Ex Parte Tsukada

Patent Trial and Appeal Board

Jan 4, 2016

11658195 (P.T.A.B. Jan. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111658, 195 0912512007
27799 7590 01/06/2016
Cozen O'Connor
277 Park A venue, 20th floor
NEW YORK, NY 10172
FIRST NAMED INVENTOR
Akinori Tsukada
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
5460-109PUS-30033 l 3511
EXAMINER
GILLIAM, BARBARA LEE
ART UNIT PAPER NUMBER
1727
NOTIFICATION DATE DELIVERY MODE
01/06/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patentsecretary@cozen.com
patentdocket@cozen.com
patentsorter@cozen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AKINORI TSUKADA
Appeal 2014-004633
Application 11/658, 195
Technology Center 1700
Before PETER F. KRATZ, ELIZABETH M. ROESEL, and
JULIA HEANEY, Administrative Patent Judges.
ROESEL, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over
Gagnon et al. (US 3,716,415, issued Feb. 13, 1973, "Gagnon") in view of
Sawyer (US 6,569,549 Bl, issued May 27, 2003). We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Conception et Developpement Michelin SA as the Real
Party in Interest. App. Br. 2.
Appeal2014-004633
Application 11/658,195
STATEMENT OF THE CASE
The claimed subject matter relates to an electricity production system
comprising a fuel cell for use, e.g., in an automobile. App. Br. 8 (claim 1 );
Spec. 1: 8-9.
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below from Appellant's Claims
Appendix, with bold added for emphasis:
1. An electricity production system comprising:
a fuel cell (1) comprising a plurality of individual cells
each having an anode and a cathode on either side of a solid
electrolyte which has optimum operating characteristics in
predetermined humidification conditions, the fuel cell having a
fuel gas supply circuit ( 11) on the anode side and a combustive
gas circuit on the cathode side; and
at least one recycling circuit for one of the fuel or
combustive gases, which recycles the gas not consumed by the
fuel cell, said recycling circuit comprising a dehumidifier (3)
which enables the water contained in the unconsumed gas to
be removed, the recycling circuit collecting a moist gas
downstream from the fuel cell, passing the moist gas to the
dehumidifier and passing a dehumidified gas into the fuel gas
supply circuit (11) upstream from the fuel cell after the gas has
been through the dehumidifier;
wherein said the recycling circuit comprises:
a controlled recycling pipe (13) comprising a pump ( 63),
the controlled recycling pipe (13) being installed downstream
from the dehumidifier (3),
a direct circuit ( 15) installed in parallel with the
dehumidifier, said direct circuit (15) comprising a pump ( 65),
the direct circuit ( 15) tapping off the moist gas downstream
from the fuel cell and passing the moist gas into the feed circuit
( 11) without passing through the dehumidifier (3 ), and
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Application 11/658,195
metering means for controlling the respective
proportions between the moist gas and the dehumidified gas
returned upstream from the fuel cell.
App. Br. 8-9 (Claims Appendix).
ANALYSIS
Appellant's arguments are directed to claim 1 only. Claims 2-10 are
not separately argued. See App. Br. 1---6. As a consequence, all appealed
claims stand or fall together, and we confine our discussion to claim 1.
Appellant's arguments focus on Gagnon and the dehumidifier and
metering means elements of claim 1, which are set forth in bold above.
Regarding the dehumidifier element of claim 1, the Examiner finds that
Gagnon discloses fuel cell 2 comprising recycling circuit 10 in which
condenser 32 removes diluent from the outlet gas before the gas is recycled
back to inlet 4 of the fuel cell. Final Action 2 (citing Gagnon, Fig. 2, 2: 15-
3: 11 ). Regarding the metering means element of claim 1, the Examiner
finds that Gagnon discloses bypass 34 in parallel with condenser 32 and
further discloses controlling the flow of gas through these conduits by means
of control 26 comprising wet and dry bulb temperature sensors 20 and 22,
valve actuator 30, and valve 24. Id.; Ans. 5---6.
Appellant argues that Gagnon's condenser 32 is not the same as or
equivalent to the dehumidifier of claim 1. App. Br. 3--4. Appellant further
argues that Gagnon's wet and dry sensors 20 and 22 are in the wrong
position as compared with the claimed arrangement and are not capable of
providing information that can be employed in controlling the respective
proportions between the moist gas and the dehumidified gas, as recited in
claim 1. Id. at 4---6.
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Application 11/658,195
Upon consideration of the evidence presented in this Appeal and each
of Appellant's arguments, we are not persuaded that Appellant identifies
reversible error, and we find that a preponderance of evidence supports the
Examiner's conclusion that the subject matter of Appellant's claims is
unpatentable over the applied prior art. We sustain the rejection of claims
1-10 based on the Examiner's findings of fact, conclusions of law, and
rebuttals to Appellant's arguments, as expressed in the Final Action and the
Answer. We add the following for emphasis.
Regarding the dehumidifier element of claim 1, Appellant argues that
a dehumidifier "removes moisture from the air by condensing it onto a cold
surface." App. Br. 4 (citing h11IUL~~~Y:_~Yi§~g~~k:_~Q_rr!L_~yJ:mt::i§::_~_::
dehumidifier.htm). Appellant argues that a dehumidifier is different from a
condenser, which "converts gas to a liquid to obtain either the converted
liquid or the heat released by the conversion." Id. (citing
http:/ /www.bing.com/Dictionary/ ... ). According to Appellant, "while a
condenser may generate a liquid as a by-product of its process, the liquid is
not discarded." Reply Br. 3.
At best, Appellant identifies a difference between a definition for
"dehumidifier" and a definition for "condenser." But even Appellant's
definition shows that a "dehumidifier" includes a condenser. App. Br. 4.
The appealed rejection is based on Gagnon, which shows condenser 32 in
conduit 10 for recirculating gas from the outlet to the inlet of a fuel cell.
Gagnon Fig. 2. Gagnon discloses that, in Figure 2, "excess electrolyte
diluent is removed by a condenser 32." Gagnon 2:54--56. It is apparent
from Gagnon that "electrolyte diluent" includes water, and Appellant does
not argue otherwise. Id. 1: 13-14 ("Fuel cell product water management
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Application 11/658,195
control systems for controlling electrolyte concentration ... "); id. at 1:31-35
("electrolyte concentration control ... is provided by ... a wet bulb
temperature sensor and a dry bulb temperature sensor") (emphasis added in
both instances). On this record, the Examiner is correct in finding that
Gagnon's condenser 32 performs the same function as the dehumidifier in
claim 1: removing water from a stream of gas that is not consumed by a fuel
cell and that is recycled to the fuel cell gas supply. Ans. 4--5; Gagnon Fig. 2,
2:54--56. Accordingly, Appellant's argument and evidence do not identify
error in the Examiner's finding that a dehumidifier, as recited in claim 1,
encompasses condenser 32, as disclosed in Gagnon.
Regarding the "metering means" element of claim 1, Appellant agrees
with the Examiner that the claim language invokes 35 U.S.C. § 112, sixth
paragraph. Ans. 5; Reply Br. 3. Appellant further agrees with the Examiner
that the "metering means must comprise a control comprising sensors such
as a temperature sensor." Ans. 5; Reply Br. 4. Appellant argues, however,
that the Examiner's claim interpretation fails to include "the precise location
of the sensors," as shown and described in the Specification. Reply Br. 4.
Appellant further contends that Gagnon fails to disclose a "metering means"
because the corresponding structures identified by the Examiner---Gagnon's
sensors 20 and 22-are located at the outlet of the fuel cell, rather than at the
inlet of the cell or at the cell, as shown and described in Appellant's
Specification. App. Br. 4--5; Reply Br. 4--5.
We construe "metering means" as encompassing a control unit that
uses information from various sensors and equivalents thereof. See In re
Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en bane) ("the PTO
was required by statute to look to [Appellant's] specification and construe
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Application 11/658,195
the 'means' language recited in ... claim 1 as limited to the corresponding
structure disclosed in the specification and equivalents thereof'). Our
construction is supported by the Specification, which discloses:
The metering means for the respective proportions of dry gas
and moist gas recycled comprise the said control unit 7, which
enables selective control of the operation of the pumps 63 and
65.
For that purpose the control unit uses information coming from
various sensors such as a temperature sensor 71 of the fuel cell
1, ... a humidity sensor 7 4 installed just at the inlet of the cell
1, .. . , etc.
Spec. 6:13-22.
Preferably, the control unit 7 selectively controls the operation
of the pumps 63 and 65 as a function of the values transmitted
by the humidity sensor 74.
Id. at 7:8-10
We are not persuaded that claim 1 or the Specification supports
construing "metering means" as requiring a sensor at the inlet of the fuel cell
and another sensor at the fuel cell, as argued by Appellant. Reply Br. 4.
The claim itself does not recite sensors or their locations. When describing
the sensors, the Specification uses permissive, not mandatory, language.
Spec. 6: 16 ("such as"); id. at 7:8 ("preferably"). Furthermore, the
Specification describes a variety of sensors at various locations throughout
the system of Figure 1, reinforcing that sensors located at the fuel cell and
fuel cell inlet are not specifically required. Id. at 6: 16-22, Fig. 1. We are
therefore not persuaded that the Examiner's findings are based on an
incorrect construction for "metering means."
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Application 11/658,195
We are also not persuaded by Appellant's argument that Gagnon's
sensors 20 and 22 do not provide information regarding the humidity of gas
that has undergone a condensation operation and are therefore not capable of
providing useful information that can be employed in controlling the
respective proportions between moist gas and dehumidified gas. App. Br.
5---6; Reply Br. 5. There is no dispute that Gagnon's sensors 20 and 22
measure the humidity at the outlet of a fuel cell. App. Br. 4. Gagnon
discloses that sensors 20 and 22 are operatively connected by control 26 to
valve 24, which modulates whether or how much recirculating gas is
directed through condenser 32 and bypass 34, respectively, before being
returned to the fuel cell. Gagnon, Fig. 2, 2:58-3:11. By measuring the
humidity at the outlet of a fuel cell, Gagnon's sensors 20 and 22 provide
information that is useful in controlling the respective proportions between
moist gas and dehumidified gas that should be returned to the fuel cell.
Contrary to Appellant's argument, App. Br. 5---6; Reply Br. 5, there is no
requirement that the "metering means" include sensors that provide
information regarding the humidity of gas that has undergone a condensation
operation.
On this record, the Examiner is correct in finding that Gagnon' s
sensors 20 and 22, together with control 26, valve actuator 30, and valve 24,
perform the function of "controlling the respective proportions between the
moist gas and the dehumidified gas returned upstream from the fuel cell," as
recited in claim 1. Final Action 2; Ans. 5-7. Even if Appellant were correct
that the structure corresponding to the "metering means" includes the
location of the sensors, Appellant's evidence and argument are not sufficient
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Application 11/658,195
to identify error in the Examiner's finding that Gagnon's sensors 20 and 22
are at least equivalent to Appellant's disclosed structure.
Accordingly, on this record, we are not persuaded that Appellant's
arguments and evidence are sufficient to outweigh the evidence of
obviousness relied upon by the Examiner. Appellant's arguments are fully
addressed by the Examiner's findings and conclusions and the above
discussion added for emphasis. Even if not expressly addressed by the
above discussion, each of Appellant's arguments has been considered and
does not identify reversible error in the Examiner's findings or conclusions.
CONCLUSION OF LAW AND DECISION
The decision of the Examiner rejecting claims 1-10 is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a) (1).
AFFIRMED
KRH
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