UNITED TECHNOLOGIES CORPORATION

Patent Trials and Appeals Board

Jun 2, 2020

14364712 - (D) (P.T.A.B. Jun. 2, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/364,712 01/12/2015 Rachid Zaffou 57906US01;67007-024PUS1 8169
26096 7590 06/02/2020
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
SMITH, JEREMIAH R
ART UNIT PAPER NUMBER
1723
NOTIFICATION DATE DELIVERY MODE
06/02/2020 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):
cgolaw@yahoo.com
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RACHID ZAFFOU, ARUN PANDY, and MICHAEL L. PERRY
Appeal 2019-004540
Application 14/364,712
Technology Center 1700
Before ROMULO H. DELMENDO, BEVERLY A. FRANKLIN, and
JULIA HEANEY, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 6, 8, 11–14, 16, and 20–25. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as United
Technologies Corporation. Appeal Br. 1.
Appeal 2019-004540
Application 14/364,712

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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of Appellant’s subject matter on appeal
and is set forth below:

1. A flow battery comprising:
a liquid electrolyte including an electrochemically active
specie in a storage tank.
a bipolar plate including channels for receiving flow of the
liquid electrolyte;
and
a porous electrode immediately adjacent the bipolar plate,
the porous electrode being catalytically active with regard to the
liquid electrolyte, and
wherein the channels of the bipolar plate have a channel
shape that is configured to positively force at least a portion of
the flow of the liquid electrolyte into the porous electrode, and
wherein the channels have a shape that defines a cross-section,
wherein each of the channels has a width extending between side
walls and a depth extending between a bottom wall and an open
top, and wherein the channel shape includes a plurality of
protrusions that extend from the bottom wall toward the open
top.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Peng US 2007/0178359 A1 Aug. 2, 2007
Horne US 2011/0223450 A1 Sept. 15, 2011
Makita US 2011/0223496 A1 Sept. 15, 2011
Brandon US 2013/0330644 A1 Dec. 12, 2013
Makita ’150 WO 2009/017150 A1 Feb. 5, 2009
Nozaki JP S54-19228 July 13, 1979

Appeal 2019-004540
Application 14/364,712

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REJECTIONS
1. Claims 1, 2, 8, 11, 14, and 22–25 are rejected under 35 U.S.C.
§103(a) as being unpatentable over the combination of Horne and Makita
(WO 2009/017150; citations taken from US 2011/0223496).
2. Claims 3 and 13 are rejected under 35 U.S.C. §103(a) as being
unpatentable over the combination of Horne, Makita, and Brandon.
3. Claims 6, 12, and 16 are rejected under 35 U.S.C. §103(a) as
being unpatentable over the combination of Horne, Makita
(WO 2009/017150; citations taken from US 2011/0223496), and Nozaki (JP
S54-19228; citations taken from applicant-supplied human translation).
4. Claims 20–21 are rejected under 35 U.S.C. §103(a) as being
unpatentable over the combination of Horne, Makita (WO
2009/017150; citations taken from US 2011/0223496), and Peng.
OPINION
Appellant does not make separate arguments in support of
patentability of any particular claim or claim grouping. Accordingly, the
claims subject to each ground of rejection will stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(iv). Our determination with regard to Rejection 1 is
dispositive for Rejections 2–4.
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
Appeal 2019-004540
Application 14/364,712

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argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejections. Accordingly, we sustain each of
the Examiner’s rejections on appeal essentially for the reasons set forth in
the Final Office Action and in the Answer, and affirm, and add the following
primarily for emphasis.
We refer to pages 3–9 of the Answer regarding the Examiner’s stated
position for Rejection 1.
Beginning on page 5 of the Appeal Brief, Appellant presents
arguments to support the position that Horne and Makita are non-analogous
art, and that therefore the rejection is improper. Appellant submits that
Makita and Horne are not analogous art at least because fuel cells and flow
batteries are not analogous art. Appellant refers to Sumimoto Electric
Industries, Ltd. v. United Technologies Corp., IPR2017-00966, Paper 29 at
24-26 (PTAB Sept. 12, 2018) in this regard. Appeal Br. 5. Appellant further
argues that one of ordinary skill in the art at the time of invention would not
have sought to combine Makita with Horne because fuel cells have very
different design considerations compared to flow batteries, e.g. gaseous vs.
liquid transport considerations. Appellant emphasizes that the Horne flow
battery is only configured for liquid electrolytes, whereas Makita’s fuel cell
must be configured to manage both liquids and gases. Appeal Br. 6.
Appellant further points out various differences between flow batteries and
fuel cells and argues that because of these differences, the combination
described by the Examiner would not have been considered with a
reasonable expectation of success. Appeal Br. 7.
Appeal 2019-004540
Application 14/364,712

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We agree with the Examiner’s stated response made on pages 12–15,
which we adopt as our own. We add that, as stated by the Court in Wyers v.
Master Lock Co., 616 F.3d 1231, 1236, “[t]he Supreme Court’s decision in
KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 127 S.Ct. 1727, 167
L.Ed.2d 705 (2007), directs us to construe the scope of analogous art
broadly, stating that ‘familiar items may have obvious uses beyond their
primary purposes, and a person of ordinary skill often will be able to fit the
teachings of multiple patents together like pieces of a puzzle.’ Id. at 402,
127 S.Ct. 1727 [emphasis original].”
With specific regard to Appellant’s reference to the case of Sumimoto
Electric Industries, Ltd. v. United Technologies Corp., IPR2017-00966,
Paper 29 at 24-26 (PTAB Sept. 12, 2018), in support of the argument that
Horne and Makita are not analogous art (Appeal Br. 5, Reply Br. 2–3), we
adopt the Examiner’s response made on pages 15–17 of the Answer, and are
unpersuaded by Appellant’s argument in this regard for the reasons stated by
the Examiner therein.
Appellant argues that the fuel cell of Makita and the flow battery of
Horne have different design considerations, structural requirements, for the
reasons set forth on pages 7–9 of the Appeal Brief, and therefore would not
have been combined. We are unpersuaded by this line of argument for the
reasons provided by the Examiner on pages 17–18 of the Answer. Therein,
the Examiner correctly states that Appellant does not provide evidence or
reasoning tending to show that if the channeled structure disclosed by
Makita were used as guidance to provide channels in the Horne conductive
plate, then no success in distributing of liquid would be expected, and that
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Application 14/364,712

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no additional evidence tied to the effectiveness of channels as disclosed by
Makita in combination with the disclosure of Horne is presented in support
of this line of argument.
Appellant lastly argues that in Makita, the ribs, not the channels,
provide the benefit to flow uniformity. Appeal Br. 8–9. Reply Br. 3. We are
unpersuaded by this line of argument for the reasons provided by the
Examiner on page 18 of the Answer. Therein, the Examiner states that this
argument does not specify or imply any structural difference between the
prior art combined embodiment described in the art rejections and the
claimed invention, and that it is unclear how the ribs of Makita (¶ [0163])
could produce a uniform flow without the channels which contain the
ribs, also contributing to the uniformity of the flow, the channels being an
integral part of the structure. Ans. 18. We agree.
CONCLUSION
We affirm the Examiner’s decision.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 8, 11,
14, and 22–
25
103 Horne and Makita 1, 2, 8, 11,
14, and 22–
25

3 and 13 103 Horne, Makita and
Brandon
3 and 13
6, 12 and 16 103 Horne, Makita and
Nozaki
6, 12 and 16
20–21 103 Horne, Makita and
Peng
20–21
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Application 14/364,712

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Overall
Outcome
1–-3, 6, 8,
11–-14, 16,
and 20–-25

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED