Ex Parte Sugiyama

Board of Patent Appeals and Interferences

Feb 4, 2009

09873287 (B.P.A.I. Feb. 4, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte TOMIO SUGIYAMA
__________

Appeal 2008-6213
Application 09/873,287
Technology Center 1700
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Decided:1 February 4, 2009
___________

Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
LINDA M. GAUDETTE, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2008-6213
Application 09/873,287

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
rejecting claims 1-6 and 14, all of the claims pending in the application. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The following Examiner’s rejections are before us for review:
(1) Claims 1, 2, 4-6, and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tatumoto2 in view of either Kobayashi3 or Nanataki4 with
evidence from page 5, lines 5-17 of the Appellant’s Specification or
Fujishiro.5
(2) Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Tatumoto in view of either Kobayashi or Nanataki and further in view of
Ishiguro.6
(3) Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Tatumoto in view of Kobayashi and Nanataki and further in view of JP 409.7
(4) Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Tatumoto in view of Kobayashi and Nanataki and further in view of JP 571.8
The subject matter on appeal relates to a multilayered gas sensing
element. Claim 1, the only independent claim on appeal, is representative of
the subject matter on appeal and reads as follows:

2 US 5,522,979 issued June 4, 1996 to Tatumoto et al.
3 US 4,961,835 issued October 9, 1990 to Kobayashi et al.
4 US 5,419,827 issued May 30, 1995 to Nanataki et al.
5 US 4,105,524 issued August 8, 1978 to Fujishiro et al.
6 US 4,851,105 issued July 25, 1989 to Ishiguro et al.
7 JP 9-26409 published January 28, 1997.
8 JP 08-114571 published May 7, 1996.
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Application 09/873,287

1. A multilayered gas sensing element for incorporation into
a gas sensor installed in an exhaust system of an internal
combustion engine, the multilayered gas sensing element
comprising:

laminated layers comprising at least one solid electrolytic
sheet containing zirconia and yttria and at least one insulating
sheet containing alumina;

a crystal phase containing silicon dioxide which
intervenes between said solid electrolytic sheet and said
insulating sheet at least at a part of a bonding boundary between
said solid electrolytic sheet and said insulating sheet; and

a heater directly attached to a side surface of said
insulating sheet to transfer heat generated in said heater to said
insulating sheet and said solid electrolytic sheet,

wherein said solid electrolytic sheet and said insulating
sheet having said heater are laminated and sintered such that the
crystal phase is liquefied during the sintering so as to generate
material transfer between said sheets via the liquefied crystal
phase and such that the material transfer causes said sheets to
be integrally bonded with each other.

Br. 13, Claims Appendix.9
B. ISSUE
As for rejection (1), the Appellant argues the patentability of claims 1,
2, 4-6, and 14 as a group. Thus, as to rejection (1), we decide the appeal on
the basis of independent claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The Appellant does not address the remaining rejections, i.e., rejections (2),
(3), and (4), separately. Br. 12. We have separately considered these

9 Corrected Appeal Brief dated May 10, 2007.
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grounds of rejection based on the arguments advanced in support of the
patentability of claim 1.
The sole issue on appeal is:
Has the Appellant shown that the Examiner reversibly erred in
concluding that the combined teachings of Tatumoto, Kobayashi, Nanataki,
Fujishiro, and page 5, lines 5-17 of the Appellant’s Specification would have
rendered obvious “a crystal phase containing silicon dioxide which
intervenes between said solid electrolytic sheet and said insulating sheet” as
recited in claim 1?
C. FINDINGS OF FACT
The following findings of fact are supported by a preponderance of
the evidence. Additional findings of fact as necessary appear in the Analysis
portion of the opinion.
1. Appellant’s Specification
The Appellant discloses a multilayered gas sensing element
comprising a zirconia-series solid electrolytic sheet, an alumina-series
insulating sheet, and a bonding boundary intervening between the zirconia-
series sheet and the alumina-series sheet.10 The bonding boundary includes
a crystal phase containing silicon dioxide (SiO2). Spec. 2:20-26.
The Appellant also discloses a method for manufacturing the
multilayered gas sensing element:
[T]he present invention provides a first method for
manufacturing a multilayered gas sensing element comprising
the steps of preparing a zirconia-series green sheet containing

10 The terms “zirconia” and “zirconium oxide,” as well as the terms
“alumina” and “aluminum oxide,” are used interchangeably in this opinion.
Likewise, the terms “yttria” and “yttrium oxide” are used interchangeably in
this opinion.
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SiO2 [sic, SiO2] and aluminum oxide (Al2O3 [sic, Al2O3]) for
forming a solid electrolytic sheet, preparing an alumina-series
green sheet for forming an insulating sheet, bonding the
zirconia-series green sheet and the alumina-series green sheet to
constitute an unburnt laminated body, and sintering the unburnt
laminated body.
According to the first manufacturing method of the
present invention, the liquefied phase appears during the
sintering operation at a region where a zirconia grain and an
alumina grain contact with each other. The liquefied phase
chiefly contains SiO2 [sic, SiO2] which has melted into this
liquefied phase from the zirconia-series green sheet during the
sintering operation of the laminated green sheets.

Spec. 5:5-17.
The components constituting the liquefied phase can function as a
binder as they harden in a cooling process following the sintering operation.
Spec. 5:19-21.
In a preferred embodiment, the bonded laminated body is sintered or
baked at a temperature of 1,500° C. Spec. 14:28-30.
Another method for manufacturing the disclosed multilayered gas
sensing element includes applying a paste containing silicon dioxide on the
zirconia-series green sheet and the alumina-series green sheet. The two
green sheets are bonded at the surfaces on which the paste is applied, and
then sintered together. Spec. 9:13-17.
2. Tatumoto
Tatumoto discloses an oxygen sensor comprising a solid electrolyte
and an alumina porous layer formed on a surface of the solid electrolyte.
Tatumoto 7:44-50.
The solid electrolyte is partially stabilized zirconia of Y2O3-ZrO2
series. Tatumoto 7:60-61.
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Tatumoto discloses a method for fabricating the oxygen sensor
wherein the sheet for the alumina porous layer is laminated to the surface of
the sheet for the solid electrolyte and simultaneously baked at a temperature
of 1,470° C. Tatumoto 8:56-64.
Tatumoto discloses that a preferred baking temperature is within a
range of 1,400° to 1,500° C. Tatumoto 6:66-7:8.
3. Kobayashi
Kobayashi discloses a solid electrolytic substance that is capable of
being used to form an oxygen sensor. Kobayashi 2:38-43.
In particular, Kobayashi discloses a solid electrolytic substance
comprising yttrium oxide (Y2O3), silicon dioxide (SiO2), and zirconium
oxide (ZrO2). Kobayashi 2:44-53.
Kobayashi discloses that the thermal expansion coefficient of the solid
electrolytic substance is close to that of non-electrolytic ceramics, such as
alumina. Kobayashi 2:54-57, 4:3-5.
Kobayashi discloses that the life characteristics of an oxygen sensor
are improved when the thermal expansion coefficient of the solid electrolytic
substance and those of the ceramic and the adhesives used in the oxygen
sensor are matched. Kobayashi 4:40-43.
4. Nanataki
Nanataki discloses partially stabilized zirconia containing yttrium
oxide in combination with an MgO, an Al2O3, and a SiO2 ingredient.
Nanataki 3:15-19.
Nanataki discloses that the partially stabilized zirconia has excellent
thermal shock resistance. Nanataki 3:19-21.

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5. Fujishiro
Fujishiro discloses an oxygen sensor comprising an electrolyte layer.
Fujishiro 3:54-59.
Fujishiro discloses that the electrolyte material may be ZrO2-CaO or
any of the known solid electrolytes in which oxygen ions function as the
electron carriers. Fujishiro 3:59-64.
Fujishiro discloses that the electrolyte material is hermetically sealed
to conductor members in the sensor. Fujishiro 4:32-34.
According to Fujishiro, the adhesion strength of the hermetic seal can
be enhanced by using a solid electrolyte material that contains a minor
amount of SiO2 and/or Al2O3. These minor oxide amounts are present in the
resulting ceramics as a secondary phase distinct from the solid solution
phase of ZrO2-CaO and exhibit strong affinity for metallic coatings.
Fujishiro 5:16-24.
Fujishiro discloses that the electrolyte material is baked at a
temperature of about 1,200° to about 1,600° C. Fujishiro 5:12-16.
D. PRINCIPLES OF LAW
A claimed invention is not patentable if the subject matter of the
invention would have been obvious to a person having ordinary skill in the
art at the time the invention was made. 35 U.S.C. § 103(a); KSR Int’l Co. v.
Teleflex Inc., 127 S. Ct. 1727, 1734 (2007); Graham v. John Deere Co. of
Kansas City, 383 U.S. 1, 13 (1966).
Facts relevant to a determination of obviousness include (1) the scope
and content of the prior art, (2) any differences between the claimed
invention and the prior art, (3) the level of skill in the art, and (4) any
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relevant objective evidence of obviousness or non-obviousness. KSR, 127 S.
Ct. at 1734; Graham, 383 U.S. at 17-18.
A person of ordinary skill is not an automaton but is a person of
ordinary creativity. KSR, 127 S. Ct. at 1742. One of ordinary skill in the art
is presumed to have skills apart from what the prior art references expressly
disclose. In re Sovish, 769 F.2d 738, 742 (Fed. Cir. 1985).
The test for obviousness is not that the claimed invention must be
expressly suggested in any one or all of the references. Rather, the test is
what the combined teachings of the references would have suggested to one
of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
E. ANALYSIS
The Examiner found that Tatumoto discloses a solid electrolyte sheet
containing zirconia and yttria and an insulating sheet containing alumina.
The Examiner found that the solid electrolyte sheet and the insulating sheet
are laminated and sintered to be integrally bonded to each other. The
Examiner also found that Tatumoto does not expressly disclose that the solid
electrolyte contains silicon dioxide. Ans. 3.11
Nonetheless, the Examiner found that Kobayashi teaches that it is
desirable to add silicon dioxide to a solid electrolyte comprising zirconia and
yttria. Likewise, the Examiner found that Nanataki teaches that it is
desirable to add silicon dioxide to a partially stabilized zirconia which
contains yttria. The Examiner concluded that it would have been obvious to
one of ordinary skill in the art to add silicon dioxide to the Y2O3-ZrO2 solid
electrolyte of Tatumoto in view of the teachings in Kobayashi and/or
Nanataki. Ans. 3-4.

11 Examiner’s Answer dated August 20, 2007.
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Claim 1 recites that a crystal phase containing silicon dioxide
intervenes between the solid electrolyte sheet and the insulating sheet.
The Examiner relied on page 5, lines 5-17 of the Appellant’s
Specification, as well as Fujishiro, to establish that it was known in the art
that silicon dioxide forms a phase on the surface of a solid electrolyte upon
baking that is distinct from the solid electrolyte phase. Thus, the Examiner
found that adding silicon dioxide to the solid electrolyte of Tatumoto,
followed by sintering at the disclosed temperature, would necessarily result
in the crystal phase recited in claim 1. Ans. 4, 7-8; see also Tatumoto 6:66-
7:8 (disclosing a preferred baking temperature within a range of 1,400° to
1,500° C).
The Appellant does not point to any error in the Examiner’s factual
findings or the Examiner’s conclusion that it would have been obvious to
one of ordinary skill in the art to add silicon dioxide to the Y2O3-ZrO2 solid
electrolyte of Tatumoto in view of the teachings in Kobayashi and/or
Nanataki. Rather, the Appellant focuses on Fujishiro and argues that
Fujishiro does not teach or suggest (1) incorporating silicon dioxide in
ceramic sheets containing zirconia and yttria, (2) material transfer between
ceramic sheets via the liquefied crystal phase, and (3) a crystal phase
containing silicon dioxide. Br. 11.
The Appellant’s arguments are not persuasive of reversible error. As
to item (1), the Examiner relied on the teachings of Kobayashi and Nanataki,
not Fujishiro, to establish that it would have been obvious to one of ordinary
skill in the art to add silicon dioxide to the Y2O3-ZrO2 solid electrolyte of
Tatumoto. Keller, 642 F.2d at 425.
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As to item (3), the Examiner found that Fujishiro is cumulative of the
teachings in the Appellant’s Specification (i.e., page 5, lines 5-17) that the
formation of a silicon dioxide crystal phase is the phenomenological result
of adding silicon dioxide to the solid electrolyte. Ans. 7-8, 9. In particular,
the Examiner found that Fujishiro discloses that silicon dioxide forms a
“secondary phase distinct from the solid solution phase of ZrO2-CaO” upon
baking at a temperature of about 1,200° to 1,600° C. Ans. 4; Fujishiro 5:12-
24.
Based on the teachings in the Appellant’s Specification and Fujishiro,
the Examiner found that adding silicon dioxide to the solid electrolyte of
Tatumoto, as suggested by Kobayashi and Nanataki, followed by sintering at
a temperature within the disclosed range of 1,400° to 1,500° C would have
been expected to result in the crystal phase recited in claim 1. Ans. 4, 7-8;
see also Spec. 14:28-30 (disclosing a preferred sintering temperature of
1,500° C.). The Appellant has failed to point to any error in the Examiner’s
findings.
As to item (2), the Examiner found that material transfer via the
liquefied crystal phase formed during sintering is also a phenomenological
result of adding silicon dioxide to the electrolyte. See Spec., 5:12-17. Thus,
the Examiner found that adding silicon dioxide to the solid electrolyte of
Tatumoto followed by sintering within the disclosed range would have been
expected to result in material transfer as recited in claim 1. Ans. 5. Again,
the Appellant has failed to point to any error in the Examiner’s findings.
In another attempt to distinguish Fujishiro from the claimed subject
matter, the Appellant argues that Fujishiro applies silicon dioxide as a paste
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on the surface of the ceramic in contrast to the Appellant’s invention where
silicon dioxide is contained in the ceramic sheet(s). Br. 11.
The claims on appeal do not exclude the use of a paste containing
silicon dioxide. Indeed, the Appellant expressly discloses that a paste
containing silicon dioxide may be used to bond zirconia and alumina sheets
to each other. Spec. 9:13-17.
Finally, the Appellant argues that the cited prior art does not provide
any teaching or suggestion that incorporating silicon dioxide will strengthen
a bond between adjacent ceramic sheets. Br. 11.
In this case, the Examiner has provided sufficient reasons to combine
the teachings of the prior art, i.e., to adjust the thermal expansion coefficient
of the solid electrolyte and to increase the thermal shock resistance of the
electrolyte. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996) (“the
motivation in the prior art to combine the references does not have to be
identical to that of the applicant to establish obviousness”). Thus, absent
evidence that silicon dioxide unexpectedly strengthens a bond between
adjacent ceramic sheets, the Appellant has failed to rebut the prima facie
case of obviousness. See In re Dillon, 919 F.2d 688, 693 (Fed. Cir. 1990)
(“the discovery that a claimed composition possesses a property not
disclosed for the prior art subject matter, does not by itself defeat a prima
facie case”).
F. CONCLUSIONS OF LAW
The Appellant has not shown that the Examiner reversibly erred in
concluding that the combined teachings of Tatumoto, Kobayashi, Nanataki,
Fujishiro, and page 5, lines 5-17 of the Appellant’s Specification, would
have rendered obvious “a crystal phase containing silicon dioxide which
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intervenes between said solid electrolytic sheet and said insulating sheet” as
recited in claim 1.
G. DECISION
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (2008).

AFFIRMED

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