Ex Parte DruenertDownload PDFPatent Trial and Appeal BoardJun 28, 201311248518 (P.T.A.B. Jun. 28, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/248,518 10/12/2005 Volker Druenert GP-306044 1112 65798 7590 07/01/2013 MILLER IP GROUP, PLC GENERAL MOTORS CORPORATION 42690 WOODWARD AVENUE SUITE 200 BLOOMFIELD HILLS, MI 48304 EXAMINER ARCIERO, ADAM A ART UNIT PAPER NUMBER 1727 MAIL DATE DELIVERY MODE 07/01/2013 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte VOLKER DRUENERT ____________ Appeal 2012-003021 Application 11/248,518 Technology Center 1700 ___________ Before KAREN M. HASTINGS, GEORGE C. BEST, and DONNA M. PRAISS, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-003021 Application 11/248,518 2 Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final decision rejecting claims 1-28. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Claims 1 and 2 are illustrative of the subject matter on appeal (key limitations in dispute italicized): 1. A fuel cell system comprising: a fuel cell stack providing a cathode exhaust on a cathode exhaust line, said cathode exhaust including gaseous and liquid water; a liquid water separator receiving the cathode exhaust from the cathode exhaust line and separating the liquid water therefrom; and a thermal sub-system including a pump, a coolant loop and a radiator, said pump pumping a cooling fluid through the coolant loop, the radiator and the fuel cell stack, said radiator including a selectively permeable wall portion that allows water in the cooling fluid flowing through the radiator to permeate therethrough and be evaporated at an external surface of the wall portion and wherein the permeation and evaporation of the water through the selectively permeable wall portion depends on the temperature and pressure of the cooling fluid. 2. The fuel cell system according to claim 1 wherein the material of the permeable wall portion has properties that only allows water vapor to diffuse through the wall portion. The rejections of claims 1-28 under 35 U.S.C. § 103(a) that are on appeal are as follows: Appeal 2012-003021 Application 11/248,518 3 Rejection 1. Claims 1, 6-12, 17-21, and 26-28 as unpatentable over the combined prior art of Breault,1 Balasubramanian,2 and Griffin;3 Rejection 2. Claims 2-3, 5, 13-14, 16, 22-23, and 25 as unpatentable over the combined prior art of Breault, Balasubramanian, Griffin, and Leon;4 Rejection 3. Claims 4, 15, and 24 as unpatentable over the combined prior art of Breault, Balasubramanian, Griffin, and Uragami.5 Appellant argues the claims subject to Rejection 1 as a group and the claims subject to Rejection 2 as a group. App. Br. 12-15. Appellant does not separately argue the patentability of dependent claims 4, 15, and 24 or address Rejection 3. App. Br. 11. We select claims 1 and 2 as representative of the claimed subject matter on appeal. Therefore, claims 4, 6-12, 15, 17-21, 24, and 26-28 will stand or fall with claim 1 and claims 3, 5, 13-14, 16, 22-23, and 25 will stand or fall with claim 2. See 37 C.F.R. § 41.37(c)(1)(vii); Hyatt v. Dudas, 551 F.3d 1307, 1313 (Fed. Cir. 2008). ANALYSIS We have thoroughly reviewed each of Appellant’s arguments for patentability. However, we are in agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of § 103 in view of the applied prior art. Accordingly, we will sustain the Examiner’s rejection for essentially those 1 US 2003/0118883 A1, published June 26, 2003. 2 US 2003/0031902 A1, published February 13, 2003. 3 US 2003/0051367 A1, published March 20, 2003. 4 DE 39 39 867 A1, published June 6, 1991. 5 US 4,983,303, issued January 8, 1991. Appeal 2012-003021 Application 11/248,518 4 reasons expressed in the Answer, including the Response to Argument section, and we add the following primarily for emphasis. It is well established that “the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”). KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). It is likewise well established that ordinary creativity is presumed on the part of one of ordinary skill in the art. Id. at 421 (“[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.”). Appellant’s main arguments are that (1) Griffin does not explicitly teach or suggest that the semipermeable membrane functions as claimed in claim 1 (App. Br. 13-14) and (2) Leon does not explicitly teach or suggest that the selective membrane “has properties that only allows [sic] water vapor to diffuse through the wall portion as recited in claims 2, 13 and 22” (App. Br. 15). We find Appellant’s arguments unpersuasive. Appellant does not dispute that Griffin discloses a radiator or an “exchange element having a semi-permeable membrane” (App. Br. 13). Nor does Appellant dispute that Leon discloses a semi-permeable membrane that separates water from fluid mixtures (id. at 15) and that the membrane in Leon is made of the same cross-linked poly-vinyl alcohol on a polyethersulfone support as further claimed in claim 3 of Appellant’s application (see Ans. 10; Reply Br. generally). A preponderance of the evidence supports the Examiner’s reasonable finding that, contrary to Appellant’s position, the prior art combination of Breault, Balasubramanian, and Griffin is “fully capable of Appeal 2012-003021 Application 11/248,518 5 performing the claimed functions” in claim 1 and that “it is inherent that the temperature and pressure affect the evaporation and permeation of the water through the semi-permeable membrane, given that the structure and materials of the prior arts and the present application are the same.” (Ans. 9). Similarly, a preponderance of the evidence supports the Examiner’s reasonable finding that in the prior art combination of Breault, Balasubramanian, Griffin, and Leon, “such properties [as allowing water vapor to diffuse through a permeable membrane wall] are inherent, given that the structure and materials of the prior arts and the present application are the same.” (Ans. 10). One of ordinary skill in the art would have found it obvious at the time of the invention “to modify the radiator of Breault et al. and Balasubramanian et al. because Griffin teaches that [a radiator which includes a semi-permeable membrane] comprises both a cooling mode and a heating mode which are used to condition the cooling fluid.” Ans. 6. Likewise, it would have been obvious to one of ordinary skill in the art to modify the radiator of Breault, Balasubramanian, and Griffin with the water vapor permeable membrane of Leon because Leon teaches “said membrane has an advantage of greater selectivity, and fluids with very high water contents can be evaporated.” Ans. 7-8 (citation omitted). Thus, a preponderance of the evidence supports the Examiner’s determination that the claimed invention merely applies known radiators having a permeable membrane and known water vapor permeable membranes in known fuel cell systems, to yield the predictable result of the claimed fuel cell system having a radiator with a water vapor permeable membrane (Ans. 6, 8). See KSR, 550 U.S. at 416 (“The combination of Appeal 2012-003021 Application 11/248,518 6 familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 103, all that is required is a reasonable expectation of success.”) Appellant’s argument that “there is no specific teaching or suggestion that the membrane of Leon is, or was at the time of Appellants’ invention, applied to a radiator (Reply Br. 2)” is unavailing. One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Each reference cited by the Examiner must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As pointed out by the Examiner, both Breault and Griffin teach the structural limitation of a radiator comprising a permeable membrane and Leon teaches “a semi-permeable membrane comprising cross-linked poly-vinyl alcohol on a polyethersulfone support” (Ans. 10, citation omitted). Therefore, it would have been obvious for an artisan with ordinary skill to substitute the membrane of Leon in the radiator of Breault and Griffin. In light of these circumstances, Appellant has not adduced any persuasive technical reasoning or evidence in response to the Examiner’s reasonable determination that would have been within the level of ordinary skill in the art to combine the heat exchanger or radiator containing a semipermeable membrane of Griffin in the fuel cell systems of Breault or Balasubramanian and to substitute the semipermeable membrane of Griffin with the semipermeable membrane of Leon to arrive at the claimed subject matter (Ans. 6-8; App. Br. generally; Reply Br. generally). Appeal 2012-003021 Application 11/248,518 7 Accordingly, the preponderance of the evidence supports the Examiner’s § 103 rejections, and we sustain the § 103 rejections on appeal. DECISION The decision of the Examiner is affirmed. 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 cam Copy with citationCopy as parenthetical citation