Robert Mason. Darling et al.Download PDFPatent Trials and Appeals BoardJul 17, 201914131379 - (D) (P.T.A.B. Jul. 17, 2019) 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. 14/131,379 01/07/2014 Robert Mason Darling P99279US.0/130609.544USPC 4700 500 7590 07/17/2019 SEED INTELLECTUAL PROPERTY LAW GROUP LLP 701 FIFTH AVE SUITE 5400 SEATTLE, WA 98104 EXAMINER CARRICO, ROBERT SCOTT ART UNIT PAPER NUMBER 1727 NOTIFICATION DATE DELIVERY MODE 07/17/2019 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): USPTOeAction@SeedIP.com pairlinkdktg@seedip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ROBERT MASON DARLING, SHAMPA KANDOI, and JONATHAN DANIEL O’NEILL ____________________ Appeal 2018-008135 Application 14/131,379 Technology Center 1700 ____________________ Before JAMES A. WORTH, DEBRA L. DENNETT, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2018-008135 Application 14/131,379 2 STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134 from a rejection2 of claims 1–3, 6–11, 13–16, and 18–24. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. CLAIMED SUBJECT MATTER The claims are directed to a low platinum load electrode. Spec. 1:25– 30.3 Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An electrode for an electrochemical cell, the electrode comprising: platinum catalysts; carbon support particles supporting the platinum catalysts; and an ionomer connecting the platinum catalysts, wherein the electrode has a platinum loading less than about 0.2 mg/cm2 and an ionomer-to-carbon ratio between about 0.5 and about 0.9, wherein a metal weight percent of the platinum catalysts supported by the carbon support particles is between 40% and 60%, and wherein the electrode has a thickness between about 2 microns and about 5 microns. Claims Appendix (Br. 12). 1 The real party in interest is identified as “Audi AG.” Appeal Brief of January 22, 2018 (“Br.”), 1. 2 Final Office Action of July 26, 2017 (“Final Act.”). In this opinion, we also refer to the Examiner’s Answer of May 17, 2018 (“Ans.”). No Reply Brief was filed. 3 Application No. 14/131,379 filed January 7, 2014 (“Spec.”). Appeal 2018-008135 Application 14/131,379 3 REFERENCES The prior art references relied upon by the Examiner in rejecting the claims on appeal are: Mussell et al. (hereinafter “Mussell”) Hirano et al. (hereinafter “Hirano”) US 5,882,810 US 6,103,412 Mar. 16, 1999 Aug. 15, 2000 Sayre et al. (hereinafter “Sayre”) US 2008/0248362 A1 Oct. 9, 2008 REJECTIONS Claims 1–3, 6–11, 13–16, 18–20, 23, and 24 are rejected under pre- AIA 35 U.S.C. § 103(a) as being unpatentable over Mussell in view of Hirano.4 Final Act. 3. Claims 21 and 22 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Mussell in view of Hirano, and further in view of Sayre. Final Act. 7. OPINION We review the appealed rejections for error based upon the issues identified by Appellants and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to 4 Although claim 12 is included in the Examiner’s discussion of the rejection, the Examiner also acknowledges that claim 12 was canceled by an amendment filed on April 7, 2017. Final Act. 2, 3. Appeal 2018-008135 Application 14/131,379 4 identify the alleged error in the examiner’s rejections”)). After having considered the evidence presented in this Appeal and each of Appellants’ contentions, we are not persuaded that reversible error has been identified, and we affirm the Examiner’s § 103 rejection for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. In rejecting claim 15, the Examiner finds that Mussell teaches or suggests an electrode having the recited components except “a metal weight percent of the platinum catalysts supported by the carbon support particles” which is “between 40% and 60%” for which the Examiner relies on Hirano. Final Act. 3–4. Specifically, the Examiner finds that Hirano describes that “the weight ratio of the platinum to the carbon black is at most about 60%.” Final Act. 4 (citing Hirano 6:14–15). Based on the combined prior art teaching including Hirano’s teaching that the platinum/carbon weight ratio is related to catalyst thickness and “[b]y reducing the thickness of the reaction region, a higher reaction efficiency and higher cell performance can be maintained,” the Examiner concludes that it would have been obvious to a skilled artisan “to have provided a metal weight percent as claimed so that appropriate thickness is maintained to achieve higher reaction efficiency and higher cell performance.” Id. (citing Hirano 5:58–6:19). Appellants first argue that the rejection should be reversed because the catalyst in Mussell has a preferred weight percentage of 10 to about 30 percent which teaches away from the recited metal weight percentage. Br. 9. 5 Appellants do not present separate arguments for claims 2, 3, 6–11, 13–16, and 18–24 and they therefore stand or fall with claim 1. See Br. 8–11; see also 37 C.F.R. § 41.37(c)(1)(iv) (2013). Appeal 2018-008135 Application 14/131,379 5 “A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994). In this case, the evidence in the record does not support Appellants’ argument that a skilled artisan would be discouraged from all metal weight percentage other than the 10 to about 30 percentage described as preferred in Mussell. We are therefore not persuaded by this argument. Appellants next argue that the Examiner reversibly erred in evaluating Hirano because Hirano discloses an electrode having a platinum to carbon weight ratio of 2 to 1 or 67% which is outside the recited range. Br. 9. We note that, however, unlike the recited electrode which has a thickness of about 2 microns to about 5 microns, the 2 to 1 weight ratio embodiment Appellants refer to has a thickness of 10 microns. Hirano at 6:8–10; see also Br. 10 (acknowledging that Hirano describes a catalyst embodiment having a thickness of 10 microns and “at that thickness the metal weight percent of platinum is 67%). Appellants do not address Hirano’s undisputed teaching that in other prior art embodiments, “the weight ratio of the platinum to carbon is at most about 60%.” Hirano 6:14–15. Because Appellants do not adequately explain why we should ignore the undisputed teaching in Hirano on which the obviousness rejection is based, we discern no reversible error here. Appellants also argue that Hirano teaches away from the recited electrode having “a thickness between about 2 microns and about 5 microns.” Br. 10. In support, Appellants point to Hirano’s teaching that “a Appeal 2018-008135 Application 14/131,379 6 limit thickness of the catalyst layer would be about 10 µm” as “[a] smaller catalyst layer will not be able to maintain the desired size range of the platinum particles.” Hirano 6:11–16. The electrode recited in claim 1 does not require any particular size of the platinum particles. Appellants’ argument does not sufficiently explain why a skilled artisan would be discouraged from using Hirano’s teaching for the recited metal weight ratio when Hirano describes the specific catalyst thickness “in order to maintain the desired size range of the platinum particles.” Hirano 6:16–19. We are not persuaded that reversible error has been identified here. Appellants also argue that the Examiner reversibly erred here because “there is no supportable rationale” for combining the references. Br. 10. Appellants, however, do not address the Examiner’s rationale that it would have been obvious to a skilled artisan “to have provided a metal weight percent as claimed so that appropriate thickness is maintained to achieve higher reaction efficiency and higher cell performance. Compare id., with Final Act. 4 (citing Hirano 5:58–6:19 for various teachings regarding catalyst thickness, platinum/carbon weight ratio, reaction efficiency, cell performance and other parameters); see also Ans. 4 (stating that based on the prior art teachings, it would have been obvious for the skilled artisan “to have provided a metal weight percentage as claimed to achieve higher voltage, decreased internal resistance, increased cell performance, and higher reaction efficiency”). “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of Appeal 2018-008135 Application 14/131,379 7 obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). In this case, Appellants do not address the Examiner’s reasoning, nor Hirano’s teaching in support of the Examiner’s reasoning, we discern no reversible error in this aspect of the obviousness analysis. Lastly, we note that Appellants state the recited electrode “unexpectedly provides an electrode in which the effect of individual drawbacks of certain characteristics are mitigated while the benefits of the combination of electrode characteristics as a whole are amplified to provide an efficient low platinum electrode.” Br. 9. To the extent that this statement is an argument of unexpected results, “it is well settled that unexpected results must be established by factual evidence. ‘Mere argument or conclusory statements in the specification does not suffice.’” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)). In this case, Appellants do not support the unexpected results argument (if any) with factual evidence (see Br. 9), and we accordingly are not persuaded that unexpected results have been shown. DECISION The Examiner’s decision 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation