Ex parte Fleischer et al.

Board of Patent Appeals and Interferences

Sep 28, 2000

07928443 (B.P.A.I. Sep. 28, 2000)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of
the Board.
Paper No. 29
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte MAXIMILIAN FLEISCHER
and HANS MEIXNER

_____________
Appeal No. 1996-0841
Application 07/928,443
______________
HEARD: Jan. 24, 2000
_______________
Before GARRIS, PAK, and OWENS, Administrative Patent Judges.
PAK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134
from the examiner’s refusal to allow claims 1 through 33 which
are all of the claims pending in the application.
Appeal No. 1996-0841
Application No. 07/928,443
2
Claim 1 is representative of the subject matter on appeal
and reads as follows:
1. In a gas sensor array for detecting individual gas
constituents in a gas mixture, said array being composed of a
plurality of individual sensor elements, which are the basis
of semiconductive metal oxides, said individual sensor
elements being respectively applied on an electrically non-
conductive substrate, with the array being provided with a
contact electrode arrangement for measuring the electrical
conductivity of each element, the array being provided with a
heating arrangement for heating at a predetermined operating
temperature with a protective sheath that protects the array
against external mechanical influences and a fastening base
wherein the individual sensor elements have prescribed
individual operating temperatures allocated to them and
wherein differences between the respective sensor signals are
formed for detecting the individual gas constituents, with
these differences being supplied to a processing unit, the
improvements comprising at least one of the individual sensor
elements comprising a catalytically inactive
$-Ga O thin film being provided with a catalytically active2 3
material, and with all the individual sensor elements being
provided on a common substrate in a planar arrangement.
As evidence of obviousness, the examiner relies on the
following prior art:
Firth et al. (Firth) 4,057,996 Nov. 15,
1977
Leary 4,347,732 Sep. 7,
1982
Clifford 4,542,640 Sep.
24, 1985
Takahashi et al. (Takahashi) 4,574,264 Mar.
4, 1986
Forster 4,584,867 Apr. 29,
1986
Appeal No. 1996-0841
Application No. 07/928,443
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Matsuura et al. (Matsuura) Re. 33,980 Jun. 30, 1992
Smith et al. (Smith) 1 562 623 Mar. 12,
1980
(Published Great Britain Patent Application)
Micheli et al. (Micheli), “Tin Oxide Gas Sensing Microsensors
From Metallo-Organic Deposited (MOD) Thin Films,” Ceram. Eng.
Sci. Proc., Vol. 8, pp 1095-1105 (1987).
The appealed claims stand rejected as follows:
(1) Claims 1 through 3, 5 through 24 and 30 under 35 U.S.C.
§ 103 as unpatentable over Clifford in view of Firth;
(2) Claim 4 under 35 U.S.C. § 103 as unpatentable over
Clifford and Firth as applied to claims 1 through 3, 5 through
24 and 30 above, and further in view of Takahashi;
(3) Claims 24 through 28 and 30 under 35 U.S.C. § 103 as
unpatentable over Clifford and Firth as applied to claims 1
through 3, 5 through 24 and 30 above, and further in view of
Forster;
(4) Claim 29 under 35 U.S.C. § 103 as unpatentable over
Clifford and Firth as applied to claims 1 through 3, 5 through
24 and 30 above, and further in view of Leary;
(5) Claims 31 and 32 under 35 U.S.C. § 103 as unpatentable
over Clifford and Firth as applied to claims 1 through 3, 5
Appeal No. 1996-0841
Application No. 07/928,443
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through 24 and 30 above, and further in view of Smith and
Matsuura; and
(6) Claim 33 under 35 U.S.C. § 103 as unpatentable over
Clifford and Firth as applied to claims 1 through 3, 5 through
24 and 30 above, and further in view of Micheli and Forster.
Having carefully reviewed the claims, specification and
applied prior art, including all of the arguments advanced by
both the examiner and appellants, we agree with appellants
that the examiner has not established a prima facie case of
obviousness regarding the claimed subject matter. Therefore,
we reverse each of the foregoing § 103 rejections for
essentially those reasons set forth by appellants in their
Brief and Reply Briefs. We add the following primarily for
emphasis.
The appealed subject matter as represented by the
broadest claim on appeal, claim 1, is directed to an improved
gas sensor array composed of a plurality of individual sensor
elements for detecting individual gas constituents in a gas
mixture. The improvement lies in using
at least one of the individual sensor elements
comprising a catalytically inactive $-Ga O thin film2 3
being provided with a catalytically active material,
and with all the individual sensor elements being
Appeal No. 1996-0841
Application No. 07/928,443
See claim 1.1
5
provided on a common substrate in a planar
arrangement.1
The examiner has relied only on Clifford and Firth to
establish obviousness of the broadest appealed subject matter
which is embraced by all of the claims on appeal. Thus, the
dispositive question here is whether the combined disclosures
of Clifford and Firth would have suggested to a person having
ordinary skill in the art to employ a catalytically inactive
beta-gallium oxide film together with a catalytically active
material to form at least one of the individual sensor
elements for detecting individual gas constituents in a gas
mixture. Compare Answer, pages 4-7, with Brief, pages 6-11.
We answer this question in the negative.
It is well settled that “the examiner bears the initial
burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). The burden of producing a factual basis to support a
Section 103 rejection rests on the examiner. In re Warner,
379 F.2d 1011, 1017, 154 USPQ 173, 177-78 (CCPA 1967).
Appeal No. 1996-0841
Application No. 07/928,443
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In the present case, we determine that the examiner has
not supplied a sufficient factual basis to employ
“catalytically inactive” beta-gallium oxide with a
catalytically active material to form at least one individual
sensor element. As stated by the examiner (Answer, page 5),
Firth teaches employing gas sensitive resistors consisting
essentially of gallium oxide. See column 1, lines 57-59.
This gallium oxide is suggested over other so-called
“catalytic metal oxides,” such as titanium dioxide, vanadium
pentoxide, chromium oxide and cerium oxide. See Firth, column
2, lines 32-56, together with Clifford, column 7, line 65 to
column 8, line 5. According to Firth (column 2, lines 42-56),
the catalytic metal oxides exhibit a characteristic which is
ill-adapted for use where it is required to provide
for fine adjustment of the composition of the inlet
mixture, especially in the important range of “lean”
mixtures.
Moreover, Firth does not indicate that the gallium oxide
employed is catalytically inactive or is in beta form. See
Firth in its entirety. Nor does it indicate that a
catalytically inactive film can be used together with a
catalytically active material. Id.
Appeal No. 1996-0841
Application No. 07/928,443
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The examiner’s reliance on Clifford does not remedy the
deficiencies of Firth. Clifford describes various gas sensors
which employ a combination of catalytic metal oxide materials.
See column 7, line 65 to column 8, line 53. Clifford
indicates that particular catalytic metal oxides known as
“activators” can be included in particular catalytic metal
oxide films to improve their detection of particular gases.
See column 8, lines 11-64. Nowhere does Clifford indicate
that those “activators” can be used together with a
catalytically inactive beta-gallium oxide film to enhance the
detection of any particular gas. See Clifford in its
entirety.
Given these circumstances, we cannot agree with the
examiner that the combined disclosures of Clifford and Firth
would have rendered the claimed subject matter prima facie
obvious to one of
ordinary skill in the art. Accordingly, we reverse the
examiner’s decision rejecting all of the appealed claims under
35 U.S.C. § 103.
REVERSED
Appeal No. 1996-0841
Application No. 07/928,443
8
Bradley R. Garris )
Administrative Patent Judge )
)
)
)
Chung K. Pak ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Terry J. Owens )
Administrative Patent Judge )
CKP:tdl
Appeal No. 1996-0841
Application No. 07/928,443
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