Ex Parte Martz

Patent Trial and Appeal Board

Jan 22, 2018

13862872 (P.T.A.B. Jan. 22, 2018)

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.
13/862,872 04/15/2013 William L. Martz P019479-PTFC-CHE 8255
83938 7590 01/24/2018
Brooks Kushman P.C.
1000 Town Center, Twenty-Second Floor
Southfield, MI 48075-1238
EXAMINER
MCKENZIE, THOMAS B
ART UNIT PAPER NUMBER
1776
NOTIFICATION DATE DELIVERY MODE
01/24/2018 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):
docketing @brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM L. MARTZ
Appeal 2017-005067
Application 13/862,8721
Technology Center 1700
Before ADRIENE LEPIANE HANLON, MICHAEL P. COLAIANNI, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1 and 3—15. We have jurisdiction. 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
1 The Appeal Brief identifies the Appellant, GM Global Technology
Operations LLC, as the real party in interest. Appeal Br. 2.
Appeal 2017-005067
Application 13/862,872
STATEMENT OF THE CASE2
Appellant describes the invention as relating to humidification of fuel
cells. Spec. 11. Claim 1, reproduced below with emphases added to certain
key recitations, is illustrative of the claimed subject matter:
1. A fuel cell humidifier assembly comprising:
an enclosure including a first inlet, first outlet, and a first gas
flow region allowing flow of a first gas through the fuel cell
humidifier assembly, the enclosure also includes a second inlet
and second outlet, and a second gas flow region allowing a
second gas to flow through the fuel cell humidifier assembly, the
first gas having a higher relative humidity than the second gas;
and
a pleated separator separating first gas flow region and
the second gas flow region, such that water from the first gas
flows to the second gas thereby increasing the relative humidity
of the second gas, wherein the pleated separator includes a
plurality of folds that define a first set of flow channels in the
first gas flow region through which the first gas flows from
the first inlet to the first outlet, and a second set of flow
channels in the second gas flow region through which the
second gas flows from the second inlet to the second outlet.
Appeal Br. App’x 1 (Claims App’x).3
2 In this opinion, we refer to the Final Office Action dated August 20, 2015
(“Final Act.”), the Appeal Brief filed February 22, 2016 (“Appeal Br.”), the
Examiner’s Answer dated December 5, 2016 (“Ans.”), and the Reply Brief
filed February 6, 2017 (“Reply Br.”).
3 Appellant submitted a correct claims appendix August 23, 2016.
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Application 13/862,872
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
>n appeal:
Ebara et al. US 5,371,132 Dec. 6, 1994
(“Ebara”)
Gallagher US 2008/0241606 Al Oct. 2, 2008
Montie et al. US 2009/0193974 Al Aug. 6, 2009
(“Montie”)
Brenner et al. US 2011/0053008 Al March 3, 2011
(“Brenner”)
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1, 3, 4, and 9 under 35 U.S.C. § 102 as
anticipated by Gallagher. Ans. 13.
Rejection 2. Claims 5—8 under 35 U.S.C. § 103(a) as unpatentable
over Gallagher in view of Brenner. Id. at 15.
Rejection 3. Claims 1, 3, 4, 9, 10, and 12—14 under 35 U.S.C.
§ 103(a) as unpatentable over Montie. Id. at 17.
Rejection 4. Claims 5—8 and 15 under 35 U.S.C. § 103(a) as
unpatentable over Montie in view of Brenner. Id. at 19.
Rejection 5. Claim 11 under 35 U.S.C. § 103(a) as unpatentable over
Montie in view of Ebara. Id. at 24.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by the Appellant and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
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Application 13/862,872
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”)). After considering
the evidence presented in this Appeal and each of Appellant’s arguments, we
are not persuaded that Appellant identifies reversible error except where we
otherwise explain below. Thus, where we affirm, we do so for the reasons
expressed in the Final Office Action and the Answer, and we add additional
discussion primarily for emphasis.
Rejection 1. The Examiner rejects claims 1,3,4, and 9 under 35
U.S.C. § 102 as anticipated by Gallagher. Ans. 13.
Appellant presents separate arguments for claims 1 and 4. Appeal Br.
3, 6. We limit our discussion to those claims. Claims 3 and 9 will stand or
fall with claim 1, from which they depend. 37 C.F.R. § 41.37(c)(l)(iv)
(2013).
With respect to claim 1, the Examiner finds that Gallagher teaches a
fuel cell humidifier comprising each element recited by claim 1. Final Act.
5—6. In particular, the Examiner finds that Gallagher teaches a pleated
separator (“pleated water permeable sheet membrane 130e,” Gallagher 145)
that separates first and second gas flows. Final Act. 6. In the Answer, the
Examiner explains the finding by annotating Figure 4B of Gallagher (Ans.
9), and we reproduce that annotated figure below.
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Application 13/862,872
Figure 4B shows an embodiment of Gallagher’s membrane exchange
humidifier 102a. In the annotated Figure 4B reproduced above, the
Examiner identifies the dry inlet, dry outlet, wet inlet, wet outlet, and flow
direction of the fluid.
Appellant argues that Gallagher does not disclose pleated separator
with folds that define first and second flow channels. Appeal Br. 5.
Appellant argues that the flow channels of Gallagher are instead
perpendicular to the longitudinal direction of the pleats. Id.
A preponderance of the evidence supports the Examiner’s position
rather than Appellant’s argument. As illustrated in the annotated Figure 4B
Gallagher’s system is designed so that fluid moves from the dry inlet 104e to
the dry outlet 1 lOe and moves from wet inlet 112e to wet outlet 116e. This
movement is in the direction of the channels formed by the pleats. Ans. 8—9.
Moreover, Gallagher refers to the triangular areas formed by the pleats as
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Application 13/862,872
dry chambers 108e and wet chamber 114e thus indicating the wet and dry
fluid move through those chambers. Gallagher 145. Gallagher also refers
to the “net flow cross section” of chambers 108e and 114e and therefore
indicates that flow occurs within those chambers. Id. Appellant’s argument,
therefore, does not identify error as to the Examiner’s rejection of claim 1.
Claim 4 recites, “[t]he fuel cell humidifier assembly of claim 1
wherein the pleated separator includes a diffusion medium sheet.” The
Examiner finds that Gallagher teaches that its pleated separator is a water
permeable sheet membrane, i.e., a diffusion medium sheet. Final Act. 7
(citing Gallagher 145).
Appellant argues that Gallagher does not teach the recitation of claim
4 because “[a]s claimed, the diffusion medium sheet is a separate and
distinct component.” Appeal Br. 7. We disagree with Appellant’s claim
construction. We apply the broadest reasonable construction. See, e.g.,
Cuozzo Speed Tech., LLC v. Lee, 136 S.Ct. 2131, 2145 (2016) (noting that
the Patent Office has used the broadest reasonable construction standard for
more than 100 years). Claim 4 recites that “the pleated separator includes a
diffusion medium sheet,” and the plain language of the recitation indicates
that the separator and diffusion medium sheet may be one structure.
Moreover, the Specification describes an embodiment where “pleated
separator 38 includes a single assembly including the functions of diffusion
medium and a water transfer layer.” Spec. 127 (emphasis added). Under a
broadest reasonable construction, claim 4 encompasses this embodiment
where the plated separator is (or, in the language of the Specification,
“includes”) a single assembly where the separator is a diffusion medium
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Application 13/862,872
sheet. We discern no error in the Examiner finding that this recitation is
taught by Gallagher under such a construction. Ans. 9-10.
Because Appellant does not identify reversible error, we sustain the
Examiner’s rejection of claims 1,3,4, and 9 based on anticipation by
Gallagher.
Rejection 2. The Examiner rejects claims 5—8 as unpatentable as
obvious over Gallagher in view of Brenner. Ans. at 15. Claim 5 recites,
“[t]he fuel cell humidifier assembly of claim 4 wherein the plated separator
further includes a water transfer layer disposed over the diffusion medium
sheet, the water transfer layer contacting the second gas flow region.”
According to claim 1, the second gas flow region is the dry gas flow region.
Appeal Brief App’x 1 (“the first gas having a higher relative humidity than
the second gas”).
The Examiner finds that Gallagher does not provide enough
information to teach the recitation of claim 5. Ans. 15. The Examiner,
however, finds that Brenner teaches this recitation. Id. The Examiner finds
that Brenner’s “polymeric layer” is a water transfer layer and Brenner’s
“diffusion layer” is the recited diffusion medium sheet. Id. The Examiner
states that wet gas moves through the diffusion layer and wet transfer layer
such that the wet transfer layer would contact Gallagher’s second flow
region. Id. at 15—16.
Appellant argues that Brenner teaches that both sides of the polymeric
membrane have a diffusion layer and that Brenner does not teach “the water
transfer layer contacting the second gas flow region” as recited by claim 5.
Appeal Br. 8—9. A preponderance of the evidence supports Appellant’s
position.
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Application 13/862,872
The membrane of Brenner is depicted in Figure 2 A which is
reproduced below.
Figure 2 A of Brenner is a schematic cross section of a membrane humidifier
assembly perpendicular to the flow of gas to a first flow field plate.
Brenner 113. Figure 2 A depicts diffusion media 44 and 46 on each side of
selective polymeric layer 32. Thus, the layer the Examiner equates to claim
5’s water transfer layer does not contact the channel for dry gas 40 in
Brenner. See also Appeal Br. 8—9 (quoting Brenner 19).
The Examiner finds that gas would move through these layers such
that “Brenner’s wet transfer layer would contact Gallagher’s second flow
region.” Ans. 16. The Examiner’s construction of “second gas flow region”
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as recited in claim 5 (and independent claim 1) is too broad. Claim 1 states
that the pleated separator defines sets of flow channels in the second gas
flow region and states that the separator separates the first gas flow region
from the second gas flow region. Thus, the second gas flow region cannot
include part of the separator and cannot include the diffusion medium sheet
of the separator. Although gas may contact Brenner’s water transfer layer,
the Brenner water transfer layer is surrounded by diffusion media (part of
the separator) such that the water transfer layer does not contact the second
gas flow region (which is an area defined by the separator and is not part of
the separator). Moreover, the Examiner does not explain why this structure
would have been modified if Brenner’s teaching were combined with
Gallagher’s.
Because the Examiner has not adequately explained why Brenner’s
apparatus when used with Gallagher would include a “water transfer layer
contacting the second gas flow region,” we do not sustain the Examiner’s
rejection of claim 5. We also do not sustain the Examiner’s rejection of
claims 6 and 7 because those claims depend from claim 5.
Claim 8 depends from claim 1. The Examiner provides findings as to
why Brenner teaches the recitations of claim 8 and provides reasons why it
would have been obvious to use Brenner’s membrane in place of Gallagher’s
membrane. Ans. 17. Appellant does not address claim 8 separately or refute
the Examiner’s findings or conclusion. We thus sustain this rejection with
respect to claim 8.
Rejections 3—5. The Examiner rejects claims 1, 3, 4, 9, 10, and 12—14
under 35 U.S.C. § 103(a) as unpatentable as obvious over Montie. Ans. at
17. The Examiner rejects claims 5—8 and 15 under 35 U.S.C. § 103(a) as
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Application 13/862,872
unpatentable as obvious over Montie in view of Brenner and rejects claim 11
as unpatentable as obvious over Montie in view of Ebara. Id. at 19, 24.
Appellant presents separate arguments for claims 1 and 5. Appeal Br.
9—12. We limit our discussion to those claims. Consistent with the
provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013), claims 3, 4, 8—15 will stand
or fall with claim 1, and claims 6 and 7 stand or fall with claim 5.
The Examiner finds that Montie teaches a humidifier having a pleated
separator, flow channels, and various other recitations of claim 1. Appeal
Br. 17—18 (providing citations to Montie). The Examiner finds that Montie
does not explicitly teach the device is a fuel cell humidifier but teaches that
the device may be used to humidify gases and may be used for fuel cell
applications. Id. at 18. The Examiner concludes it would have been obvious
to use the device as a fuel cell humidifier.
Appellant argues that Montie is non-analogous art because it is
directed to “applications such as ‘exchanging heat and water vapor between
air streams being directed into and out of buildings.’” Appeal Br. 9. The
Examiner, however, correctly finds that Montie also teaches that it could be
used for fuel cell applications. Ans. 18 (citing Montie 123). Appellant’s
analogous art argument is not persuasive.
Appellant also reproduces the various figures of Montie and argues
that Montie teaching perpendicular flow is inconsistent with a pleated
separator defining two channels as in claim 1. Appeal Br. 11. Appellant
argues that “[t]he two sets of channels in the present invention can only be
parallel, perpendicular channels are not possible from a single sheet.” Id.
Appellant’s argument hinges on an unduly narrow construction of
claim 1. Claim 1 does not require use of only a single sheet and does not
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require parallel channels. Ans. 11. Rather, claim 1 recites “a pleated
separator separating first gas flow region and the second gas flow region . . .
wherein the pleated separator includes a plurality of folds that define a first
set of flow channels . . . and a second set of flow channels.”
The Examiner finds that Montie teaches, at paragraph 23, a cross-
pleated cartridge that forms first and second fluid passageways as recited by
claim 1. Ans. 11—12. Appellant does not refute the Examiner’s findings
regarding paragraph 23 of Montie. Because Appellant does not persuasively
identify reversible error, we sustain this rejection.
With respect to claim 5, Appellant again argues that Brenner requires
that both sides of a polymeric membrane have a diffusion layer. Appeal
Br. 12. As explained above, Appellant’s position on this point is supported
by the evidence. The Examiner’s explanation of the obviousness of claim 5
in view of Montie and Brenner is essentially the same as that provided for
the Gallagher/Brenner combination. Ans. 12,19—21. Thus, for the reasons
explained above with respect to Gallagher/Brenner, we do not sustain the
Examiner’s rejection of claims 5—7 based on Montie and Brenner.
DECISION
For the above reasons, we affirm the Examiner’s rejections of (1)
Claims 1, 3, 4, and 9 under 35 U.S.C. § 102 as anticipated by Gallagher, (2)
claim 8 under 35 U.S.C. § 103(a) as unpatentable over Gallagher in view of
Brenner, (3) claims 1, 3, 4, 9, 10, and 12—14 under 35 U.S.C. § 103(a) as
unpatentable over Montie, (4) claims 8 and 15 under 35 U.S.C. § 103(a) as
unpatentable over Montie in view of Brenner, and (5) claim 11 under 35
U.S.C. § 103(a) as unpatentable over Montie in view of Ebara. We reverse
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the Examiner’s rejection of (1) claims 5—7 under 35 U.S.C. § 103(a) as
unpatentable over Gallagher in view of Brenner and (2) claims 5—7 under 35
U.S.C. § 103(a) as unpatentable over Montie in view of Brenner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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