Ex Parte Jiang et al

Patent Trial and Appeal BoardMar 17, 2017

13415113 (P.T.A.B. Mar. 17, 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. 13/415,113 03/08/2012 Ruichun Jiang P019393-RDFC-CHE 6834 83938 7590 03/21/2017 Brooks Kushman P.C. 1000 Town Center, Twenty-Second Floor Southfield, MI 48075-1238 EXAMINER HASKE, WOJCIECH ART UNIT PAPER NUMBER 1724 NOTIFICATION DATE DELIVERY MODE 03/21/2017 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): docketing @brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RUICHUN JIANG and MATTHEW DIOGUARDI Appeal 2016-003077 Application 13/415,113 Technology Center 1700 Before KAREN M. HASTINGS, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1, 3—5, 7, 8, 11, and 13—15 under 35 U.S.C. § 102(b) as anticipated and claims 2 and 12 under 35 U.S.C. § 103(a) as obvious. Final Act. (Jan. 20, 2015). Appellants1 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). For the reasons set forth below, we REVERSE. 1 GM Global Technology Operations LLC is identified as the real party in interest. Appeal Br. 2. Appeal 2016-003077 Application 13/415,113 BACKGROUND The ’113 Application describes a membrane electrode assembly, which includes an anode catalyst, a polymer membrane, and a cathode catalyst configured to provide ion transport. Spec. 1—3. The described membrane electrode assembly includes one or more anisotropic reinforced layers to reduce membrane buckling and improve fuel cell durability. Id. at 11 8, 28. Claim 1 is representative of the ’113 Application’s claims and is reproduced below from the Claims Appendix to the Appeal Brief: 1. A fuel cell comprising: a membrane electrode assembly including a first anisotropic reinforced layer having a first plurality of fibers preferentially oriented along a first direction, a second anisotropic reinforced layer having a second plurality of fibers preferentially oriented along a second direction, the first anisotropic reinforced layer and the second anisotropic reinforced layer each independently including a support material, a proton exchange layer, a cathode catalyst layer, and an anode catalyst layer, the first direction being different than the second direction, the anode catalyst layer coated onto the first anisotropic reinforced layer and the cathode catalyst layer coated onto the second anisotropic reinforced layer, the proton exchange layer interposed between and contacting the anode catalyst layer and the cathode catalyst layer; a first diffusion layer disposed over the cathode catalyst layer; a second diffusion layer disposed over the anode catalyst layer; an anode flow field plate disposed over the second diffusion layer; and a cathode flow field plate disposed over the first diffusion layer. Claims App. 1. 2 Appeal 2016-003077 Application 13/415,113 REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 1, 3—5, 7, 8, 11, and 13—15 are rejected under 35 U.S.C. § 102(b) as anticipated by Kinoshita.2 Final Act. 3. 2. Claims 2 and 12 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Kinoshita and Rosato.3 Final Act. 5— 6. DISCUSSION Rejection 1. Appellants argue for the reversal of this rejection on the basis of limitations present in independent claim 1. See Appeal Br. 3—5; Reply Br. 1—2. We, therefore, limit our analysis to claim 1 for the rejection of these claims. Accordingly, claims 3—5, 7, 8, 11, and 13—15 will stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner rejected claims 1, 3—5, 7, 8, 11, and 13—15 as anticipated by Kinoshita. Final Act. 3. The Examiner must establish a prima facie case of anticipation under 35 U.S.C. § 102 by showing, as a matter of fact, that all elements arranged as specified in a claim are disclosed within the four comers of a reference, either expressly or inherently, in a manner enabling one skilled in the art to practice an embodiment of the claimed invention without undue experimentation. Clear Value, Inc. v. Pearl River Polymers, Inc., 668 F.3d 2 US 2009/0246592 Al, published Oct. 1, 2009. 3 Rosato et al., Reinforced Plastics Handbook, 3rd ed., ISBN: 978-1-85617- 450-3 (2005) (hereinafter “Rosato”). 3 Appeal 2016-003077 Application 13/415,113 1340, 1344 (Fed. Cir. 2012); Sanofi-Synthelabo v. ApotexInc., 550 F.3d 1075,1083 (Fed. Cir. 2008). Here, the Examiner found that Kinoshita’s reinforcing layers 24 and 34 are each “in the form of a woven fabric.” Final Act. 3 (citing Kinoshita | 151). The Examiner further found these layers are anisotropic because “woven fabric has a first plurality of fibers preferentially oriented along a first direction and a second plurality of fibers preferentially oriented along a second direction . . . .” Final Act. 3. The Examiner found that Kinoshita’s woven fabric “has a first plurality of fibers preferentially oriented along a first direction and a second plurality of fibers preferentially oriented along a second direction, because woven fiber has at least two weaving directions where the first direction is different than the second direction.” Id. Appellants argue, inter alia, that the rejection should be reversed because the “the two orthogonal fibers in [Kinoshita’s] woven fabric will on average cancel out any anisotropy.” Appeal Br. 4. Appellants further argue that Examiner erred by finding that Kinoshita describes an assembly for a fuel cell comprising a reinforced “layer with ‘fibers preferentially oriented along a first direction.’” Reply Br. 2; see also Appeal Br. 3—5. We agree that the Examiner has so erred. First, we conclude that the Examiner erred in construing the word anisotropic as it is used in claim 1. The normal definition of the term “anisotropic” is “exhibiting properties with different values when measured in different directions.” Anisotropic, MERRIAM-WEBSTER.COM, http://www.merriam- webster.com/dictionary/anisotropic. In this case, however, the Examiner’s rejection is based upon an erroneous construction. The Examiner construes 4 Appeal 2016-003077 Application 13/415,113 the claim as requiring that “an anisotropic material. . . has the same properties in different directions . . . Ans. 3 (emphasis added). Second, Appellants persuasively argue that “no direction can be described as preferential” when “. . . a woven fabric would have fibers oriented along two directions.” Reply Br. 2. The Examiner has not explained how Kinoshita discloses that the directional orientation of any particular plurality of woven fabric fibers is preferential over another. See Final Act. 3. Therefore, the Examiner’s finding, that Kinoshita’s woven fabric possesses the necessary structure to have: (i) a first anisotropic reinforced layer having a first plurality of fibers preferentially oriented along a first direction and (ii) a second anisotropic reinforced layer having a second plurality of fibers preferentially oriented along a second direction, is erroneous. We, therefore, reverse the rejection of claims 1, 3—5, 7, 8, 11, and IS IS. Rejection 2. The Examiner rejected claims 2 and 12 as obvious over the combination of Kinoshita and Rosato. Final Act. 5—6. Appellants contend, inter alia, that this rejection should be reversed because Rosato does not cure the alleged deficiencies of Kinoshita with respect to claims 1 and 11, from which claims 2 and 12 depend, respectively. Appeal Br. 5.4 4 Appellants state that “[cjlaims 2 and 12 depend from independent claims 1 and 12[,] which are shown above to be allowable.” Appeal Br. 5. We assume that Appellants’ reference to “independent claim[] ... 12” was a clerical oversight because: (i) claim 12 depends on independent claim 11; 5 Appeal 2016-003077 Application 13/415,113 Because we have reversed the rejection of claims 1 and 11 as anticipated by Kinoshita and the Examiner did not rely upon Rosita to cure the deficiencies of Kinoshita, we also reverse the rejection of claims 2 and 12. DECISION On the basis of the record before us and for the reasons set forth above, we reverse the rejections of claims 1—5, 7, 8, and 11—15. REVERSED and (ii) Appellants’ preceding arguments were directed to showing that independent claims 1 and 11 are allowable. See Claims App. 2—3; Appeal Br. 3^4. 6