Ex Parte Cao et al

Board of Patent Appeals and Interferences

Aug 30, 2012

11720384 (B.P.A.I. Aug. 30, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/720,384 03/24/2008 Lixin Cao 15588-00014-US 7694
23416 7590 08/31/2012
CONNOLLY BOVE LODGE & HUTZ, LLP
P O BOX 2207
WILMINGTON, DE 19899
EXAMINER
NGUYEN, COLETTE B
ART UNIT PAPER NUMBER
1732
MAIL DATE DELIVERY MODE
08/31/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LIXIN CAO,
YU-MIN TSOU, and EMORY DE CASTRO
__________

Appeal 2011-004211
Application 11/720,384
Technology Center 1700
____________

Before BRADLEY R. GARRIS, LINDA M. GAUDETTE, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-004211
Application 11/720,384

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Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 12-24. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellants’ invention is said to be directed to a method of making a
platinum alloy carbon-supported electrocatalyst suitable for incorporation in
a gas diffusion electrode or a catalyst-coated membrane structure (Spec. 1:
5-7).
Claim 12 is illustrative:
12. A method for the production of a carbon-supported
platinum alloy catalyst comprising simultaneously reducing in
situ-formed platinum dioxide and at least one transition metal
hydrous oxide on a carbon support and wherein said in situ-
formed platinum dioxide is obtained by conversion of
dihydrogen hexahydroxyplatinate on said carbon support.

Appellants appeal the following rejections:
Claims 12-24 are rejected under 35 U.S.C. § 103(a) as being unpatentable
over Reetz (WO 03/078056 published Sept. 25, 2003; US 7,244,688 B2
issued July 17, 2007) in view of Itoh (US 5,876,867 issued Mar. 2, 1999).
Appellants’ arguments focus on claim 12 only (App. Br. 4-8).

ISSUE
Did the Examiner reversibly err in concluding that the combined teachings
of Reetz and Itoh would have suggested using dihydrogen
hexahydroxyplatinate as the starting material for producing the platinum
oxide on the catalyst? We decide this issue in the negative.

Appeal 2011-004211
Application 11/720,384

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FINDINGS OF FACT AND ANALYSES
Appellants argue that Reetz fails to teach using dihydrogen
hexahydroxyplatinate as the platinum precursor and simultaneously reducing
a second transition metal (App. Br. 5-6). Appellants contend that Reetz does
not teach forming an alloy (i.e., at least two different metals as defined by
Appellants) (id. at 6). Appellants argue that Itoh does not teach
simultaneous reduction of platinum and a transition metal to form an alloy.
Id. Appellants contend that even if Itoh’s dihydrogen hexahydroxyplatinate
were used in lieu of Reetz’s H2PtCl6, the combination would still lack the
presence of a second metal to form an alloy and simultaneous chemical
reduction of both metals (id. at 6-7).
Appellants’ arguments are unpersuasive because they attack the
references individually instead of addressing what the combined teachings
would have suggested. In re Keller, 642 F.2d 413, 425 (CCPA 1981). The
Examiner finds that Reetz teaches all the features of claim 12 including
simultaneously reducing in situ-formed platinum dioxide and at least one
transition metal hydrous oxide on a carbon support (Ans. 4-5). The
Examiner finds that Itoh teaches using dihydrogen hydroxyplatinate as a
precursor to form platinum oxide when making a platinum alloy catalyst
containing platinum and another metal (id. at 5). The Examiner concludes
that it would have been obvious to substitute Itoh’s dihydrogen
hydroxyplatinate for Reetz’s chlorine containing platinum precursor because
both Reetz and Itoh teach Platinum catalyst with transition
metals and the platinate is less toxic and also the platinate
compound has a lattice structure so platinum can be
incorporated within the web therefore the catalyst is more
efficient in fuel cell technology and Reetz’s process of in situ
Appeal 2011-004211
Application 11/720,384

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formation is an instant process with complete conversion and
high structural stability at high temperatures.
(Ans. 5).
Appellants’ arguments do not dispute the Examiner’s reason for
substituting Itoh’s dihydrogen hydroxyplatinate for Reetz’s platinum
precursor.
In addition to failing to address the combined teachings of the prior
art, Appellants’ arguments fail to specifically address or show error in the
Examiner’s findings regarding the teachings of Reetz and Itoh. Specifically,
Appellants’ argument fails to address or appreciate the Examiner’s finding
that Reetz teaches forming platinum and transition metal oxides which are
then simultaneously reduced in a one step process (id. at 4-5; 7-9).
Appellants further argue that the data contained in the Specification
and Appellants’ figures show unexpected results as compared to Itoh’s
catalysts made by Itoh’s method (App. Br. 8). The Examiner states that the
data is insufficient to show unexpected results over the closest prior art (i.e.,
Reetz) (Ans. 8). We agree with the Examiner.
To be probative of nonobviousness, Appellants must compare the
claimed invention with the closest prior art. In re Burkel, 592 F.2d 1175,
1179 (CCPA 1979). Appellants have not provided any explanation why
Itoh’s two-step process for forming a platinum and transition metal catalyst
should be considered closer prior art than the disclosure of Reetz. Rather,
we agree with the Examiner that Reetz’s deposition of a platinum and
transition metal oxide in one step that is subsequently reduced appears to be
the closest prior art. Accordingly, Appellants’ evidence is not probative of
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Application 11/720,384

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nonobviousness, and therefore the evidence of obviousness outweighs the
proffered evidence of nonobviousness.
On this record and for the above reasons, we affirm the Examiner’s
§ 103 rejection over Reetz and Itoh.

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.

ORDER
AFFIRMED

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