Ex Parte Woo et alDownload PDFPatent Trial and Appeal BoardNov 25, 201612427194 (P.T.A.B. Nov. 25, 2016) Copy Citation 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. 12/427,194 04/21/2009 Leta Yar-Li Woo IL-12048 6466 24981 7590 11/29/2016 Lawrence Livermore National Security, LLC LAWRENCE LIVERMORE NATIONAL LABORATORY PO BOX 808, L-703 EXAMINER KESSEL, MARIS R LIVERMORE, CA 94551-0808 ART UNIT PAPER NUMBER 1759 NOTIFICATION DATE DELIVERY MODE 11/29/2016 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): llnl-docket@llnl.gov PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LETA YAR-LI WOO, ROBERT S. GLASS, ROBERT F. NOVAK, JACOBUS HENDRICK VISSER, ERICA PERRY MURRAY, and LOUIS PETER MARTIN Appeal 2015-006156 Application 12/427,194 Technology Center 1700 Before BEVERLY A. FRANKLIN, GEORGE C. BEST, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from a Rejection2 of claims 1, 11, and 27. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The real party in interest is identified as Lawrence Livermore National Security, LLC and the United States of America as represented by the United States Department of Energy (DOE). (Appeal Brief, filed February 5, 2015 (“App. Br.”),2.) 2 Final Office Action mailed January 23, 2015 (“Final Rejection”; cited as “Final Act.”). Appeal 2015-006156 Application 12/427,194 CLAIMED SUBJECT MATTER The claims are directed to “a multiple frequency method for operating electrochemical sensors.” (Spec. 14.)3 The claimed invention may be applicable to “the detection of pollutant gases in a hot, flowing gas stream,” “the monitoring of industrial exhaust gases and vehicle emissions” and other areas “where electrochemical sensors are of interest.” {Id. 112.) Claims 1 and 11, reproduced below, are illustrative of the claimed subject matter: 1. An electrochemical sensor apparatus for monitoring gaseous NOx emissions in a monitored gaseous O2 environment, consisting of: two individual electrodes comprising a first electrode and a second electrode, wherein both of said individual electrodes are exposed to the monitored gaseous environment and wherein at least one of said individual electrodes is made of Lao.85Sr0.i5Mn03 for sensing NOx in a background of O2; an electrolyte material operatively connected to said first electrode and said second electrode, wherein said electrolyte material is an ionically conductive material wherein said first electrode and said second electrode, in conjunction with the electrolyte, comprises the active sensing element; and an electronic control and data processing unit operatively connected to said first electrode and said second electrode, said electronic processing unit configured to apply an alternating current excitation component at predetermined frequencies to both of said individual electrodes and receive a response; said electronic control and data processing unit also configured to receive said response generated by said active sensing element wherein said response includes the effect of changing polarization as a result of electrochemical reactions at 3 Application 12/427,194, Frequency Technique for Electrochemical Sensors, filed April 23, 2012. We refer to the “’194 Specification,” which we cite as “Spec.” 2 Appeal 2015-006156 Application 12/427,194 said individual electrodes that are produced when said individual electrodes are exposed to the gaseous NOx emissions. 11. An electrochemical sensor apparatus for monitoring gaseous NOx emissions in a monitored O2 gaseous environment, consisting of: two individual electrodes comprising a first electrode and a second electrode, wherein both of said individual electrodes are exposed to the monitored gaseous environment and wherein at least one of said individual electrodes is made of Lao.85Sro.i5Mn03 for sensing NOx in a background of O2; an electrolyte material operatively connected to said first electrode and said second electrode, wherein said electrolyte material is an ionically conductive material; an inert substrate supporting said electrolyte material operatively connected to said first electrode and said second electrode, wherein said inert substrate, electrolyte, first electrode, and second electrode comprises a sensing element; and an electronic control and data processing unit operatively connected to said first electrode and said second electrode, said electronic processing unit configured to apply an alternating current excitation component at predetermined frequencies to both of said individual electrodes; said electronic control and data processing unit also configured to receive said response generated by said sensing element wherein said response includes the effect of changing polarization as a result of electrochemical reactions at said individual electrodes that are produced when said individual electrodes are exposed to the gaseous NOx emissions. (Claim Appendix, App. Br. 33—34.) 3 Appeal 2015-006156 Application 12/427,194 REFERENCES The Examiner relies upon the following references in rejecting the claims on appeal: Garzon US 2007/0193883 A1 Aug. 23,2007 Martin, Impedancemetric NOx Sensing Using YSZ Electrolyte and YSZ/Cr203 Composite Electrodes, Journal of the Electrochemical Society (2007). Lawrenz, Investigations on the determination of NO with galvanic Zr02 solid electrolyte cells, Fresenius Journal of Analytical Chemistry (1994). REJECTIONS Claims 1 and 27 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Martin and Lawrenz. (Final Act. 2; Ans. 2.)4 Claim 11 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Martin, Garzon, and Lawrenz. (Final Act. 7; Ans. 7.) OPINION Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. Claim l5 Appellants do not dispute that all claim limitations are found in the prior art teachings. (App. Br. 15—21.) Appellants argue instead that the Examiner reversibly erred because claim 1 recites an apparatus “consisting 4 Examiner’s Answer mailed May 20, 2015 (“Ans.”). 5 Consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013), claim 27 stands or falls with claim 1, as Appellants make no distinct arguments for the patentability of any claim other than claim 1. (App. Br. 15.) 4 Appeal 2015-006156 Application 12/427,194 of’ various elements where each prior art reference teaches elements beyond those recited. {Id.)6 Appellants provide a list of purported “extra elements” for each reference. (Id. ) The Examiner responds by explaining why each of the elements at issue in Martin meets the limitations of claim 1. (Ans. 11—15.) The Examiner finds that the YSZ-based sensor having a “planar YSZ electrolyte” taught in Martin meets the “electrolyte material” recited in claim 1. (Compare Ans. 11—12 with App. Br. 15—16.) The Examiner finds that Martin’s sensor having “identical YSZ/C^CE composite electrodes” meets the “two individual electrodes” recited in claim 1. (Compare Ans. 12—13 with App. Br. 16—17.) The Examiner finds that Martin’s teaching of “a quartz tube heated in a tube furnace” is not part of the sensor but rather a housing for sensor testing. (Compare Ans. 13 with App. Br. 17.) The Examiner finds that the “dense Au foil. . . overlaid on top of the sensor electrodes” and “held in place by an AI2O3 flat placed on top of the foils” meets the “electronic control and data processing unit” recited in claim 1. (Compare Ans. 13—14 with App. Br. 17—18.) The Examiner further responds that Lawrenz teaches that perovskite type oxides Lai.xSrxMe03 (x = 0.1 ... 0.5; Me = Co, Mn, Fe, Cr) is a known electrode material for a NOx sensor. (Ans. 14.) The Examiner determines that claim 1 is obvious because a skilled artisan would have found it obvious 6 The Examiner notes that unlike claim 1 which recites an apparatus “consisting of’ various elements, claim 27 is an open-ended claim and recites “an active sensing element comprising” various elements. (Ans. 12.) Appellants do not respond to this issue and we affirm the rejection of claim 27 because Appellants do not provide arguments beyond those for claim 1. 5 Appeal 2015-006156 Application 12/427,194 to substitute the electrode in Martin with the one taught in Lawrenz. {Id.; see also Final Act. 3.) “[W]hen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (citing United States v. Adams, 383 U.S. 39, 50-51 (1966)). In an obviousness inquiry, all of the features of the secondary reference need not be bodily incorporated into the primary reference and the skilled artisan is not compelled to blindly follow the teaching of one prior art reference over the other without the exercise of independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881,889 (Fed. Cir. 1984). Here, Appellants attempt to establish non-obviousness by “attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellants quote prior art teachings but do not provide more than a bare assertion that claim 1 differs from the prior art teachings. {See, e.g.. Reply 2—6; see also In re Kemps, 97 F.3d 1427, 1429 (Fed. Cir. 1996).)7 Appellants do not respond to the Examiner’s analysis with regard to the sensor in Martin and the sensor of claim 1. {See, e.g., Reply 2—6.) Appellants do not address the Examiner’s “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness” — namely, that it would have been obvious to substitute the electrode in Martin with the electrode taught in Lawrenz. {See e.g., id', compare App. Br. 15—21 7 Reply Brief failed June 2, 2015 (“Reply”). 6 Appeal 2015-006156 Application 12/427,194 with Final Act. 2—7; see also KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).) No reversible error has been identified by Appellants with regard to the rejection of claim 1. Claim 11 Appellants argue that the rejection of claim 11 is in error by repeating the assertion that each of the prior art references teaches elements additional to those recited. (App. Br. 22—31.) As with claim 1, Appellants do not respond to the Examiner’s articulated reasoning with some rational underpinning to support the legal conclusion of obviousness” — namely, that it would have been obvious to substitute the electrode in Martin with the electrode taught in Lawrenz and to include the alumina substrate taught in Garzon to facilitate the assembly of the sensor. (See Reply 8—15; compare App. Br. 22—31 with Final Act. 7— 10; see also KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).) No reversible error has been identified by Appellants with regard to the rejection of claim 11. 7 Appeal 2015-006156 Application 12/427,194 DECISION The Examiner’s rejections of claims 1,11, and 27 are 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation