DRÄGER SAFETY AG & CO.

Patent Trials and Appeals Board

Jul 17, 2020

2019005929 (P.T.A.B. Jul. 17, 2020)

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.
14/890,757 11/12/2015 Andreas NAUBER 75268 1018
23872 7590 07/17/2020
MCGLEW & TUTTLE, PC
P.O. BOX 9227
SCARBOROUGH STATION
SCARBOROUGH, NY 10510-9227
EXAMINER
ROSENWALD, STEVEN ERIC
ART UNIT PAPER NUMBER
1795
MAIL DATE DELIVERY MODE
07/17/2020 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANDREAS NAUBER, MICHAEL SICK, GREGOR STEINER,
MARIE-ISABELL MATTERN-FRÜHWALD, RIGOBERT CHRZAN,
SABRINA SOMMER, FRANK METT, and ANDREAS
HENGSTENBERG

Appeal 2019-005929
Application 14/890,757
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and
MICHAEL G. McMANUS, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–9, 11–15, and 17–21. We have
jurisdiction under 35 U.S.C. § 6(b). Oral arguments were heard in this
Appeal on July 10, 2020.
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Dräger Safety
AG and Co. KGaA. Appeal Br. 1.
Appeal 2019-005929
Application 14/890,757
2
Appellant’s invention is directed to a liquid electrolyte for an
electrochemical gas sensor detecting NH3 (Spec. 1: 4–5; Claim 1).
Claim 1 is representative of the subject matter on appeal:
1. A liquid electrolyte for an electrochemical gas sensor, the
liquid electrolyte comprising:
at least one solvent;
a conductive salt and an organic mediator, wherein the
conductive salt is an ionic liquid, an inorganic salt, an organic
salt or a mixture thereof, the organic mediator being a
polyhydroxy compound which forms a quinoid system or a
naphthalene system during oxidation, wherein the organic
mediator is selected from the group containing substituted
ortho-dihydroxybenzenes, substituted paradihydroxybenzenes,
dihydroxynaphthalene, substituted dihydroxynaphthalane,
anthrahydroquinone, substituted anthrahydroquinone, wherein
one of ammonia and ammonia-containing gas mixtures is
detected based on at least the liquid electrolyte.
Appellant appeals the following rejections:
1. Claims 1, 5–9, 11, 12, 14, 15, and 18–21 are rejected under 35
U.S.C. § 103 as unpatentable over Eckhardt et al. (US
2011/0226619 A1, pub. Sept. 22, 2011) in view of Rosanna
Toniolo, et al., An Oxygen Amperometric Gas Sensor Based On
Its Electrocatalytic Reduction In Room Temperature Ionic
Liquids, J. Elec. Chem. 670, 23–29 (2012).
2. Claims 2 and 3 are rejected under 35 U.S.C. § 103 as
unpatentable over Eckhardt in view of Toniolo and Norman
Good et al., Hydrogen Ion Buffers for Biological Research, Med.
Chem. Res. Vol. 5 No 2, 467–477 (1966) as evidenced by
Nakagawa et al. (US 2011/0143225 A1, pub. June 16, 2011) and
Sigma-Aldrich Good Buffers,
https://www.sigmaaldrich.com/catalog/product/sigma/gb11?lan
Appeal 2019-005929
Application 14/890,757
3
g=en®ion=US (2013).
3. Claims 4 and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Eckhardt in view of Toniolo and Winter (WO
2013/045561 A1, pub. Apr. 4, 2013) or Schmidt (EO 02221381
A2, filed July 10, 1986).
4. Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Eckhardt in view of Toniolo and Suh (US 2007/0108068
A1, pub. May 17, 2007).

FINDINGS OF FACT & ANALYSIS
The Examiner’s finding and conclusions regarding Eckhardt and
Toniolo are located on pages 2–4 of the Final Action. The Examiner finds
that Eckhardt teaches a liquid electrolyte as recited in claim 1, except for an
organic mediator being a polyhydroxy compound which forms a quinoid
system or a napthalene system during oxidation, wherein the organic
mediator is selected from one of the polyhydroxy compounds recited in
claim 1 (Final Act. 3). The Examiner finds that Toniolo teaches an oxygen
amperometric gas sensor based on its electrocatalytic reduction in room
temperature ionic liquids (Final Act. 3). The Examiner finds that Toniolo’s
sensor exploits some profitable properties of room temperature ionic liquids,
such as their high electrical conductivity, negligible vapor pressure and good
thermal stability (Final Act. 3). The Examiner find that Toniolo teaches that
these advantageous properties are increased by adding small amounts of a
further low melting salt bearing a quinone moiety, which allows reduction of
O2 to occur through an electrocatalytic pathway taking place at quite lower
potential than those required by its direct reduction (Final Act. 4). The
Appeal 2019-005929
Application 14/890,757
4
Examiner finds that Toniolo’s quinone moiety is
trihexyltetradecylphonphonium-9,10-anthraquinone-1-sulphonate (THTDP-
AQS), which is a substituted anthraquinone (Final Act. 4). The Examiner
concludes that it would have been obvious to provide the substituted
anthraquinone of Toniolo in the gas sensor of Eckhardt to provide a
significant decrease of both noise level and the number of possible
interfering species as taught by Toniolo (Final Act. 4).
The Examiner finds that Toniolo’s Figure 4 shows two peaks which
correspond to the oxidation of anthraquinone to anthrahydroquinone and the
reduction of anthrahydroquinone to anthraquinone (Ans. 15). The Examiner
compares Toniolo’s Figure 4 to Appellant’s Figure 2 and finds that there are
two peaks when the voltage of Toniolo is scanned from negative to positive
corresponding to the two electrons transferred from the molecule during
oxidation in the lower left of Figure 2 (Ans. 16). The Examiner finds that
two peaks result during the scan from positive to negative corresponding to
the two electrons transferred to the molecule during reduction shown in the
lower right of Figure 2 (Ans. 16). The Examiner finds that Toniolo teaches
the same reversible reaction as Appellant (Ans. 16).
Appellant argues that neither Eckhardt nor Toniolo teaches a
polyhydroxy compound that forms a quinoid system or a naphthalene system
during oxidation (Appeal Br. 10-11). Appellant argues that the Examiner
has not shown that Toniolo’s THTDP-AQS is a polyhydroxy compound
(Reply Br. 2). Appellant argues that the Examiner has not established that
Toniolo’s THTDP-AQS forms a quinoid system or a naphthalene system
during oxidation as recited in claim 1 (Reply Br. 3). Appellant contends that
the Examiner has not established that the teachings of Eckhardt and Toniolo
Appeal 2019-005929
Application 14/890,757
5
would have suggested using a polyhydroxy compound as recited in claim 1
as part of a quinoid or naphthalene system (Reply Br. 3). We agree.
Claim 1 requires the liquid electrolyte includes a polyhydroxy organic
mediator selected from the list of polyhydroxy compounds recited in the
claim. Although the Examiner finds that Toniolo’s Figure 4 shows two
peaks that indicate the oxidation or reduction of the anthraquinone to
anthrahydroquinone, the Examiner relies on Appellant’s disclosure
regarding Figure 2 of the invention to support such a finding. The Examiner
does not explain why Toniolo’s THTDP-AQS material would necessarily
exhibit the same reactive mechanism as Appellant’s Figure 2. Indeed,
Toniolo teaches a mechanism which forms a THTDP-AQS anion (i.e.,
THTDP-AQS-), and not a hydroxyl functionality (Toniolo 27, column 2).
Toniolo teaches that the mechanism disclosed is not conclusive or grounded
in experimental evidence (Toniolo 28, column 1). Toniolo discloses that
only 1,4-dihydroxi-5,8-napthoquinone (i.e., NQ) exhibits hydroxyl groups in
the 1 and 4 positions (Toniolo 27, column 2). Toniolo discloses that the
oxygen reduction can be electrocatalyzed by these quinone compounds
lacking in hydroxyl groups in BMIM-NTF2 (i.e., 1-butyl-3-
methylimidazolium bis(trifluoromethyl-sulfonyl)imide), unlike in usual
aprotic solvents, is strongly suggestive of the involvement of the medium in
the inner sphere charge transfer (Toniolo 27–28). In light of these findings,
we determine that the Examiner has not established by a preponderance of
the evidence that Toniolo’s Figure 4 shows the conversion of anthraquinone
to anthrahydroquinone. The Examiner has not established that it would have
been obvious to include anthrahydroquinone as an organic mediator in a
liquid electrolyte based upon the teachings of Eckhardt and Toniolo.
Appeal 2019-005929
Application 14/890,757
6
On this record, we reverse the Examiner’s § 103 rejection over
Eckhardt and Toniolo. We reverse the § 103 rejections of the dependent
claims 2–4, 13, and 17 for the same reasons the rejection of claims 1 and 21
is reversed.

CONCLUSION
In summary:
Claims
Rejected
Basis Prior Art Affirmed Reversed
1, 5–9, 11, 12,
14, 15, 18–21
§ 103 Eckhardt,
Toniolo
1, 5–9, 11, 12, 14,
15, 18–21
4, 17 § 103 Eckhardt,
Toniolo,
Winter, or
Schmidt
4, 17
2, 3 § 103 Eckhardt,
Toniolo,
Good,
Nakagawa,
Sigma
Aldrich
2, 3
13 § 103 Eckhardt,
Toniolo, Suh
13
Overall
Outcome
1-9, 11–15, 17–21

REVERSED