Appeal 2006-0249
Application 10/315,401
Appellant argues that Inoue teaches away from using a “sealing band
peripherally enclosing the composition” as required by claim 1 (Br. 7, 11,
and 15). This is because, according to Appellant, Inoue discloses a sealing
structure for a fuel cell in which two separate seals 10, 20 oppose each other
and these seals intentionally do not peripherally enclose the separator plate
and membrane electrode assembly composite. Appellant alleges that “[t]he
entire purpose of the sealing structure 10, 20 of Inoue is to eliminate the
stresses associated for example with circumferential seals, and to provide for
even dispersion of stresses as stated for example in [0011] and [0013] to
[0020]” and that “Inoue teaches one of skill in the art that seals being
provided ‘around the circumference of the outer surface of the separator’
(see paragraph [0006] of Inoue) do not adequately deal for variations in
MEA thicknesses and variations in size of the separator.” (Id., citing [0006]
and [0008] of Inoue).
We cannot agree that Inoue “teaches away” in the sense that it
suggests that providing a circumferential seal around the periphery of the
Inoue fuel cell assembly will not work. See In re Gurley, 27 F.3d 551, 553,
31 USPQ2d 1130, 1131 (Fed. Cir. 1994) (“In general, a reference will teach
away if it suggests that the line of development flowing from the reference's
disclosure is unlikely to be productive of the result sought by the
applicant.”); See also Baxter Int’l, Inc. v. McGaw, Inc., 149 F.3d 1321,
1328, 47 USPQ2d 1225, 1230 (Fed. Cir. 1998) (the reference must lead one
of ordinary skill in the art to the conclusion that the process will not work.).
Paragraph 6 of Inoue merely indicates that, conventionally, various seals are
required in fuel cell assemblies and provides examples of areas that must be
sealed. For instance, various openings must be sealed as well as the
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