Ex Parte Harris et alDownload PDFPatent Trial and Appeal BoardJun 19, 201713717434 (P.T.A.B. Jun. 19, 2017) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/717,434 12/17/2012 Daniel I. HARRIS P022839-PTFC-CHE 1021 65798 7590 06/20/2017 MILLER IP GROUP, PLC GENERAL MOTORS CORPORATION 42690 WOODWARD AVENUE SUITE 300 BLOOMFIELD HILLS, MI 48304 EXAMINER JELSMA, JONATHAN G ART UNIT PAPER NUMBER 1721 MAIL DATE DELIVERY MODE 06/20/2017 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 DANIEL I. HARRIS, LOREN DEVRIES, CHARLES MACKINTOSH, JOHN P. SALVADOR and DEREK S. KILMER1 Appeal 2016-005657 Application 13/717,434 Technology Center 1700 Before BRADLEY R. GARRIS, PETER F. KRATZ, and CHRISTOPHER L. OGDEN, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s rejections under 35 U.S.C. § 103(a) of independent claims 1 and 14 as unpatentable over Lemer (US 2010/0266912 Al, pub. Oct. 21, 2010) in view of either Chikugo (US 2011/0086285 Al, pub. Apr. 14, 2011) or Oomori (US 2010/0159340 Al, pub. Jun. 24, 2010) and further in view of Hirakata (US 2006/0042845 Al, pub. Mar. 2, 2006), of remaining independent claim 10 as unpatentable over these first mentioned references 1 GM Global Technology Operations LLC, is identified as the real party in interest. App. Br. 4. Appeal 2016-005657 Application 13/717,434 in combination with Frait (US 2012/0011961 Al, Jan. 19, 2012), and of remaining dependent claims 2—9, 11—13, and 15—20 as unpatentable over the first mentioned references alone or in combination with additional prior art. We have jurisdiction under 35 U.S.C. § 6. We AFFIRM. Appellants claim a method for controlling a start time of a fuel cell system comprising providing a plurality of inputs that identity operating conditions of the system, a controller programmed for determining a maximum allowable start time of the system using the plurality of inputs and whether a non-driver initiated restart request has occurred, and determining a maximum compressor speed and airflow (independent claims 1 and 10). In a narrower embodiment, the method of claim 1 uses “a stand-by-to-run transition when a fast start is not requested” (dependent claim 4). Appellants also claim a control system analogous to the claimed method for controlling a start time of the fuel cell system (independent claim 14). A copy of representative claims 1 and 4, taken from the Claims Appendix of the Appeal Brief, appears below. 1. A method for controlling a start time of a fuel cell system, said system including a fuel cell stack having a cathode side and a compressor providing air to the cathode side of the fuel cell stack, said method comprising: providing a plurality of inputs that identify operating conditions of the fuel cell system; a controller programmed for: 2 Appeal 2016-005657 Application 13/717,434 determining whether a non-driver initiated restart request has occurred; determining a maximum allowable start time of the fuel cell system using a hybridization control strategy, the plurality of inputs, and whether the non-driver initiated restart request has occurred; and determining a maximum compressor speed and airflow to provide the maximum allowable start-time of the fuel cell system using the determined maximum allowable start time, a requested stack power, and an energy consumption and noise optimization strategy. 4. The method according to claim 1 wherein determining a maximum compressor speed and airflow to provide the maximum allowable start-time of the fuel cell system includes considering compressor noise and compressor parasitic power consumption when determining the maximum compressor speed and flow and using a stand-by-to-run transition when a fast start is not requested. Appellants present arguments specifically directed to the independent claims and dependent claim 4 only (App. Br. 9—19). Therefore, the other dependent claims under rejection will stand or fall with their parent independent claims, of which claim 1 is representative. We will sustain the Examiner’s rejections for the reasons given in the Final Action, the Answer, and below. In rejecting the independent claims, the Examiner finds that Lemer discloses a method and system for assessing the time a fuel cell has been shut down in order to provide for an efficient next system startup sequence but does not explicitly teach determining a maximum compressor speed and airflow as claimed (see, e.g., Final Action 5—7 and 9-12 (citing, e.g., Lemer 3 Appeal 2016-005657 Application 13/717,434 27—28, 30)). Nevertheless, the Examiner concludes that it would have been obvious to provide Lemer with the step and means taught by either Chikugo or Oomori for determining such a maximum compressor speed and airflow {id.), and Appellants do not contend otherwise in their Appeal Brief {see generally App. Br.). Further regarding the independent claims, the Examiner finds that neither Lemer nor Chikugo nor Oomori explicitly teaches a controller programmed for determining whether a non-driver initiated restart request has occurred but that Hirakata teaches using a temperature maintenance system having a non-driver initiated restart request in order to restart and thereby heat up an inactive fuel cell to avoid damage from freezing temperatures {see, e.g., Final Action 7—8 and 12—13). The Examiner concludes that it would have been obvious to provide Lemer with Hirakata’s temperature maintenance system in order to prevent the fuel cell from freezing (id. at 8—9 and 13). Appellants argue that “the combination of the cited prior art references does not teach or suggest determining a maximum allowable start time using, inter alia, whether a non-driver initiated restart request has occurred [as required by the independent claims]” {see, e.g., App. Br. 11). More specifically, Appellants argue that “[t]he Examiner’s addition of the Hirakata reference, which merely discloses a non-driver initiated restart to maintain a certain temperature to prevent a fuel cell from freezing, fails to teach or suggest determining a maximum allowable start time using, inter alia, whether a non-driver initiated restart request has occurred” {id.). 4 Appeal 2016-005657 Application 13/717,434 The Examiner responds as follows: The combination of the method of LERNER of providing an accurate time that a vehicle has been shut down, with the method of HIRAKATA of using a non-driver initiated restart request, such as the temperature maintenance operation of HIRAKATA would result in the claim limitation of “determining a maximum allowable start time of the fuel cell system using ... whether the non-driver initiated restart request has occurred”. In other words[,] when the teachings of HIRAKATA are combined with the teachings of LERNER, the temperature maintenance operation of HIRAKATA becomes a point of LERNER as to when the fuel cell has been stopped and would be used in the estimate to determine the start-up sequence. (Ans. 4—5.) Appellants do not identify with any reasonable specificity error in the Examiner’s determination that providing Lemer with Hirakata’s temperature maintenance system having a non-driver initiated restart request would have resulted in the independent claim limitation argued above. More specifically, Appellants fail to explain why the proposed combination of prior art would not have resulted in providing Lemer’s controller for establishing the next system start-up sequence with means for assessing whether Hirakata’s restart request has occurred. Likewise, Appellants fail to identify a distinction between their claimed maximum allowable start time and the start time determined by the modified controller of Lemer for establishing the next start-up sequence. In their Reply Brief, Appellants “agree [] that some of the operating conditions disclosed by Lemer and Hirakata may require longer start times and some of the operating conditions disclosed by Lemer and Hirakata may require shorter start times, but nothing in Lemer and Hirakata teaches using 5 Appeal 2016-005657 Application 13/717,434 certain operating parameters of the fuel cell system to determine what the maximum start time can be to meet the parameters, and then providing a maximum compressor speed and airflow necessary so that a maximum start time is not exceeded” (Reply Br. 3). Aside from not explicatively distinguishing the claimed start time from the start time of Lemer as modified by Hirakata, this Reply Brief argument newly contends that Lemer and Hirakata do not teach determining a maximum allowable start time “and then providing a maximum compressor speed and airflow necessary so that a maximum start time is not exceeded” (id.). As previously indicated, the Appeal Brief does not contest the Examiner’s conclusion that, in view of either Chikugo or Oomori, it would have been obvious to provide Lemer with a step and means for determining a maximum compressor speed and airflow as required by the independent claims. Under these circumstances, and because Appellants have not shown good cause, we will not consider this new argument for purposes of the present appeal. See 37 C.F.R. § 41.41(b)(2) (2015). For the above-stated reasons, Appellants fail to reveal error in the Examiner’s obviousness conclusion concerning representative independent claim 1. Regarding dependent claim 4, Appellants “point[] out that claim 4 recites, inter alia, ‘using a stand-by-to-mn transition when a fast start is not requested’ [and argue that] [s]imply using a stand-by-to-mn transition, without considering whether a fast start has (or has not) been requested, fails to teach or suggest all of Appellants’] claim 4” (App. Br. 12). 6 Appeal 2016-005657 Application 13/717,434 In response, the Examiner explains that “there is no claim limitation that requires to consider whether a fast start has or has not been requested” and that “the claim limitation for ‘using a stand-by-to-run transition when a fast start is not requested’ then is taken to only claim a normal operation [i.e., a stand-by-to-run transition] of the fuel cell” (Ans. 5). We find persuasive merit in the Examiner’s explanation. Moreover, we emphasize that Appellants’ Reply Brief does not address, and therefore does not reveal error in, this explanation. Based on the record before us, we agree with the Examiner that the claim 4 limitation under review is satisfied by the undisputed fact that the prior art uses a stand-by-to-run transition. In light of the foregoing, we sustain each of the Examiner’s § 103 rejections of the appealed claims. The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 7 Copy with citationCopy as parenthetical citation