Ex Parte Ono et al

Patent Trial and Appeal Board

Jun 14, 2018

13387499 (P.T.A.B. Jun. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/387,499 02/23/2012 Takashi Ono
68029 7590 06/18/2018
VIERING, JENTSCHURA & PARTNER mbB - sonstige
c/o
444 Brickell A venue.
Suite 51270
Miami, FL 33131
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.
P57923US 5985
EXAMINER
STUCKEY, PHILIP A
ART UNIT PAPER NUMBER
1723
NOTIFICATION DATE DELIVERY MODE
06/18/2018 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):
patint@vjp.de
VJP-US@VJP.DE
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte T AKASHI ONO,
MITSUHIRO NAKAMURA, and NARUTO TAKAHASHI
Appeal2017-007138
Application 13/3 87,499
Technology Center 1700
Before GEORGE C. BEST, CHRISTOPHER C. KENNEDY, and
SHELDON M. McGEE, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 11, 13, 14, and 18-24 of
Application 13/387,499 under 35 U.S.C. § 102(b) as anticipated. Final Act.
4 (March 31, 2016). The Examiner also rejected claims 11, 13, 14, and 18-
20 under 35 U.S.C. § 101 as directed to non-patentable subject matter. Id. at
2. Appellants 1 seek reversal of these rejections pursuant to 35 U.S.C.
§ 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we reverse.
1 Kyocera Corp. is identified as the real party in interest. Appeal Br. 3.
Appeal2017-007138
Application 13/387,499
BACKGROUND
The '499 Application describes methods for the operation of fuel cell
devices. Spec. ,r,r 1-9. In particular, these methods are said to allow
efficient partial load operation of the fuel cell devices. Id. ,r 10.
Claim 11 is representative of the '499 Application's claims and is
reproduced below from the Claims Appendix.
11. A method of operating a fuel cell device comprising fuel
cells, the method comprising:
supplying a fuel gas to the fuel cells;
supplying an oxygen-containing gas to the fuel cells;
generating an electric current at the fuel cells by a
reaction of the fuel gas and the oxygen-containing gas;
linearly increasing a rate of fuel utilization of the fuel
cells with increasing the electric current when the fuel gas flow
is below a minimum fuel gas flow necessary to maintain a
temperature of the fuel cells above a predetermined
temperature;
non-linearly increasing the rate of fuel utilization from a
point of minimum fuel gas flow with increasing the electric
current during a partial load operation; and
maintaining during a rated operation the rate of fuel
utilization constant with increasing the electric current.
Appeal Br. 31 ( emphasis added).
Claim 11 is directed to a method of operating a fuel cell system in
which the fuel flow rate is controlled to provide the current demanded by the
load attached to the fuel cell system while maintaining a specified fuel
utilization rate. Spec. ,r 9. As the Specification explains, when the current
demanded by the load is within the range that the system is designed to
supply ("rated operation"), "efficient operation may be conducted by
maintaining fuel utilization (Uf) and amount of current (I) of the cell stack at
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Appeal2017-007138
Application 13/387,499
constant values." Id. ,r 6. When the current demand is less than the
designed operating range of the system (so-called "partial load operation"),
the fuel utilization rate fluctuates depending on the amount of current
generated by the fuel cell. Id. ,r 7. "In such a case, if the relationship
between the rate of fuel utilization (Uf) and the amount of current (I) of the
cell stack were not controlled in proper balance, a power generation
efficiency may decline or a load-following characteristic may decline." Id.
The relationship between the fuel utilization efficiency and the current
provided by the fuel cell system can be depicted in graph form. Figure 2 of
the '499 Application, reproduced below, is an example of such a graph.
Figure 2
I
Partlal load operation i Rated operation -;#. ----------------------=..:-::.=-~--ii~~~~~ -4-:,
C
0
:.;::;
ro
.!::::!
Current I
Figure 2 illustrates a relationship between a rate of fuel utilization of a
fuel cell and the amount of current generated by the fuel cell according to
the request of an external load in an embodiment of the claimed invention.
Spec. ,r 11. Figures 3 and 4 of '499 Application show other exemplary
relationships between fuel utilization and generated current according the
current demanded by an external load. Id.
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Application 13/387,499
As shown in Figure 2, during rated operation of the fuel cell system,
the fuel utilization rate is held constant. Figure 2 also shows that the partial
load operation regime can be divided into two portions. The lower left
portion of Figure 2 depicts operation when the amount of current provided
by the fuel cell system is so small that the fuel cell system does not generate
sufficient excess heat to keep itself at operating temperatures. In this portion
of the partial load operation regime, fuel supply is controlled such that fuel
utilization efficiency varies linearly with changes in the amount of current
demanded. Once the amount of current demanded by the load increases to
the point that the fuel cell system generates sufficient excess heat to
maintain itself at operating temperatures, the fuel utilization efficiency rate
varies in a non-linear fashion as the amount of current demanded by the load
decreases.
REJECTION
On appeal, the Examiner maintains2 the following rejection:
Claims 11, 13, 14, and 18-24 are rejected under 35 U.S.C. § 102(b) as
anticipated by Oi. 3 Final Act. 4.
2 The Examiner has withdrawn the rejection of claims 11, 13, 14, and 18-20
under 35 U.S.C. § 101. Answer 4.
3 JP 2006-059550 A, published March 2, 2006. We rely upon a machine
translation that is of record in the '499 Application.
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Appeal2017-007138
Application 13/387,499
DISCUSSION
Appellants present a consolidated substantive argument for reversal of
the anticipation rejection with respect to independent claims 11, 18, and 21. 4
Appeal Br. 24--28. Because Appellants do not present separate arguments
with respect to any of the dependent claims, claims 13, 14, 19, 20, and 22-
24 will stand or fall with their parent independent claim. Because
Appellants' argument is consolidated and based upon similar language in
each of the independent claims, see id., we shall confine our discussion to
claim 11 with the understanding that our analysis applies with equal force to
claims 18 and 21.
The Examiner rejected claim 11 as anticipated by Oi. Final Act. 4--6.
To serve as an anticipatory reference, "the reference must disclose
each and every element of the claimed invention, whether it does so
explicitly or inherently." In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir.
2009).
Appellants argue that Oi does not anticipate claim 11 because it does
not describe the step of "linearly increasing a rate of fuel utilization of the
fuel cells with increasing the electric current when the fuel gas flow is below
a minimum fuel gas flow necessary to maintain a temperature of the fuel
cells above a predetermined temperature."5 Appeal Br. 26-28.
4 Appellants also present a second argument for reversal of the rejection of
independent claim 11 only. Appeal Br. 29. In view of our disposition of
this appeal, we need not and do not express any opinion regarding this
argument.
5 Claim 18 recites, in relevant part: "operating the controller to: 3) linearly
increase a rate of fuel utilization (U f(%)) of the fuel cells with increasing the
electric current when the fuel gas flow is below a minimum fuel gas flow
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Appeal2017-007138
Application 13/387,499
In rejecting claim 11, the Examiner stated that
data curve (2) in fig. 3 which is a relationship of the fuel
utilization rate to the output current in a fuel cell stack which is
considered to linearly increase as shown by the vertical section
on the y-axis as depicted in the figure from zero rate of
utilization to what is considered a minimum fuel gas flow ( see
e.g. paragraph 28 and the trend of data curve (2) in drawing 3)
which teaches linearly increasing a rate of fuel utilization of the
fuel cells with increasing the electric current when the fuel gas
flow is below a minimum fuel gas flow. Because data (2) as
shown in [F]igure 3 is depicting the heat independence limiting
curve, which is considered a temperature, showing the fuel
utilization rate and the relation of output current which makes
possible heat self-sustaining of the fuel cell stack 1 (see e.g.
paragraph 28 lines 1-3), these teachings of OI '550 are
considered capable of increasing the electric current when the
fuel gas flow is below a minimum fuel gas flow necessary to
maintain a temperature of the fuel cells above a predetermined
temperature as instantly claimed.
Final Act. 5 ( emphasis added); see also id. at 6 ( annotated version of Oi,
Fig. 3).
Based upon this somewhat opaque language, we understand the
Examiner to have found the following: (1) Oi's Figure 3 depicts the
relationship between the fuel utilization efficiency and the current provided
necessary to maintain a temperature of the fuel cells above a predetermined
temperature."
Claim 21 recites, in relevant part:
operating the controller to control the fuel gas flow rate to:
1) linearly vary a rate of fuel utilization (Uf(%)) of the fuel cells
in direct proportion to the electric current when the fuel gas
flow is below a minimum fuel gas flow, wherein the minimum
fuel gas flow is defined as a minimum fuel gas flow sufficient
to maintain a temperature of the fuel cells above a
predetermined temperature.
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Appeal2017-007138
Application 13/387,499
by the fuel cell stack in the portion of the partial load regime where the fuel
cell stack is generating sufficient excess heat to keep itself at operating
temperature, (2) Oi's Figure 3 does not show the relationship between the
fuel utilization efficiency and the current provided in the portion of the
partial load regime where the fuel cell stack does not generate sufficient heat
to keep itself at operating temperature, and (3) Oi inherently describes a
linear relationship between the fuel utilization rate and the electric current
because the fuel utilization rate, by definition, must be zero when zero
current is produced. See also Answer 6-7.
For ease of reference, we reproduce Oi's Figure 3 below:
-----------··:·--·-r··-T·---T-- ! I
. • , .. --·H
0
In Oi's Figure 3, line (2) shows the relationship between the fuel
utilization rate and the output current under conditions in which the fuel cell
stack generates sufficient heat to keep the fuel cell stack at operating
temperatures. Oi ,r,r 27-29.
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Appeal2017-007138
Application 13/387,499
For the following reasons, we reverse the rejection of claim 11 as
anticipated by Oi.
First, the Examiner's finding that a vertical section along the y-axis in
Oi' s Figure 3 satisfies the language in claim 11 is erroneous. Claim 11
requires a linear increase in the fuel utilization rate with an increase in
electric current output. As the fuel utilization rate increases from zero to the
fuel utilization rate where data curve 2 intersects the y-axis, the current
output remains zero, i.e. it does not increase. Oi's Figure 3, therefore,
cannot describe the disputed limitation.
Second, the Examiner does not identify any portion of Oi that
describes the relationship between fuel utilization rate and current output
under conditions where the fuel cell stack does not generate sufficient excess
heat to maintain itself at operating temperature.
Third, the Examiner does not provide an explanation or reasoning
sufficient to demonstrate that the relationship between fuel utilization rate
and current output necessarily must be linear under conditions where the fuel
cell stack does not generate sufficient excess heat to maintain itself at
operating temperature. In other words, the Examiner has not made sufficient
findings or provided a sufficient explanation to demonstrate that Oi
inherently describes the disputed limitation.
Fourth, the Examiner argues, for the first time in the Answer, that
"the scope of the claim is directed toward linearly, [ sic, linearity,] which in
broadest reasonable interpretation requires a line, i.e. two points. Therefore
any such section of a plot could satisfy this requirement." Answer 6. This
argument is based upon an unreasonably broad interpretation of claim 11 's
language.
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Application 13/387,499
Fifth, the Examiner argues, again for the first time in the Answer, that
in order for one of ordinary skill in the art to practice the
claimed method, only one of the three following conditions
must be satisfied through the operation of the fuel cell device:
1) linearly increasing a rate of fuel utilization of the fuel
cells with increasing the electric current when the fuel
gas flow is below a minimum fuel gas flow necessary to
maintain a temperature of the fuel cells above a
predetermined temperature;
2) non-linearly increasing the rate of fuel utilization from
a point of minimum fuel gas flow with increasing the
electric current during a partial load operation; and
3) maintaining during a rated operation the rate of fuel
utilization constant with increasing the electric current.
Therefore, regardless of the determination of the linearly
component of this claim as argued by the applicant, i.e. 1) noted
above, the remainder of the steps, 2) and 3), in the method
remain anticipated by OI '550.
Id. at 7.
This argument is not persuasive because it is inconsistent with the
language of claim 11.
In view of the foregoing, we reverse the Examiner's rejection of
claims 11, 18, and 21. We, therefore, also reverse the rejection of claims 13,
14, 19, 20, and 22-24.
CONCLUSION
For the reasons set forth above, we reverse the rejection of claims 11,
13, 14, and 18-24 as anticipated by Oi.
REVERSED
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