Ex Parte Yadha et al

Patent Trial and Appeal Board

Aug 9, 2016

12447343 (P.T.A.B. Aug. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/447,343 0412712009
136767 7590 08/11/2016
Seed IP Law Group/General Firm (Email)
701 FIFTH A VE
SUITE 5400
SEATTLE, WA 98104
FIRST NAMED INVENTOR
Venkateshwarlu Yadha
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.
130609.420USPC 3129
EXAMINER
MCDERMOTT, HELENM
ART UNIT PAPER NUMBER
1727
NOTIFICATION DATE DELIVERY MODE
08/11/2016 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):
Patentinfo@SeedIP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VENKATESHWARLU Y ADHA,
MATTHEW P. WILSON, and
PRA VEEN NARASIMHAMURTHY 1
Appeal2014-005490
Application 12/447,343
Technology Center 1700
Before TERRY J. OWENS, CATHERINE Q. TIMM, and
AVEL YN M. ROSS, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 2
1 Appellants identifies the real party in interest as United Technologies
Corporation. Appeal Br. 1.
2 In our opinion below, we reference the Specification filed October 19,
2010 (Spec.), Final Office Action mailed July 17, 2013 (Final), the Appeal
Brief filed December 19, 2013 (Appeal Br.), the Examiner's Answer mailed
January 27, 2014 (Ans.), and the Reply Brief filed March 27, 2014 (Reply
Br.).
Appeal2014-005490
Application 12/447,343
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) the Examiner's decision
to reject claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The claims are directed to a fuel cell (see, e.g., claims 1 and 10) and a
method of controlling water balance within a fuel cell (see, e.g., claim 5.
Claim 1 is illustrative of the fuel cell:
1. A fuel cell comprising:
a cathode having an oxidant flow field;
a water transport plate adjacent to at least one of the
oxidant flow field and a fuel flow field;
a back pressure valve downstream from the oxidant flow
field for producing an oxidant back pressure that generates a
desired differential pressure across the water transport plate;
an ejector arranged upstream from the fuel flow field and
including a motive inlet, the back pressure valve configured to
control a fuel pressure at the motive inlet; and
a controller in communication with the back pressure
valve, the controller programmed to receive pressure data and
command the back pressure valve in response to the pressure
data to obtain the desired differential pressure.
Claims Appendix, Appeal Br. 8.
The Examiner maintains the following rejections:
A. The rejection of claims 1--4, 10, and 11 under 35 U.S.C. § 112 i-f 1
as lacking written descriptive support;
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Application 12/447,343
B. The rejection of claims 1 and 4 under 35 U.S.C. § 103(a) as
obvious over Merritt3 in view of Kurosaki; 4
C. The rejection of claims 2, 3, and 5-11under35 U.S.C. § 103(a) as
obvious over Merritt in view of Kurosaki and further in view of
Shimotori; 5
D. The rejection of claims 1-3 under 35 U.S.C. § 103(a) as obvious
over Grasso6 in view ofDraper; 7
E. The rejection of claim 4 under 35 U.S.C. § 103(a) as obvious over
Grasso in view of Draper and further in view of Merritt; and
F. The rejection of claims 10 and 11under35 U.S.C. § 103(a) as
obvious over Grasso in view of Merritt.
OPINION
Rejection A
The first rejection is a rejection of claims 1--4, 10, and 11 under 35
U.S.C. § 112 i1 l as lacking written descriptive support.
The focus of the rejection is on the word "programmed" as that word
is used in claims 1 and 10. Claim 1 requires a "controller programmed to
receive pressure data and command the back pressure valve in response to
the pressure data to obtain the desired differential pressure." Claim 1
(emphasis added). Claim 10 requires a "controller programmed to receive
pressure data and command said cathode reactant back pressure valve in
3 Merritt et al., US 5,441,821 patented Aug. 15, 1995.
4 Kurosaki et al., US 2002/0022161 Al published Feb. 21, 2002.
5 Shimotori et al., US 2004/0110049 Al published Jun.IO, 2004.
6 Grasso et al., US 2004/0258973 Al published Dec. 23, 2004.
7 Draper et al., US 5,200,279 patented Apr. 6, 1993.
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Application 12/447,343
response to said pressure data to obtain a desired differential pressure
corresponding to said wet seal." Claim 10 (emphasis added).
The test for compliance with the written description requirement is
"whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date." Ariad Pharmaceuticals, Inc. v. Eli Lilly
& Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane). "[T]he test requires
an objective inquiry into the four comers of the specification from the
perspective of a person of ordinary skill in the art. Based on that inquiry, the
specification must describe an invention understandable to that skilled
artisan and show that the inventor actually invented the invention claimed."
Id.
The Examiner finds the rejected claims lack written descriptive
support because the Specification does not include any description of
programming the controller. Final 3. However, we agree with Appellants
that Appellants' Figure l in conjunction with the written descnpt10n in the
Specification reasonably convey to one of ordinary skill in the art that
Appellants had possession of a programmed controller. Appeal Br. 4; Reply
Br. 1-2. Figure 1 depicts communications signals between the controller 26,
pump 24, blower 56, heater 58 and valve 54. Fig. 1. The Specification
describes the communications. For instance, the Specification states that the
controller 26 "controls the operation of the pump 24 to provide a desired
amount of air to the fuel cell 10 based upon its operational needs." Spec.
4:8-9. The Specification also states that "the controller 26 communicates
with the blower 56 to regulate its operation based upon fuel cell
characteristics." Spec. 4: 17-18. Further, the Specification states that "[t]he
back pressure valve 54 communicates with the controller 26, which may
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Application 12/447,343
monitor various pressures within the fuel cell 10 (not shown), to obtain the
desired back pressure." Spec. 5 :23-26. In order to monitor the various
pressures within the fuel cell and calculate the desired back pressure, the
controller must be programmed. That would be understood as part of the
operations of a conventional controller by those of ordinary skill in the art.
A preponderance of the evidence supports Appellants' argument that
the written description provides adequate support for programming the
controller as required by the claims.
Rejection B
Turning to the rejection of claims 1 and 4 under 35 U.S.C. § 103(a) as
obvious over Merritt in view of Kurosaki, we note that Appellants do not
argue claims 1 and 4 apart. We select claim 1 as representative to decide the
issue on appeal, which is whether Appellants have identified a reversible
error in the Examiner's finding of a reason to include a controller in
communication with a back pressure valve in the apparatus of Merritt as
' 1,1 TT 1• Qr--, A.. 1T""t. Al!""' •,1T""'I• 1AI taugm oy 1\ .. urosaKL ~ compare Appea1 tlr. +----J wun t< ma1 Lf..
Appellants have not identified such an error. The Examiner finds that:
it would have been obvious to one of ordinary skill in the art at
the time of invention to incorporate a controller in
communication with a backpressure valve downstream from the
oxidant flow field, as in Kurosaki, into the fuel cell system of
Merritt, with the reasonable expectation of improving control
over the differential pressures within the fuel cell, by allowing
the air pressure to be controlled to a target pressure without a
time delay.
8 Appellants' argument states that "a back pressure valve downstream from
the oxidant flow field" is recited in claim 4, but this language is found in
claim 1. Thus, claim 1 is representative.
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Application 12/447,343
Final 4--5. Kurosaki teaches opening the backpressure control valve 8A in
such a way that one can control the air (oxidant) pressure during a transition
period to prevent a time lag. Kurosaki i-fi-1 9-11. Although, Appellants
contend that Merritt's differential pressure control already reduces time
delay, Appeal Br. 5, Appellants cite to no convincing evidence that Merritt
addresses the time delay.
Appellants have not identified a reversible error in the Examiner's
finding. Thus, we sustain the rejection of claims 1 and 4 as obvious over the
combination of Merritt and Kurosaki.
Rejection C
To reject claims 2, 3, and 5-11, the Examiner relies upon the
combination of Merritt and Kurosaki, and further adds Shimotori as
evidence of obviousness for the additional limitations of those claims.
Claims 2 and 3
Claims 2 and 3 depend from claim 1, which was rejected as obvious
over the combination of ivierritt and Kurosaki. Appellants present no
additional arguments directed to the rejection of claims 2 and 3 over and
above those already addressed. Appeal Br. 5---6. For the reasons we
articulate above, we determine that Appellants have not identified a
reversible error in the rejection of claims 2 and 3.
Appellants focus their arguments on claims 5, 6, 8, and 11. Appeal
Br. 5---6. Thus, we select these claims as representative for deciding the
issues on appeal.
Claim 5
Claim 5 is directed to the method of controlling water balance within
a fuel cell. We reproduce claim 5, with the limitation central to the issue
raised by Appellants emphasized:
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Application 12/447,343
5. A method of controlling water balance within a fuel
cell comprising the steps of:
providing a water transport plate in communication with
a water flow field and adjacent to at least one of an air flow
field and a fuel flow field;
circulating water in the water flow field with a pump that
generates pump pressure;
regulating an air back pressure downstream from the air
flow field;
regulating a fuel pressure based upon an air flow field
inlet pressure and a recirculated unused fuel pressure; and
maintaining a wet seal using a desired differential
pressure across the water transport plate based upon the
regulated pressures and the pump pressure.
Claims Appendix, Appeal Br. 8.
Appellants urge that none of the references teach maintaining the wet
seal based upon water pump pressure, and there is nothing in the references
to motivate a skilled worker to use both regulated pressures (including air
back pressure and fuel pressure) and pump pressure to maintain a wet seal.
Appeal Br. 5.
As we explain below, the evidence supports the position of the
Examiner.
Merritt teaches balancing pressure between the fuel stream and the
oxidant stream in a fuel cell that contains a cooling/humidification unit.
Merritt, col. 1, 11. 7-14; Fig. 1. A pump delivers water to a
cooling/humidification inlet stream 168. Merritt, col. 8, 11. 60-66. Merritt
shows the cooling/humidification unit as within the fuel cell 100, but below
the anode and cathode of the membrane electrode assembly (MEA). Merritt,
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Application 12/447,343
col. 7, 11. 23-31; Fig. 1. Merritt does not disclose the particular structure of
the cooling/humidification unit. Id. Thus, one of ordinary skill in the art
would have looked to what was conventionally used in such units.
Shimotori shows a fuel cell unit 10 with a humidification system
including a cathode side reactant distribution plate 20 below the membrane
electrode assembly (MEA) 12. Shimotori, Fig. 1; i-f 36. This is the same
location as Merritt's cooling/humidification unit. Compare Shimotori, Fig.
1 with Merritt, Fig. 1.
Shimotori teaches forming plate 20 of porous material and placing it
so the oxidant passage 22 and coolant passage 24 are separated by the
porous material of the plate 20. Shimotori i-f 3 7; Fig. 1. The pores fill with
water and if there is a pressure difference between the coolant water and the
oxidant, the water can migrate through the plate via the pores. Shimotori i-f
37. The water-filled pores provide a wet seal to prevent the gaseous
reactants from migrating through the plate. Id. Shimotori discloses
controlling the bubble pressure (pressure that can force gas through the
water-filled plate) as desired to suit the needs of the cell design. Id.
Shimotori teaches controlling the relative pressures of the oxidant (or other
reactant) and the coolant (water) to alleviate water imbalance. Shimotori i-f
40.
A preponderance of the evidence supports the Examiner's finding that
there is a suggestion in the art (Shimotori) for using a porous plate in the
cooling/humidification unit of Merritt, creating a wet seal as taught by
Shimotori to prevent the gaseous reactants from migrating, and controlling
the relative water and reactant pressures to alleviate water imbalance. In
Merritt, pump 166 directs a pressurized stream of water to the
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Application 12/447,343
cooling/humidification unit. Merritt, col. 8, 11. 60-66. Adjusting the water
pressure using the water pump 166 follows from the teachings of Merritt.
Appellants urge that "[ t ]he water transport plate, when read with the
'wet seal' language, requires this plate to act as what is commonly known as
a 'separator plate,' which is arranged between the anode and cathode of each
cell. Reply Br. 3. Appellants appear to be arguing that claim 5 requires the
water transport plate be between the anode and cathode, but claim 5 does not
require the water transport plate be between the anode and cathode. Claim 5
merely requires "providing a water transport plate in communication with a
water flow field and adjacent to at least one of an air flow field and a fuel
flow field." Claim 5 (emphasis added). Appellants' own Figure 1 shows
two transport plates 19, one below anode 12 and one above cathode 14.
Appellants do not disclose any embodiment with a water transport plate
between the anode 12 and cathode 14. The water transport plate of
Shimotori would be adjacent the cathode in the fuel cell of Merritt as
permitted by claim 5.
Claim 6
Turning to claim 6, which depends from claim 5, and recites "a step of
regulating the fuel pressure to the fuel flow field with the air back pressure,"
Appellants contend "[a]s explained above, Merritt already regulates the fuel
pressure based upon feedback from the air supply (pressure sensor 156). As
explained above with respect to claim 1, there is no reason to also use air
back pressure." Appeal Br. 6. This argument is not persuasive for the
reason given in our discussion of the rejection of claim 1. Specifically,
Kurosaki provides a reason to use back air pressure (by using the back
pressure valve) to reduce time delay, a problem not addressed by Merritt.
Claim 8
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Appellants also argue claim 8 separately. Claim 8 depends from
claim 7, which depends from claim 5. Claim 7 requires the fuel pressure be
"regulated based upon a differential pressure between the air and fuel flow
fields." Claim 8 requires "maintaining the fuel pressure above the air back
pressure." Thus, claim 8 requires the fuel pressure be maintained at a higher
pressure than the air back pressure.
The Examiner finds that:
Shimotori further teaches maintaining a high reactant pressure
in the upstream portion and a low reactant pressure in the
downstream, such that the fuel pressure at the inlet to the fuel
flow field will be higher than the air back pressure downstream
of the air flow field (abstract, Figure 3).
Final 8.
Appellants contend that Shimotori does not support the Examiner's
finding. Appeal Br. 6.
The abstract of Shimotori is directed to pressure differences between
the reactants and \x;ater, not to the pressure difference bet\x;een the fi1el and
oxidant. Figure 3 shows the relative pressures of the oxidant (or other
reactant) and the water coolant. Shimotori i-f 40. Although Figure 3 shows
the pressure of the oxidant (or other reactant) is higher upstream and lower
downstream, the relationship between the fuel pressure and air pressure is
not known. The portions of Shimotori cited by the Examiner do not inform
us of the relationship between the pressure of fuel and the pressure of
oxidant as they relate to one another.
Thus, we agree with Appellants that the Examiner has not established
the obviousness of the method of claim 8.
Claim 11
Appellants further argue claim 11 separately. Claim 11 reads:
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11. The fuel cell of claim 10, comprising:
a fuel recycle line coupled between said anode outlet and
said anode inlet; and
a recycle pump coupled in said fuel recycle line, wherein
said recycle pump is configured to recycle anode exhaust from
said anode outlet to said anode inlet.
Claims Appendix, Appeal Br. 10.
The Examiner finds that the suction inlet 128 of Merritt's ejector 124
is a pump in a recycle line. Final 8. Suction inlet 128 is fluidly connected to
fuel stream outlet 112 so as to recirculate the outlet fuel. Merritt, co 1. 7, 11.
49--52.
Appellants contend that the Merritt's ejector 124, which includes
suction inlet 128 "is not 'in' the fuel recirculation line, but rather at a
terminal end of the recycle line." Appeal Br. 6. However, the Examiner's
interpretation of the recycling line as the entire loop through which the fuel
is recirculated is reasonable. Ans. 24. That would include the portion of
the line to the inlet of the fuel cell, which includes the ejector. Appellants
have not identified a reversible error in the Examiner's rejection of claim 11.
Re} ections D and E
The Examiner rejects claims 1-3 under 35 U.S.C. § 103(a) as obvious
over Grasso in view of Draper, and adds Merritt to reject claim 4. The issue
arising for both rejections is whether Appellants have identified a reversible
error in the Examiner's finding of a reason
to use an ejector, with a motive inlet, upstream of the fuel flow
field of the fuel cell of Grasso, and have the pressure at the
motive inlet controlled by its back pressure valve, as taught by
Draper, with the reasonable expectation of providing more
effective control of the differential pressure across the cell as
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Application 12/447,343
well as mitigating leakage and heating and reforming fuel
gasses.
Final 10.
Appellants have not identified such an error. Appellants acknowledge
that "Draper indicates that in systems that use an ejector, the addition of a
back pressure valve may improve control of the differential pressure."
Appeal Br. 6, citing Draper, col. 5, 11. 36-43. Thus, it was known in the art
to use an ejector in combination with a back pressure control valve to control
a pressure differential between two gases in a fuel cell system.
Appellants contend that "Draper does not teach that a system having a
back pressure valve (i.e. Grasso) would benefit from an ejector." Appeal Br.
6. The problem is that such an express teaching of such a benefit is not
required to support the obviousness of making the combination. "[T]he
question in a section 103 case is not only what the references expressly
teach, but what they would collectively suggest to one of ordinary skill in
the art." In re Simon, 461F.2d1387, 1390 (CCPi\. 1972). The question is
whether making the combination is more than the predictable use of prior art
elements according to their established functions. KSR Int'! Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007). An examiner can establish obviousness by
providing a rationale reason why one of ordinary skill in the art would have
combined the known elements in the fashion required by the claim. Id. at
418. The Examiner provided a rationale reason supported by evidence.
Rejection F
Appellants do not advance a separate argument in their Appeal Brief
directed to the rejection of claims 10 and 11 under 35 U.S.C. § 103(a) as
obvious over Grasso in view of Merritt. Appeal Br. 6-7. Appellants thus
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did not identify a reversible error in the Examiner's rejection of claims 10
and 11 over Grasso in view of Merritt.
Appellants include a separate argument in the Reply Brief, but do not
provide a showing of good cause of why this argument was not provided in
the Appeal Brief as required under 37 C.F.R. § 41.41(b)(2). Thus, we do not
consider the new argument.
CONCLUSION
We sustain:
the Examiner's rejection of claims 1 and 4 under 35 U.S.C. § 103(a)
as obvious over Merritt in view of Kurosaki,
the rejection of claims 2, 3, 5-7, and 9-11under35 U.S.C. § 103(a) as
obvious over Merritt, Kurosaki, and Shimotori,
the rejection of claims 1-3 under 35 U.S.C. § 103(a) as obvious over
Grasso in view of Draper,
the rejection of claim 4 under 35 U.S.C. § 103(a) as obvious over
Grasso, Draper, and Merritt, and
the rejection of claims 10 and 11under35 U.S.C. § 103(a) as obvious
over Grasso in view of Merritt.
We do not sustain:
the Examiner's rejection of claims 1--4, 10, and 11 under 35 U.S.C. §
112 i-f l or
the rejection of claim 8 under 35 U.S.C. § 103(a) as obvious over
Merritt, Kurosaki, and Shimotori.
DECISION
The Examiner's decision is affirmed-in-part.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED-IN-PART
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