Ex Parte Darling et al

Patent Trials and Appeals BoardFeb 11, 2019

13258036 - (D) (P.T.A.B. Feb. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/258,036 09/21/2011 136767 7590 02/13/2019 Seed IP Law Group LLP/General Firm (Email) 701 FIFTH A VE SUITE 5400 SEATTLE, WA 98104 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR Robert Mason Darling 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. P99241 WOOUS0130609.498USP 8263 EXAMINER MCDERMOTT, HELENM ART UNIT PAPER NUMBER 1727 NOTIFICATION DATE DELIVERY MODE 02/13/2019 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): USPTOeAction@SeedIP.com pairlinkdktg@seedip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT MASON DARLING and ERIC J. O'BRIEN Appeal2018-004001 Application 13/258,036 Technology Center 1700 Before ROMULO H. DELMENDO, DONNA M. PRAISS, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL Appeal2018-004001 Application 13/258,036 STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. Â§ 134 from a rejection2 of claims 1, 5, 7, 9-11, 13, 19-23, and 26-30. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We reverse. CLAIMED SUBJECT MATTER The claims are directed to a fuel cell and flow field plate with flow guide. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A flow field plate for use in a fuel cell, compnsmg: a non-porous plate body including a flow field having a plurality of channels and a flow distribution portion adjacent one end of the plurality of channels, the flow distribution portion configured to distribute fluid between a manifold and the plurality of channels; and a plurality of protrusions within the flow distribution portion, the protrusions having long axes and side surfaces oriented in a first direction oblique to the channels to increase uniformity of flow distribution between the manifold and the plurality of channels; wherein each of the long axes are substantially parallel to each other. Claims Appendix (App. Br. 16). 1 The real party in interest is identified as "Audi AG." Appeal Brief of August 28, 2017 ("App. Br."), 1. 2 Final Office Action of April 6, 2017 ("Final Act."). In this opinion, we also refer to the Examiner's Answer of January 5, 2018 ("Ans.") and the Reply Brief of March 5, 2018 ("Reply Br."). 2 Appeal2018-004001 Application 13/258,036 REFERENCES The prior art references relied upon by the Examiner in rejecting the claims on appeal are: Takahashi Wynne Fujii Frederiksen JP 2007-141537 A US 6,207,312 Bl US 2004/0115512 Al US 2005/0118489 Al REJECTIONS June 07, 2007 Mar. 27, 2001 June 17, 2004 June 02, 2005 Claims 1, 5, 11, 13, 19-23, and 26-30 are rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Takahashi. Final Act. 3. Claim 7 is rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Takahashi and further in view of Fujii. Final Act. 7. Claim 9 is rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Takahashi and further in view of Wynne. Final Act. 7. Claim 10 is rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Takahashi, Wynne, and further in view of Frederiksen. Final Act. 8. OPINION Appellants argue that the Examiner reversibly erred in rejecting claim 1 because Takahashi does not teach or suggest "a plurality of protrusions ... having long axes and side surfaces oriented in a first direction oblique to the channels." App. Br. 10. The Examiner acknowledges that the reference "does not expressly teach that the first and second directions are oblique to the channels" but reasons that a skilled artisan would have found it obvious "to ensure that the flow of a reactant (and a coolant) employed in the cell 3 Appeal2018-004001 Application 13/258,036 collides with protrusions in its flow distribution portion, and in that, distributes the reactant (and the coolant) uniformly from the manifolds to the channels." Final Act. 5 ( citing Takahashi ,r 19). The Examiner also cites Takahashi ,r 20 for "protrusions which are oriented obliquely would be fully sufficient to control the flow path resistance as taught by Takahashi." Ans. 8-9. "Although Takahashi shows the protrusion and depression being oriented at right angles in the figures," the Examiner nevertheless concludes that "even a slight rotation from perpendicular of the protrusions and depressions is fully sufficient to read on the 'oblique' orientation as claimed." Id. at 9. To establish a prima facie case of obviousness, the examiner must show that each and every limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). In this case, the record before us lacks evidence showing that Takahashi teaches or suggests "a plurality of protrusions ... having long axes and side surfaces oriented in a first direction oblique to the channels" as recited in claim 1. The Examiner has not sufficiently explained, for example, why Takahashi' s disclosure of perpendicular arrangements for flow control and how the perpendicular arrangements function would have been understood by a skilled artisan as "merely one exemplary embodiment" that broadly discloses or suggests the oblique orientation claimed by Appellants. See Final Act. 5; see also Ans. 8-9. We agree with Appellants (Reply Br. 2) that the Examiner's determination that "even a slight rotation from perpendicular of the protrusions and depressions is fully sufficient to read on the 'oblique' orientation as claimed" (Ans. 9) does not make 4 Appeal2018-004001 Application 13/258,036 apparent any reason for modifying the perpendicular arrangements disclosed by Takahashi. We accordingly reverse the rejections of claim 1 and its dependent claims. The rejection of independent claim 11 and its respective dependent claim 13 is likewise reversed. We decline to reach Appellants' request to rejoin withdrawn claims 15-18. See App. Br. 13. The propriety of the Examiner's restriction requirement and subsequent rejoinder is not an appealable issue but, rather, is petitionable to the Technology Center Director. See Manual of Patent Examining ProcedureÂ§ 1002.02(c)(2) (8th ed., rev. 8, July 2010). DECISION The Examiner's rejections of claims 1, 5, 7, 9-11, 13, 19-23, and 26-30 are reversed. REVERSED 5