DETAILED ACTION
Application 18/060332, “ELECTROCHEMICAL CELL EXHAUST MANAGEMENT SYSTEM”, was filed with the USPTO on 11/30/22.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Office Action on the merits is in response to communication filed on 7/14/26.
Response to Arguments
Applicant’s arguments filed on 7/14/26 have been fully considered, but are not persuasive. Applicant presents the following arguments.
The office action states that SrZrO3 is presumed to have the required property implicitly, but has not identified a disclosure in Liu which discloses the claimed feature. Such a presumption is insufficient to establish inherency because an inherent limitation must necessarily and inevitably flow from the disclosure of the prior art reference, not merely be presumed or considered likely.
In response, MPEP 2112 V clarifies the Office’s initial burden, stating that “In relying upon the theory of inherency, the examiner must provide a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristic necessarily flows from the teachings of the applied prior art” [emphasis added] (MPEP 2112 IV). Thus, the Office is not required to conclusively prove that the property in question is present [such as by scientific testing in a laboratory], but must demonstrate with evidence and technical reasoning, why the property is believed to be and appears to be present. In this case, the examiner has presented rationale based upon technical reasoning to support the finding of inherency as described in the art rejections in detail. Specifically, the examiner finds that the prior art disclosed oxides [SrZrO3 and BaZrO3] are consistent with applicant’s formula II and the compounds shown by applicant to possess the properties required of claim 1. By this presentation of technical reasoning, the Examiner has met the required initial burden for establishing inherency.
Therefore, the burden has shifted to applicant to prove that the prior art invention does not possess the allegedly inherent structure (MPEP 2112 V). Applicant’s argument that the allegedly inherent properties are actually not present has not been found persuasive at least because applicant has not presented persuasive evidence to support such a conclusion. Applicant merely points out that the Examiner has not proven that the allegedly inherent properties are present, and has not submitted any evidence in support of a position that neither of the SrZrO3 and BaZrO3 disclosed by Liu would possess the claimed properties.
Applicant has developed a screening methodology to determine whether or not certain materials possess the properties recited in claim 1, thus every oxide encompassed by Formula II does not automatically possess the claimed properties.
In response, firstly, claim 1 is drawn to a product, not a method of testing. Thus, the prior art is not required to disclose testing in the same manner as does applicant. Secondly, applicant’s argues that every compound consistent with formula II does not possess the claimed properties, but has not supported this argument with any evidence. For example, the as-filed detailed description does not appear to state that some compounds consistent with formula II will not possess the properties recited in claim 1, and does not appear to include examples of compounds which are consistent with chemical formula II, but lack the claimed properties. Lastly, the Office has not relied on every compound consistent with formula II, but instead relies specifically on SrZrO3 and BaZrO3. BaZrO3 is expressly disclosed as being an example of “the at least one metal oxide” which possesses the required properties as described in applicant’s published paragraphs [0012-0016] and Table 2. SrZrO3 is consistent with applicant’s formula II, and the office action notes that barium is adjacent to strontium among the alkaline earth metals, thus similar properties are expected. There is no counter evidence that these compounds, specifically, would not possess the required properties.
Claim 9 has been amended to recite, “An electrochemical cell chrome-getter material comprising: at least one metal oxide with an alkaline earth metal forming a surface portion on a component positioned in an exhaust portion of the cell on an exhaust side of a cathode, the oxide being reactive with Cr(HO₂)₂ and an aluminum-based metal surface…” [emphasis added by italics]. Liu is deficient with respect to claim 9 because Liu does not teach positioning the chrome getter material [i.e. a certain metal oxide] on a component located in the exhaust portion of a cell as recited. The same argument is again applied to the rejection based on Nielson.
In response, it has been held that “the inclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims”. (MPEP 2115) Here, claim 9 is drawn to “[a]n electrochemical cell chrome-getter material” as indicated by the preamble of the claim, not to an electrochemical cell or a method of using a chrome-getter material. The claim includes recitations indicating that the chrome-getter material is to be used “on a component positioned in an exhaust portion of the cell on an exhaust side of a cathode”; however, the recited cell and component are not the material. Therefore, these features are not found to patentably limit the claimed product, which is the chrome-getter material.
Regarding claim 16, applicant further argues that the office action does not identify where Liu discloses “a component in an exhaust portion of the cell on the exhaust side of the cathode” employing the chromium-getter oxides.
In response, applicant’s argument is not found persuasive at least because claim 16 does not require “a component in an exhaust portion of the cell on the exhaust side of the cathode”.
Claim 2 requires that the component is “located in a airflow that is downstream of a cathode flow field”. The office action finds that “[a]s the claim is drawn to a singular component not a whole electrochemical cell, the location of the component, if included in a cell, is not structurally limiting of the component itself”. Applicant disagrees, finding that the claim positively recites the location of the claimed component and therefore limits the claimed subject matter.
In response, as described in MPEP 2114 II, the manner in which a claimed device is employed does not patentably distinguish the device. Here, the added limitations of claim 2 describe a manner of using the component and does not structurally limit the component itself because claim 1 is drawn to “[a] high temperature electrical cell component”, not to the electrochemical cell [as is claim 16], and not to a method of using the component. Applicant must amend the preamble [or cancel claim 1 and expand upon claim 16] in order to pursue subject matter drawn to a system including components other than the high temperature electrochemical cell component.
The Office relies on Fig. 19 to disclose a surface portion forming a non-continuous layer on a bulk portion as required in claim 17; however, the schematic cross sectional illustration depicting a surface layer at different interfaces and multiple locations in the drawing does not demonstrate that the layer is discontinuous comprising spaced-apart regions separated by exposed portions of the bulk portion.
In response, applicant’s argument is based on an interpretation of “a non-continuous layer on the bulk portion” that is narrower than the actually claimed recitation. Claim 17 merely adds that the surface portion forms a non-continuous layer on the bulk portion. Figure 19 teaches a component comprised of a surface layer formed on a bulk portion. Each of these components is present in its own respective horizontal layers within the fuel cell 1410. Moreover, neither of the layers are continuous in Fig. 19; therefore, they are each non as they are present as non-continuous horizontal layers, with the non-continuous layer surface layer formed on the bulk portion, thereby teaching the feature as claimed.
The Office has asserted that BaZrO3 and SrZrO3 would be expected to provide the same properties based on similarity of materials considering that Ba and Zr are adjacent members of the alkaline earth metal group and therefore substitution between the two is obvious; however, no evidence is supplied in support of the assertion.
In response, it has been held that “[a] prima facie case of obviousness may be made when chemical compounds have very close structural similarities and similar utilities” (MPEP 2144.09). Here, the periodic table is designed to group elements in terms of their valence electrons, which are significant in determining the chemical properties of the element. Additionally, proximity of rows in the periodic table indicates closeness in terms of atomic mass. Being aware of this, a skilled artisan would have presumed similar behavior between the BaZrO3 and SrZrO3 compounds, just as alleged in the office action. Additionally, it is noted that Liu groups the compounds SrZrO3 and BaZrO3 together as examples within the group of “non-ionic conductive ceramic phases” at paragraph [0128], supporting the case for chemical similarity leading to functional similarity between the two compounds. Thus, the technical case supporting similarity has been properly established. As further described in MPEP 2144.09 VII, once such a prima facie case of obviousness has been presented, the burden shifts to applicant to demonstrate a nonobvious difference using appropriate evidence. No such appropriate evidence has been presented in this case, thus the argument is not found persuasive. The arguments of counsel cannot take the place of evidence in the record (MPEP 716.01(c) II).
Liu does not select SrZrO3 or BaZrO3 because of any chromium-getter functionality, and instead the Office’s reasoning is based on applicant’s disclosure using impermissible hindsight.
In response, as stated in MPEP 2144 IV, “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” Here, applicant argues that the rejection is deficient simply because it is not crafted with art recognizing of the chromium-getter functionality of SrZrO3 or BaZrO3. However, as shown, this is not the standard under US patent obviousness [or anticipation] analysis. As to the argument of impermissible hindsight, the argument is not found persuasive because the rejection rely only on the teachings of the cited art and abilities of the person having ordinary skill in the art at the time of invention.
The office actions states that, “BaZrO3 is more directly taught to be an oxide having the required properties, as it is alone recited in claim 7”; however, claim 7 is part of the present application and cannot serve as evidence of what the prior art teaches or would have suggested to one of ordinary skill in the art.
In response, any evidence may be relied on to support a case of inherent properties, such as the properties of a material when the material is disclosed by the prior art. MPEP 2112 I clarifies that applicant’s discovery of new properties of a prior art material does not render the old composition patentable, while MPEP 2112 II goes on to explain that the prior art need not even recognize the presence of the properties. Thus, applicant’s disclosure is useful as evidence for demonstrating properties of materials present in the prior art. It is noted that applicant’s paragraph [0012-0016] and Table 2 also indicate that BaZrO3 possess the claimed properties, thus those sections may be relied on for evidentiary support in addition to the claim 7.
Regarding claim 9, Nielson does not disclose the claimed properties; therefore, Nielson does not anticipate claim 9.
In response, as described above, the prior art is not required to disclose claimed properties, which are inherent materials properties. The office action makes the case that the SrCoO2.5 of Nielson would possess the claimed properties because it is an oxygen vacancy rich variant of SrCoO3 disclosed by Nielson to provide a getter function (paragraph [0084]), with SrCoO3 being disclosed by applicant to be both a known chromium getter material (applicant’s published paragraph [0062]) and a disclosed embodiment of a suitable chrome-getter materials reactive with Cr-O-H species of applicant’s disclosure at published paragraph [0076-0085]). As previously described above with respect to the rejections over Liu, the prior art is not required to demonstrate awareness of the claimed materials properties recited in the claims.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim Rejections - 35 USC § 103
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 of this title, 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.
Claims 1-3, 6, 9, 12, 16, 17 and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Liu (US 2012/0321994).
Alternatively, claims 1-3, 6, 9, 12, 16, 17 and 20 is/are rejected under 35 U.S.C. 103 as being obvious over Liu (US 2012/0321994).
Claims 7, 13 and 18 is/are rejected under 35 U.S.C. 103 as being obvious over Liu (US 2012/0321994).
Regarding claims 1 and 6, Liu teaches a component (e.g. Fig. 10 items 52 and 104; alternatively, Fig. 19 items 52 and 108) for a high temperature electrochemical cell (non-limited statement of intended use; for completeness of record, see [0037] which teaches SOFC applications), the component comprising: a bulk portion (item 52); and a surface portion (“chemical barrier layer 104” of paragraph [0099] forms a surface portion on item 52) including one or more alkaline earth metal-containing, cobalt free and nickel free, oxides, such as SrZrO3 (paragraph [0099]).
Liu does not expressly teach that the SrZrO3 is a material which is reactive with Cr(HO2)2 such that a most stable reaction between each one of the oxides and the Cr(HO2)2 has a reaction energy of about −0.1 to −0.35 eV/at, the oxide(s) being non-reactive with water, the high temperature electrochemical cell having an operating temperature of about 600-1000° C. However, the reactive nature of a compound is a materials property which is implicit to the compound. Here, SrZrO3 is consistent with applicant’s Formula II and is therefore presumed to have the required property implicitly (see applicant’s published paragraph [0087]), thus claim 1 is anticipated by Liu.
Alternatively, Liu more broadly teaches that the chemical barrier may include “a ceramic with low ionic conductivity” of which SrZrO3 is an exemplary species at paragraph [0099], but further teaches that species of non-ionic conductive ceramic phases also includes BaZrO3 at paragraph [0128]. In consideration of this teaching, and noting that barium is adjacent to strontium among the alkaline earth metals, it would have been obvious to utilize BaZrO3 in the chemical barrier layer 104 with the expectation of similar results. Claim 1 is alternatively found to be obvious in view of this modification, noting that BaZrO3 is more directly taught to be an oxide having the required properties, as it is alone recited in claim 7.
Regarding claim 2, Liu remains as applied to claim 1. As the claim is drawn to a singular component not a whole electrochemical cell, the location of the component, if included in a cell, is not structurally limiting of the component itself.
Regarding claim 3, Liu remains as applied to claim 1. As the claim is drawn to a singular component not a whole electrochemical cell, the recited type of electrochemical cell, i.e. an SOFC, does not limit the component of claim 1 to any particular structure beyond that recited in claim 1.
Regarding claim 7, Liu remains as applied to claim 1. Liu more broadly teaches that the chemical barrier may include “a ceramic with low ionic conductivity” of which SrZrO3 is an exemplary species at paragraph [0099], but further teaches that species of non-ionic conductive ceramic phases also includes BaZrO3 at paragraph [0128]. In consideration of this teaching, and noting that barium is adjacent to strontium among the alkaline earth metals, it would have been obvious to utilize BaZrO3 in the chemical barrier layer 104 with the expectation of similar results.
Regarding claim 9 and 12-13, Liu remains as applied to claim 1. Liu teaches getter materials such as SrZrO3 or BaZrO3, which possess the chemical reactivity properties recited in claim 9, and which are not SrCoO3 or SrNiO3.
Claim 9 further requires that the metal oxide is present in an electrochemical cell exhaust system. However, this limitation is found to be non-limiting since claim 9 is drawn to a material, not a use for a material and not an electrochemical cell exhaust system including the material. For completeness of record, it is noted that the Fig. 19 embodiment suggests a metal oxide (item 108) present in an electrochemical cell exhaust system (oxidant enters and air-side reaction products exhaust from the side marked 18 in the figure).
Regarding claim 16 and 20, Liu teaches a solid oxide fuel cell (e.g. Fig. 19) comprising: a solid electrolyte (item 26) separating a cathode (item 42) and an anode (item 40), an anode flow field (within item 1414; paragraph [0027, 0122]) downstream from the anode, and a cathode flow field (item 18) downstream from the cathode and including at least one component (items 52, 108) having a bulk portion (item 52) forming a base to a surface portion (item 108) including one or more cobalt-free and nickel-free alkaline earth metal-containing Cr-getter oxides, such as SrZrO3 (paragraph [0129]). SrZrO3 is found to have the properties required for the surface portion of the component for reasons previously given in the rejection of claim 1.
Liu further suggests that the SrZrO3 could be replaced with BaZrO3 as previously described in the rejection of claim 1. Thus, these claims are found to be anticipated in view of the SrZrO3 embodiment or obvious in view of the BaZrO3 embodiment.
Regarding claim 17, Liu remains as applied to base claim 16. Liu further teaches wherein the surface portion forms a non-continuous layer on the bulk portion (see multiple parts of the layer 104 in Fig. 19; it is noted that the base claim cites Fig. 19 and previously maps item 108 as the surface portion; both items 104 and 108 are non-continuous layers on bulk portion 52).
Regarding claim 18, Liu remains as applied to base claim 16. Liu further teaches that “one or more other types of non-conducting ceramics” may be used as the layer 108 at paragraph [0129], thus it would have been obvious to include one or more oxides in a combination of oxides as claimed.
Claims 9 and 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nielsen (US 2010/00119886).
Regarding claims 9 and 15, Nielsen teaches SrCoO2.5 as a coating metal oxide for an interconnect of an electrochemical cell (paragraphs [0073-0077]).
SrCoO2.5 is found to be readable on the claimed chrome getter material because it is a getter material which is not SrCoO3, but is instead an oxygen vacancy rich variant thereof, and it provides the chrome getter function (paragraph [0084]).
Claim 9 further requires that the metal oxide is present in an electrochemical cell exhaust system. However, this limitation is found to be non-limiting since claim 9 is drawn to a material, not a use for a material and not an electrochemical cell exhaust system including the material. For completeness of record, it is noted that an interconnect such as of Nielsen is designed in part to convey gases to and from the reaction zone.
Relevant or Related Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, though not necessarily pertinent to applicant’s invention as claimed.
Liu (US 2013/0216925) fuel cell comprising metal oxide comprising components
Higashino (US 2018/0375114) teaches a solid electrolyte comprising BaZrO3 on surface of the solid electrolyte;
Goettler (US 2019/0341633) fuel cell comprising an oxide barrier layer
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMIAH R SMITH whose telephone number is (571)270-7005. The examiner can normally be reached Mon-Fri: 9 AM-5 PM (EST).
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/JEREMIAH R SMITH/Primary Examiner, Art Unit 1723
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