Ex Parte Schlag

Board of Patent Appeals and Interferences

Feb 24, 2010

10771917 (B.P.A.I. Feb. 24, 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 HARALD SCHLAG
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Appeal 2009-006298
Application 10/771,917
Technology Center 1700
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Decided: February 25, 2010
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Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1 through 14 and 25 through 38, which
are all of the claims pending in the above-identified application. We have
jurisdiction pursuant to 35 U.S.C. § 6.
We AFFIRM.
Appeal 2009-006298
Application 10/771,917

STATEMENT OF THE CASE
The subject matter on appeal is directed to a fuel cell. Claim 1 is
illustrative:
1. A fuel cell, comprising:

a first polymer electrolyte membrane (PEM);

a plate having a first series of flow channels formed in a first
surface and defining a first series of land portions disposed between and
separating adjacent flow channels;

a first diffusion medium that is disposed between said first
PEM and said plate and that is in direct contact with said first surface; and

a first sealing layer adhered to said land portions of said plate to
secure said direct contact between said first diffusion media and said plate
and to seal said first surface.

Appellant appeals from the Examiner's decision rejecting claims 1-14
and 25-38 under 35 U.S.C. § 102(b) or, in the alternative, under 35 U.S.C. §
103(a) over Schmid (US 6,495,278 B1, issued on Dec. 17, 2002).
Appellant's arguments focus on independent claims 1 and 25.
Accordingly, we address Appellant's arguments regarding the rejections with
respect to these claims only. See 37 C.F.R. § 41.37(c)(1)(vii)(2009).

ISSUE
Has Appellant identified reversible error in the Examiner's
determination that Schmid teaches “flow channels," “land portions," and a
“sealing layer" as recited in independent claims 1 and 25? We decide this
issue in the negative.
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FINDINGS OF FACT
1. The Specification discloses that
cathode flow channels . . . suppl[y] the oxidant feed gas to
one PEM . . . . The anode flow channels . . . suppl[y] the
hydrogen feed gas to an adjacent PEM . . . . Coolant flow
channels . . . facilitate coolant flow through the fuel cell.

(Spec. ¶ [0024]).
2. Schmid teaches that the fluid manifold is for, inter alia, the supply of
“fluid streams." (Schmid, col. 9, ll. 29-30). These fluid streams may
include, inter alia, a reactant or “a cooling medium." (Schmid, col. 2, ll.
18-26).
3. Appellant does not specifically dispute the Examiner's statement that
"Exhibit B, submitted by the Examiner . . . clarif[ies] the interpretation of
[the Examiner that] Fig. 5a in the Schmid reference . . . discloses the land
portions disposed between [and] separating adjacent flow channels."
(Compare Ans. 8 with App. Br. 5-7 and Reply Br. 2-4). The Examiner's
Exhibit B is reproduced below:
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Application 10/771,917

The Examiner's Exhibit B depicts Schmid's Figure 5a marked-up to identify
land portions. Exhibit B shows, inter alia, adhesive bonding agent 50
(sealing layer) adhered to the land portions, which are located directly above
and below the adhesive bonding agent 50 (sealing layer) and between fluid
manifold opening 30 and grooves 20 and 21.
PRINCIPLES OF LAW
"During examination, 'claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.'" In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)(quoting In re Bond, 910 F.2d
831, 833 (Fed. Cir. 1990)). As also stated in In re Morris:
[T]he PTO applies to the verbiage of the proposed claims
the broadest reasonable meaning of the words in their
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Application 10/771,917

ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may
be afforded by the written description contained in the
applicant's specification.

127 F.3d 1048, 1054 (Fed. Cir. 1997).
ANALYSIS AND CONCLUSION
With respect to the §§ 102 and 103 rejections, Appellant argues that
Schmid clearly indicates and Figure 2 clearly shows that
element (30) is a fluid manifold opening, not a flow channel
as claimed. Rather . . . elements (20) and (21) are . . . flow
channels in Schmid and teach away from the interpretation of
Schmid suggested by the Office Action.

(App. Br. 7). In other words, Appellant argues that Schmid's fluid manifold
opening 30 does not meet the flow channel feature required by claims 1 and
25. In addition, Appellant argues that Schmid teaches away from
interpreting Schmid's fluid manifold as meeting the flow channel feature
because Schmid teaches that elements 20 and 21 are flow channels.
To address these arguments, we begin by construing the claim term
“flow channel." This term is not expressly defined in the Specification.
(Spec. generally). While Appellant’s illustrated examples show semi-
circular shaped flow channels (Fig. 4, ref. no. 28, 32) these examples are not
read into the claims. Rather, the broadest reasonable meaning of this term in
its ordinary usage is “a route through which fluid flows” as the Examiner
properly determined. (Ans. 10). See, e.g., The Random House College
Dictionary (Ballantine Books, 1980) (channel defined as "a route through
which anything passes or progresses") (cited as evidence by the Examiner at
page 3 of the Answer). Though Appellant contends that another definition
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of “channel” is more appropriate1, the Examiner’s interpretation is
reasonable in light of the Specification as the Specification plainly states that
a flow channel may supply feed gas or a coolant flow (i.e., it is a route
through which the fluid passes or progresses). (FF 1).
In light of this proper construction of the term "flow channel", the
Examiner's determination at page 10 of the Answer that "[Schmid's] fluid
manifold that delivers fluid into each fuel cell can be construed as a flow
channel" is consistent with the proper construction of this disputed claim
term. See Morris, 127 F.3d at 1054. Schmid teaches that the fluid manifold
supplies "fluid streams," which may include, inter alia, a reactant or "a
cooling medium." (FF 2). Though Schmid also teaches that grooves 20 and
21 are flow passages, such disclosure does not change the fact that fluid
manifold 30 also functions as a flow channel and thus does not teach away
from interpreting fluid manifold 30 as being a flow channel. Thus, because
the Examiner properly construes the term "flow channel" to be a route
through which a fluid stream (e.g., a reactant or a cooling medium) flows,
Appellant's argument is without persuasive merit.
Appellant also argues that "Schmid fails to teach or suggest the
sealing layer of claims 1 and 25." (App. Br. 5). In particular, Appellant
argues that "'sealing layer 50' is not located between adjacent flow channels
and adhered to the land portions as claimed. Rather, the 'sealing layer 50'
surrounds an outer periphery of the MEA (5)." (App. Br. 6).

1 Appellant refers to the another definition of “channel” stated in the
Random House Dictionary cited by the Examiner as including “any
structural member having the form of three sides of a rectangle.” (Reply Br.
4). However, Appellant admits that the claimed invention is not limited to
channels of rectangular cross-section. (Reply Br. 4).
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However, Appellant's argument that the sealing layer is not adhered to
the land portions fails to address specifically the Examiner's determination
that Exhibit B shows adhesive bonding agent 50 (sealing layer) adhered to
the land portions, which are located directly above and below the adhesive
bonding agent 50 (sealing layer) and between fluid manifold opening 30 and
grooves 20 and 21. (FF 3). Thus, Appellant has not identified reversible
error in the Examiner’s determination that the area between fluid manifold
30 and grooves 20 and 21 are lands.
With respect to Appellant's argument that the sealing layer is not
located between adjacent flow channels, in reference to our above discussion
and claim construction, the Examiner's Exhibit B shows an adhesive
bonding agent 50 (sealing layer) located between a fluid manifold opening
30 (flow channel) and groove 20 (also a flow channel). (See FF 3).
Accordingly, Appellant's argument is without persuasive merit.
Thus, it follows that Appellant has not identified reversible error in
the Examiner's determination that Schmid teaches "flow channels," "land
portions," and a "sealing layer" as recited in independent claims 1 and 25.

DECISION
For the above reasons, the Examiner’s decision to reject claims 1-14
and 25-38 are sustained.
Accordingly, the Examiner's decision 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)(2009).

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Appeal 2009-006298
Application 10/771,917

AFFIRMED

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