Ex Parte Heystek

Patent Trial and Appeal Board

May 17, 2016

11676569 (P.T.A.B. May. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111676,569 02/20/2007 Joseph J. Heystek
29293 7590 05/19/2016
FREUDENBERG-NOK GENERAL PARTNERSHIP
LEGAL DEPARTMENT
47690 EAST ANCHOR COURT
PLYMOUTH, MI 48170-2455
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.
06-0048 (8470-000165) 8426
EXAMINER
ESSEX, STEPHAN J
ART UNIT PAPER NUMBER
1727
NOTIFICATION DATE DELIVERY MODE
05/19/2016 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):
fngp@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH J. HEYSTEK 1
Appeal2014-009508
Application 11/676,569
Technology Center 1700
Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's rejection under 35 U.S.C. § 103(a) of claims 1-5, 8-12, 14, and
21-25 as unpatentable over Artibise (US 2004/0191604 Al, published Sept.
30, 2004) in view ofVanderleeden (US 2003/0224237 Al, published Dec. 4,
2003). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Freudenberg-NGK General Partnership is identified as the real party in
interest. App. Br. 2.
Appeal2014-009508
Application 11/676,569
Appellant claims a membrane electrode assembly (10) for use in a
fuel cell comprising first and second gas diffusion layers (14, 16), seal
structures (18, 118), engagement surfaces (27, 127), and sealing beads (26,
126) with a catalyst coated membrane (12) sandwiched between the gas
diffusion layers wherein the engagement surfaces are bonded to one another
and wherein the seal structures are molded separately before the catalyst
coated membrane is sandwiched between the diffusion layers (independent
claim 1, Figures 1-2; see also independent claim 8). Appellant also claims a
sub-combination of such an assembly in the form of a gas diffusion layer ( 14
or 16) having a seal structure (18 or 118) with a sealing bead (26 or 126)
only on one side and an engagement surface (27 or 127) free from a sealing
bead on the opposite side (remaining independent claim 22, Figures 1-2).
A copy of representative claims 1 and 22, taken from the Claims
Appendix of the Appeal Brief, appears below.
1. A membrane electrode assembly for use in a fuel cell,
compnsmg:
a first gas diffusion layer having an integrated first seal
structure molded to said first gas diffusion layer, said first seal
structure having a sealing bead surrounding said first gas
diffusion layer only on a first side of said first seal structure and
having a first engagement surface on a second side of said first
seal structure and said first seal structure including a first
integrated manifold section defining at least one manifold
opening there through and having a sealing bead disposed on
said first side of said first seal structure surrounding said at least
one manifold opening and a sealing bead disposed on said
second side of said first seal structure surrounding said at least
one manifold opening;
a second gas diffusion layer having an integrated second
seal structure molded to said second gas diffusion layer
independent from the first seal structure being molded to said
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Appeal2014-009508
Application 11/676,569
first gas diffusion layer, said second seal structure having a
sealing bead surrounding said second gas diffusion layer only
on a first side of said second seal structure and having a second
engagement surface on a second side of said second seal
structure and said second seal structure including a second
integrated manifold section defining at least one manifold
opening there through and having a sealing bead disposed on
said first side of said second seal structure surrounding said at
least one manifold opening and a sealing bead disposed on said
second side of said second seal structure surrounding said at
least one manifold opening; and
a catalyst coated membrane sandwiched between said
first and second gas diffusion layers such that said first sides of
said first and second seal structures face away from one another
and said first engagement surface of said first seal structure
opposes and is bonded to said second engagement surface of
said second seal structure, wherein said first integrated
manifold and said second integrated manifold are laterally
spaced from one another, and wherein said first and second seal
structures are molded separately before said catalyst coated
membrane is sandwiched between said first and second gas
diffusion layers.
App. Br. 16-17 (Claims Appendix).
22. A gas diffusion layer with an integrated seal for use
with a fuel cell, comprising:
a first gas diffusion layer having an integrated seal
structure molded to said first gas diffusion layer;
said first seal structure having a sealing bead surrounding
said first gas diffusion layer only on a first side of said first seal
structure, a second side of said first seal structure opposite said
sealing bead defining an engagement surface free from a
sealing bead; and
said first seal structure including a first integrated
manifold section defining at least one manifold opening
extending there through only at one lateral end of said first gas
diffusion layer, the integrated manifold having a sealing bead
disposed on said first side of said first seal structure
surrounding said at least one manifold opening and a sealing
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Appeal2014-009508
Application 11/676,569
bead disposed on said second side of said first seal structure
surrounding said at least one manifold opening.
App. Br. 21 (Claims Appendix).
We will sustain the Examiner's rejection of claims 1-5, 8-12, 14, and
21 for the reasons given in the Final Action, the Answer, and below.
Appellant points out that "Artibise discloses a membrane electrode
assembly including an integrated seal formed in a single molding operation"
(App. Br. 10). Appellant argues that their claimed assembly distinguishes
over the assembly of Artibise based on the following rationale.
Here, the limitation that the first and second seal
structures include respective first and second
engagement surfaces that oppose one another and are
bonded to each other and the limitation that the first and
second seal structures are molded separately before the
catalyst coated membrane is sandwiched between the
first and second gas diffusion layers are clearly structural
limitations in that they require the first and second seal
structures be separate components having separate
engagement surfaces for engaging one another rather
than being integral components such as disclosed in
Artibise and V anderleeden.
(App. Br. 12).
Appellant's argument lacks persuasive merit. We agree with the
Examiner that "Appellant has failed to establish that any distinguishing
structural elements of the intermediate products - that is, the structural
elements of the first and second gas diffusion layers before they are bonded
together - are in fact still present and distinguishable in the final product of
the claimed membrane electrode assembly" (Ans. 11 ). As the Examiner
correctly explains, the first and second seal structures cease to be separate
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Appeal2014-009508
Application 11/676,569
components after the first and second engagement surfaces are bonded
together, and such bonded surfaces do not provide the claimed assembly
with a distinguishable structural characteristic (id. at 11-12). In this regard,
the Examiner states that "[t]wo thermoplastic seal structures, for example,
bonded together with the application of heat sufficient to achieve melting[]
would be indistinguishable from a single, integrally molded thermoplastic
structure [of the type taught by Artibise]" (id. at 12).
We observe that the Reply Brief does not address, and therefore does
not show error in, the Examiner's above quoted statement. Based on the
record before us, therefore, the bonded surfaces of independent claims 1 and
8 do not distinguish the claimed assembly from the integrally molded
assembly of Artibise.
For analogous reasons, Appellant's arguments regarding dependent
claims 2, 4, 5, 9, 11, 12, and 21 also are not persuasive (App. Br. 13-14, cf
Ans. 11-13). By way of example, the alignment features recited in claim 5
as well as the first and second shoulders recited in claim 21 would no longer
exist after a bonding of the type described by the Examiner wherein the
alignment features and shoulders would be melted into the seal structure of
the claimed assembly.
Because Appellant fails to show harmful error on the Examiner's part,
we sustain the§ 103 rejection of claims 1-5, 8-12, 14, and 21.
We reach a different determination concerning the rejection of claims
22-25. As indicated previously, these claims are directed to a sub-
combination or sub-assembly in the form of a gas diffusion layer having a
seal structure with a sealing bead on one side and an engagement surface
free from a sealing bead on the opposite side. Appellant is correct that
Artibise discloses sealing beads on both sides of the seal structure rather
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Appeal2014-009508
Application 11/676,569
than a sealing bead on one side and an engagement surface free from a
sealing bead on the opposite side (App. Br. 14).
The Examiner acknowledges that claims 22-25 "describe only one of
the first and second gas diffusion layers such that it is not fastened to the
other" (Ans. 13). Nevertheless, the Examiner argues that "the other of the
first and second gas diffusion layer is required to construct a functioning fuel
cell" (id.) and that "the claims are written in an open-ended matter [sic,
manner], and therefore do not exclude the additional structural elements of
the prior art" (id.).
The deficiency of the Examiner's position is that the claimed diffusion
layer requires a structural feature not possessed by the assembly of Artibise,
namely, a seal structure having a sealing bead on one side and an
engagement surface free from a sealing bead on the opposite side. We
understand that, prior to use in a fuel cell, the claimed diffusion layer would
be bonded to another diffusion layer and that the resulting bonded assembly
might be indistinguishable from Artibise's assembly. However, claims 22-
25 are not directed to such an assembly but instead define a sub-assembly
that distinguishes from Artibise in the manner described above.
For this reason, we do not sustain the§ 103 rejection of claims 22-25.
The decision of the Examiner is affirmed-in-part.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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