Ex Parte Darling et al

Patent Trials and Appeals Board

Feb 11, 2019

13258036 - (D) (P.T.A.B. Feb. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/258,036 09/21/2011
136767 7590 02/13/2019
Seed IP Law Group LLP/General Firm (Email)
701 FIFTH A VE
SUITE 5400
SEATTLE, WA 98104
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Robert Mason Darling
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.
P99241 WOOUS0130609.498USP 8263
EXAMINER
MCDERMOTT, HELENM
ART UNIT PAPER NUMBER
1727
NOTIFICATION DATE DELIVERY MODE
02/13/2019 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):
USPTOeAction@SeedIP.com
pairlinkdktg@seedip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT MASON DARLING and ERIC J. O'BRIEN
Appeal2018-004001
Application 13/258,036
Technology Center 1700
Before ROMULO H. DELMENDO, DONNA M. PRAISS, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-004001
Application 13/258,036
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134 from a rejection2 of claims
1, 5, 7, 9-11, 13, 19-23, and 26-30. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We reverse.
CLAIMED SUBJECT MATTER
The claims are directed to a fuel cell and flow field plate with flow
guide. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A flow field plate for use in a fuel cell,
compnsmg:
a non-porous plate body including a flow field having a
plurality of channels and a flow distribution portion adjacent
one end of the plurality of channels, the flow distribution
portion configured to distribute fluid between a manifold and
the plurality of channels; and
a plurality of protrusions within the flow distribution
portion, the protrusions having long axes and side surfaces
oriented in a first direction oblique to the channels to increase
uniformity of flow distribution between the manifold and the
plurality of channels;
wherein each of the long axes are substantially parallel to
each other.
Claims Appendix (App. Br. 16).
1 The real party in interest is identified as "Audi AG." Appeal Brief of
August 28, 2017 ("App. Br."), 1.
2 Final Office Action of April 6, 2017 ("Final Act."). In this opinion, we
also refer to the Examiner's Answer of January 5, 2018 ("Ans.") and the
Reply Brief of March 5, 2018 ("Reply Br.").
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Appeal2018-004001
Application 13/258,036
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Takahashi
Wynne
Fujii
Frederiksen
JP 2007-141537 A
US 6,207,312 Bl
US 2004/0115512 Al
US 2005/0118489 Al
REJECTIONS
June 07, 2007
Mar. 27, 2001
June 17, 2004
June 02, 2005
Claims 1, 5, 11, 13, 19-23, and 26-30 are rejected under pre-AIA 35
U.S.C. § I03(a) as being unpatentable over Takahashi. Final Act. 3.
Claim 7 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Takahashi and further in view of Fujii. Final Act. 7.
Claim 9 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Takahashi and further in view of Wynne. Final Act. 7.
Claim 10 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Takahashi, Wynne, and further in view of Frederiksen.
Final Act. 8.
OPINION
Appellants argue that the Examiner reversibly erred in rejecting claim
1 because Takahashi does not teach or suggest "a plurality of protrusions ...
having long axes and side surfaces oriented in a first direction oblique to the
channels." App. Br. 10. The Examiner acknowledges that the reference
"does not expressly teach that the first and second directions are oblique to
the channels" but reasons that a skilled artisan would have found it obvious
"to ensure that the flow of a reactant (and a coolant) employed in the cell
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Appeal2018-004001
Application 13/258,036
collides with protrusions in its flow distribution portion, and in that,
distributes the reactant (and the coolant) uniformly from the manifolds to the
channels." Final Act. 5 ( citing Takahashi ,r 19). The Examiner also cites
Takahashi ,r 20 for "protrusions which are oriented obliquely would be fully
sufficient to control the flow path resistance as taught by Takahashi." Ans.
8-9. "Although Takahashi shows the protrusion and depression being
oriented at right angles in the figures," the Examiner nevertheless concludes
that "even a slight rotation from perpendicular of the protrusions and
depressions is fully sufficient to read on the 'oblique' orientation as
claimed." Id. at 9.
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).
In this case, the record before us lacks evidence showing that
Takahashi teaches or suggests "a plurality of protrusions ... having long
axes and side surfaces oriented in a first direction oblique to the channels" as
recited in claim 1. The Examiner has not sufficiently explained, for
example, why Takahashi' s disclosure of perpendicular arrangements for
flow control and how the perpendicular arrangements function would have
been understood by a skilled artisan as "merely one exemplary embodiment"
that broadly discloses or suggests the oblique orientation claimed by
Appellants. See Final Act. 5; see also Ans. 8-9. We agree with Appellants
(Reply Br. 2) that the Examiner's determination that "even a slight rotation
from perpendicular of the protrusions and depressions is fully sufficient to
read on the 'oblique' orientation as claimed" (Ans. 9) does not make
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Appeal2018-004001
Application 13/258,036
apparent any reason for modifying the perpendicular arrangements disclosed
by Takahashi.
We accordingly reverse the rejections of claim 1 and its dependent
claims. The rejection of independent claim 11 and its respective dependent
claim 13 is likewise reversed.
We decline to reach Appellants' request to rejoin withdrawn claims
15-18. See App. Br. 13. The propriety of the Examiner's restriction
requirement and subsequent rejoinder is not an appealable issue but, rather,
is petitionable to the Technology Center Director. See Manual of Patent
Examining Procedure§ 1002.02(c)(2) (8th ed., rev. 8, July 2010).
DECISION
The Examiner's rejections of claims 1, 5, 7, 9-11, 13, 19-23, and
26-30 are reversed.
REVERSED
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