Appeal 2007-0489
Application 10/190,822
fuel cell of Clingerman and/or Wilkinson. Thus, we remand the application
to the Examiner to determine whether the subject matter of the rejected
claims would have been obvious to a person of ordinary skill in the art.
Decision
The rejections of claims 9, 15, 17, and 35-38 over Meltser are
affirmed. The rejections of claims 9, 11, 12, 15-19, and 28 over Clingerman
are reversed. The rejection of claims 9, 10, 15-17, 26, and 29-34 over
Wilkinson is reversed.
The instant application is remanded to the Examiner to consider the
aforementioned issues and act accordingly.
In addition to affirming the Examiner's rejection of one or more
claims, this decision contains a remand. 37 C.F.R. § 41.50(e) provides that
[w]henever a decision of the Board includes a remand, that decision
shall not be considered final for judicial review. When appropriate, upon
conclusion of proceedings on remand before the Examiner, the Board may
enter an order otherwise making its decision final for judicial review.
Regarding any affirmed rejection, 37 C.F.R. § 41.52(a)(1) provides
"[a]ppellant may file a single request for rehearing within two months from
the date of the original decision of the Board."
The effective date of the affirmance is deferred until conclusion of the
proceedings before the Examiner unless, as a mere incident to the limited
proceedings, the affirmed rejection is overcome. If the proceedings before
the Examiner do not result in allowance of the application, abandonment or a
second appeal, this case should be returned to the Board of Patent Appeals
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