Ex Parte Liu et alDownload PDFPatent Trial and Appeal BoardOct 24, 201413093492 (P.T.A.B. Oct. 24, 2014) Copy Citation 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. 13/093,492 04/25/2011 Meilin Liu TOY 2007-064 VA/22562-447 8805 96411 7590 10/24/2014 Dinsmore & Shohl LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 EXAMINER LEONG, JONATHAN G ART UNIT PAPER NUMBER 1725 MAIL DATE DELIVERY MODE 10/24/2014 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 MEILIN LIU, XIAOBING ZHU, MIN KYU SONG, JOHN G. MULDOON and KOHEI HASE ____________________ Appeal 2013-000239 Application 13/093,492 Technology Center 1700 ____________________ Before JEFFREY T. SMITH, LINDA M. GAUDETTE, and JAMES C. HOUSEL, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision to reject claims 1 through 20. We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2013-000239 Application 13/093,492 2 The claims are directed to an anhydrous fuel cell electrode. App. Br. 2. Claim 1 illustrates the subject matter on appeal and is reproduced below: 1. An anhydrous fuel cell electrode comprising an anhydrous catalyst layer and a gas diffusion layer, wherein the anhydrous catalyst layer comprises: at least one catalyst, about 5 mg/cm2 to about 100 mg/cm2 of phosphoric acid added as a sol-gel reaction catalyzing reagent during formation of the catalyst layer, and a binder comprising at least one triazole modified polymer, wherein the triazole modified polymer comprises a polysiloxane backbone and a triazole substituent. The Examiner relied on the following references in rejecting the appealed subject matter: Totsuka US 2002/0004159 Al Jan. 10, 2002 Li (Li ‘530) US 2006/0111530 Al May 25, 2006 Sano1 WO 2006/003943 A1 Jan. 12, 2006 Fardad, “Catalysts and the structure of SiO2 sol-gel films,” Journal of Materials Science 35, 1835-1841 (2000). Li, Siwen, et al., “1 H-1,2,4-Triazole: An Effective Solvent for Proton-Conducting Electrolytes,” Chem. Materials 17, 5884-5886 (Nov. 2005). 1 The Examiner relied on U.S. Patent Application Publication No. 2007/0166601 Al to Sano, published on July 19, 2007, as the English equivalent to Sano’s WO 2006/003943 A1 reference. Accordingly, any reference in our opinion to Sano will be to the U.S. Patent Application Publication. Appeal 2013-000239 Application 13/093,492 3 Appellants (App. Br. 3–4) request review of the following rejection from the Examiner’s Final Office Action: Claims 1–20 rejected under 35 U.S.C. § 103(a) as unpatentable over Totsuka, Li, Sano, Fardad, and Li ’530. OPINION Prior Art Rejection under 35 U.S.C. § 103(a) The dispositive issue on appeal is: Did the Examiner err in determining that the combined teachings of Totsuka, Li, and Sano would have led one skilled in the art to an anhydrous fuel cell comprising an anhydrous catalyst layer comprising at least one catalyst, phosphoric acid and a binder comprising at least one triazole modified polymer as required by the subject matter of independent claims 1, 9 and 15?2, 3 After review of the respective positions provided by Appellants and the Examiner, we REVERSE the Examiner’s prior art rejection for the reasons presented by Appellants. The Examiner found Totsuka discloses a fuel cell electrode comprising a catalyst layer and a gas diffusion layer. Final Act. 2; Totsuka Abstract, ¶¶ 2, 43, and 44. The Examiner found Totsuka does not disclose a catalyst layer comprising phosphoric acid or a triazole modified polymer. Final Act. 2. The Examiner found that Li teaches using a triazole modified polymer enhanced with phosphoric acid to yield electrolyte membranes 2 We limit our discussion to the independent claims. 3 A discussion of Fardad and Li ’530 is unnecessary for disposition of this appeal. The Examiner relied upon these references for features not related to the dispositive issue. Appeal 2013-000239 Application 13/093,492 4 having high proton conductivity with no dependence on humidity at temperatures above 100 °C. Final Act. 2–3; Li 5884–5885. The Examiner found it would have been obvious to one having ordinary skill in the art to incorporate Li’s triazole modified polymers and phosphoric acid as the ion- exchange resin for the membrane and binder in Totsuka’s fuel cell electrode to provide an anhydrous fuel cell with an anhydrous catalyst layer in view of the benefits taught by Li and further in view of Sano’s disclosure that it is known to use the same ion-exchange resin for both the membrane and catalyst layer of the fuel cell. Final Act. 3; Li 5884; Sano ¶ 56. Appellants argue Totsuka is directed to hydrous catalyst layers comprising humidified resins. App. Br. 5-6; Totsuka ¶¶ 43, 44. Appellants argue Li teaches using a modified triazole polymer in an electrolyte membrane and not in a catalyst layer as claimed. App. Br. 5–6; Li 5884– 5885. According to Appellants, there is no suggestion for one skilled in the art to substitute the humidified resins of Totsuka’s catalyst layer with Li’s modified triazole polymer given Totsuka's emphasis on hydrous catalyst layers absent Appellants’ disclosure. App. Br. 6. We agree. The Examiner does not dispute that Totsuka is directed to hydrous catalyst layers. See Ans. 7–10, generally; App. Br. 5; Totsuka ¶¶ 43, 44. While the Examiner proposes to modify the fuel cell electrode of Totsuka by incorporating Li’s triazole modified polymer for the polymer of both Totsuka’s diffusion membrane layer and catalyst layer (Final Act. 3), the Examiner has not adequately explained why the triazole modified polymer of Li would have been suitable for the electrode of Totsuka given that Totsuka is not directed to an anhydrous fuel cell electrode. The Examiner has not directed us to a section of Totsuka that would have Appeal 2013-000239 Application 13/093,492 5 suggested to one skilled in the art the desirability of using a fuel cell with an anhydrous catalyst layer. Under these circumstances, we cannot conclude that the Examiner has met the minimum threshold of establishing obviousness under 35 U.S.C. § 103(a). See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Because the Examiner has not established obviousness of the claimed invention, we do not reach Appellants’ evidence of unexpected results. App. Br. 8. Accordingly, we reverse the Examiner’s prior art rejection of claims 1–20 under 35 U.S.C. § 103(a) for the reasons given above and presented by Appellants. ORDER The Examiner’s prior art rejection is reversed. REVERSED cam Copy with citationCopy as parenthetical citation