Ex Parte Cusumano et al

Patent Trials and Appeals Board

Nov 13, 2017

12019724 - (D) (P.T.A.B. Nov. 13, 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.
12/019,724 01/25/2008 Thomas Joseph Cusumano 81167610 1565
28395 7590 11/15/2017
RROOKS KTTSHMAN P C /FfTET
EXAMINER
1000 TOWN CENTER MCALLISTER, STEVEN B
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
3749
NOTIFICATION DATE DELIVERY MODE
11/15/2017 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 THOMAS JOSEPH CUSUMANO,
DEBORAH DIANE PITTMAN, and
DONALD PAUL ALES SI JR.
Appeal 2017-002366
Application 12/019,724
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Thomas Joseph Cusumano et al. (Appellants)1 appeal under 35 U.S.C.
§ 134 from the Examiner’s decision rejecting claims 1—5, 7, and 8. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellants, the real party in interest is Ford Motor Company.
Appeal Br. 2.
Appeal 2017-002366
Application 12/019,724
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A vehicle comprising:
a fuel cell enclosure;
a battery arrangement;
a duct fluidly connecting an air source and the battery
arrangement and configured to deliver air from the air source to
the battery arrangement to cool the battery arrangement; and
a conduit arrangement projecting from and connecting the
duct and fuel cell enclosure and configured to deliver air from
the duct to the fuel cell enclosure to remove hydrogen from the
fuel cell enclosure.
REJECTIONS
I. Claims 1,5,7, and 8 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Tsuchiya (JP 2007-299593, pub. Nov. 15,
2007).2
II. Claims 2-4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tsuchiya and Allison (US 5,979,540, iss.
Nov. 9, 1999).
DISCUSSION
In rejecting independent claim 1, the Examiner finds that Tsuchiya
discloses, in pertinent part, a “fuel cell enclosure (secondary battery or fuel
cell pack, 54, Figure 3).” Final Act. 3 (boldface omitted). According to the
2 An English-language translation of Tsuchiya was entered into the record of
the present application on February 13, 2013. Any references to paragraphs
of Tsuchiya in this opinion are to this English-language translation.
2
Appeal 2017-002366
Application 12/019,724
Examiner, Tsuchiya’s “secondary battery/fuel cell pack 54 is ‘a fuel cell
enclosure’, as seen in Figure 3 and Paragraphs [0042], [0048].” Ans. 5.
Appellants argue that “one of ordinary skill would NOT have
interpreted battery 54 as the claimed fuel cell enclosure: [t]he examiner’s
interpretation is not reasonable.” Reply Br. 3. We agree with Appellants.
Tsuchiya discloses that element 54 is a battery comprising two or
more laminated cells 450. See Tsuchiya ^fl[ 27, 39. Battery 54 is surrounded
(i.e., enclosed) by battery case 51, through which cooling air flows via
intake chamber 56 and exhaust chamber 57. Id. ]H[ 28, 42, 48. In other
words, Tsuchiya’s battery case 51 appears to be an enclosure for battery 54.
However, the Examiner does not identity, nor do we discern, a disclosure in
Tsuchiya that battery 54, itself, encloses anything. Thus, the Examiner’s
interpretation of battery 54 as constituting a fuel cell enclosure lacks
adequate evidentiary support.
The aforementioned unsupported finding pervades the anticipation
and obviousness rejections. The Examiner relies on Allison for its teachings
regarding a duct that includes an air filter, but not for any teaching that
would overcome the deficiency discussed above regarding the Examiner’s
finding as to the disclosure of Tsuchiya. See Final Act. 4—5. Accordingly,
for the above reasons, we do not sustain the rejection of claims 1, 5, 7, and 8
as anticipated by Tsuchiya, or the rejection of claims 2-4 as unpatentable
over Tsuchiya and Allison.
3
Appeal 2017-002366
Application 12/019,724
DECISION
The Examiner’s decision rejecting claims 1—5, 7, and 8 is reversed.
REVERSED
4