Ex Parte Drunert

Board of Patent Appeals and Interferences

Jan 19, 2010

10407072 (B.P.A.I. Jan. 19, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte VOLKER DRUNERT
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Appeal 2009-003698
Application 10/407,072
Technology Center 1700
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Decided: January 19, 2010
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Before CHARLES F. WARREN, TERRY J. OWENS, and
MARK NAGUMO, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 9-14, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).

Appeal 2009-003698
Application 10/407,072

The Invention
The Appellant claims a method for warming a fuel cell stack to a
threshold temperature. Claim 9 is illustrative:
9. A method of operating a fuel cell, comprising:

supplying a first hydrogen-containing feed having a first molar
ratio to anode oxidant from a first fuel source to an anode side and a second
hydrogen-containing feed having a second molar ratio to cathode oxidant
from a second fuel source to a cathode side of said fuel cell, wherein at least
one of the first and second molar ratios is sufficient to produce electrical
energy and heat energy below a threshold temperature;

supplying a first oxidant to said anode side and a second
oxidant to said cathode side to exothermically react with said first and
second hydrogen-containing feeds; and

terminating supply of said second hydrogen-containing feed to
said cathode side and said first oxidant to said anode side when said fuel cell
achieves said threshold temperature,

wherein the first fuel source stores a first fuel type and the
second fuel source stores a second fuel type that is different from the first
fuel type.[ , ] 1 2
The References
Fuller 6,103,410 Aug. 15, 2000
Rock 6,358,638 B1 Mar. 19, 2002

1 The Appellant discloses that example hydrogen-containing fuels “include
hydrogen, methane, methanol, gasoline or other hydrocarbon fuels”
(Spec. ¶ [0022]).
2 The Appellant indicates that the threshold temperature is a selected
temperature such as between 0°C and 80°C at which the supply of oxidant to
the anode side and the supply of hydrocarbon fuel to the cathode side are
terminated (Spec. ¶¶ [0006]-[0007]).
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Application 10/407,072

The Rejections
Claims 9-14 stand rejected under 35 U.S.C. § 103 over Rock in view
of Fuller.
OPINION
The Examiner’s rejection is affirmed as to claims 9-12 and 14 and
reversed as to claim 13.
Claims 9-12 and 14
Issue
Has the Appellant shown reversible error in the Examiner’s
determination that it would have been prima facie obvious to one of ordinary
skill in the art to operate a fuel cell by 1) supplying different oxidants to the
anode and cathode sides, 2) supplying a first hydrogen-containing feed from
a first fuel source to the anode side and a second hydrogen-containing feed
from a second fuel source to the cathode side, where the first fuel source
stores a first fuel type and the second fuel source stores a different second
fuel type, or 3) using an anode or cathode side molar ratio of hydrogen-
containing feed to oxidant sufficient to produce electrical energy and heat
below a threshold temperature?
Findings of Fact
Rock discloses a method for starting-up fuel cells from subfreezing
temperatures (col. 1, ll. 9-10). The method
comprises the steps of: (1) supplying a H2-rich gas (e.g. pure H2 or
CO-containing reformate) to the anode catalyst and a O2-rich gas (e.g.
pure O2 or air) to the cathode catalyst; (2) introducing a sufficient
quantity of H2 into the O2-rich gas, and/or a sufficient quantity of O2
into the H2-rich gas to exothermally chemically react the H2 with the
O2, and thereby assist in heating the MEA [membrane electrode
assembly] up to a second temperature where current can be drawn
from the fuel cell; (3) discontinuing the introduction of such quantities
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Application 10/407,072

of H2 and/or O2 after the MEA reaches a suitable temperature at or
above the second temperature; and (4) drawing electrical current from
the fuel cell to assist in completing the heating of the fuel cell up to its
normal operating temperature.
The H2-rich gas that fuels the anode may be the source of the
H2 provided to the O2-rich cathode gas, and air may be the source of
the O2 provided to the H2-rich gas. [col. 2, ll. 30-46]
. . .
[S]ufficient O2 (i.e. as air) is provided to the H2-rich feed stream for
the anode side of the stack 8 and/or sufficient H2 supplied to the
O2-rich feed stream for the cathode side of the stack 8 when the stack
is at a temperature below about -25°C. to heat-up the MEA(s) in the
stack to a temperature of at least about -20°C., at which latter
temperature electrical current can be drawn from the stack and
internal IR heating of the stack begun. . . . Preferably, the O2 and/or
H2 used for heating/thawing will continue to flow until the stack has
reached a temperature of at least about 0°C. to supplement the IR-
heating below freezing. [col. 4, ll. 7-23]

Fuller discloses
start up of a frozen fuel cell by the introduction of an oxidant with a
small amount of fuel, such as hydrogen, into the normal process
oxidant (air) channel on the cathode side of a fuel cell, the oxygen and
fuel reacting on a catalyst to produce heat and water, thereby to
convert any ice to water and to warm the fuel cell to a temperature at
which normal fuel cell operation may begin. [col. 1, ll. 5-11]

Analysis
The Appellant argues that “the combined references do not disclose or
suggest two different oxidants, one of each supplied to the cathode and one
of each supplied to [the] anode” (Reply Br. 2).3

3 The pages of the Appellant’s Reply Brief are not numbered. The Reply
Brief page numbers herein have been provided by the Board.
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Application 10/407,072

“[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.” In re Translogic
Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007), quoting In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000).
The Appellant’s Specification states that “[t]he hydrocarbon fuel from
the second fuel sub-system 40 is different than that supplied by the fuel
sub-system 13” (Spec. ¶ 0031), but does not state that the oxidant in oxidant
sub-system 20 differs from the oxidant in second oxidant sub-system 44.
See id. Thus, the broadest reasonable interpretation of the Appellant’s sole
independent claim 9 is that the second oxidant can be the same as the first
oxidant. Consistent with the Specification, the Appellant’s claim 9 states
that the second fuel type differs from the first fuel type, but does not state
that the second oxidant differs from the first oxidant.
The Appellant argues that the applied references do not suggest using
separate hydrogen sources for the anode and the cathode (Br. 4-8; Reply
Br. 3).
Rock’s disclosure that “[t]he H2-rich gas that fuels the anode may be
the source of the H2 provided to the O2-rich cathode gas” (col. 2, ll. 44-45)
would have indicated to one of ordinary skill in the art that the source of the
H2 provided to the O2-rich cathode gas also may be different than the H2-rich
gas that fuels the anode. Rock’s disclosures that the H2-rich gas to the anode
can be pure H2 or CO-containing reformate and that H2 is added to the
O2-rich gas to the cathode (col. 2, ll. 31-34) would have led one of ordinary
skill in the art, through no more than ordinary creativity, to use different
hydrogen sources for the anode and the cathode, i.e., CO-containing
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reformate gas to the anode and H2 to the cathode.4, 5 See KSR Int’l. Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (In making an obviousness
determination one “can take account of the inferences and creative steps that
a person of ordinary skill in the art would employ”).
The Appellant argues that “the combined art does not teach having a
molar ratio of the reactants at one of the electrodes that is sufficient to
produce electrical energy as well as heat energy below the threshold
temperature” (Reply Br. 2).
Rock discloses that electrical current can be drawn from the stack and
IR heating begun when the stack temperature has risen to -20°C, and that
“[p]referably, the O2 and/or H2 used for heating/thawing will continue to
flow until the stack has reached a temperature of at least about 0°C. to
supplement the IR-heating below freezing” (col. 4, ll. 11-15, 20-23). Thus,
at least one of the molar ratios of hydrogen-containing feed to oxidant is
sufficient to produce electrical energy at a temperature (-20°C) below a
threshold temperature of at least about 0°C.

4 The Appellant’s disclosure that the hydrogen-containing feed can be
gaseous hydrogen or a hydrogen-rich reformate (Claims 11 and 12) indicates
that those fuels are different fuel types as the term “fuel type” is used by the
Appellant.
5 The Examiner states that “Rock et al does not expressly teach a second fuel
source that stores a second fuel type that is different from the first fuel type”
(Ans. 3) and that “[s]ince Rock et al teaches a first fuel source that is H2-rich
reformate and Fuller et al teaches a second fuel source that is gaseous
hydrogen, the first fuel type would be different than the second fuel type”
(Ans. 3-4). The Examiner erred in not recognizing that, as discussed above,
Rock would have rendered that combination of fuel sources prima facie
obvious to one of ordinary skill in the art. That error is harmless because
Rock’s cathode hydrogen source is the same as the cathode hydrogen source
for which the Examiner relies upon Fuller, i.e., H2.
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The Appellant argues regarding claim 10 that “the combined art does
not disclose or suggest continuing supply of ratios of hydrogen-containing
feed and oxidant that produce both heat and electrical energy up to a
threshold temperature between 20 and 80°C” (Reply Br. 4).
The Appellant states that a threshold temperature of 20°C is “where
sufficient current is immediately available from the fuel cell stack 12 to
propel a vehicle” (Spec. ¶ [0027]). Rock’s disclosures that the heating using
O2 and/or H2 preferably is continued until the stack temperature reaches at
least 0°C (col. 4, ll. 20-23), and that the stack temperature reached during
the heating is a suitable temperature at or above the temperature at which
current can be drawn from the fuel cell (col. 2, ll. 37-41) would have led one
of ordinary skill in the art, through no more than ordinary creativity, to select
any suitable temperature at or above 0°C such as a temperature of 20°C at
which sufficient current is immediately available to propel a vehicle. See
KSR, 550 U.S. at 418.
Conclusion of Law
The Appellant has not shown reversible error in the Examiner’s
determination that it would have been prima facie obvious to one of ordinary
skill in the art to operate a fuel cell by 1) supplying different oxidants to the
anode and cathode sides, 2) supplying a first hydrogen-containing feed from
a first fuel source to the anode side and a second hydrogen-containing feed
from a second fuel source to the cathode side, where the first fuel source
stores a first fuel type and the second fuel source stores a different second
fuel type, or 3) using an anode or cathode side molar ratio of hydrogen-
containing feed to oxidant sufficient to produce electrical energy and heat
below a threshold temperature.
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Application 10/407,072

Claim 13
Issue
Has the Appellant shown reversible error in the Examiner’s
determination that it would have been prima facie obvious to one of ordinary
skill in the art to operate a fuel cell by using a hydrogen-containing feed to
the anode or cathode that is at least one of methane and methanol?
Analysis
The Examiner points out that Rock discloses that the hydrogen can be
derived from the reformation of methanol (col. 3, ll. 47-50) and argues that
“[s]ince methanol is not completely converted to hydrogen in the fuel
processor, the examiner maintains the contention that the reformate (first
hydrogen-containing feed) contains a mixture of hydrogen and methanol”
(Ans. 7).
The Appellant argues (Reply Br. 5):
According to Rock the only thing that the reformate contains besides
hydrogen is CO. See column 2, lines 31-32 & 52; column 3, lines 41-
44 & 50-51 (reformate components are hydrogen, carbon dioxide,
water, and carbon monoxide). It is only the Examiner who says that
the reformate contains methanol, and his support for this statement is
not in the record.

Rock discloses that “a hydrogen-containing fuel (e.g. methanol, or
gasoline) 2 is supplied to a fuel processor 4 (e.g. steam reformer or
autothermal reactor) that catalytically dissociates the fuel into an H2-rich
reformate 6 comprising H2, CO2, H2O and CO” (col. 3, ll. 47-51). The
Examiner is relying upon methanol inherently being present in the
reformate. When an examiner relies upon a theory of inherency, “the
examiner must provide a basis in fact and/or technical reasoning to
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reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art.”
Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990). See also Continental
Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991)
(“Inherency, however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set
of circumstances is not sufficient.” (quoting In re Oelrich, 666 F.2d 578, 581
(CCPA 1981)). The Examiner has not provided the required basis in fact
and/or technical reasoning which reasonably supports the Examiner’s
determination that Rock’s reformate contains methanol.
Conclusion of Law
The Appellant has shown reversible error in the Examiner’s
determination that it would have been prima facie obvious to one of ordinary
skill in the art to operate a fuel cell by using a hydrogen-containing feed to
the anode or cathode that is at least one of methane and methanol.
DECISION/ORDER
The rejection of claims 9-14 under 35 U.S.C. § 103 over Rock in view
of Fuller is affirmed as to claims 9-12 and 14 and reversed as to claim 13.
It is ordered that the Examiner’s decision is affirmed-in-part.

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

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HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
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