Ex Parte Otto

Patent Trial and Appeal Board

Jul 24, 2018

13903432 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/903,432 05/28/2013
530 7590 07/26/2018
LERNER, DAVID, LITTENBERG,
KRUMHOLZ & MENTLIK
600 SOUTH A VENUE WEST
WESTFIELD, NJ 07090
FIRST NAMED INVENTOR
Thorsten Otto
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.
AIRBUS 3.9-435 CON 3046
EXAMINER
SIDDIQUEE, MUHAMMAD S
ART UNIT PAPER NUMBER
1723
NOTIFICATION DATE DELIVERY MODE
07/26/2018 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):
eOfficeAction@ldlkm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte THORSTEN OTTO
Appeal2017-008354
Application 13/903,432
Technology Center 1700
Before TERRY J. OWENS, DONNA M. PRAISS, and MONTE T. SQUIRE
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 1-3 and 5-10. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellant claims a fuel cell system. Claim 1 is illustrative:
1. A fuel cell system for generating electric energy and water
for use aboard a means of transport, with the fuel cell
system comprising:
a fuel cell;
a water tank for storing water delivered by the fuel
cell;
a control device configured to control operation of
the fuel cell in dependence on a current fill level or limit
Appeal2017-008354
Application 13/903,432
level of the water tank and on a predicted future water
consumption based on flight phase and remaining flight
time.
Kratschmar
Matsubayashi
Arendt
The References
US 2008/0032164 Al
US 2008/0038604 Al
US 2010/0071371 Al
The Rejections
Feb. 7,2008
Feb. 14,2008
Mar. 25, 2010
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-
3, 9 and 10 over Arendt in view of Matsubayashi and claims 5-8 over
Arendt in view of Matsubayashi and Kratschmar.
OPINION
We reverse the rejections. We need address only the independent
claims (1 and 9). Those claims require a control device configured to
control operation of a fuel cell in dependence on a current fill level or limit
level of a water tank and on a predicted future water consumption based on
flight phase and remaining flight time.
Arendt discloses an aircraft hybrid energy source power regulating
device (Abstract). Possible energy sources (3, 4) include fuel cells (6) and
engine generators (7) (i1i139, 44). The energy's consumers (2, 5) include an
electrical system (9, 10), a wing deicing system (11 ), an inerting
(low-oxygen outgoing air) system (8) and a water system (12) (i1i125, 44, 48,
50). "Depending on the requirement of required means of the consumers 2,
5 and of the operating characteristics of the first and second energy
sources 3, 4, 6, 7, the power regulating device can control or regulate the
first and second energy sources 3, 4, 6, 7 such that each energy source 3, 4,
6, 7 provides a first and second requirement share of the required means in
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Appeal2017-008354
Application 13/903,432
order to in this way adequately supply the consumers 2, 5" (i-f 39). A
"priority list may be activated in an emergency when an energy source 3, 4,
for example the fuel cell, is no longer 100% available, thus ensuring that an
adequate quantity of required means can be made available to individual
consumers" (i-f 50). The priority depends on the flight phase, i.e., "taxi-out,
take-off, climb, cruise, descent, approach and landing, and taxi-in" (id.).
Matsubayashi discloses "a control unit for a fuel-cell power
generation apparatus which generates electric power and supplies it to
electric equipment" (i-f 1 ). The control unit measures present and predicts
future electric equipment power consumption and hot water equipment heat
consumption, and based thereupon operates the fuel cell power generation
apparatus such that fuel cell system energy is minimized (i-f 9).
Establishing a prima facie case of obviousness requires an apparent
reason to modify the prior art as proposed by the Examiner. See KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398,418 (2007).
The Examiner concludes that "it would have been obvious to a person
of ordinary skill in the art at the time the invention was made to avail the
teachings of prediction of future water consumption as taught by
Matsubayashi in order to have efficient control of the fuel cell system for
optimum energy management" (Ans. 3).
The Examiner cites to many paragraphs in Arendt and Matsubayashi
but does not point out specifically where any of the claim limitations are
disclosed in those references, let alone address the differences between the
references and establish that, regardless of those differences, they would
have provided one of ordinary skill in the art with an apparent reason to
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Appeal2017-008354
Application 13/903,432
combine their disclosures to arrive at the Appellants' fuel cell system
(Ans. 2, 3).
The Examiner concludes that "Arendt teaches the concept of
controlling the fuel cell system based on the flight phases, therefore, it
would have been obvious to extend the same concept on a current fill level
or limit level of the water tank and on a predicted future water consumption"
(Ans. 3).
That conclusion is not well taken due to being unsupported by
evidence.
Thus, the record indicates that the Examiner's rejections are based
upon impermissible hindsight in view of the Appellant's disclosure. See In
re Warner, 379 F.2d 1011, 1017 (CCPA 1967) ("A rejection based on
section 103 clearly must rest on a factual basis, and these facts must be
interpreted without hindsight reconstruction of the invention from the prior
art."). Accordingly, we reverse the rejections.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1-3, 9, and 10 over
Arendt in view of Matsubayashi and claims 5-8 over Arendt in view of
Matsubayashi and Kratschmar are reversed.
The Examiner's decision is reversed.
REVERSED
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