the Answer, and we add the following
primarily for emphasis.
There is no dispute that Scheffler, like Appellants, describes all the
structural components defined by appealed claim 1. In particular, Scheffler
3
Appeal 2009-002306
Application 10/827,699

describes a fuel cell system comprising a fuel cell stack including a cathode
input for receiving a cathode input gas and for generating a cathode exhaust
gas, an oxygen sensor for the oxygen concentration in the cathode exhaust
gas, an air flow meter for the cathode input gas, and a system controller
responsive to the signal from the oxygen sensor and the air flow signal from
the air flow meter, which controls the flow of the cathode input gas applied
to the stack.
Scheffler does not expressly disclose that the system controller uses
the signals from the oxygen sensor and air flow meter to determine whether
a leak exists between the air flow meter and the oxygen sensor. However,
Scheffler uses the signals to determine the oxygen consumption in the fuel
stack and utilizes the controller to solve several previously inputted
algorithms to determine the appropriate setting of the air inlet valve (see col.
2, ll. 44-52.). Since the controller of Scheffler uses the relationship between
the amount of oxygen in the input to the cathode and the amount of oxygen
consumed by the fuel cell stack, which relationship is defined by Appellants
as the cathode lambda, it necessarily follows that the controller of Scheffler,
like Appellants’ controller, provides a cathode lambda. Hence, since the
Scheffler system comprises a controller which provides a cathode lambda
for determining the oxygen consumption of the fuel stack, we agree with the
Examiner that the Scheffler system is fully capable of determining whether a
leak exists between the air flow meter and the oxygen sensor. As
emphasized by the Examiner, the appealed claims define an apparatus and
not a method of its operation.
Significantly, Appellants submit that “they are not contesting that the
Scheffler control system can detect a leak in the cathode lines, particularly
4
Appeal 2009-002306
Application 10/827,699

between the airflow meter and the oxygen sensor” (Br. 5, last para.,
emphasis added). Consequently, Appellants’ acknowledgement is
tantamount to a concession that the Examiner’s finding that the Scheffler
system is capable of performing the claimed function of determining the
relevant leak is free of reversible error. Appellants’ argument that “the
Scheffler control system does not detect a leak” is not germane to the
claimed apparatus (id.). It is of no moment whether Scheffler operates the
disclosed apparatus in a way that determines the leak.
We are not persuaded by Appellants that Scheffler “does not provide
the controller features, such as suitable algorithms, to perform this
operation” (id.). As pointed out by the Examiner, the appealed claims recite
no particular algorithm and Appellants’ Specification is totally devoid of
disclosing any algorithm, let alone an algorithm using the cathode lambda
relationship that is different than the algorithms of Scheffler’s system.
Appellants’ statement that the claimed “controller has something about it
that allows it to do this that the controller disclosed by Scheffler does not
have” does not serve to distinguish the claimed system from the Scheffler
system (Br. 6, first para.).
Accordingly, since the fuel cell system of Scheffler employs a
controller which determines the relationship between the amount of oxygen
in the input to the cathode and the amount of oxygen consumed by the
system, i.e., the cathode lambda, in determining the amount of oxygen
consumed by the system, we find no error in the Examiner’s conclusion that
the reference system is fully capable of determining whether a leak exists
between the air flow meter and the oxygen sensor. It should be borne in
mind that a reference anticipates a claim under 35 U.S.C. § 102 if it
5
Appeal 2009-002306
Application 10/827,699

discloses the claimed invention in such a way that one of ordinary skill in
the art could combine the reference teachings with his own knowledge of the
particular art and be in possession of the claimed invention. In re Graves,
69 F.3d 1147, 1152 (Fed. Cir. 1995) (quoting In re LeGrice, 301 F.2d 929,
936 (CCPA 1962)).
As noted above, Appellants advance no separate substantive
arguments against the Examiner’s § 103 rejections but rely upon the
arguments against the § 102 rejection.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 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) (2008).

AFFIRMED

ssl

MILLER IP GROUP, PLC
GENERAL MOTORS CORPORATION
42690 WOODWARD AVENUE
SUITE 200
BLOOMFIELD HILLS, MI 48304
6