Ex Parte Perl et al

Patent Trial and Appeal Board

Jun 30, 2016

12035307 (P.T.A.B. Jun. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/035,307 02/21/2008
65798 7590 07/01/2016
MILLER IP GROUP, PLC
GENERAL MOTORS CORPORATION
42690 WOODWARD A VENUE
SUITE 300
BLOOMFIELD HILLS, MI 48304
FIRST NAMED INVENTOR
Stephen Perl
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.
GP-305706-FCA-CHE 9708
EXAMINER
KURPLE,KARL
ART UNIT PAPER NUMBER
1717
MAILDATE DELIVERY MODE
07/01/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN PERL and ANASTASIOS ANGELOPOLOUS 1
Appeal2015-001656
Application 12/035,307
Technology Center 1700
Before TERRY J. OWENS, JEFFREY W. ABRAHAM, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
ABRAHAM, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
decision of the Examiner rejecting, for at least the second time, claims 1-7,
9-15, 17, and 18. We have jurisdiction pursuant to 35 U.S.C. § 6(b). We
affirm.
BACKGROUND
Appellants' claimed invention relates to methods and systems for
fabricating diffusion media for fuel cells that includes using variable
frequency microwaves for heating the diffusion media after it has been
coated. Abstract.
1 According to the Appeal Brief, the real party in interest is GM Global
Technology Operations LLC. App. Br. 4.
Appeal2015-001656
Application 12/035,307
Independent claim 1 is illustrative, and is reproduced below:
1. A method for fabricating diffusion media for a fuel
cell, said method comprising:
providing a diffusion media substrate;
applying a solvent including a fluorocarbon to the
substrate; and
heating the substrate using electromagnetic
radiation to dry the solvent so that the fluorocarbon is
dispersed on the substrate, wherein heating the substrate
includes varying the frequency of the electromagnetic
radiation such that the frequency is increased from a
lowest frequency to a highest frequency to control a
distribution of fluorocarbon particles.
The Examiner maintains, and Appellants appeal, the following
rejections:
1. Claims 1-7, 9-15, 17, and 18 as unpatentable under 35
U.S.C. § 103(a) over Angelopoulos 2 in view of Cuomo3 and
:farther in view of Fathi;4
2. Claims 1---6 and 9-13 as unpatentable under 35 U.S.C.
§ 103(a) over Ji5 in view of Cuomo and further in view of
Fathi;
3. Claims 7, 15, and 17 as unpatentable under 35 U.S.C.
§ 103(a) over Ji, Cuomo, Fathi, and Angelopoulos;
2 Angelopoulos et al., US 7,105,242 B2, issued Sept. 12, 2006.
3 Cuomo et al., US 5,340,914, issued Aug. 23, 1994.
4 Fathi et al., US 5,738,915, issued Apr. 14, 1998.
5 Ji, US 2006/0029858 Al, published Feb. 9, 2006.
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Application 12/035,307
4. Claim 14 as unpatentable under 35 U.S.C. § 103(a) over Ji,
Cuomo, Fathi, and Greenwald;6 and
5. Claim 18 as unpatentable under 35 U.S.C. § 103(a) over Ji,
Cuomo, Fathi, Angelopoulos, and Greenwald;
OPINION
We sustain the above rejections based primarily on the Examiner's
findings of fact, conclusions of law, and rebuttals to Appellants' arguments,
as expressed in the Final Action and Answer. The following comments are
added for emphasis.
Rejection 1
1. Claims 1-77
The Examiner finds that Angelopoulos discloses providing a diffusion
media substrate, applying a solvent to the substrate, and heating the substrate
using microwave radiation. Final Act. 2-3. The Examiner finds that Cuomo
teaches heating a liquid with microwave radiation, and "varying the
frequency of the electromagnetic radiation to obtain optimum results in
removing solvent." Id. at 3 (citing Cuomo, Abstract, 9:27-30). The
Examiner further finds that Fathi is directed to heating polymers with
variable frequency microwaves, and teaches that increasing the frequency
from lowest to highest helps prevent damage to the substrate and provides
uniform processing. Id. (citing Fathi, Abstract, 2:44--50, 7:23-27); Ans. 24
(citing Fathi 7 :43---60).
6 Greenwald et al., US 5,476,826, issued Dec. 19, 1995.
7 Appellants do not separately argue the patentability of any dependent
claim, and therefore, claims 2-7 stand or fall with independent claim 1.
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Application 12/035,307
The Examiner thus determines that it would have been obvious to a
person of ordinary skill in the art to modify Angelopoulos in view of Cuomo
by varying the microwave frequency in order to achieve optimal results in
solvent removal, and further in view of Fathi to ramp the frequency from
lowest to highest in order to prevent damage to the substrate and provide
uniform processing. Final Act. 3--4; Ans. 24 (citing Fathi 7:43---60).
Appellants argue that the Examiner erred by relying on Fathi as
disclosing "varying the frequency of the electromagnetic radiation such that
the frequency is increased from a lowest frequency to a highest frequency to
control a distribution of fluorocarbon particles," as required in independent
claim 1. App. Br. 8-9. Specifically, Appellants argue that Fathi does not
explicitly disclose increasing the frequency from a lowest frequency to a
highest frequency because "Fathi expressly states that any incremental
[frequency launching] pattern may be used." Id. at 9. Appellants' argument
is unavailing in view of the fact that Fathi teaches "continuously or
selectively launching frequencies ... in any desirable increments, such as
2.6001 GHz, 2.6002 GHz, 2.6003 GHz ... 3.30 GHz." Fathi, 7:23-27. The
fact that Fathi allows for other frequency launching sequences does not
detract from its disclosure of a launching sequence whereby the frequency
increases from lowest to highest.
Nor are we persuaded by Appellants' argument that Cuomo and Fathi
are not directed to diffusion media for fuel cells, and therefore these
references "when considered as a whole, do not fairly suggest to a person of
ordinary skill in the art Appellant[s'] independent claim 1." App. Br. 10.
Both Fathi and Cuomo disclose coated substrates, and exposing the coating
materials to microwave radiation. E.g., Fathi, Abstract; Cuomo, Abstract,
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Application 12/035,307
4:45-50. The Examiner explains that Fathi is directed to processing coated
substrates using "microwave frequency heating to provide uniform
processing" (Ans. 25), and Cuomo teaches varying microwave frequencies
to obtain optimum results in removing solvent (Ans. 2). In view of this,
Appellants have not persuasively explained why these references are not at
least reasonably pertinent to the problem addressed by Appellants (avoiding
inconsistent results when preparing coated diffusion media layers). Spec. i-fi-1
12-13; In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006); see also In re Clay,
966 F.2d 656, 659 (Fed. Cir. 1992) (stating that a reference in a different
field from that of the inventor's endeavor is still reasonably pertinent if the
matter with which it deals "logically would have commended itself to an
inventor's attention in considering his problem.").
Appellants also argue that "[ n ]one of the cited prior art references
disclose a method that controls a distribution of fluorocarbon particles as
claimed by Appellant[s]." App. Br. 10. Appellants, however, do not
contend (or direct us to evidence adequate to demonstrate) that the claims
require anything beyond simply controlling the distribution of particles to
some degree and in some way. In view of this, we agree with the
Examiner's determination that a person of ordinary skill in the art would
have understood Fathi's disclosure of using microwave radiation to increase
uniformity and decrease voids and defects to be equivalent to "control[ling]
the distribution" of fluorocarbon particles to some degree and in some way,
as required in independent claim 1. Ans. 25.
We also agree with the Examiner's finding that a person of ordinary
skill in the art would have been motivated to combine Fathi and
Angelopoulos in view of Fathi's disclosure of providing a "'rapid, uniform,
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Application 12/035,307
yet damage-free' process for heating with microwave radiation." Id. at 26.
We are thus unpersuaded by Appellants' arguments that "Fathi does not
provide the motivation necessary to increase the frequency from a lowest
frequency to a highest frequency." App. Br. 10.
We have considered Appellants' remaining arguments and, for the
reasons given by the Examiner, find none that warrant reversal of the
appealed rejections. Cf In re Antor Media Corp., 689 F.3d 1282, 1294
(Fed. Cir. 2012).
We, therefore, sustain the Examiner's rejection of claims 1-7 as
unpatentable under 35 U.S.C. § 103(a) over Angelopoulos in view of Cuomo
and further in view of Fathi.
2. Claims 9-15, 17, and 188
Independent Claim 9 contains limitations substantially similar to those
in claim 1, and additionally requires a controller programmed to vary the
frequency of the electromagnetic radiation during the drying process. App.
Br. 18. In addition to the findings discussed above in connection with claim
1 regarding the teachings of Angelopoulos, Cuomo, and Fathi, the Examiner
finds that Cuomo teaches varying frequency with a sweep oscillator, which
the Examiner considers to be equivalent to a controller. Final. Act. 5.
8 Appellants do not separately argue the patentability of dependent claims
10-15 or 18. Therefore, these claims stand or fall with the independent
claim from which each depends. Additionally, Appellants rely on the same
arguments with regard to the patentability of independent claims 9 and 17.
Therefore, we confine our discussion to claim 9, which we select as
representative pursuant to 37 C.F.R. § 41.37(c)(l)(iv).
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Appellants again rely on the arguments made with respect to claim 1,
and further argue that "Fathi does not fairly suggest a controller that is
programmed to vary a frequency from lowest to highest for the purpose of
controlling the distribution of fluorocarbon particles." App. Br. 11. We are
not persuaded by Appellants' arguments. First, the Examiner does not rely
on Fathi for the disclosure of a controller. Second, to the extent Appellants
made a typographical error and meant to refer to Cuomo, we remain
unpersuaded by Appellants' arguments because Appellants do not contend
that a sweep oscillator is not a controller. Finally, for the same reasons
discussed above in connection with claim 1, we find that Fathi, in
combination with Cuomo and Angelopoulos, does teach or suggest varying a
frequency from lowest to highest for the purpose of controlling the
distribution of fluorocarbon particles.
We therefore sustain the Examiner's rejection of claims 9-15, 17, and
18 as unpatentable under 35 U.S.C. § 103(a) over Angelopoulos in view of
Cuomo and further in view of Fathi.
Rejections 2-5
Appellants rely on the same arguments for each of these rejections.
App. Br. 12-16. Specifically, in addition to reiterating the arguments made
with respect to Rejection 1, Appellants argue that neither Ji nor Greenwald
(for claim 14 only) disclose varying the frequency of the microwave
radiation, and thus cannot disclose varying the microwave radiation from
highest to lowest. App. Br. 13-15. The Examiner, however, does not rely
on Ji or Greenwald for the disclosure of this limitation. For this reason, and
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for the reasons discussed above with regard to Rejection 1, we sustain
Rejections 2-5.
CONCLUSION
For the reasons set forth above, we affirm the Examiner's rejection of
claims 1-7, 9-15, 17, and 18 under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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