Ex Parte Cutright et al

Board of Patent Appeals and Interferences

Jan 5, 2011

10342149 (B.P.A.I. Jan. 5, 2011)

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.
10/342,149 01/13/2003 Richard Cutright PUG.0068US 8374
21906 7590 01/05/2011
TROP, PRUNER & HU, P.C.
1616 S. VOSS ROAD, SUITE 750
HOUSTON, TX 77057-2631
EXAMINER
MARTIN, ANGELA J
ART UNIT PAPER NUMBER
1727
MAIL DATE DELIVERY MODE
01/05/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RICHARD CUTRIGHT and
JEFFREY INGRAHAM
____________

Appeal 2009-015353
Application 10/342,149
Technology Center 1700
____________

Before CHUNG K. PAK, LINDA M. GAUDETTE, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

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Application 10/342,149

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Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision2 finally rejecting claims 1 and 3-18, the only claims pending in the
Application. (Br.3 5.) We have jurisdiction under 35 U.S.C. § 6(b).
Appellants request review of the rejection of claims 1, 3-6, 9-15, and
18 under 35 U.S.C. § 102(e) as anticipated by Harris4 (see Final 2-4; Ans.5
3-5). (Br. 9.) Appellants’ arguments in support of patentability as to all
rejected claims are based on limitations found in independent claims 1 and
10. Therefore, the remaining claims subject to this ground of rejection stand
or fall with claims 1 and 10.
As explained in further detail below, we find the facts and reasons
relied on by the Examiner (Ans. 3-5 and 7-8) fully support the Examiner’s
rejection of claims 1 and 10 as anticipated by Harris. Accordingly, we adopt
the Examiner’s fact finding and reasoning as our own in sustaining the
rejection of claims 1, 3-6, 9-15, and 18 under 35 U.S.C. § 102(e) as
anticipated by Harris.
Appellants do not present arguments in response to the following
additional grounds of rejection maintained by the Examiner: claims 7, 8, 16,
and 17 under 35 U.S.C. § 102(e) as anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as obvious over Harris (Final 5; Ans. 6); and
claims 5 and 14 under 35 U.S.C. § 103(a) as unpatentable over Harris in
view of Faye6 (Final 6; Ans. 7). Accordingly, we summarily sustain the
rejection of claims 7, 8, 16, and 17 under both 35 U.S.C. § 102(e) and 35

2 Final Office Action mailed Aug. 6, 2008 (“Final”).
3 Appeal Brief filed Feb. 10, 2009.
4 US 7,087,332 B2, issued Aug. 8, 2006.
5 Examiner’s Answer mailed Jun. 9, 2009.
6 US 2004/0175601 A1, published Sept. 9, 2004.
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Application 10/342,149

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U.S.C. § 103(a), and the rejection of claims 5 and 14 under 35 U.S.C.
§ 103(a).
Appellants’ “invention generally relates to a technique and apparatus
to control the power output of a fuel cell stack.” (Spec.7 1:2-3.) The
invention utilizes a first control loop to regulate current in an attempt to
maximize output power of the fuel cell stack for a given reactant flow.
(Spec. 4:27-28.) Desired power output from the fuel cell stack may vary,
e.g., due to changes in the load. (Spec. 4: 29-31.) A second control loop
regulates fuel flow to the stack to adjust for changes in the desired power
output. (Spec. 5:29-31).
Claims 1 and 10, the sole independent claims are reproduced below
from the Claims Appendix to the Appeal Brief:
1. A method usable with a fuel cell stack, comprising:
providing a reactant flow to the fuel cell stack, an output
power versus current relationship of the fuel cell stack being a
function of the reactant flow and the output power versus
current relationship having a maximum output power value for
a given stack current value;
pursuant to a first control algorithm, adjusting a current
of the fuel cell stack and based on the adjusting, determining
said given stack current value to substantially maximize an
output power of the fuel cell stack for the reactant flow being
provided to the stack; and
pursuant to a second control algorithm separate from the
first control algorithm, controlling the reactant flow to regulate
the output power of the fuel cell stack to be substantially at a
desired power level so that at the desired power level, the

7 Specification filed Jan. 13, 2003.

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output power of the fuel cell stack is substantially maximized
with respect to the current of the fuel cell stack,
wherein the adjusting of the current occurs during the
controlling of the reactant flow.
10. A fuel cell system comprising:
a fuel cell stack;
a fuel processor to provide a reactant flow to the fuel cell
stack, an output power versus current relationship of the fuel
cell stack being a function of the reactant flow and the output
power versus current relationship having a maximum output
power value for a given stack current value;
power conditioning circuitry to communicate power from
the fuel cell stack to a load; and
a controller coupled to the power conditioning
circuitry and the fuel processor to:
pursuant to a first control algorithm, adjust a
current of the fuel cell stack and based on the adjusting of the
current, determine said given stack current value to
substantially maximize an output power of the fuel cell stack
for the reactant flow being provided to the stack; and
pursuant to a second control algorithm separate
from the first control algorithm, control the reactant flow to
regulate the output power of the fuel cell stack to be
substantially at a desired power level so that at the desired
power level, the output power of the fuel cell stack is
substantially maximized with respect to the current of the fuel
cell stack.
The issues we consider are whether the Examiner erred in finding that
Harris discloses a method of (claim 1)/controller for (claim 10):
(1) adjusting current of a fuel cell stack and determining a stack current
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value that maximizes output power of the fuel cell based on the adjustment
(Br. paragraphs bridging 10-11 and 12-13), and (2) adjusting current while
controlling reactant flow. (Br. 11 and 13.)
Harris discloses a generator, including a power generating device and
a power measuring device configured to measure a power output from the
power generating device. (Col. 2, ll. 50-53.) The power generating device
may be a fuel cell. (Col. 2, l. 63.) Harris “Fig. 2B is a graph illustrating a
power curve of a fuel cell.” (Col. 4, l. 31.) “[A] power curve is a graph
representing the relationship between power and either voltage or current
with respect to a given set of operating parameters.” (Col. 1, ll. 33-36; see
also, col. 1, l. 30 (Power = Voltage x Current).) The power curve has a
global maximum, or “maximum power point,” which changes with operating
conditions. (Col. 1, ll. 36-41.) “[I]n the case of a fuel cell, the maximum
allowable power point corresponds to the current draw just below that which
would begin to cause damage to the fuel cell materials, such as by starving
the cell of reactants.” (Col. 4, ll. 33-36.)
According to Harris, “[t]o extract the maximum power possible . . . ,
the operating current and voltage of the generator should be controlled in
such a way as to operate as close as possible to the global maximum at all
times” (col. 1, ll. 47-50), i.e., the power output setpoint should be the
maximum power point. The amount of power available depends on the
amount of feed reactants supplied to the fuel cell. (Col. 5, ll. 17-18.)
Harris explains that “[t]he rate of fuel delivery to the system must still
be controlled to control the actual power output at the maximum allowable
power point.” (Col. 5, ll. 7-9.) Harris utilizes
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[a] comparator [to] compare[] the measured power output with
the power output setpoint to generate a control signal based on
a difference between the measured power output and the power
output setpoint. A [flow] . . . controller controls the reactant
flow to the generator in response to the control signal from the
comparator.
(Col. 2, ll. 57-62.)
The flow controller is preferably configured to increase the
flow rate of fuel into the fuel cell when the control signal
indicates that the measured power output is below the power
output setpoint. The flow controller is further preferably
configured to decrease the flow rate of fuel into the fuel cell
when the control signal indicates that the measured power
output is above the power output setpoint.
(Col. 2, l. 66-col. 3, l. 6.)
A reference is anticipatory under § 102(e) if it discloses each and
every element of the claimed invention, either explicitly or inherently. In re
Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999). “While those elements must
be ‘arranged or combined in the same way as in the claim,’ Net MoneyIN,
Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed. Cir. 2008), the reference
need not satisfy an ipsissimis verbis test, In re Bond, 910 F.2d 831, 832–33
(Fed. Cir. 1990).” In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009).
Appellants argue “Harris fails to disclose the explicitly-recited acts of
adjusting a current of a fuel cell stack and determining a stack current value
that maximizes an output power of the fuel cell based on the adjusting” (Br.
11) and a controller for performing these steps (Br. paragraph bridging 12-
13). Although Harris does not use the identical language recited in claims 1
and 10, the above cited/quoted disclosure in Harris clearly supports the
Examiner’s finding that Harris uses a controller to perform adjusting and
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Application 10/342,149

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determining steps as claimed, since Harris controls current (see e.g., col. 1,
ll. 47-50) in order to operate as closely as possible to maximum power
output of the fuel cell at a given reactant feed (see e.g. col. 5, ll. 7-9).
Appellants also argue “Harris fails to disclose concurrently
determining a current that maximizes the output power for a reactant flow
and regulating the reactant flow (emphasis added)” (Br. 11) and a controller
for performing these steps (Br. 13). We note that claim 10 does not include
any language which requires the recited controller have the capability of
“concurrently” determining current and regulating reactant flow. Therefore,
this argument is unpersuasive as to claim 10 since it is directed to unrecited
limitations. Likewise, claim 1 does not include the argued limitations, but
merely requires adjusting the current during controlling of the reactant flow.
Harris clearly teaches the recited claim 1 limitation because Harris discloses
that the amount of available power varies with reactant flow (see e.g. col. 5,
ll. 17-18) and that current should be controlled so as to operate the fuel cell
as close as possible to the maximum allowable power point, i.e., the point at
which the current draw is just below that which would begin to cause
damage to the fuel cell materials, such as by starving the cell of reactants
(see e.g. col. 1, ll. 47-50 and col. 4, ll. 33-36).
In sum, Appellants have failed to persuade us of error in the
Examiner’s findings that Harris discloses a method of (claim 1)/controller
for (claim 10): (1) adjusting current of a fuel cell stack and determining a
stack current value that maximizes output power of the fuel cell based on the
adjustment, and (2) adjusting current while controlling reactant flow.
Accordingly, we affirm the Examiner’s decision to reject claims 1 and 3-18.
Appeal 2009-015353
Application 10/342,149

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

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TROP, PRUNER & HU, P.C.
1616 S. VOSS ROAD, SUITE 750
HOUSTON, TX 77057-2631