10827731 (B.P.A.I. Jun. 14, 2010)

Ex Parte Fay et al

Board of Patent Appeals and InterferencesJun 14, 2010

10827731 (B.P.A.I. Jun. 14, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte MATTHEW M. FAY and BHASKAR SOMPALLI ____________ Appeal 2009-005821 Application 10/827,731 Technology Center 1700 ____________ Decided: June 14, 2010 ____________ Before EDWARD C. KIMLIN, PETER F. KRATZ, and MARK NAGUMO, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. Appeal 2009-005821 Application 10/827,731 DECISION ON APPEAL This is an appeal from the final rejection of claims 1-24. Claim 1 is illustrative: 1. A fuel cell comprising: an anode side including an anode diffusion media layer and an anode catalyst layer; a cathode side including a cathode diffusion media layer and a cathode catalyst layer; and a membrane positioned between and in contact with the anode catalyst layer and the cathode catalyst layer, wherein one or both of the diffusion media layers include a blocking agent that prevents or restricts gases that flow through the diffusion media layers from flowing to the membrane without first flowing through the catalyst layers. The Examiner relies upon the following references in the rejection of the appealed claims: Hamrock 6,649,295 B2 Nov. 18, 2003 Kato 6,127,059 Oct. 3, 2000 Sato 5,658,681 Aug. 19, 1997 Lertola WO 03/063280 Jul. 31, 2003 Appellants’ claimed invention is directed to a fuel cell comprising a membrane positioned between an anode catalyst layer and a cathode catalyst layer. The fuel cell also comprises diffusion media layers which include a blocking agent that prevents or restricts gases that flow through the diffusion media layers from flowing to the membrane without first flowing through the catalyst layers. The appealed claims stand rejected under 35 U.S.C. § 102 as follows: (a) claims 1-3, 7, 8, 10, 11, 14-16, 18, 20, 23 and 24 over Lertola, 2 Appeal 2009-005821 Application 10/827,731 (b) claims 1-3, 5, 6, 10, 11, 13, 14, 18, 19 and 23 over Hamrock, and (c) claims 1, 2, 4, 6, 10, 12, 18, 21 and 23 over Kato. In addition, claims 8 and 16 stand rejected under 35 U.S.C. § 103 (a) as being unpatentable over either Hamrock or Kato and claims 9 and 17 stand rejected under 35 U.S.C. § 103 (a) as being unpatentable over Lertola, Hamrock or Kato in view of Sato.1 Appellants’ has not presented separate arguments for any particular claim on appeal. Accordingly, the groups of claims separately rejected by the Examiner stand or fall together. We have thoroughly reviewed each of Appellants’ arguments for patentability. However, we are in complete agreement with the Examiner’s reasoned analysis and application of the prior art, as well as his cogent and thorough disposition of the arguments raised by Appellants. Accordingly, we will adopt the Examiner’s reasoning as our own in sustaining the rejections of record, and we add the following for emphasis only. We consider first the Examiner § 102 rejection over Lertola. Appellants submit that the Lertola figures imply that the membrane and the catalyst layers are the same size whereas Appellant’s membrane layer is larger than the catalyst layers. Appellants maintain “[t]hus, Appellant submits that their blocking agent is provided differently in the gas diffusion media layers than the thermoplastic seal 14 of Lertola” (sentence bridging App. Br. 10-11). However, as explained by the Examiner, “the presently appealed claims do not recite that the membrane layer extends beyond 1 The Examiner has withdrawn the rejection under 35 U.S.C. § 112, 2nd paragraph. 3 Appeal 2009-005821 Application 10/827,731 catalyst layers” (Ans. 7, 1st para.). Hence, Appellants’ argument is not germane to the claimed subject matter. Appellants also submits that “Lertola only teaches providing the seals 14 at an outer edge of the gas diffusion media layers, and not necessarily forming the seals 14 in the gas diffusion media layers so that they would provide flow blocking between the flow field channels of the fuel cell to the membrane through the gas diffusion media layers” (App. Br. 11, 1st full paragraph). However, the Examiner cites the reference disclosure that “the thermoplastic polymer would be applied to this stack whereby the thermoplastic polymer is impregnated into the at least a portion of the sealing edges of the gas diffusion backings, and the thermoplastic polymer envelops a peripheral region of the gas diffusion backings, the polymer membranes, and the bipolar plates to form a thermoplastic polymer, fluid impermeable seal” (page 19, ll. 35-page 20 l. 2). Appellants have not refuted Examiner’s reasonable finding that by forming a fluid impermeable seal around the gas diffusion layers, the fuel cell of Lertola “directs the gas flowing therethrough into the catalyst layer in order to reach the membrane” and, therefore, the impregnated polymer serves as a “blocking agent” (Ans. 8, 1st para.) We now turn to the § 102 rejection over Hamrock. We find no error in the Examiner’s finding that the thermoplastic polymer, TEFLON, which is deposited onto carbon paper, serves has a blocking agent in the gas diffusion layer. We find no merit in Appellants’ argument that the Teflon of Hamrock is not a blocking agent because “if Hamrock used the Teflon as a blocking agent, the gases would not be able to flow through the diffusion media layer, obviously defeating their intended purpose” (App. Br. 12, 2nd 4 Appeal 2009-005821 Application 10/827,731 para.) Appellants maintain that the “claimed invention only provides a portion of the gas diffusion media layers with the blocking agent to selectively control the flow of gases” (id). However, as set forth by the Examiner, Appellants’ argument, again, is not germane to the claimed subject matter “because the present claims recite that the blocking agent “prevents or restricts” gas flow to the membrane, without reciting any particular degree of restriction” (Ans. 8, 2nd para.). The Examiner correctly points out that “the claims rejected over Hamrock are et al. do not require that only a portion of the GDL contain the blocking agent” (id). Concerning the § 102 rejection over Kato, Appellants submit that gasket 13 depicted in figure 2 of the reference is spaced apart from gas diffusion layer 14 and, therefore, “the gas from the gas flow channels that flows into the gas diffusion layer 14 could flow out of the ends of the gas diffusion layer 14 and contact the membrane 11 without first going to the catalyst” (App. Br. 13, 2nd para.) However, Appellants have not addressed, let alone refuted, the Examiner’s reasonable position that the spaces depicted between the various items shown in figure 2 of Kato “are not present in the assembled fuel cell” (Ans. 9, 2nd para.). Based on the entirety of the referenced disclosure, the Examiner explains that “figure 2 would be an “exploded” view of the fuel cell of Kato, showing the various components spaced from each other before they are brought into mutual contact” (id). Appellants have not demonstrated error in the Examiner’s finding. Appellants do not present separate, substantive arguments against the Examiner’s § 103 rejections. 5 Appeal 2009-005821 Application 10/827,731 In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner’s decision rejecting the appealed claims 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). AFFIRMED tc MILLER IP GROUP, PLC GENERAL MOTORS CORPORATION 42690 WOODWARD AVENUE SUITE 200 BLOOMFIELD HILLS, MI 48304 6