DETAILED ACTION
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
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 and 4-10 are rejected under 35 U.S.C. 103 as being unpatentable over Nakamura et al. (US 2009/0280978), as evidenced by CG Dental (https://www.gc.dental/europe/en/crownworkflow/types-of-zirconia#:~:text=Zirconia%20adopts%20a%20monoclinic%20crystal,has%20low%20strength%20and%20translucency).
Regarding claims 1-2, 6, 9
Nakamura discloses a method of making an exhaust gas purification catalyst comprising dispersing zirconia (i.e., a porous support) in water and adding aluminum nitrate so that the Al2O3 is 20 wt % to the zirconia then drying and baking; this material is dispersed in water with Rh nitrate (i.e. precursor to the catalyst metal particles) is added then the material is dried and baked, lastly this material is then dispersed in water with Zr acetate (i.e., precursor to zirconia particle) and Al nitrate dried and baked to provide the catalyst (para 0059).
Based on the manufacturing method the zirconia particles would be expected to be uniformly dispersed in the pores of the porous support. Further the skilled artisan would find it obvious to have the catalyst uniformly dispersed on the support to get consistent results.
Although Nakamura is silent as to the crystal phase of the zirconia, Nakamura does disclose the use of zirconia. However, as evidenced by CG Dental when zirconia is not doped by yttria or calcium oxide it is in the monoclinic form at room temperature. As such the zirconia of Nakamura is expected to be in the monoclinic form.
With respect to the limitation on the abundance ratio of zirconium in the surface region up to a depth of 1.5 microns from the surface with respect to the abundance of zirconium in the inward region is a property of the composition and as the reference teaches or makes obvious the other limitations of the claim it would be expected to also meet this limitation. When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention but has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § § 2112- 2112.02.
Regarding claims 4-5
Nakamura discloses that the particle size of the compound of the metal (i.e., zirconia) is 10 nm or smaller (claim 5).
As the particle size of Nakamura overlaps the claimed amount the subject matter as a whole would have been obvious to one having ordinary skill in the art at the time the invention was made to have selected the overlapping portion of the range disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. In re Malagari, 182 U.S.P.Q. 549.
Regarding claim 7
Nakamura discloses that the noble metal (i.e., platinum) may be used in amounts of 1 wt % or smaller (para 0043). However, Nakamura also discloses that rhodium can be substituted for platinum (para 0019). Therefore it would have been prima facie obvious to use the rhodium in amounts of 1 wt % or less.
As the amount of metal of Nakamura overlaps the claimed amount the subject matter as a whole would have been obvious to one having ordinary skill in the art at the time the invention was made to have selected the overlapping portion of the range disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. In re Malagari, 182 U.S.P.Q. 549.
Regarding claim 8
Nakamura discloses that the particle size of the precious metal (i.e., rhodium) is 10 nm or smaller (claim 6).
As the particle size of Nakamura overlaps the claimed amount the subject matter as a whole would have been obvious to one having ordinary skill in the art at the time the invention was made to have selected the overlapping portion of the range disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. In re Malagari, 182 U.S.P.Q. 549.
Regarding claim 10
The initial surface area of the porous support is a property of the support, and as Nakamura discloses the same support, it would be expected to have the same properties. When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention but has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § § 2112- 2112.02.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Nakamura et al. (US 2009/0280978), as evidenced by CG Dental (https://www.gc.dental/europe/en/crownworkflow/types-of-zirconia#:~:text=Zirconia%20adopts%20a%20monoclinic%20crystal,has%20low%20strength%20and%20translucency), as applied to claims 1-2 and 4-10 above, in view of Chopin et al. (EP-0605274-B1).
Regarding claim 3
Although Nakamura does not disclose the amount of zirconia, Nakamura does disclose the use of zirconia. However, Chopin directed to similar exhaust gas catalyst that the use of 1 to 60 atom % zirconia (abstract). Therefore it would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to add to the teachings of Nakamura by using 1 to 60 atom % zirconia, with a reasonable expectation of forming a useful catalyst, as suggested by Chopin.
As the amount of zirconia overlaps the claimed amount the subject matter as a whole would have been obvious to one having ordinary skill in the art at the time the invention was made to have selected the overlapping portion of the range disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. In re Malagari, 182 U.S.P.Q. 549.
Conclusion
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JAMES E. MCDONOUGH
Examiner
Art Unit 1734
/JAMES E MCDONOUGH/Primary Examiner, Art Unit 1734