Ex Parte Galligan et al

Board of Patent Appeals and Interferences

May 21, 2007

10376782 (B.P.A.I. May. 21, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL P. GALLIGAN,
ALBERT K. BOND AND
JOSEPH C. DETTLING
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Appeal 2007-1018
Application 10/376,782
Technology Center 1700
____________

Decided: May 21, 2007
____________

Before EDWARD C. KIMLIN, CATHERINE Q. TIMM, and LINDA M.
GAUDETTE, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 27-29 and 31-37.
Claim 27 is illustrative:
27. An exhaust treatment apparatus comprising:

a catalyzed open substrate having a substrate surface, and the
substrate selected from the group consisting of at least one of a honeycomb
Appeal 2007-1018
Application 10/376,782

member, woven mesh, non-woven mesh, wadded fibers and foamed metal,
the substrate defining a plurality of structural features selected from the
group consisting of apertures, pores and channels and dimensioned and
configured to permit the flows of fluid through the substrate, thereby
defining fluid flow paths through the substrate, the catalyzed substrate
having an electric arc sprayed metal anchor layer located on the substrate
surface of the fluid flow paths and a catalytic material located on the anchor
layer, the catalytic material comprising a bulk refractory metal oxide having
dispersed thereon one or more catalytically active metal components and the
anchor layer comprises nickel and aluminum; and

a canister having an inlet opening and an outlet opening and within
which the catalyzed substrate is enclosed, the analyzed substrate being
disposed between the inlet and outlet openings, whereby at least some of a
fluid flowing through the canister between the inlet and outlet openings
thereof is constrained to follow the fluid flow paths and thereby contact the
catalytic material disposed on the anchor layer.

The Examiner relies upon the following references as evidence of
obviousness:
Rondeau US 4,027,367 Jun. 7, 1977
Ishida US 4,455,281 Jun. 19, 1984
Fukui US 5,569,455 Oct. 29, 1996
Appellants' claimed invention is directed to an exhaust treatment
apparatus having a catalyzed substrate. An electric arc sprayed metal layer
is coated on the substrate before the catalytic material is deposited thereon.
The anchor layer comprises nickel and aluminum.
Appealed claims 27-29, 31, 32, 35, and 36 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Ishida in view of Rondeau.
Claims 33, 34, and 37 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the stated combination of references further in view of
Fukui.
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Application 10/376,782

Appellants do not set forth separate arguments for claims 27-29, 31,
32, 35, and 36. Accordingly, these claims stand or fall with claim 27. Also,
claims 33, 34, and 37 stand or fall together.
We have thoroughly reviewed each of Appellants' arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner's rejections for essentially those
reasons expressed in the Answer.
Appellants do not dispute the Examiner's factual determination that
Ishida, like Appellants, discloses an apparatus for treating exhaust
comprising a catalyzed open substrate comprising a metal honeycomb
member (3), which substrate defines a plurality of channels that are
dimensioned and configured to permit the flow of fluid through the
substrate, wherein the catalyzed substrate is "made by electric arc spraying
of molten metal anchor layer and a catalytic material on the anchor layer
(see, for example, col. 5, lines 2-13)" (page 3 of Answer, penultimate para.).
Also, the apparatus of Ishida comprises "a canister (2) having an inlet
opening and an outlet opening and within which the catalyzed substrate
(3) is enclosed; the catalyzed substrate (3) being disposed between the inlet
and outlet openings …" (page 3 of Answer, last para.). As appreciated by
the Examiner, and urged by Appellants, Ishida does not teach that the anchor
layer comprises nickel and aluminum, as presently claimed. Ishida teaches
that the metal anchor layer may be the same type of material as the metal
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Application 10/376,782

substrate, which includes thin steel plates, especially, thin stainless steel
plates.
Rondeau, as acknowledged by Appellants, expressly teaches
Appellants' electric arc spraying of a metal anchor layer comprising an alloy
of nickel and aluminum onto a metal substrate. While Appellants contend
that Rondeau provides no mention or suggestion "that such coatings would
be desirable as a surface for the deposition of a catalytic material for an
exhaust treatment apparatus to improve the adherence of the catalytic
material thereon" (page 10 of Brief, second para.), we concur with the
Examiner that it would have been obvious for one of ordinary skill in the art
to employ the specific, metal anchor layer of Rondeau in the apparatus of
Ishida "to obtain a catalyst that is highly resistant to peel-off and has a good
adhering property to the surfaces of the metal place [sic, plate]" (page 4 of
Answer, third para.).
Also, we find that the admitted prior art found in Appellants'
Specification buttresses the Examiner's conclusion of obviousness. In
particular, Appellants acknowledge that the US patent to
Gorynin et al., US 5,204,302, expressly teaches the flame or plasma
spraying of a metal adhesive, or anchor layer, comprising nickel and
aluminum to enhance the adhesion to the substrate of a subsequently applied
catalyst composition. Hence, the admitted prior art evidences that one of
ordinary skill in the art would have had the requisite reasonable expectation
of success with respect to the compatibility of a metal anchor layer
comprising nickel and aluminum in the exhaust treatment apparatus of
Ishida. We note that Appellants have advanced no reason why one of
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Application 10/376,782

ordinary skill in the art would have been dissuaded from using an anchor
layer comprising nickel and aluminum, which was admittedly known in the
art for bonding catalyst compositions to a metal substrate, in the apparatus of
Ishida.
We are not persuaded by Appellants' argument that "the disclosure of
Ishida teaches away from applicants [sic, applicants'] claimed invention
because the stainless steels specifically recited in Ishida do not contain
nickel and aluminum" (page 8 of Brief, first full para.). In our view, Ishida's
preference for a match between the metal of the substrate plate and the
anchor layer is not a teaching away from the claimed anchor layer. The
reference disclosure of steel for the substrate is only exemplary, not
exclusive, and presumably indicates a preference for optimum adhesion
between layers of the same material. We find that one of ordinary skill in
the art would have found it obvious to utilize a variety of compositions for
the metal anchor layer in Ishida, including the admittedly known
composition comprising aluminum and nickel. We note that Appellants
have not set forth an argument, let alone objective evidence, with respect to
unexpected results attached to the use of an anchor layer comprising
aluminum and nickel. Indeed, Appellants' Specification indicates that other
compositions for the anchor layer may be used as well, including the steels
employed by Ishida.
Regarding the § 103 rejection of claims 33, 34, and 37 over the
additional disclosure of Fukui, we completely agree with the Examiner that
Fukui establishes the obviousness of using a ceramic or metal material for
the catalytic substrate. As noted by the Examiner, Appellants have
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presented no objective evidence of unexpected results pertaining to the use
of a ceramic substrate instead of the metal substrate of Ishida. While
Appellants point out that Fukui "utilizes chemical vapor deposition to form a
catalyst bonding layer on the surface of a base material" (page 12 of Brief,
last para.), and not the molten metal spraying of Ishida and Rondeau,
Appellants have not explained why this difference in the choice of
deposition techniques would have rendered nonobvious the use of a ceramic
material, a known catalyst substrate, for the substrate of Ishida's apparatus.
Contrary to the argument made by Appellants, the Examiner's rejection does
not call for an addition of a ceramic base material to the metal substrate of
Ishida but, simply, the substitution of one known catalyst substrate for
another. (See para. bridging pages 12 and 13 of Brief).
In conclusion, based on the foregoing and the reasons set forth by the
Examiner, the Examiner's decision rejecting the appealed claims 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)(iv)(effective Sept.
13, 2004).
AFFIRMED

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