Appeal 2007-3378
Application 10/715,458
The Examiner rejects the claims as follows:
1. Claims 1-7, 11, and 16-19 under 35 U.S.C. § 102(b) as
anticipated by Fuglevand;1
2. Claims 8-10 under 35 U.S.C. § 103(a) as unpatentable over
Fuglevand in view of Bai;
3. Claims 12-14 under 35 U.S.C. § 103(a) as unpatentable over
Fuglevand in view of Iwasaki; and
4. Claim 15 under 35 U.S.C. § 103(a) as unpatentable over
Fuglevand in view of Iwasaki and Yoshizawa.
II. DISCUSSION
With regard to the anticipation rejection over Fuglevand, Appellants
contend that Fuglevand does not disclose operating the fuel cell “according
to at least one predetermined operation pattern, the predetermined operation
pattern to apply at least one predetermined operation condition to change an
operation state of the fuel cell” as recited in claims 1 and 16 (Br. 5). On the
other hand, the Examiner contends that the Fuglevand cell operates in the
claimed matter (Answer 3). The issue on appeal arising from the
contentions of Appellants and the Examiner is: Does a preponderance of the
evidence support the Examiner’s finding that Fuglevand describes operating
the fuel cell in the claimed manner?
1 Appellants’ listing of the rejection as under 35 U.S.C. § 103(a) in the
section of the Brief labeled “Grounds of Rejection to be Reviewed on
Appeal” (Br. 5) is harmless error as Appellants argue, in the argument
section of the Brief, that Fuglevand does not teach each and every limitation
of the rejected claims, an argument consistent with the law of anticipation.
3
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Last modified: September 9, 2013