Ex Parte Vanderspurt et alDownload PDFPatent Trial and Appeal BoardDec 19, 201412302615 (P.T.A.B. Dec. 19, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte THOMAS HENRY VANDERSPURT, JAMES A. DAVIES, STEPHEN O. HAY, TIMOTHY N. OBEE, SUSANNE M. OPALKA, and DI WEI ____________ Appeal 2013-002470 Application 12/302,615 Technology Center 1700 ____________ Before, BEVERLY A. FRANKLIN, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 1–6 and 10–14. We have jurisdiction under 35 U.S.C. § 6. STATEMENT OF THE CASE Claim 1 is representative of the subject matter on appeal and is set forth below (with text in bold for emphasis): 1. An air purification system, comprising: a substrate; and at least one layer of photocatalysts, comprising a plurality of metal clusters; Appeal 2013-002470 Application 12/302,615 2 wherein the plurality of metal clusters are present in a lower concentration in a first region of the at least one layer of photocatalysts than in a second region of the at least one layer of photocatalysts, wherein said first region is exposed to ambient air. THE REJECTIONS 1. Claim 13 is rejected under 35 U.S.C. § 112, second paragraph, as indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. 2. Claims 1–4, 10, and 11 are rejected under 35 U.S.C. § 103(a) as unpatentable over Hirano (US 2003/0050196 A1, pub. Mar. 13, 2003) in view of Ogawa (US 5,643,436, iss. July 1, 1997). 3. Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as unpatentable over Hirano in view of Ogawa and Speer (US 6,315,963 B1, iss. Nov. 13, 2001). 4. Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable over Hirano in view of Ogawa and Kadoi (JP411228873A, Aug. 24, 1999). 5. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Hirano in view of Ogawa and Hemme (US 6,992,042 B2, iss. Jan. 31, 2006). 6. Claims 1–6 and 10–12 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as unpatentable over claims 1–9, 11–19, and 21 of co-pending Application No. 12/227,420. 7. Claims 1–6 and 10–12 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as unpatentable over claims 1–11 of copending Application No. 12/302,603 in view of Hirano. Appeal 2013-002470 Application 12/302,615 3 ANALYSIS We reverse rejections 2‒5, the § 103 rejections, for substantially the reasons provided by Appellants in their Brief. We add the following. Rejections 1, 6, and 7 Appellants do not appeal these rejections. Br. 2. We therefore summarily affirm these rejections. Cf. Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that a ground of rejection is waived when an appellant fails to contest the rejection and that the Board is free to affirm such an uncontested rejection without considering the merits). Rejection 2 At issue is whether the applied art suggests the aspect of claim 1 pertaining to “wherein the plurality of metal clusters are present in a lower concentration in a first region of the at least one layer of photocatalysts than in a second region of the at least one layer of photocatalysts, wherein said first region is exposed to ambient air”. On the one hand, it is the Examiner’s position that Ogawa teaches this aspect of the claimed subject matter. The Examiner states: Ogawa discloses a photocatalyst layered material that is utilized for purifying the air (column 2, lines 28‒42), wherein the photocatalyst comprises at least one layer of titanium dioxide modified with a noble metal cluster (column 3, lines 20‒40). The reference continues to disclose that the clusters are present in a lower concentration in a first region (referenced as the region comprising only numerals 50 and 54 as shown in Figure 15) of the at least one layer of photocatalysts than in a second region (referenced as the region comprising only numerals 52 and 54 as shown in Figure 15) of the at least one layer of Appeal 2013-002470 Application 12/302,615 4 photocatalysts, wherein said first region is exposed to ambient air (Figure 15) in order to create a structure with excellent strength and peel resistance during practical use (column 12, lines 20‒35). Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the photocatalyst layer of Hirano to include clusters that are present in a lower concentration in a first region of the layer of photocatalysts than in a second region of the layer of photocatalysts, wherein said first region is exposed to ambient air in order to create a structure with excellent strength and peel resistance during practical use as exemplified by Ogawa. Ans. 7–8. On the other hand, it is Appellants’ position, inter alia, that there is no support for the Examiner’s position that the TiPd2 metal clusters 54 are present in a lower concentration in a first region (the TiO2 phase 50) of the at least one layer of photocatalysts than in a second region (the Ti phase 52) of the at least one layer of photocatalysts, as claimed. Br. 4. Appellants explain that Ogawa’s Figure 15 shows TiPd2 metal clusters 54 evenly dispersed throughout the entire structure, and that Ogawa states that the “closer to the inner portion of this metal mixture, the more titanium dioxide in the metal mixture is replaced by metal titanium.” Br. 4. Ogawa, col. 12, ll. 12‒16. Appellants argue that this disclosure makes no reference to changing the amount of the TiPd2 metal clusters 54 towards the interior of the structure. Appellants point out that the amount of TiO2 50 is decreased and replaced by Ti, but there is no disclosure that the amount of TiPd2 metal clusters 54 is increased or decreased closer to the inner portion. Appellants argue that therefore there is no support for the Examiner’s position that the amount of TiPd2 metal clusters 54 is different towards the interior of the structure. Id. Appeal 2013-002470 Application 12/302,615 5 In response to this argument, it is the Examiner’s belief that the claimed “metal clusters” can be reasonably defined as both TiPd2 and Ti components shown in Figure 15 of Ogawa. Ans. 18. Hence, the Examiner argues that because the TiO2 components in Ogawa are replaced by the Ti components when the mixture reaches the inner portion, until all of the TiO2 components are replaced (Ogawa, col. 12, ll.12‒16), the result is that the metal clusters (TiPd2 and Ti) are present in a lower concentration in a region exposed to ambient air (region closest to surface as shown in Figure 15) than in a second region (inner portion as shown in Figure 15). Id. However, the above-mentioned claim interpretation given by the Examiner, i.e., that Ogawa’s Ti metal can be considered a “metal cluster” within the meaning of Appellants’ claim 1 contradicts Appellants’ Specification, which indicates that the metals used for the clusters can be any of the noble metals, and preferably gold, platinum, palladium, or any mixture thereof. Spec. p. 7, ll. 26–28. Titanium is not a noble metal. We note that during examination, claim terms must be given their broadest reasonable construction consistent with the Specification. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). Based upon the Examiner’s flawed claim interpretation, we reverse Rejection 2. We also reverse Rejections 3, 4, and 5 because the Examiner does not rely upon the other applied references to cure the above-mentioned deficiencies of the combination of Hirano in view of Ogawa. CONCLUSIONS OF LAW AND DECISION Rejections 1, 6, and 7 are summarily affirmed. Rejections 2, 3, 4, and 5 are reversed. Appeal 2013-002470 Application 12/302,615 6 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART mp Copy with citationCopy as parenthetical citation