Ex Parte Harris et al

Patent Trial and Appeal Board

Dec 29, 2017

13372129 (P.T.A.B. Dec. 29, 2017)

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.
13/372,129 02/13/2012 Daniel I. Harris P016227-FCA-CHE 3077
65798 7590
MILLER IP GROUP, PLC
GENERAL MOTORS CORPORATION
42690 WOODWARD AVENUE
SUITE 300
BLOOMFIELD HILLS, MI 48304
EXAMINER
PASS A, GREGORY A
ART UNIT PAPER NUMBER
1729
MAIL DATE DELIVERY MODE
01/02/2018 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 and JOHN P. SALVADOR
Appeal 2017-002707
Application 13/372,129
Technology Center 1700
Before ROMULO H. DELMENDO, WESLEY B. DERRICK, and
DEBRA L. DENNETT, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants1 appeal under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1—17.2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 “General Motors” is listed as the real party in interest (Appeal Brief filed
June 28, 2016, hereinafter “Appeal Br.,” 3).
2 Appeal Br. 8—20; Reply Brief filed December 6, 2016, hereinafter “Reply
Br.,” 1—4; Final Office Action entered February 10, 2016, hereinafter “Final
Act.,” 3—13; Examiner’s Answer entered October 6, 2016, hereinafter
“Ans.,” 2-14.
Appeal 2017-002707
Application 13/372,129
I. BACKGROUND
The subject matter on appeal relates to a method for controlling the
reactants within a fuel cell stack while the stack is in a stand-by or idle-stop
mode (Specification filed February 13, 2012, hereinafter “Spec.,” 11).
According to the Appellants, when a vehicle equipped with such a fuel stack
requires very little power, such as when the vehicle is stopped at a stop light,
providing normal reactant flows to the stack is generally wasteful {id. 17).
Therefore, the Appellants explain that “[i]t is generally desirable to reduce
stack output power and current draw during these idle conditions to improve
system fuel efficiency” {id.). The Appellants seek to address this need with
the claimed invention {id. 112).
Representative claim 1 is reproduced from page 21 of the Appeal Brief
(Claims Appendix), with key limitations emphasized, as follows:
1. A method for controlling one or more reactants in a
fuel cell stack when the fuel cell stack is in a stand-by or idle-
stop mode, said method comprising:
identifying a stack parameter that changes during
operation of the fuel cell stack;
identifying a desired set-point of the parameter for the
stand-by or idle-stop mode;
monitoring the parameter when the stack is in the stand-by
or idle-stop mode;
comparing the set-point to the parameter during the stack
stand-by or idle mode to generate an error therebetween; and
reducing the error by providing one or both of hydrogen to
an anode compartment of the fuel cell stack or air to a cathode
compartment of the fuel cell stack.
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Application 13/372,129
II. REJECTIONS ON APPEAL
On appeal, the Examiner maintains several rejections under pre-AIA
35 U.S.C. § 103(a), as follows:
A. Claims 1—4, 9, 10, 12, 13, and 17 as unpatentable over Kelley et
al.3 (hereinafter “Kelley”) in view of Tamowsky et al.4
(hereinafter “Tamowsky”);
B. Claims 5—7, 11, 14,5 and 15 as unpatentable over Kelley in
view of Tamowsky and Lebzelter et al.6 (hereinafter
“Lebzelter”); and
C. Claims 8 and 16 as unpatentable over Kelley in view of
Tamowsky and Arthur et al.7 (hereinafter “Arthur”).
(Final Act. 3—13; Ans. 2—13.)
III. DISCUSSION
Rejection A. Unless separately argued within the meaning of 37
C.F.R. § 41.37(c)(l)(iv), the claims subject to this rejection stand or fall
together with claim 1, which we select as representative. As stated in this
mle, merely reciting what a claim recites and/or providing a skeletal
argument that the prior art references do not disclose or suggest certain
claim limitations is not an argument that requires our separate consideration.
Cf. In reLovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011).
3 US 6,214,487 Bl, issued April 10, 2001.
4 US 2010/0288570 Al, published November 18, 2010.
5 It appears that claim 14 was inadvertently omitted from the statement of
the rejection (Ans. 7, 9—10; Final Act. 8, 10).
6 US 2010/0035097 Al, published February 11, 2010.
7 US 2008/0187804 Al, published August 7, 2008.
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Application 13/372,129
The Examiner finds that Kelley describes a method meeting every
limitation recited in claim 1 but is “silent” on whether the disclosed fuel cell
stack is in stand-by or idle-stop mode (Ans. 2—3). The Examiner finds
further that “Tamowsky . . . teaches during [sic] idle-stop conditions in order
to conserve fuel” {id. at 3). The Examiner concludes that “it would [have
been] obvious to one of ordinary skill in the art... to modify Kelley et al to
include the stand-by or idle-stop mode in order to conserve fuel” {id.).
The Appellants contend that Kelley does not describe a stand-by or
idle-stop mode (Appeal Br. 10-11). Furthermore, the Appellants argue that
“Tamowsky simply mentions an ‘idle-stop’ mode of a vehicle, but does not
teach using it for a fuel cell, much less identifying a desired set-point stack
voltage for a fuel cell” {id. at 11) (emphasis omitted).
In response to the Appellants’ arguments, the Examiner explains that
the method recited in claim 1 is not patentable over Kelley’s disclosed
method because stand-by mode or idle-stop mode is a common mode of fuel
cell operation and that “it would not be unexpected to apply a known process
to a known mode in order to capitalize on the fuel benefits when operating in
this known mode of operation” (Ans. 13). The Appellants disagree (Reply
Br. 2-3).
The Appellants’ arguments fail to identify any reversible error in the
Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Kelley describes a method for monitoring the performance of
individual fuel cells in a fuel cell stack, and, optionally, automatically
triggering corrective measures (e.g., alert the operator, initiate preventative
or corrective action) when the performance degrades to an unacceptable
level (Kelley, col. 2,11. 56—62). Kelley teaches that “[s]ensors on each of the
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Application 13/372,129
MEAs [membrane-electrode assemblies] monitor the cell voltage as well as
individual cell voltages” and that “measurements, calculations, and
comparisons to predetermined reference values are made to determine the
condition of the stack” {id. at col. 3,11. 15—19). Kelley teaches that, based
on these determinations, corrective measures [such as controlling or
optimizing fuel flow] may be taken” {id. at col. 3,11. 19-22, 38—40; col 7,
11. 23—25). According to Kelley, “[performance can be measured and
optimized while the cell is in operation without any complicated high power
switching” {id. at col. 3,11. 43—45) (emphasis added).
Because Kelley does not place any time limitations on when control
or optimization can be performed, a person having ordinary skill in the art
would have found it prima facie obvious to implement Kelley’s disclosed
method for all phases of a fuel cell’s operation, which would include phases
in which the fuel cell is in stand-by or idle-stop mode, as evidenced by
Tamowsky (Tamowsky 115). Cf. KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 417 (2007) (“[I]f a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill.”); id. at 421 (“A person of
ordinary skill is also a person of creativity, not an automaton.”). See also
PerfectWeb Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir.
2009) (an analysis of obviousness “may include recourse to logic, judgment,
and common sense available to the person of ordinary skill that do not
necessarily require explication in any reference or expert opinion”).
The Appellants also argue that the prior art references do not teach the
limitations recited in claims 2 and 4 (Appeal Br. 14—15). We disagree based
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Application 13/372,129
on the findings made by the Examiner which we adopt as our own (Ans. 3—
4) (citing, e.g., Kelley, col. 3,11. 15—16 (“[sjensors on each of the MEAs
monitor the cell voltage as well as individual cell voltages” (emphasis
added)); col. 7,11. 14—16 (“[t]he controller then alters the operation of the
fuel cell, either in response to an identified defective membrane, or in order
to optimize the operation of the fuel cell assembly”); col. 7,11. 23—25
(“[ojptionally, the controller can also initiate corrective measures to alter the
flow of fuel or oxidant to the identified membrane assembly”)).
Rejection B. With respect to claims 5—7, 11, and 15, the Appellants
contend that “adding the teaching of Lebzelter regarding by-pass valves,
compressors and injectors does not overcome the insufficiency of the
underlying claim [1] rejection” based on Kelley in view of Tamowsky
(Appeal Br. 17). For the reasons stated above, we find no insufficiency in
the Examiner’s rejection as to claim 1.
For claims 6, 7, 11, and 15, the Appellants also rely on the same
argument offered for claim 4 (id.). The Appellants’ argument does not
reveal any reversible error in the Examiner’s findings regarding claims 6, 7,
11, and 15 (Ans. 8—10), which we adopt as our own. In addition, the
Appellants’ argument is without merit for the reasons discussed above with
respect to claim 4.
Rejection C. For claims 8 and 16, the Appellants rely on the same
arguments offered against the rejection of claim 1 (Appeal Br. 18—19).
Because these arguments against claim 1 are not persuasive for the reasons
discussed above, we also sustain the rejection of claims 8 and 16.
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IV. SUMMARY
Rejections A through C are sustained. Therefore, the Examiner’s final
decision to reject claims 1—17 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
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