Ex Parte Harris et alDownload PDFPatent Trial and Appeal BoardDec 29, 201713372129 (P.T.A.B. Dec. 29, 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. 13/372,129 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. 2 Appeal 2017-002707 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. 3 Appeal 2017-002707 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 4 Appeal 2017-002707 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 5 Appeal 2017-002707 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. 6 Appeal 2017-002707 Application 13/372,129 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 7 Copy with citationCopy as parenthetical citation