Ex Parte Skala

Board of Patent Appeals and Interferences

Apr 19, 2010

10961698 (B.P.A.I. Apr. 19, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GLENN WILLIAM SKALA
____________

Appeal 2009-010291
Application 10/961,698
Technology Center 1700
____________

Decided: April 19, 2010
____________

Before CATHERINE Q. TIMM, ROMULO H. DELMENDO, and
KAREN M. HASTINGS, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-010291
Application 10/961,698

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Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-11, 21, 24-28, 30, and 33-40 (Appeal Brief filed April 8, 2008, as
revised on December 23, 2008, hereinafter “App. Br.,” at 1; Final Office
Action mailed November 08, 2007, hereinafter “FOA”). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

STATEMENT OF THE CASE
Appellant’s invention generally relates to a fuel cell, particularly a
fuel cell that includes specially positioned openings for allowing a controlled
amount of an anode exhaust gas flow to mix with a cathode input gas flow to
provide combustion in cathode flow channels for heating the fuel cell during
start-up (Specification, hereinafter “Spec.,” ¶ [0001]).
Claims 1, 3-5, and 21 read as follows:
1. A fuel cell comprising:
a first bipolar plate;
a second bipolar plate; and
a membrane electrode assembly (MEA) positioned
between the first and second bipolar plates so as to define an
anode channel between the first bipolar plate and the membrane
electrode assembly (MEA) and a cathode channel between the
second bipolar plate and the membrane electrode assembly
(MEA), said anode channel receiving an anode input gas flow
and said cathode channel receiving a cathode input gas flow,
said membrane electrode assembly (MEA) including a plurality
of openings that direct an anode exhaust gas flow from the
anode channel to the cathode channel to provide an anode
exhaust gas and cathode input gas mixture that combusts in the
cathode channel.

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3. The fuel cell according to claim 1 wherein the plurality
of openings are an array of small holes for a plurality of parallel
anode channels and cathode channels.

4. The fuel cell according to claim 3 wherein the array of
small holes is in a membrane electrode assembly (MEA) sub-
gasket or a membrane electrode assembly (MEA) carrier frame.

5. The fuel cell according to claim 1 wherein the plurality
of openings form at least one slot extending across a plurality of
parallel anode channels and cathode channels.

21. A fuel cell stack comprising:
a plurality of bipolar plates;
a plurality of membrane electrode assemblies (MEAs),
said plurality of bipolar plates and membrane electrode
assemblies (MEAs) being arranged in an alternating
configuration within the fuel cell stack, said plurality of bipolar
plates and membrane electrode assemblies (MEAs) defining a
plurality of anode channels and cathode channels therebetween,
said anode channels receiving an anode input gas flow and said
cathode channels receiving a cathode input gas flow; and
a plurality of openings extending through the membrane
electrode assemblies so as to allow an anode exhaust gas flow
from ends of anode flow channels into adjacent cathode flow
channels to provide an anode exhaust gas and cathode input gas
mixture that combusts in the cathode channel.
(App. Br. 8-10; Claims App’x.)
The Examiner relied upon the following as evidence of
unpatentability (Examiner’s Answer mailed February 24, 2009, hereinafter
“Ans.,” 2-3):
Worsham 3,382,104 June 5, 1964
Hosaka 5,897,972 Apr. 27, 1999
Bernard 6,124,053 Sept. 26, 2000
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Hsu 2003/0008183 A1 Jan. 9, 2003
The Examiner rejected the claims as follows:
I. Claims 1-6, 8-10, 21, 24-28, 30, and 40 under 35 U.S.C.
§ 102(b) as anticipated by Bernard (Ans. 3-4);
II. Claims 1, 3, 6, 7, 9, 10, 21, 24, 28, 39, and 40 under 35
U.S.C. § 102(b) as anticipated by Hosaka (Ans. 4-5);
III. Claim 11 under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Bernard and Hsu (Ans. 6); and
IV. Claims 33-38 under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Bernard and Worsham (Ans. 6-8).

ISSUES
Appellant separately argues various groups of claims, as follows: (i)
claims 1, 21, and 28; (ii) claims 2 and 30; (iii) claims 4 and 25; and (iv)
claims 5 and 26 (App. Br. 3-4 and 6). We address these separate arguments
accordingly, confining our discussion to selected representative claims
within each of the groups. See 37 C.F.R. § 41.37(c)(1)(vii).

I.
Claims 1, 21, and 28
The Examiner found that Bernard describes every limitation of the
appealed claims including claim 21(Ans. 3-4 and 8-10). In support, the
Examiner referred to Bernard’s Figures 1-3 and related disclosures (id.).
Appellant contends that Bernard does not anticipate claim 21 because
the reference does not teach a plurality of openings that extend through an
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MEA between cathode flow channels and anode flow channels but instead
through subunits in a combustion chamber assembly (App. Br. 3-4).
Thus, a dispositive issue is:
(1) Does Bernard disclose the limitation “a plurality of openings
extending through the membrane electrode assemblies [MEAs] so as to
allow an anode exhaust gas flow from ends of anode flow channels into
adjacent cathode flow channels to provide an anode exhaust gas and cathode
input gas mixture that combusts in the cathode channel,” as recited in claim
21?

Claims 2-6, 8-10, 24-27, 30, and 40
The Examiner found that Bernard discloses every limitation of
appealed claims 2-6, 8-10, 24-27, 30, and 40 (Ans. 3-4).
With respect to claims 2 and 30, Appellant asserts that because
Bernard’s openings do not extend through an MEA, they can not extend
through an MEA in a location where there is no catalyst (App. Br. 6). Thus,
the issue with respect to claims 2 and 30 is the same as in Issue (1).
As to claims 4 and 25, Appellant asserts that Bernard’s openings do
not extend through an MEA sub-gasket or carrier frame but instead through
a plate material that forms a combustion chamber (App. Br. 6).
With respect to claims 5 and 26, Appellant argues that Bernard’s
openings do not form a slot (id.).
Thus, the additional dispositive issues are:
(2) Does Bernard disclose an MEA “sub-gasket” or “carrier frame”
on which is disposed a plurality of openings, which is “an array of small
holes,” as recited in claims 4 and 25?
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(3) Does Bernard disclose a “slot extending across a plurality of
parallel anode channels and cathode channels,” as recited in claims 5 and
26?

II.
Claims 1, 3, 6, 7, 9, 10, 21, 24, 28, 30, and 40
The Examiner found that Hosaka discloses a fuel cell stack including
MEAs that comprise a fuel electrode, an electrolyte, and an air electrode,
wherein a plurality of pores in the fuel and air electrodes and holes in the
electrolyte form a plurality of openings that allow anode exhaust gas to flow
from anode flow channels to cathode flow channels (Ans. 4-5 and 10; FOA
at 9).
Appellant, on the other hand, contends that Hosaka does not teach a
plurality of holes that extend completely through the MEA and that allow
anode exhaust gas to flow from an anode flow channel to a cathode flow
channel, as required in claim 21, because, in Hosaka, the holes in the
electrolyte do not extend through the fuel and air electrodes and the pores in
the fuel and air electrodes “would not combine with other pores to form an
opening extending through these layers” (App. Br. 4-5).
Thus, the issue is:
(4) Does Hosaka disclose “a plurality of openings extending
through the membrane electrode assemblies [MEAs] so as to allow an anode
exhaust gas flow from ends of anode flow channels into adjacent cathode
flow channels to provide an anode exhaust gas and cathode input gas
mixture that combusts in the cathode channel,” as recited in claim 21?

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III and IV.
For Rejections III and IV, Appellant relies on the same or similar
arguments as made against claim 21 in Rejection I (App. Br. 6-7). Thus, the
issues are the same as in Issue (1) above.

FINDINGS OF FACT (“FF”)
1. Appellant’s Figure 1 is reproduced below:

Figure 1 depicts a portion of a fuel cell stack that includes a
specially designed opening 36 in an MEA 16 that allows
humidified anode exhaust gas flow 40 to flow from anode flow
channel 26 to cathode flow channel 30 (Spec. ¶¶ [0011], [0018],
and [0019]).
2. Appellant’s Specification further discloses that the opening 36
through the MEA 16 “is a generalized depiction of the several
locations and designs for a suitable opening” (Spec. ¶ [0021]).
3. The Specification describes “an array of small holes in an MEA
sub-gasket or an MEA carrier frame” that allow the anode
exhaust gas to cross over to the cathode channels near the
cathode input; and that “[i]n one embodiment, the exhaust gas
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flow 40 will pass through an array of small holes for all of the
parallel channels in an MEA sub-gasket or an MEA carrier
frame” (Spec. ¶¶ [0009] and [0021]; fig. 1).
4. The Specification discloses that “the opening 36 could be a slot
that extends across all of the channels for the MEA 16” (Spec. ¶
[0021]; fig. 1).
5. Bernard’s Figure 1 is reproduced below:

Figure 1 is a schematic cross-section of a fuel cell system 10
showing a fuel cell stack 12 comprising an anode 28, an
electrolyte 42, a cathode 36, and a combustion chamber 58
interfacing with anode passages 18 and cathode passages 20
that have passages structure (corrugated and/or perforated) as
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indicated by 18a and 20a, respectively, wherein the combustion
chamber 58 extends through the electrolyte 42 (col. 6, ll. 24-27
and 65-67; col. 7, ll. 10-13 and 22-24; col. 8, l. 64 to col. 9, l.
16).
6. Bernard’s Figure 2 is reproduced below:

Figure 2 depicts an internal combustion chamber assembly 82
comprising combustion chamber subunits 92 that “are generally
circular openings 94 through the plates 84 and 86 and are
configured to receive anode exhaust from the anode passages
and to transfer gases . . . to the cathode passages” (col. 10, ll.
36-38, 40-41, and 45-49).
7. Bernard discloses that a plurality of assemblies 82 are stacked
together such that the subunits 92 coincide to form multiple
combustion chambers extending within the fuel cell stack (col.
10, ll. 40-44).

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8. Bernard’s Figure 3 is reproduced below:

Figure 3 depicts a cross-sectional view of the fuel cell stack 12
comprising a stack of assemblies 82 of Figure 2 and one of the
plurality of combustion chambers 58 that extends through the
fuel cell stack 12, including through an electrolyte (no reference
numeral), wherein anode flow field 118 enters the combustion
chamber 58 from anode passages (channels) (no reference
numeral, but seen as structure along arrow 118 and
corresponding to structure 18a of fuel cell stack 12 in Figure 1)
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and gases exiting from the combustion chamber mix with
carrier gas 106 as cathode flow field 120 that travels through
cathode passages (channels) (no reference numeral, but seen as
structure along arrow 120) (col. 2, ll. 34-36 and 44-46; col. 11,
ll. 25-28 and 36-42).
9. Hosaka’s Figure 4 is reproduced below:

Figure 4 depicts the internal structure of a fuel cell 14
comprising an electrolyte plate 11 between a fuel electrode 12
and an air electrode 13, wherein the electrolyte plate 11
comprises through-holes 11a “through which the fuel and air
electrodes 12 and 13 are in fluid communication with each
other” (col. 4, ll. 34-42).
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10. Hosaka further discloses that the fuel and air electrodes are
“originally porous” (col. 4, ll. 56-57).
11. Hosaka discloses that the fuel electrode 12 receives fuel gas
from a flow path (i.e., anode channel) (col. 5, ll. 13-15; fig. 4).
12. Hosaka describes that unreacted gas from the fuel gas flow path
flows through holes 11a to the air electrode and combines with
oxygen coming through a flow path of the air electrode (col. 5,
ll. 13-15 and 28-32; fig. 4).

PRINCIPLES OF LAW
It is well settled that the United States Patent and Trademark Office
(PTO) is obligated to give claim terms their broadest reasonable
interpretation, taking into account any enlightenment, by way of definitions
or otherwise, found in the specification. In re ICON Health and Fitness,
Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007).
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).

ANALYSIS
I.
Claims 1, 21, and 28
Appellant’s argument that Bernard’s openings 96, 98 do not extend
through an MEA is unpersuasive. As an initial matter, we observe that
Appellant’s Specification does not place any limitations on additional
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functions of the “plurality of openings,” such as by limiting the term to
exclude combustion chambers (FF 1 and 2). Further, Appellant stated:
[Bernard’s] figure 3 does not show the electrolyte layer 42, and
even if it did, it is clear from figures 2 and 3 that the openings
96 and 98 do not extend through an MEA of the fuel cell stack
12, but are only provided through the subunits 92 in the
combustion chamber assembly 82. Figure 1 of Bernard may
show that the electrolyte layer 42 is on both sides of the
combustion chamber 58, but figures 2 and 3 make it clear that
the electrolyte layer 42 does not extend across the combustion
chamber 58, and thus the openings 96 and 98 are not through an
MEA.
(App. Br. 4). Thus, it is undisputed that Bernard discloses an MEA in
the form of a structure that includes an electrolyte. Also, Bernard
discloses a fuel cell stack 12 that comprises multiple combustion
chambers 58, wherein anode exhaust gas flow from anode passages
(channels) enters the combustion chambers and exits into cathode
passages (channels) (FF 5-8). Additionally, Bernard’s Figures 1-3
and related disclosures plainly disclose that multiple combustion
chambers 58 define a plurality of openings that extend through
Bernard’s structure including an electrolyte and hence through the
MEAs of the fuel cell stack, as required by the claim 21 (FF 5-8).
Because Bernard describes the disputed claim limitation, we find no
basis on which to reverse the rejection.
Moreover, Appellant’s argument based on the disputed limitation is
not germane to independent claims 1 and 28, which recite “said [MEA]
including a plurality of openings . . .” (claim 1) and “a plurality of openings
in [an MEA] . . .” (claim 28) instead of the contested limitation of “a
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plurality of openings extending through the [MEAs] . . . .” Accordingly, the
argument is even less persuasive as to these claims.

Claims 2-6, 8-10, 24-27, 30, and 40
With respect to claims 2 and 30, Appellant’s argument is the same as
that offered in support of claim 21, discussed above (App. Br. 6). Thus, for
the same reason, we uphold the Examiner’s rejection of claims 2 and 30.
With respect to claims 4 and 25, Appellant’s conclusory statement
that Bernard’s openings 96, 98 extend through plate material forming a
combustion chamber instead of through an MEA sub-gasket or carrier frame
has no persuasive merit (App. Br. 6). Appellant’s Specification does not
restrict the scope of the claim terms “[MEA] sub-gasket” or “[MEA] carrier
frame” to any particular structure (FF 3). Nor does the Specification limit
the relative term “small holes” to any particular hole having a particular size
(FF 3). Thus, we are obligated to apply a broad interpretation as to each of
these terms.
When we do so, we conclude that one skilled in the relevant art would
have understood the term “[MEA] carrier frame” in its present context to
encompass any frame-like (i.e., plate-like) structure with a plurality of holes
extending through an MEA electrolyte. Similarly, we conclude that one
skilled in the relevant art would construe the term “small holes” in the
present context to read on any hole having a size smaller than the overall
fuel stack structure.
Having construed the disputed claim terms, we consider Bernard’s
disclosure. Bernard’s Figures 1-3 and related disclosures describe a plurality
of holes in the form of multiple combustion chambers 58 that are disposed
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on plate-like structures 84, 86 that may be considered as an “[MEA] carrier
frame” (FF 5-8). As discussed, holes 58, which are smaller than the overall
device, extend through MEAs (FF 5 and 8). Thus, we find that Bernard
discloses the disputed claim limitations.
Claims 5 and 26 stand on different footing. Appellant’s Specification
does not contain any special definition for the term “slot,” but it indicates
that Appellant used the term in a manner consistent with its ordinary usage
(FF 4).1 Giving the term “slot” its ordinary meaning as would be understood
by one skilled in the relevant art, we agree with Appellant that Bernard’s
openings 96, 98 do not form a slot (App. Br. 6). While the Examiner
generally directs us to Bernard’s Figure 1 as describing a “slot,” the
Examiner did not identify any opening that forms a “slot,” wherein the “slot”
extends across a plurality of parallel anode channels and cathode channels,
as required by claims 5 and 26 (Ans. 4). Additionally, Bernard’s openings
96 and 98, as well as the combustion chambers 58 that we considered above,
do not form or define a slot (i.e., a narrow elongated opening) (FF 5-8).
Thus, we reverse the Examiner’s rejection as to claims 5 and 26.

II.
Claims 1, 3, 6, 7, 9, 10, 21, 24, 28, 30, and 40
We are in complete agreement with the Examiner that Hosaka
describes “a plurality of openings extending through MEAs to allow an
anode exhaust gas flow from ends of anode flow channels into adjacent

1 The term “slot” is defined as a “long narrow groove, opening, or notch, as
for receiving coins in a vending machine.” See Webster’s II New Riverside
University Dictionary (1984) (copy attached).
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cathode flow channels to provide an anode exhaust gas and cathode input
gas mixture that combusts in the cathode channel,” as recited in claim 21
(Ans. 4-5 and 10; FAO 9; FF 9-12). While Appellant contends that
Hosaka’s holes 11a only extend through the electrolytic plate 11 and that
“[a]ny pores in the air electrode 13 and the fuel electrode 12 would not
combine with other pores to form an opening extending through these
layers” (App. Br. 5), Hosaka describes fluid communication between the
fuel and air electrodes (FF 9). Therefore, contrary to Appellant’s position,
one of ordinary skill in the art would have understood that the pores of the
fuel and air electrodes must necessarily combine with each other and with
holes in the electrolyte to provide openings that extend from the anode
channel to the cathode channel.

III and IV.
Because Appellant relies on the same or similar arguments offered
against claim 21 in Rejection I, we affirm Rejections III and IV for the same
reasons as discussed above with respect to this claim in Rejection I.

CONCLUSION
I, III, and IV.
(1) Bernard discloses the limitation “a plurality of openings
extending through the membrane electrode assemblies [MEAs] so as to
allow an anode exhaust gas flow from ends of anode flow channels into
adjacent cathode flow channels to provide an anode exhaust gas and cathode
input gas mixture that combusts in the cathode channel,” as recited in claim
21.
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(2) Bernard discloses an MEA “sub-gasket” or “carrier frame” on
which is disposed a plurality of openings, which is an array of small holes,
as recited in claims 4 and 25.
(3) Bernard does not disclose a “slot extending across a plurality of
parallel anode channels and cathode channels,” as recited in claims 5 and 26.
II.
(4) Hosaka discloses “a plurality of openings extending through the
membrane electrode assemblies [MEAs] so as to allow an anode exhaust gas
flow from ends of anode flow channels into adjacent cathode flow channels
to provide an anode exhaust gas and cathode input gas mixture that
combusts in the cathode channel,” as recited in claim 21.

DECISION
The Examiner’s decision to reject:
claims 1-4, 6, 8-10, 21, 24, 25, 27, 28, 30, and 40 under 35 U.S.C. §
102(b) as anticipated by Bernard;
claims 1, 3, 6, 7, 9, 10, 21, 24, 28, 39, and 40 under 35 U.S.C. §
102(b) as anticipated by Hosaka;
claim 11 under 35 U.S.C. § 103(a) as unpatentable over the combined
teachings of Bernard and Hsu; and
claims 33-38 under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Bernard and Worsham
is affirmed.
The Examiner’s decision, however, to reject appealed claims 5 and 26
under 35 U.S.C. § 102(b) as anticipated by Bernard is reversed.
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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)(iv).

AFFIRMED-IN-PART

bim

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