Ex Parte Muramatsu

Board of Patent Appeals and Interferences

Mar 26, 2012

11616396 (B.P.A.I. Mar. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte YASUYUKI MURAMATSU
____________

Appeal 2011-006315
Application 11/616,396
Technology Center 1700
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Before ADRIENE LEPIANE HANLON, LINDA M. GAUDETTE and
JAMES C. HOUSEL, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-006315
Application 11/616,396

2
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1-19. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellant claims a fuel cell system, wherein the system includes a tilt
detector for detecting a tilt of the system, a storage device for storing tilt
information representing a result of detection by the tilt detector, and a
controller programmed to start the fuel cell in one of a plurality of start-up
modes including normal and recovery modes based on the stored tilt
information. (Claim 1). Appellant also claims a method of operating the
fuel cell system including steps of detecting tilt of the fuel cell, storing a
record that the system was tilted to or beyond a predetermined limit, and
starting the fuel cell in a recovery mode if the record of tilt is not less than
the predetermined limit at the time of start-up. (Claim 13).
Representative apparatus claim 1 reads as follows:
1. A fuel cell system comprising:
a fuel cell including an anode and a cathode;
a tilt detector arranged to detect a tilt of the fuel cell
system;
a storage device arranged to store tilt information
representing a result of detection by the tilt detector; and
a controller programmed to start the fuel cell in one of a
plurality of start-up modes including a normal mode and a
recovery mode based on the tilt information stored in the
storage device.
Representative method claim 13 reads as
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follows:
13. A method of operating a fuel cell system including a fuel
cell which has an anode and a cathode, the method comprising
steps of:
detecting a tilt of the fuel cell system;
storing in a storage device a record that the fuel cell
system was tilted to or beyond a predetermined limit; and
starting the fuel cell, thereafter, in a recovery mode if
there is a record of a tilt of the fuel cell system not smaller than
a predetermined limit in the storage device at the time of start
up.
The references listed below are relied upon by the Examiner as
evidence of obviousness:
Shimizu 6,591,924 B2 Jul. 15, 2003
Muramatsu JP 2004-111212 Apr. 8, 20041
Ozeki 2004/0170876 A1 Sep. 2, 2004

The Examiner rejects claims 1, 2, 12, and 13 under 35 U.S.C. § 102
(b) as anticipated by, and in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Ozeki.
In addition, under 35 U.S.C. § 103(a), the Examiner rejects:
Claim 10 as being unpatentable over Ozeki;
Claims 3-7 as being unpatentable over Ozeki in view of Shimizu; and

1 We note that the Examiner refers to this reference as Yasuyuki. However,
this decision will use the last or family name of the first named inventor as
the convention for referring to all of the references applied by the Examiner.
Thus, this reference will be referred to herein as Muramatsu.
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Claims 8-11, and 14-19 as being unpatentable over Ozeki in view of
Muramatsu.
We will sustain these rejections for the reasons expressed in the
Answer with the comments below added for emphasis.
Appellant has grouped the claims in two groups, claims 1-12 and
claims 13-19, and acknowledges that claims 2-12 and 14-19 stand or fall
with independent claims 1 and 13, respectively (App. Br. 9). For purposes
of this appeal, we therefore select claims 1 and 13 to decide the issues raised
by the rejections. See 37 C.F.R. § 41.37(c)(1)(vii) (“When multiple claims
subject to the same ground of rejection are argued as a group by appellant,
the Board may select a single claim from the group of claims that are argued
together to decide the appeal with respect to the group of claims as to the
ground of rejection on the basis of the selected claim alone.”).
With regard to claim 1, the Examiner found that Ozeki:
discloses a fuel cell for electronic apparatus with a tilt detector
arranged to detect a tilt of the fuel cell system (tilt sensor 4,
para 0033); a storage device to store tilt information (Ram 12,
memory storage, para 47) and a controller (CPU11 and
microcomputer 21, para 37,51) to execute control program to
issue warning, stop and restart the operation of the . . . fuel cell
based of the result of the tilt detection by sensor 4. (para 47-69).

(Ans. 4). With regard to the controller function, the Examiner found
that the controller is programmed to start up the fuel cell in one
of a plurality of start-up modes including a normal mode
(S2,S3,S4,S5) and a recovery mode (S7,S12). Given a warning
and tilt angle corresponds to the “safety area Z” is normal mode
(para 56), and stop and restart is recovery mode (para 68).
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(Id.). With regard to the storage device function, the Examiner found that
Ozeki’s tilt information must inherently be stored, at least temporarily, for
comparing to the threshold limits (Ans. 10).
With regard to claim 13, the Examiner found that Ozeki
discloses a method and a portable electronic instrument with a
fuel cell system according to claim 1 with anode and cathode
and a tilt sensor which detects a tilt, a storage device to store the
tilt information and the controller to execute the warning, the
stop and restart of the fuel cell system based on a predetermined
limit or threshold. (fig 6,7,8 and 9 and para 50, 51, 68).

(Ans. 4).
Appellant argues that Ozeki fails to teach or suggest that the tilt
information is stored, and that the controller is “programmed to control the
start of the fuel cell based on stored tilt information representing a result of
detection by the tilt detector” (App. Br. 10). Appellant asserts that Ozeki
only stores programs and threshold values, but not the actual tilt detected by
the tilt detector (id.). As to the Examiner’s finding that the storage of the tilt
detection would be inherent, Appellant argues that this finding “ha[s] no
basis in fact and the Examiner has failed to explain why the storage device
12 of Ozeki must inherently store the current tilt angle of the fuel cell 22 in
order to be compared to the threshold values that are stored in the storage
device 12.” (Rep. Br. para. bridging 4-5). Appellant states that “Ozeki is
not controlled based on past tilt angles of the fuel cell system” (Rep. Br. 5).
As a result, Appellant adds that “Ozeki is incapable of determining how long
and how much the fuel cell 22 was tilted preceding a currently detected tilt
angle” (App. Br. 10).
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We have evaluated this argument and find it unpersuasive. “It is well
settled that a prior art reference may anticipate when the claim limitations
not expressly found in that reference are nonetheless inherent in it.” In re
Cruciferous Sprout Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002) (citing to
Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342 (Fed. Cir. 1999); and
Titanium Metals Corp. v. Banner, 778 F.2d 775 (Fed. Cir. 1985)). “Under
the principles of inherency, if the prior art necessarily functions in
accordance with, or includes, the claimed limitations, it anticipates.”
MEHL/Biophile Int'l Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed. Cir.
1999), citing In re King, 801 F.2d 1324, 1326 (Fed.Cir.1986).
In this case, the Examiner has expressly made an inherency finding
that the tilt detection in Ozeki must necessarily function to store this
information, at least temporarily, in order to permit the controller CPU 11 to
perform a comparison of the detected tilt to a threshold limit. We agree with
this finding to the extent that the information would, of necessity, have to be
temporarily stored so as to allow for the CPU to perform the disclosed
comparison step. Appellant’s attempt to rebut this finding, by arguing that
Ozeki is incapable of determining how long and how much the fuel cell was
tilted preceding a currently detected tilt angle, is not commensurate in scope
with the claims. We note that claims 1 and 13 do not recite that the tilt
information is stored for any length of time or as a function of time, nor that
any particular past stored tilt information other than the most recent detected
tilt information is used to control the fuel cell operation. Appellant has not
directed us to, nor do we find any language in the Specification which
supports an interpretation of the claims as requiring a specific storage time.
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Appellant further argues that Ozeki fails to teach that the controller 11
starts the fuel cell in a plurality of different modes based on the stored
information (App. Br. para. bridging 10-11). As stated by Appellant, “Ozeki
merely discloses that operation of the fuel cell 22 can be started, stopped,
and restarted without any explanation of how one start mode is different
from any other start mode (see, for example, para. [0051] of Ozeki).” (App.
Br. 11). According to Appellant, “Ozeki does not distinguish between a start
mode and a restart mode as each mode appears to be the exact same.” (Id.).
We do not find this argument persuasive. The Examiner found that
Ozeki’s controller is programmed to start in one of a plurality of start-up
modes. These include normal mode start up when the tilt angle is not in the
danger area, and recovery mode start up after the system was stopped due to
a tilt angle detection in the danger area and a subsequent tilt angle detection
is in the safety area (Ans. 4). We note here that claims 1 and 13 do not
define what the normal and recovery modes are, nor do they require these
modes to be functionally different.2 Normal mode start up occurs just as
shown in Figure 8 of Ozeki at the top labeled as “Start”. Recovery mode
start up occurs after the fuel cell was stopped due to a danger area tilt
detection (Ozeki, Fig. 8, S7) and after the tilt detection returns to the safety
area (Ozeki, Fig. 8, S12). We find no error in the Examiner’s finding with
regard to the plurality of start-up modes, including normal and recovery
modes, based on the tilt detection. Accordingly, we will sustain the
Examiner’s § 102 rejection of claims 1, 2, 12, and 13 as anticipated by
Ozeki.

2 See generally, Spec. paras. [0026] and [0027] (failing to indicate that specific functions are
required in the normal and recovery modes).
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Turning next to the Examiner’s alternative § 103 rejection over
Ozeki, we find no error in this rejection. “[I]t is commonly understood that
prior art references that anticipate a claim will usually render that claim
obvious”.  Cohesive Tech., Inc. v. Waters Corp., 543 F.3d 1351, 1364 (Fed.
Cir. 2008). “[A] disclosure that anticipates under § 102 also renders the
claim invalid under § 103, for ‘anticipation is the epitome of obviousness.’”
Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983)
(citing In re Fracalossi, 681 F.2d 792 (CCPA 1982)). Therefore, we will
sustain this alternative § 103 rejection.
Finally, as indicated above, Appellant expressly states that the
dependent claims stand or fall with claim 1 or claim 13, and has advanced no
separate argument against any of the remaining § 103 rejections.
Accordingly, we sustain these rejections as well.

Conclusion
The decision of the Examiner 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)(1).
AFFIRMED

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