Ex Parte JOOS et al

Patent Trials and Appeals Board

Jan 31, 2019

14684091 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/684,091 04/10/2015
26123 7590 02/04/2019
BORDEN LADNER GERVAIS LLP (Ottawa)
Shin Hung
WORLD EXCHANGE PLAZA
100 QUEEN STREET SUITE 1300
OTTA WA, ON KIP IJ9
CANADA
FIRST NAMED INVENTOR
Nathaniel Ian JOOS
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.
PAT92295A-2 4492
EXAMINER
EGGERDING, ALIX ECHELMEYER
ART UNIT PAPER NUMBER
1729
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
ipinfo@blg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NATHANIEL IAN JOOS and MARIO DZAMARIJA
Appeal2018-000943
Application 14/684,091
Technology Center 1700
Before JAMES C. HOUSEL, N. WHITNEY WILSON, and
WESLEY B. DERRICK, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting, as unpatentable under 35 U.S.C. § 103(a), claims 1-7, 13,
and 14 over Sato3 as evidenced by Sugita4 and in view ofLaConti, 5 and
1 Our decision refers to the Specification ("Spec.") filed April 10, 2015, the
Examiner's Final Office Action ("Final Act.") dated September 2, 2016,
Appellant's Appeal Brief ("Appeal Br.") filed June 2, 2017, the Examiner's
Answer ("Ans.") dated September 6, 2017, and Appellant's Reply Brief
("Reply Br.") filed November 6, 2017.
2 Appellant is the Applicant, Hydrogenics Corporation, which is identified in
the Appeal Brief as the real party in interest (Appeal Br. 3).
3 Sato et al., US 2006/0024561 Al, published February 2, 2006 ("Sato").
4 Sugita et al., US 2005/0019643 Al, published January 27, 2005 ("Sugita").
5 LaConti et al., US 2004/0016638 Al, published January 29, 2004
("La Conti").
Appeal2018-000943
Application 14/684,091
claims 8-12 and 15-17 adding Belanger. 6 We have jurisdiction over the
appeal under 35 U.S.C. § 6(b ).
We REVERSE.
STATEMENT OF THE CASE
The invention relates to an arrangement for a bus bar for an
electrochemical cell stack (Spec. ,r 2). Appellant discloses that the cell stack
comprises an elongated flat bus bar, an end plate having a recess on one side
to receive the bus bar and a substantially flat sealing area surrounding the
recess, and an elastic material arranged on the side of the bus bar opposite
the recess (id. ,r 20).
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal. The limitations at issue
are italicized.
1. An electrochemical cell stack comprising:
a) a bus bar having two opposite generally flat side
surfaces;
b) an end plate having a recess on one side, the recess
arranged to receive the bus bar so that one of the two opposite
generally flat side surfaces of the bus bar is received into the
recess, the end plate having a substantially flat sealing area
generally surrounding the recess; and
c) an elastic material in the form of a flat sheet arranged
on the other of the two opposite generally flat side surfaces of
the bus bar, the elastic material extending from the bus bar to
the sealing area of the end plate to cover an interface between
the bus bar and the end plate.
6 Belanger et al., US 2005/0186462 Al, published August 25, 2005
("Belanger").
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Application 14/684,091
Independent claim 14 similarly recites an electrochemical cell stack
except that element ( c) is a sheet of gas diffusion layer material, rather than
an elastic material in the form of a flat sheet.
Independent claim 17 also recites an electrochemical cell stack except
that element ( c) does not require that the elastic material is in the form of a
flat sheet and an element ( d) is added, which is a graphite flow field plate
adjacent to the elastic material.
ANALYSIS
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability"). 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).
Claim 1
The Examiner finds that Sato teaches an electrochemical fuel stack
comprising elongated bus bar ( terminal plate) 16a, end plate 18a having a
recess on one side 60a for receiving the bus bar and a substantially flat
sealing area surrounding the recess (Final Act. 3). The Examiner finds that
Sato also teaches metal separator 32 arranged on the opposite side of the bus
bar from the end plate, wherein the separator covers interface 66a between
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Application 14/684,091
the end plate and bus bar (id.). Though the Examiner acknowledges Sato
does not expressly state that the separator is elastic, the Examiner finds that
the separator is corrugated and that Sugita teaches such corrugated metal
separators have elasticity (id. at 4).
However, the Examiner acknowledges that Sato' s separator is not flat
(Final Act. 4). The Examiner finds LaConti teaches an elastic member
( compression pad) within a fuel stack in order to maintain uniform pressure
over active areas, wherein this elastic member is a gas diffusion material
(id.). The Examiner concludes that it would have been obvious to provide
Sato with a compression pad as suggested by LaConti as the elastic material
in order to maintain uniform pressure over the active areas of the cell stack
(id.).
Appellant argues that substitution of LaConti' s compression pad for
Sato' s separator would not have been obvious because of their different
positions and functions (Appeal Br. 7). Appellant contends that LaConti's
pads 305, 403, 405 are not against a bus bar, but instead are either inside
each cell or between cells (id. at 8). In addition, Appellant notes that Sato's
separator 32 provides a fuel gas flow field 48 on one side and a coolant flow
field 50 on the other side (id.). As such, Appellant asserts that Sato's
separator requires a non-porous material to separate these two flow fields
(id.). Because LaConti's compression pads cannot define two separate flow
fields, Appellant contends that LaConti's pads are not a workable
replacement for Sato's corrugated metal separator (id.).
Appellant's arguments have persuasive merit. Although the Examiner
determines that the skilled artisan would replace Sato' s separator plate in
contact with the bus bar ( or terminal plate) with a flat elastic pad from
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Application 14/684,091
LaConti in order to maintain uniform pressure (Ans. 3), LaConti's pads are
only capable of providing a single flow field within the pad itself. As
Appellant asserts, Sato's separator 32 provides a separate flow field on each
side formed by the corrugated metal sheet (Sato ,r 32, Fig. 4). Thus,
LaConti's pads are not a functionally equivalent substitute for Sato's
separators.
We note the Examiner finds that "[ w ]hile the separator plates are used
to form a coolant flow field within the bulk of the fuel cell stack, Sato
specifically teaches away from allowing the coolant to come into contact
with the bus bar, since this causes corrosion" (Ans. 4). Since Sato's end
separators do not function to form a coolant flow field in contact with the
bus bar, the Examiner determines that LaConti' s pad would be a functional
replacement for Sato's end separators (id.).
However, as Appellant asserts (Reply Br. 2), Sato does not teach
restricting coolant flow to any separator. Sato does disclose that, in the
internal manifold type fuel cell, fluid supply and discharge passages extend
through the metal terminal plates such that coolant water contacts the
terminal plates (Sato ,r 7). Due to current flowing through the terminal metal
plates, Sato discloses that this coolant water contact leads to undesirable
electrical corrosion in these plates (id.). This discussion is set forth in Sato's
"Description of the Related Art" (id. ,r 3). Contrary to the Examiner's
finding, Sato does not teach that the coolant flow field of any separator, in
particular the separators in contact with the terminal plates or bus bars is not
used. Sato merely teaches that the fluid passages do not extend through
these terminal plates (id. ,r 14 ), but otherwise teaches that the first metal
separator adjacent the terminal plate has both fuel gas flow field 48 and
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coolant flow field 50, wherein this coolant flow field is connected to the
coolant supply and discharge passages (id. ,r 32). Therefore, the Examiner's
finding that Sato's separators adjacent the terminal plates or bus bars would
not have a coolant flow field lacks support in Sato and is erroneous.
Because the obviousness rejection relies on this erroneous finding, the
Examiner's conclusion of obviousness lacks sufficient rational
underpinning. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) ("[R]ejections
on obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness."), quoted with
approval in KSR, 550 U.S. at 418. We note that the Examiner does not rely
on Belanger to remedy this deficiency. Accordingly, we will not sustain the
Examiner's obviousness rejection of claim 1, and claims 2-13 which depend
from claim 1, over the combination of Sato, Sugita, and LaConti, whether or
not combined with Belanger.
Claim 14
The Examiner's obviousness rejection of claim 14 relies on the same
substitution of LaConti's compression pad for Sato's separators adjacent the
terminal plates or bus bars. For the same reasons given above, the
Examiner's conclusion of obviousness as to claim 14 lacks sufficient
rational underpinning because it relies on the erroneous finding that Sato' s
corrugated metal separators would not provide a coolant flow field adjacent
the terminal plates or bus bars, which is contrary to Sato' s express
disclosure. Accordingly, we will not sustain the Examiner's obviousness
rejection of claim 14, and dependent claims 15 and 16, over the combination
of Sato, Sugita, and LaConti, alone or further combined with Belanger.
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Claim 17
The Examiner finds that Sato, as evidenced by Sugita and in view of
LaConti, teaches the electrochemical stack except for the graphite flow field
plate (Final Act. 7). However, the Examiner finds Belanger teaches that it is
desirable to form flow field or separator plates from graphite because such
plates have excellent electrical conductivity, electrochemical stability,
structure integrity, size stability, and good manufacturability at low cost
(id.). Therefore, the Examiner concludes that it would have been obvious to
make Sato' s flow field separator plates from graphite for the advantages
Belanger teaches (id.).
Appellant argues that elements (a), (b ), and ( c) are similar to elements
(a), (b), and (c) of claim 1 and the same arguments as to claim 1 apply here
(Appeal Br. 11 ). As to element ( d), Appellant argues that "MEA [ membrane
electrode assembly] 30, 42 of Sato is not a flow field plate and could not
perform its intended functions if made of graphite, at least because graphite
is not an electrolyte or a membrane as required of polymer electrolyte
membrane 42" (id.). As to this latter argument, the Examiner responds that
the rejection does not equate Sato's MEA to a flow field plate (Ans. 6). In
light of the Examiner's response, Appellant understands that the Examiner's
position is that an internal separator plate would be adjacent to a
compression pad that replaced Sato's separator plate 32 (Reply Br. 5).
However, Appellant contends that no separator plate is adjacent to separator
plate 32 that is replaced with a compression pad (id.).
Appellant's arguments are persuasive of reversible error. The
Examiner's rejection requires that the LaConti's compression pad replace
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Sato's separator 32 and the flow field plates of Sato in view ofLaConti be
made out of graphite as suggested by Belanger. The difficulty with this
rejection is that Sato's separators are also flow field plates. Thus, replacing
Sato' s separator with La Conti' s compression pad, but making that pad
graphite would prevent LaConti's pad from compressing. Conversely, as
Appellant contends, if first separator 32 adjacent terminal plate 16a is
replaced with a compression pad and second separator 34 is made from
graphite, the Examiner fails to explain how the second separator would be
adjacent to the compression pad, as required by this claim. Indeed, such is
contrary to Sato's teaching that the MEA 30 extends between separators 32,
34. Accordingly, we will not sustain the Examiner's obviousness rejection
of claim 17 over the combination of Sato, Sugita, LaConti, and Belanger.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Appeal and Reply Briefs, the decision of the Examiner rejecting
claims 1-17 under 35 U.S.C. § 103(a) as unpatentable over the combination
of Sato, Sugita, and LaConti, alone or further in view of Belanger, is
reversed.
REVERSED
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