Ex Parte Zobl et al

Patent Trial and Appeal Board

Mar 31, 2016

13435762 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/435,762 03/30/2012
24131 7590 04/04/2016
LERNER GREENBERG STEMER LLP
PO BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
Gebhard Zobl
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.
SB-514C 1277
EXAMINER
KEMMERLE III, RUSSELL J
ART UNIT PAPER NUMBER
1741
NOTIFICATION DATE DELIVERY MODE
04/04/2016 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):
boxoa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEBHARD ZOBL, WOLFGANG GLATZ,
WOLFGANG KRAUSSLER, and ROBERT OBERGREYER
Appeal2014-007948
Application 13/435,762
Technology Center 1700
Before BRADLEY R. GARRIS, PETER F. KRATZ, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal 1 under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1-10.2 We have jurisdiction pursuant to
35 U.S.C. § 6.
Appellants' invention is directed to a process of producing a molding
such as an interconnector for a high-temperature fuel cell including, inter
alia, pressing a chromium-based powder using a powder press with dies
1 Appellants identify Plansee SE as the real party in interest (App. Br. 1 ).
2 A Board decision reversing the Examiner's obviousness rejection in parent
Application No. 10/533,560 (Appeal No. 2011-004353) was entered
February 29, 2012.
Appeal2014-007948
Application 13/435,762
having a specified shape to press the powder to form a basic body shape
with elevations having inclined side surfaces of a specified angle and
subsequently sintering the pressed body as set forth in independent claims 1,
8, and 10.
Claim 1 is illustrative and reproduced below:
1. A process of producing an interconnector for a high-temperature
fuel cell, the process comprising:
providing a powder press with dies substantially corresponding to a
final shape of the interconnector, with a basic body having a multiplicity of
elevations projecting from the basic body with inclined side surfaces;
providing a chromium-based powder containing elemental chromium
and filling the powder into a female die of the powder press;
pressing the chromium-based powder to form the basic body having a
shape of a disk or a plate with the elevations defining flow channels of the
high-temperature fuel cell and the elevations rising from the basic body with
inclined side surfaces having an angle of inclination of between 115° and
160°·
'
subsequently ejecting the basic body from the dies of the powder
press and sintering to form the interconnector; and
performing the pressing \'l1ith parameters of the po\'l1der press such
that, after sintering, the interconnector has a substantially uniform density
throughout the basic body and the elevations, and the density is sufficient to
render the interconnector suitable for use in a solid oxide fuel cell.
The Examiner relies on the following prior art references3 as evidence
in rejecting the appealed claims:
Mizumo
Janousek
Koga
Yoshida
us 45,647,414
US 2002/0182468 Al
US 6,517,338 Bl
US 6,660,420 Bl
Mar. 3, 1987
Dec. 5, 2002
Feb. 11, 2003
Dec. 9, 2003
The Examiner maintains the following grounds of rejection:
3 The Examiner no longer relies on Mori (US 5,639,572, Jun. 17, 1997) in
rejecting the appealed claims (Ans. 8-9).
2
Appeal2014-007948
Application 13/435,762
Claims 1-5, 7, 8, and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Yoshida in view of Koga and Janousek. Claims 6
and 9 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Yoshida in view of Koga, Janousek, and Mizuno.
We reverse the stated rejections. Our reasoning follows.
Yoshida is directed to a separator for a fuel cell and a method of
preparing same from bond-carbon comprising a specified percentage of
graphite powder and a specified percentage of thermosetting resin so as to
provide for certain fluidity and moldability characteristics while providing
for certain contact resistance and strength properties (abstract; col. 2, 1. 41-
col. 3, 1. 45; col. 4, 11. 5-22, 32---63, col. 6, 1. 35---col. 7, 1. 17, col. 9, 11. 44--
59; Figs. 1, 3, 4A, 4B).
Koga is directed to a set of molding dies and techniques for forming
fuel cell separators using such dies (abstract; col. 1, 1. 56---col. 3, 1. 36; Figs.
1--4, 6). Koga, not unlike Yoshida, teaches that the composition of the
molding material includes a thermosetting resin and graphite/carbon
particles and discloses employing molding temperatures of about 140 °C to
180 °C and molding pressures of about 150-300kgf/cm2 (col. 4, 11. 26-38).
Koga discloses that the inside wall of a through hole 2a in plate 2 has an
angle of inclination of 1to10 degrees (col. 5, 11. 7-17; Fig. 6).
The Examiner finds that Yoshida teaches the formation of a separator
by pressing/molding the disclosed powder mixture in several steps to form a
separator with knob-like protrusions (Ans. 2), but that Yoshida does not
disclose the angle of inclination as required by the appealed claims, such as
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Appeal2014-007948
Application 13/435,762
the increased angle of inclination for the second pressing step (Ans. 3; see,
e.g., appealed claim 8).4
The Examiner maintains, inter alia, that it would have been obvious
to one of ordinary skill in the art at the time of the invention in view of the
combined teachings of Yoshida and Koga to use an angle of inclination
corresponding to those required by appealed claim 8 during the
pressing/molding operations of Yoshida given the Examiner's determination
that the inclination angles taught by Koga would include values within the
ranges as specified in the appealed claims, such as the angles specified in
appealed claim 8, and for the purposes of ease of release of the molded
object as taught/suggested by Koga (Ans. 3--4).
As correctly observed by the Examiner, however, neither of Yoshida
and Koga taken alone or in combination teach forming an
interconnector/mold product from a chromium-based powder as required by
all of the appealed claims (Ans. 4). Consequently, the Examiner turns to
Janousek.
Janousek is directed to forming a current collector for a high
temperature fuel cell and employs a ferritic iron alloy having a high
chromium content, such as an alloy comprising more than 68 percent by
weight iron and from 22-32 percent by weight chromium, as well as minor
amounts of certain other components rather than a molding material
comprising a specified percentage of graphite powder and a specified
percentage of thermosetting resin as taught by Yoshida (Janousek i-fi-1 2, 24--
28). Janousek teaches that powder metallurgy techniques may be employed
4 The Examiner does not separately address claims 1 and 10.
4
Appeal2014-007948
Application 13/435,762
in forming the current collector plates for SOFC5 high temperature fuel cells
using the ferritic iron-base alloys of Janousek (i-fi-f 74, 76, 77).
Notwithstanding the considerable differences between the molding
materials taught by Yoshida and Koga and those employed by Janousek in
forming collector plates for SOFC high temperature fuel cells, the Examiner
argues that it would have been obvious to one of ordinary skill in the art at
the time of the invention to employ the iron-based alloy composition of
Janousek in the process of Yoshida, as modified by Koga, because the alloy
of Janousek can be used in forming an effective fuel cell separator with high
corrosion resistance via a pressing operation as taught by Janousek and all of
the applied references are directed to forming interconnect structures of a
fuel cell (Ans. 5).
The Examiner's reason for combining Yoshida, as modified by Koga,
with Janousek is a conclusory statement. The Examiner has not addressed
the differences between the references and explained why, regardless of
those differences, one of ordinary skill in the art would have been led by the
references to make the modification proposed by the Examiner. As stated in
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) "[R]ejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness", quoted with approval in KSR
Int'!. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
As argued by Appellants, the Examiner has not reasonably established
why one of ordinary skill in the art would have looked to combine the
5 Solid oxide fuel cells (Janousek i12).
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Appeal2014-007948
Application 13/435,762
significantly different alloy composition of Janousek with the method of
Yoshida as a substitute molding material for use in Yoshida because
Yoshida is directed to forming a different type of fuel cell separator from a
significantly different and particularly described graphite/resin mixture with
certain properties as set forth by Yoshida (App. Br. 6-10; Reply Br. 2--4;
Yoshida, col. 4, 1. 5---col. 5, 1. 2).
Moreover, and as further argued by Appellants, the iron-based alloy
material of Janousek is not a chromium-based powder as required by the
appealed claims. In this regard, Appellants argue that a "chromium-based
powder" has an art recognized meaning as requiring chromium as the
principal constituent, whereas an iron-based ferritic powder, such as the 68
weight percent iron composition employed by Janousek, is not a chromium
based powder, as required by the appealed claims (App. Br. 10; Reply Br.
4). Thus, even if the iron-based material of Janousek were substitutable for
the graphite/resin mixture Yoshida, as proposed by the Examiner, Appellants
further argue that such a substitution would not result in Appellants' claimed
method (id.).
In contrast, the Examiner maintains that paragraph 19 of Appellants'
Specification supports a broadest reasonable construction of the "chromium-
based powder" claim term as encompassing powders having more than 20
percent by weight chromium content, which would include the iron-based
powder composition of Janousek (Ans. 8).
On this record, we concur with Appellants' interpretation of the claim
term "chromium-based powder" (claim 1 ). In this regard, paragraph 19 of
the subject Specification distinguishes between chromium-based alloys" and
ferritic steels by listing these materials separately as alternative possibilities
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Appeal2014-007948
Application 13/435,762
for an alloy having at least 20 weight percent chromium. Moreover,
Janousek employs the term "iron-base alloy" in describing the ferritic alloy
of Janousek, which iron-base alloy has iron as the principal constituent (68
weight percent iron) (Janousek i-fi-125, 46, 74). Thus, giving the disputed
claim term its broadest reasonable construction as it would have been
understood by one of ordinary skill in the art when read in light of the
subject Specification, we determine that the weight of the evidence of
record, including paragraph 19 of the subject Specification, supports
Appellants' interpretation of the "chromium-based powder" claim term.
The Examiner has not established that the additional reference applied
in rejecting certain dependent claims cures the above-noted deficiencies in
the first stated rejection.
In sum, the record indicates that the Examiner used impermissible
hindsight in rejecting the Appellants' claims. See In re Warner, 379 F.2d
1011, 1017 (CCP A 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 do not
sustain either of the Examiner's rejections.
CONCLUSION
The Examiner's decision to reject the appealed claims is reversed
REVERSED
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