Ex Parte Milacic

Patent Trial and Appeal Board

Mar 24, 2016

13364796 (P.T.A.B. Mar. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/364,796 02/02/2012
28395 7590 03/28/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Milos Milacic
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.
83191596 5911
EXAMINER
WILLS, MONIQUE M
ART UNIT PAPER NUMBER
1721
NOTIFICATION DATE DELIVERY MODE
03/28/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MILOS MILACIC
Appeal 2014-006821
Application 13/364,796
Technology Center 1700
Before BRADLEY R. GARRIS, TERRY J. OWENS, and
WESLEY B. DERRICK, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
The Invention
The Appellant claims a fuel cell and a fuel cell stack comprising the
fuel cell. Claim 1 is illustrative:
1. A fuel cell comprising:
a cathode flow field plate defining a plurality of cathode
channels therein for receiving a first fluid when the fuel cell is
in an operational state;
a membrane electrode assembly (MEA) positioned about
the cathode flow field plate and proximate to an anode flow
field plate; and
Appeal2014-006821
Application 13/364,796
a strip including a flexible first portion positioned about
the plurality of cathode channels, the flexible first portion being
moveable toward the plurality of cathode channels to prevent a
flow of the first fluid therein and through the MEA when the
fuel cell is inoperative.
Jacobsen
Nakakubo
The References
US 2008/0233443 Al
US 2009/0162707 Al
The Rejections
Sep.25,2008
June 25, 2009
The claims stand rejected as follows: claims 1-5, 7, 8, 10-14, 17, 19,
and 20 under 35 U.S.C. § 102(e) over Jacobsen, claims 9 and 18 under
35 U.S.C. § 103 over Jacobsen and claims 6, 15, and 16 under
35 U.S.C. § 103 over Jacobsen in view ofNakakubo.
OPINION
We reverse the rejections. We need address only the independent
claims (1, 10 and 19). 1 Those claims require a fuel cell comprising a strip
including a flexible portion positioned about a plurality of cathode channels
and moveable toward the plurality of cathode channels to prevent fluid flow
therein when the fuel cell is inoperative.
"Anticipation requires that every limitation of the claim in issue be
disclosed, either expressly or under principles of inherency, in a single prior
art reference." Corning Glass Works v. Sumitomo Elec. US.A., Inc., 868
F.2d 1251, 1255-56 (Fed. Cir. 1989).
1 Regarding the rejections under 35 U.S.C. § 103 the Examiner does not
provide any obviousness rationale regarding the independent claims'
requirements or rely upon Nakakubo for any disclosure that remedies the
deficiency in Jacobsen as to the independent claims (Ans. 5-7).
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Appeal2014-006821
Application 13/364,796
Jacobsen discloses a fuel cell (10, 80) comprising a flow control
valve (60) including a valve housing (62), a cylindrical or ribbon-like shape
memory alloy (SMA) wire (64) within the housing (62), and a planar
electrically insulating flow control element ( 66) (which the Examiner relies
upon as corresponding to the Appellant's strip (Ans. 3)) coupled to the ends
of the SMA wire (64) (i-f 25). One end of the SMA wire (64) (end 68) is
electrically coupled to the fuel cell (10, 80)'s anode conductor, the other
end (70) is electrically coupled to the fuel cell (10, 80)'s cathode conductor
via a voltage switch (72), and at least one of the ends (68, 70) is movable
laterally within the valve housing (62) (i1i126-27; Figs. 1-3). "When the
fuel cell voltage is low [because of water accumulation within the cathode
flow channel (94) which restricts the airflow through it] and the voltage
switch 72 is open, the SMA wire 64 is in its expanded prestrained
configuration, and the flow control element 66 does not significantly block
the cathode flow channel 94" (i-f 28). Consequently, the maximum amount
of air flows through the flow channel (94 ), thereby forcing accumulated
water out of it and increasing the airflow through it (id.). Under normal
operating conditions the fuel cell (10, 80) produces enough voltage to close
the switch (72), thereby causing sufficient current to flow through the SMA
wire ( 64) to heat it such that it is in a contracted configuration in which it
forces the flow control element ( 66) upward to restrict the airflow to the
cathode flow channel (94) (id.).
Thus, when Jacobsen's fuel cell (10, 80)'s voltage is low, the airflow
to the cathode flow channel (94) is not blocked, whereas when the
Appellant's fuel cell is inoperative, the airflow to the cathode channels is
blocked.
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Appeal2014-006821
Application 13/364,796
The Examiner asserts that Jacobsen's flow control element (66) can be
activated to restrict airflow in response to elevated voltage differentials or
excessive heat which render the fuel cell (10, 80) inoperative (Ans. 8).
The Examiner does not point to support in Jacobsen for that assertion,
and such support is not apparent.
The Examiner asserts that Jacobsen's "flow control element is forced
upward, restricting airflow through the cathode flow channel 97 [sic, 94]
when the voltage is too high, rendering the cell inoperable; par. 28" (Ans. 3).
Jacobsen discloses that the flow control element (94) is forced upward
to restrict the airflow during normal operation, not that such restriction
renders the fuel cell (10, 80) inoperative (para. 28).
The Examiner asserts that "[t]he term 'inoperative' may be given its
broadest reasonable interpretation and does not require that the fuel cell is
completely off' (Ans. 8).
"'[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification."' In re
Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re
Hyatt, 211F.3d1367, 1372 (Fed. Cir. 2000)).
The Appellant's Specification indicates that the claim term
"inoperative" means that the "fuel cell is not receiving oxygen from the
cathode source and not receiving hydrogen from the hydrogen source for the
purpose of generating electrical power to drive the vehicle (or apparatus)"
(Spec. i-f 19). The Examiner does not establish that the broadest reasonable
interpretation of the Appellant's claim term "inoperative" consistent with
that meaning includes Jacobsen's normal operating condition airflow
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Appeal2014-006821
Application 13/364,796
restriction which the Examiner considers to render the fuel cell inoperative
(Ans. 7-8).
The Examiner asserts that "requiring the flexible first portion to flex
in response to an inoperative fuel cell is an intended use" (Ans. 7) and that
Jacobsen's "[flow] control element [66] has the structure that is capable of
cutting off air flow during any point of operation, including while the fuel
cell is inoperative" (Ans. 8).
The Examiner does not establish that Jacobsen's fuel cell (10, 80) has
that structural capability. The Examiner's mere speculation to that effect
does not provide the factual basis required for establishing a prima facie case
of anticipation.
Accordingly, we reverse the rejections.
DECISION/ORDER
The rejection of claims 1-5, 7, 8, 10-14, 17, 19, and20under
35 U.S.C. § 102(e) over Jacobsen and the rejections under 35 U.S.C. § 103
of claims 9 and 18 over Jacobsen and claims 6, 15, and 16 over Jacobsen in
view ofNakakubo are reversed.
It is ordered that the Examiner's decision is reversed.
REVERSED
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