DETAILED ACTION
Claim 1 is amended.
Claim 3 is cancelled.
Claims 1-2, 4-20, 24 and 26 are pending, with claims 13-20, 24 and 26 being withdrawn.
Claims 1-2 and 4-12 are rejected.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 2, 4-5, 7-10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Leistner et al. “Volatilisation and subsequent deposition of platinum oxides from diesel oxidation catalysts” (Leistner), as provided by the IDS filed May 26, 2022, in view of Miyamoto et al. (JP 2005/245258 A) (Miyamoto).
Regarding claims 1-2 and 7-10, Leistner discloses volatilisation and subsequent deposition of platinum oxides from diesel oxidation catalysts (Leistner, Title and Abstract).
Leistner further discloses diesel oxidation catalysts (i.e., an oxidation catalyst composition) e.g., Pt/Al2O3, Pd-Pt/Al2O3 and Pd/Al2O3 comprising Pt, Pd particles (i.e., a plurality of platinum group metal particles) on alumina support (i.e., one refractory metal oxide support) (Leistner, Abstract; page 345, left column-first paragraph; page 339, 2.1 Catalyst preparation).
Leistner further discloses bimodal particle size distributions (i.e., a multi-modal distribution of particle sizes), with a majority of particles below 5 nm (i.e., a first population of platinum group metal particles), and a second peak appearing centered above roughly 10 nm (i.e., a second population of platinum group metal particles) (Leistner, page 345, right column-first paragraph; page 346, Fig. 7; page 349, Fig. 11).
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Leistner does not explicitly teach the second population of platinum group metal particles has a particle size distribution characterized by an average particle size of about 6 nm and platinum group metal at least about 80% of the second population of platinum group metal particles have a particle size within about 2 nm of the average particle size, as presently claimed.
With respect to the difference, Miyamoto teaches filter tip containing platinum nano particles (Miyamoto, Title and Abstract).
Miyamoto further teaches platinum fine particles having excellent nitric oxide removal ability at relatively low temperature as an effective oxidation catalyst for exhaust gas (e.g., nitric oxide) treatment of diesel engine at a hot environment, e.g., 400 to 500 °C (Miyamoto, page 1 – TECHNICAL-FIELD; page 2, first and second full paragraphs).
Miyamoto further teaches a particle size distribution, where an average particle diameter of the platinum nanoparticles being 1 to 10 nm, preferably about 1 to 5nm and particularly preferably 1 to 3 nm, as well as a restriction of 90% of the particles within 0.1 to 10nm and/or in the range of 1-3nm (Miyamoto, page 4, third paragraph),
wherein the average particle diameter overlaps the claimed, and
wherein the distribution of the particles with respect to the average particle size overlaps the claimed range.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As Miyamoto expressly teaches, platinum nanoparticles having an average particle size of 1 to 10 nm have excellent nitric oxide removal ability (Miyamoto, page 4, third paragraph).
Miyamoto and Leistner are analogous art as they are both drawn to oxidation catalyst (e.g., platinum) for exhaust gas (e.g., nitric oxide) treatment.
In light of the motivation of having the particle size distribution of platinum nanoparticles disclosed by Miyamoto as described above, it would therefore have been obvious to one of ordinary skill in the art to have the size distribution of Miyamoto for the second population of platinum group metal particles of Leistner, in order to provide excellent exhaust gas (e.g., nitric oxide) removal ability, and thereby arrive at the claimed invention.
Regarding claim 2, as applied to claim 1, Leistner discloses a majority (i.e., greater than 50%) of particles below 5 nm (i.e., the first population of platinum group metal particles), which overlaps the claimed range (Leistner, page 345, right column-first paragraph; page 346, Fig. 7).
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 4, as applied to claim 1, Leistner discloses a majority (i.e., greater than 50%) of particles below 5 nm (Leistner, page 345, right column-first paragraph; page 346, Fig. 7).
Leistner further discloses the particle size distributions can be varied at different temperatures (Leistner, page 345, right column-first paragraph, Fig. 7, Fig. 11), therefore, it would have been obvious to one having ordinary skill in the art to have determined the optimum value of a cause effective variable such as the ratio (e.g., ratio by weight) of the particles in multiple populations through routine experimentation in the absence of a showing of criticality. In re Woodruff, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990).
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 5, as applied to claim 1, Miyamoto further teaches an average particle diameter of the platinum nanoparticles being 1 to 10 nm (Miyamoto, page 4, third paragraph), which overlaps the claimed range.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 12, as applied to claim 9, Leistner further discloses the first peak and the second peak of the particle size distributions are from one sample Pt/Al2O3 (i.e., the same refractory metal oxide support) (Leistner, page 345, right column-first paragraph, Fig. 7, Fig. 11).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Leistner et al. “Volatilisation and subsequent deposition of platinum oxides from diesel oxidation catalysts” (Leistner), as provided by the IDS filed May 26, 2022 in view of Miyamoto et al. (JP 2005/245258 A) (Miyamoto) as applied to claim 1 above, and taken in view of evidence by Ho et al., “The role of Pd−Pt Interactions in the Oxidation and Sulfur Resistance of Bimetallic Pd−Pt/γ-Al2O3 Diesel Oxidation Catalysts” (Ho).
Regarding claim 6, as applied to claim 1, Leistner further teaches diffractogram of Pt/Al2O3 from X-ray diffraction (XRD) analysis, which shows characteristic of Pt (111), (220) and (311) (Leistner, page 345, Fig. 6a and left column, third full paragraph), indicating metallic form of platinum (i.e., reduced Pt), as evidenced by Ho (Ho, page 6601, left column – first full paragraph and Fig. 4).
Ho further teaches no other oxide phase of Pt being identified in Pt/Al2O3 even at 700 °C in an oxidizing environment (Ho, page 6601, left column – first full paragraph), it would have been obvious to one having ordinary skill in the art that the Pt in Leistner can be fully metallic (i.e., in fully reduced form), and thereby arrives the claimed invention.
Claims 1, 2 and 5-12 are rejected under 35 U.S.C. 103 as being unpatentable over Wei et al. (US 2019/0046958 A1) (Wei ‘958), as provided by the IDS filed 09/18/2023, in view of Miyamoto et al. (JP 2005/245258 A) (Miyamoto).
Regarding claim 1, 7-10 and 12, Wei ‘958 discloses an oxidation catalyst composition for treatment of gas engine emissions, where the oxidation catalyst composition comprises at least one platinum group metal (PGM) in the form of nanoparticles (i.e., a plurality of platinum group metal particles) (Wei ‘958, Title and Abstract).
Wei ‘958 further discloses the PGM can be supported on a porous refractory oxide material (Wei ‘958, [0045]) (i.e., the same refractory metal oxide support), e.g., alumina, silica, zirconia, titania, ceria, and physical mixtures or chemical combinations thereof, including atomically-doped combinations (Wei ‘958, [0056]).
Wei ‘958 further discloses a catalyst prepared from non-colloidal, soluble platinum metal solution precursors, which can exhibit a significant number of particles <1 nm in size (i.e., a first population of platinum group metal particles), and a bimodal (i.e., multi-modal) distribution of particle sizes with a few particles >10 nm (i.e., a second population of platinum group metal particles having a range of particle sizes) (Wei ‘958, [0054]).
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Wei ‘958 does not explicitly teach the second population of platinum group metal particles has a particle size distribution characterized by an average particle size of about 6 nm and platinum group metal at least about 80% of the second population of platinum group metal particles have a particle size within about 2 nm of the average particle size, as presently claimed.
With respect to the difference, Miyamoto teaches filter tip containing platinum nano particles (Miyamoto, Title and Abstract).
Miyamoto further teaches platinum fine particles having excellent nitric oxide removal ability at relatively low temperature as an effective oxidation catalyst for exhaust gas (e.g., nitric oxide) treatment of diesel engine at a hot environment, e.g., 400 to 500 °C (Miyamoto, page 1 – TECHNICAL-FIELD; page 2, first and second full paragraphs).
Miyamoto further teaches a particle size distribution, where an average particle diameter of the platinum nanoparticles being 1 to 10 nm, preferably about 1 to 5nm and particularly preferably 1 to 3 nm, as well as a restriction of 90% of the particles within 0.1 to 10nm and/or in the range of 1-3nm (Miyamoto, page 4, third paragraph),
wherein the average particle diameter overlaps the claimed, and
wherein the distribution of the particles with respect to the average particle size overlaps the claimed range.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As Miyamoto expressly teaches, platinum nanoparticles having an average particle size of 1 to 10 nm have excellent nitric oxide removal ability (Miyamoto, page 4, third paragraph).
Miyamoto and Wei ‘958 are analogous art as they are both drawn to oxidation catalyst (e.g., platinum) for exhaust gas (e.g., nitric oxide) treatment.
In light of the motivation of having the particle size distribution of platinum nanoparticles disclosed by Miyamoto as described above, it would therefore have been obvious to one of ordinary skill in the art to have the size distribution of Miyamoto for the second population of platinum group metal particles of Wei ‘958, in order to provide excellent exhaust gas (e.g., nitric oxide) removal ability, and thereby arrive at the claimed invention.
Regarding claim 2, as applied to claim 1, Wei ‘958 further discloses nanoparticles that can have an average size of about 1 to about 10 nm, and at least 90% of the nanoparticles have a particle size that is within about 2 nm (Wei ‘958, [0054]), which overlaps the claimed range.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 5, as applied to claim 1, Wei ‘958 further discloses nanoparticles that can have an average size of about 1 to about 10 nm (Wei ‘958, [0054]), which overlaps the claimed range.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 6, Wei ‘958 further discloses about 90% or more of the platinum group metal can be fully reduced form (Wei ‘958, [0054]).
Regarding claim 11, Wei ‘958 further discloses the refractory oxide material can include atomically-doped combination of alumina (i.e., Al2O3) and silica (i.e., SiO2), zirconia (i.e., ZrO2), titania (i.e., TiO2), and ceria (i.e., CeO2), e.g., zirconia doped with 5% CeO2 (Wei ‘958, [0056]; [0136]).
Given the interchangeability of zirconia with alumina, and CeO2 with SiO2 as disclosed by Wei ‘958, it would therefore been obvious to one of ordinary skill in the art that the refractory metal oxide support can comprise Al2O3 doped with 5% SiO2, TiO2 doped with 5% SiO2, or ZrO2 doped with 5% SiO2, and thereby arrive claimed invention.
Response to Arguments
In response to the amended claim 1, which incorporates the limitation recited in previous claim 3 that is now canceled, the previous claim objections are withdrawn.
Applicants primarily argue:
“Miyamoto relates to a completely different application where the catalyst is used for cigarette filters operating at room temperature, which are wholly unrelated to the diesel oxidation catalysts of Leistner.”
Remarks, page 6
The Examiner respectfully traverses as follows:
While Miyamoto may have a different end use, Miyamoto teaches platinum nanoparticles having an average particle size of 1 to 10 nm have excellent nitric oxide removal ability (Miyamoto, page 4, third paragraph). Therefore, it is the examiner’s position that it would therefore have been obvious to one of ordinary skill in the art to have the size distribution of Miyamoto for the second population of platinum group metal particles of Leistner, in order to provide excellent exhaust gas (e.g., nitric oxide) removal ability, absent evidence to contrary.
Applicants further argue:
“no part of Miyamoto identifies that the catalytic particles have a size distribution as disclosed in amended claim 1. Miyamoto simply mentions that "it is preferable that 90% or more of the platinum nanoparticles have a particle diameter in the range of 0.1 to 10 nm" without suggesting platinum nanoparticles having two distinct size population as in the amended claim 1: a first population from about 0.5 nm to about 3 nm and a second population from about 4 nm to about 15 nm”
Remarks, page 6
The Examiner respectfully traverses as follows:
Leistner is used to teach the claimed particle size distribution in amended claim 1, i.e., a plurality of platinum group metal particles having a multi-modal distribution of particle sizes, the plurality of platinum group metal particles comprising: a first population of platinum group metal particles having a range of particle sizes of from about 0.5 nm to about 3 nm; and a second population of platinum group metal particles having a range of particle sizes of from about 4 nm to about 15 nm. It is noted that while Miyamoto does not disclose all the features of the present claimed invention, Miyamoto is used as teaching reference, namely wherein the particles have a particle size distribution characterized by an average particle size of about 6 nm and at least about 80% of the second population of platinum group metal particles have a particle size within about 2 nm of the average particle size, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, and in combination with the primary reference, discloses the presently claimed invention.
Applicants further argue:
“the filter in Miyamoto where platinum nanoparticles are suggested to be implemented in a significant different operating environment compared to the present application.”
Remarks, pages 6-7
The Examiner respectfully traverses as follows:
It is noted that while Miyamoto does not disclose all the features of the present claimed invention, Miyamoto is used as teaching reference, namely the second population of platinum group metal particles has a particle size distribution characterized by an average particle size of about 6 nm and platinum group metal at least about 80% of the second population of platinum group metal particles have a particle size within about 2 nm of the average particle size, in order to provide excellent exhaust gas removal ability, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, and in combination with the primary reference, discloses the presently claimed invention.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/J.Z./Examiner, Art Unit 1732
/CORIS FUNG/Supervisory Patent Examiner, Art Unit 1732
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