Ex Parte Lillis

Board of Patent Appeals and Interferences

Nov 26, 2007

10065373 (B.P.A.I. Nov. 26, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARK A. LILLIS
____________

Appeal 2007-4103
Application 10/065,373
Technology Center 1700
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Decided: November 26, 2007
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Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and THOMAS A.
WALTZ, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 11-16 and 21-32.
Claim 11 is illustrative:
11. A process for operating an electrochemical system, comprising:

calibrating a hydrogen gas detector by

Appeal 2007-4103
Application 10/065,373

passing a hydrogen-free gas through a first conduit to the
hydrogen detector, wherein the hydrogen gas detector generates a first
signal;

flowing a mixture comprising a known quantity of hydrogen
gas from a hydrogen/water separator through a second conduit to the
hydrogen gas detector, wherein the hydrogen gas detector generates a second
signal corresponding to a percentage of the hydrogen gas in the mixture; and

calibrating the hydrogen gas detector based upon the first and
second signals, introducing water to an electrolysis cell;

producing hydrogen;

separating hydrogen from water in the hydrogen/water separator;

introducing environmental gas disposed around electrochemical
system components to the hydrogen gas detector; and

determining the hydrogen concentration in the environmental gas.

The Examiner relies upon the following references as evidence of
obviousness:
Ono (as translated) JP 401-066,537 Mar. 13, 1989
Bhandari 6,006,582 Dec. 28, 1999
Andrews 6,036,827 Mar. 14, 2000

Appellant's claimed invention is directed to a process for operating an
electrochemical system that produces hydrogen from an electrolysis cell. A
hydrogen gas detector is used to determine the hydrogen concentration of the
environmental gas disposed around the electrochemical system. The
hydrogen gas detector is calibrated while passing a hydrogen-free gas to the
detector to generate a first signal, flowing a mixture comprising a known
quantity of hydrogen gas to the detector to generate a second signal, and
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Application 10/065,373

calibrating the detector based on the first and second signals. According to
Appellant's Specification, it was known in the art to use hydrogen detectors
to monitor leakage of hydrogen gas from a system and it was known that the
recalibration of such hydrogen detectors is periodically required.
Appellant's Specification states that "[p]resently, calibration is performed
manually" (Spec.:1, last full sentence).
Appealed claims 11-16 and 21-32 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Andrews in view of Ono and Bhandari.
Appellant fails to present an argument that is reasonably specific to
any particular claim on appeal. Accordingly, all the appealed claims stand
or fall together with claim 11.
We have thoroughly reviewed each of Appellant's 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 Appellant. Accordingly, we
will adopt the Examiner's reasoning as our own in sustaining the rejection of
record, and we add the following for emphasis only.
At the outset, we note that although Appellant presents the instant
invention as an automatic calibration process for a hydrogen detector that is
an improvement over the manual processes performed by the admitted prior
art, the Examiner properly notes that "most of the instant claims do not
preclude manual calibration of the detector when coupled with the
electrolyzer taught in Andrews" (Ans. 14, first para.). Significantly, claim
11 on appeal, with which all the appealed claims stand or fall, encompasses
manual and automatic calibrations of a hydrogen detector.
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Appeal 2007-4103
Application 10/065,373

There is no dispute that Andrews, like Appellant, discloses an
electrochemical system for producing hydrogen by introducing water into an
electrolysis cell which includes a hydrogen detector for determining the
presence of hydrogen in the environment in the vicinity of the
electrochemical system. As acknowledged by the Examiner, Andrews is
silent regarding any recalibration of the hydrogen detector. However, as
acknowledged by Appellant and evidenced by Ono and Bhandari, it was
known in the art to conduct periodic recalibrations of a hydrogen detector
for assuring accurate readings for a dangerous gas. Hence, based on the
state of the prior art, we are convinced that it would have been obvious for
one of ordinary skill in the art to manually or automatically recalibrate the
hydrogen detector of any system that generates hydrogen gas, including the
system of Andrews.
Ono, as explained by the Examiner, discloses the calibration of a
hydrogen detector by first introducing a reference gas of known hydrogen
concentration to the detector to establish a correlation between the
concentration of hydrogen and the output signal of the gas detector. Ono
then introduces a sample gas into the detector and uses a calibration curve
formula stored in a data processor to determine the hydrogen concentration
of the sample gas. Ono does not disclose the claimed step of passing a
hydrogen-free gas through the detector to generate a first signal. However,
the Examiner properly points out that Bhandari evidences that it was known
in the art to subject hydrogen detectors to routine calibration that includes
the step of introducing "clean air," i.e., gas free of hydrogen, to first
establish a base line for the calibration. Consequently, we concur with the
Examiner that it would have been obvious for one of ordinary skill in the art
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Application 10/065,373

to use a hydrogen-free gas in the calibration of a hydrogen detector in order
to establish a base line of the calibration curve. We agree with the
Examiner's reasoning that "[m]easuring a larger number of known
concentration points in the calibration of a detector, including zero
hydrogen, or clean air, will give a more accurate calibration of the detector
over a broad range of concentrations" (Ans. 9, last full sentence). Appellant
has not refuted the Examiner's further explanation that "[a] clean air
calibration of the signal will allow for adjustment of the signal due to
detector drifting, contamination and the like" (Ans., sentence bridging pages
9-10). While Appellant assails the lack of motivation for modifying the
system of Andrews, we find that one of ordinary skill in the art would have
been motivated to periodically recalibrate the hydrogen detector of Andrews
for obvious safety reasons, and the prior art reflects that such a recalibration
would utilize known concentrations of hydrogen gas, including the zero
concentration of clean air, to provide a more accurate signal (see Ans. 10,
first full para.).
Appellant submits that Andrews mentions using the detector to detect
hydrogen in the environment but does "not even acknowledge a need to
calibrate the detector" (Br. 6, penultimate para.). However, it is not
necessary for a finding of obviousness that Andrews explicitly state what
was well known in the art at the time of filing the present application,
namely, it is necessary to periodically recalibrate a hydrogen detector to
ensure the safety of the environment surrounding a hydrogen-producing
system. Indeed, as noted above, Appellant acknowledges that the need for
recalibrating hydrogen detectors was known in the art.

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Application 10/065,373

As a final point, we note that Appellant bases no argument upon
objective evidence of nonobviousness, such as unexpected results, which
would serve to rebut the inference of obviousness established by the applied
prior art.
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)(vi)(effective Sept.
13, 2004).
AFFIRMED

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