Endress + Hauser Conducta Gesellschaft für Mess- und Regeltechnik mbH + Co. KG

Patent Trials and Appeals Board

Dec 1, 2020

2020000352 (P.T.A.B. Dec. 1, 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.
14/971,063 12/16/2015 Michael Hanko CD0638-US 1238
140216 7590 12/01/2020
Endress+Hauser, Inc.
PatServe US
2350 Endress Place
Greenwood, IN 46143
EXAMINER
ALLEN, JOSHUA L
ART UNIT PAPER NUMBER
1795
NOTIFICATION DATE DELIVERY MODE
12/01/2020 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):
chris.powers@endress.com
lisa.harden@endress.com
patserve.ush@endress.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL HANKO, MAGDALENA LOSIK,
and JENS VETTERMANN

Appeal 2020-000352
Application 14/971,063
Technology Center 1700
____________

Before TERRY J. OWENS, JEFFREY T. SMITH, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 1–7, 9–11, and 18–24. We have
jurisdiction under 35 U.S.C. § 6(b).
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 Endress +
Hauser Conducta Gesellschaft für Mess- und Regeltechnik mbH + Co. KG.
Appeal Brief dated July 16, 2019 (“Appeal Br.”) 2.
Appeal 2020-000352
Application 14/971,063

2

CLAIMED SUBJECT MATTER

The present application generally relates to an electrochemical half
cell of a type which may be used for various kinds of electrochemical
sensors including potentiometric and amperometric sensors. Specification
dated Dec. 16, 2015 (“Spec.”) 1:3–5, 14–15. The Specification teaches that
sensors of this type are sometimes exposed to high temperatures. Id. at
3:13–18. The Specification further teaches that “[i]n order to avoid the
sensors bursting due to temperature and/or pressure fluctuations, a gas
volume must be available inside the housing that compensates for the
thermal expansion of an inner and/or reference electrolyte in a half cell.” Id.
at 3:18–21.
The Specification teaches that, conventionally, “porous elastic solid
bodies, e.g. mainly closed-pore neoprene or silicon foams are used as
compensators for changes in the volume occupied by the inner or reference
electrolyte in the sensor housing.” Id. at 3:23–25. Such bodies, however,
are taught to have certain disadvantages. Id. at 3:25–4:2. In order to
overcome such disadvantages, Appellant proposes to use “a plurality of
compensation volumes in the form of hollow bodies distributed mainly
evenly inside the volume filled by the electrolyte.” Id. at 4:22–23.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with certain limitations bolded for emphasis:

Appeal 2020-000352
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1. An electrochemical half-cell; comprising:
a housing;
a potential sensing element; which is at least partially
arranged inside the housing and connected electro-conductively
with an electrical contact point outside the housing;
an electrolyte arranged inside the housing; and
a plurality of compressible hollow bodies; each hollow
body having an elastic wall completely enclosing a gas-filled
hollow space; wherein the plurality of hollow bodies is
embedded in the electrolyte and distributed throughout a
volume filled by the electrolyte.
Appeal Br. 11 (Claims App.).
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Brinkmann et al. US 4,959,138 Sept. 25, 1990
Sovrano et al. US 2005/0133369 A1 June 23, 2005
Thrier US 2014/0034515 A1 Feb. 6, 2014
Kratz2 DE939597C Feb. 23, 1956

REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1, 6, 9–11, 18–19, 22 and 24 are rejected under 35
U.S.C. § 102(a)(1) as anticipated by Kratz. Final Office
Action dated Jan. 18, 2019 (“Final Act.”) 2–5.
2. Claims 2, 3, 20, and 21 are rejected under 35 U.S.C. § 103 as
being unpatentable over Kratz in view of Brinkmann. Id. at

2 The Examiner relies on an English Language translation of Kratz.
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6–9.
3. Claim 4 is rejected under 35 U.S.C. § 103 as being
unpatentable over Kratz in view of Sovrano. Id. at 9–10.
4. Claims 1, 5–7, 9–11, 18, 19, 22, and 24 are rejected under 35
U.S.C. § 103 as being unpatentable over Thrier in view of
Kratz. Id. at 10–15.
5. Claims 2, 3, 20, and 21 are rejected under 35 U.S.C. § 103 as
being unpatentable over Thrier in view of Katz, and
Brinkmann. Id. at 15–18.
6. Claim 4 is rejected under 35 U.S.C. § 103 as being
unpatentable over Thrier in view of Kratz, and Sovrano. Id.
at 19–20.
DISCUSSION
Rejection 1. The Examiner rejects claims 1, 6, 9–11, 18–19, 22 and
24 as anticipated by Kratz. Final Act. 3–4. In support of the rejection, the
Examiner finds that Kratz teaches that the electrode may be “filled with
porous solid bodies such as foamed glass, foam containing plastic masses
and similar which possess gas-filled capillary chambers/cavities.” Id. at 3.
The Examiner further finds that Kratz teaches “the ability of the gas-filled
spaces to compress under increased pressure and therefore is
‘compressible.’” Id. The Examiner additionally finds that the “foam
containing plastic masses” of Kratz would inherently have walls that enclose
the gas-filled hollow spaces and that possess some level of elasticity.
Accordingly, the Examiner determines that Kratz teaches the “hollow
bodies” limitation.
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Appellant argues that the Rejection should be reversed. Appeal Br. 3–
9.
First, Appellant argues that Kratz does not teach “hollow bodies” in
an electrode. Id. at 4–6. Appellant directs us to Kratz’ teaching that “the
interior of the electrode can be filled up with porous solid bodies, such as,
for example, multicellular glass, foam-containing plastic masses, cane
segments, and similar, which possess gas-filled capillary spaces.” Id. at 5
(citing Kratz 6) (emphasis added). Appellant argues that Kratz’ use of the
word “solid” indicates that its porous solid bodies are not “hollow” as
claimed. Id. Appellant asserts that all of the exemplary bodies listed by
Kratz include multiple cell walls, thus, although such bodies may contain
multiple hollow spaces, they are not hollow. Id. Given such structure,
Appellant further argues that Kratz does not teach an elastic wall “enclosing
a gas-filled hollow space.” Id.
Appellant argues that the bodies of Kratz differ from the hollow
bodies of the Specification and claims. Id. Appellant directs us to the
Specification’s teaching that “[a] hollow body is to be understood here and
in the following paragraphs as a body, preferably compressible, that
comprises a wall encompassing a gas-filled space.” Id.
In the Answer, the Examiner contends that a foam is a mass of small
bubbles formed on or in liquid. Examiner’s Answer dated Aug. 16, 2019
(“Ans.”) 22. The Examiner determines that Kratz’ “foamed plastic” is a
mass of small gas bubbles formed by a plastic material. Id. The Examiner
further directs us to Kratz’ disclosure of “a multiple number of gas-
incorporated hollow spaces” which the Examiner considers to be
compressible so as to mitigate temperature driven pressure increases. Id.
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The Examiner further rejects Appellant’s assertion that Kratz’ plastic
bodies contain multiple hollow spaces but do not meet the “hollow bodies”
limitation. Id. at 23.
In its Reply Brief, Appellant argues that the bodies of Kratz differ
from the claimed hollow bodies. Reply Brief dated Oct. 16, 2019, (“Reply
Br.”) 3–4. Appellant likens its hollow body to a “beach ball” while
comparing the structure of Kratz to a “household sponge.” Id.
Thus, the Examiner and Appellant disagree as to whether a
multicellular foam structure is a “hollow body” and whether it has “an
elastic wall completely enclosing a gas-filled hollow space” as required by
claim 1. Accordingly, we construe the term “hollow bodies.”
During examination, claims are given their broadest reasonable
interpretation consistent with the specification. See In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
Here, the Specification provides that “[a] hollow body is . . . a body,
preferably compressible, that comprises a wall encompassing a gas-filled
space.” Spec. 5:1–5; Appeal Br. 5. The Specification additionally indicates
that such hollow bodies differ from the closed-pore elastic solid bodies (e.g.,
polymer foams) of the prior art. Spec. 3:23–4:2. Claim 1 requires that the
hollow bodies be “distributed throughout a volume” of the electrolyte rather
than clustered in a sponge-like structure.
Accordingly, we construe the limitation “hollow body” to require a
wall surrounding a single gas-filled space (rather than multiple gas-filled
spaces). Following on Appellant’s analogy, the claims require hollow
bodies having a structure more like a “beach ball” than a “sponge.”
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The Examiner and Appellant appear to agree that the solid bodies of
Kratz include “many hollow spaces.” Ans. 23; Appeal Br. 5. Accordingly,
Kratz does not teach the “hollow bodies” limitation.

Rejections 2–6. The Examiner rejects claims 1–7, 9–11, and 18–24
over various combinations of Kratz and other references. Final Act. 6–20.
In each rejection, the Examiner relies on Kratz as teaching the hollow body
and compressibility limitations. Id. As discussed above, Appellant has
shown error in these findings. Accordingly, the rejections of claims 1–7, 9–
11, and 18–24 are reversed.

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CONCLUSION

The Examiner’s rejections are reversed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 6, 9–11,
18–19, 22,
24
102(a)(1) Kratz 1, 6, 9–11,
18–19, 22,
24
2, 3, 20, 21 103 Kratz, Brinkmann 2, 3, 20, 21
4 103 Kratz, Sovrano 4
1, 5–7, 9–
11, 18, 19,
22–24
103 Thrier, Kratz 1, 5–7, 9–
11, 18, 19,
22–24
2, 3, 20, 21 103 Thrier, Kratz,
Brinkmann
2, 3, 20, 21
4 103 Thrier, Kratz,
Sovrano
4
Overall
Outcome
1–7, 9–11,
18–24

REVERSED