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 § 112
Acknowledgment is made to Applicant’s claim amendments received 29 May 2026. The rejections to the claims presented under 35 USC 112 in the Office Action of 2 February 2026 have been withdrawn.
Claim Rejections - 35 USC § 102
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 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.
Claims 1, 3, 8, 9, 14, 15, 16, 18, 20, 23, 24 and 27 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2014/0224668 A1 to Jehle et al. (Jehle).
As to claim 1, Jehle teaches an electrochemical cell (100) operating as a synthesis cell for the production of hydrogen and oxygen from water, the cell (100) comprising a reservoir (34/36) for containing a liquid electrolyte, a first gas diffusion electrode (14) positioned outside the reservoir, a second gas diffusion electrode (16) positioned outside the reservoir (34/36) and a porous capillary spacer (22) sandwiched between the first gas diffusion electrode (14) and the second gas diffusion electrode (16), the porous capillary spacer (22) having an end that extends into the reservoir (the capillary layer contacts the liquid electrolyte in the reservoir and is thus considered extending into the reservoir, i.e. the bottom of the porous capillary spacer forms a part of the reservoir) such that the porous capillary layer is able to fill itself with the liquid electrolyte when the end of the porous capillary spacer is in liquid contact with the liquid electrolyte in the reservoir (Paragraphs 0023-0027; Figure 1).
As to claim 3, Jehle teaches the apparatus of claim 1. Jehle further teaches that the first and second electrodes (14/16) are separated from the liquid electrolyte in the reservoir (34/36) (Figure 1).
As to claim 8, Jehle teaches the apparatus of claim 1. Jehle further teaches that during operation liquid electrolyte contacts the first and second electrode only after first being transported along the porous capillary spacer form the reservoir (Paragraph 0027).
As to claim 9, Jehle teaches the apparatus of claim 1. Jehle further teaches that the first and second electrodes (14/16) are spaced apparat from the reservoir (34/36) (Figure 1).
As to claim 14, Jehle teaches the apparatus of claim 1. Jehle further teaches that the first gas diffusion electrode is a porous nickel sheet, thus a metallic perforated plate (Paragraph 0023).
As to claim 15, Jehle teaches the apparatus of claim 1. Jehle further teaches that the first gas diffusion electrode (14) configured to generate a first gas, hydrogen, to form a first gas body (gas chamber) (40), a first side of the capillary spacer (22) adjacent to a first side of the first gas diffusion electrode (14), a second side of the porous capillary spacer is adjacent a fist side of the second electrode (16) and a second side of the first gas diffusion electrode (14) is adjacent the first gas body (40) (Paragraphs 0023-0027; Figure 1).
As to claim 16, Jehle teaches the apparatus of claim 1. Jehle further teaches that the second gas diffusion electrode is a porous nickel sheet, thus a metallic perforated plate (Paragraph 0023).
As to claim 18, Jehle teaches the apparatus of claim 16. Jehle further teaches that the second gas diffusion electrode (16) is configured to generate a second gas, oxygen, to form a second gas body (gas chamber) (46), a second side of the second gas diffusion electrode (16) is adjacent the second gas body (46) (Paragraphs 0023-0027; Figure 1).
As to claim 20, Jehle teaches the apparatus of claim 18. Jehle further teaches that located at the second side of each of the first electrode and the second electrode are gas flow structures, chambers (40/46) and pipes (42/48), thus considered to be gas capillary structures in combination with the gas diffusion electrodes (Paragraph 0024; Figure 1).
As to claim 23 and 24, Jehle teaches the apparatus of claim 1. Jehle further teaches that the average pore diameter of the porous capillary spacer is, for example, 10 microns (Paragraph 0026).
As to claim 27, Jehle teaches the apparatus of claim 1. Jehle further teaches that the porous capillary spacer (membrane) is made from a polysulfone (Paragraph 0005).
Claims 1, 3, 8, 9, 10, 22, 23, 24, 27 and 28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by JP 2016-023371 A to Ulrich (Ulrich).
As to claim 1, Ulrich teaches an electrochemical cell operating as a synthesis cell for the production of hydrogen and oxygen from water, the cell comprising a reservoir (4) for containing a liquid electrolyte, a first gas diffusion electrode (21/22) positioned outside the reservoir, a second gas diffusion electrode (31/32) positioned outside the reservoir (4) and a porous capillary spacer (13) sandwiched between the first gas diffusion electrode (21/22) and the second gas diffusion electrode (31/32), the porous capillary spacer (13) having an end that extends into the reservoir (4) such that the porous capillary layer is able to fill itself with the liquid electrolyte when the end of the porous capillary spacer is in liquid contact with the liquid electrolyte in the reservoir (Paragraphs 0003-0005 and 0028-0030; Figures 1 and 3).
As to claim 3, Ulrich teaches the apparatus of claim 1. Ulrich further teaches that the first and second electrodes (21/22/31/32) are separated from the liquid in the reservoir (4) (Paragraph 0030; Figure 3).
As to claim 8, Ulrich teaches the apparatus of claim 1. Ulrich further teaches that during operation the liquid electrolyte contacts the electrodes (21/22/31/32) only after being transported along the porous capillary spacer (13) form the reservoir (4) (Paragraph 0030; Figure 3).
As to claim 9, Ulrich teaches the apparatus of claim 1. Ulrich further teaches that the first and second electrodes (21/22/31/32) are spaced apart from the reservoir (4) (Paragraph 0030; Figure 3).
As to claim 10, Ulrich teaches the apparatus of claim 1. Ulrich further teaches that an area of contact between the first gas diffusion electrode (21/22) and the capillary spacer (13) is outside the reservoir (4) and an area of contact between the second gas diffusion electrode (31/32) and the capillary spacer (13) is outside the reservoir (4) (Figure 3).
As to claim 22, Ulrich teaches the apparatus of claim 1. Ulrich further teaches that the cell is a zero-gap cell, i.e. the electrodes (21/22/31/32) contact the membrane structure including the capillary spacer layer (13) and that the capillary spacer layer is, for example, 0.25 mm thick (250 micron) (Paragraph 0013; Figure 3).
As to claims 23 and 24, Ulrich teaches the apparatus of claim 1. Ulrich further teaches that the average pore size of the capillary layer is from 100 nm to 10 microns (Paragraph 0022).
As to claim 27, Ulrich teaches the apparatus of claim 1. Ulrich further teaches that the capillary layer is formed form, for example, PTFE (Paragraphs 0010 and 0019).
As to claim 28, Ulrich teaches an electrochemical cell operating as a synthesis cell for the production of hydrogen and oxygen from water, the cell comprising a reservoir (4) for containing a liquid electrolyte, a first gas diffusion electrode (21/22) positioned outside the reservoir, a second gas diffusion electrode (31/32) positioned outside the reservoir (4) and a porous capillary spacer (13) sandwiched between the first gas diffusion electrode (21/22) and the second gas diffusion electrode (31/32), the porous capillary spacer (13) having an end that extends into the reservoir (4) such that the porous capillary layer is able to fill itself with the liquid electrolyte when the end of the porous capillary spacer is in liquid contact with the liquid electrolyte in the reservoir (Paragraphs 0003-0005 and 0028-0030; Figures 1 and 3). Ulrich further teaches that the cell should be provided in plurality in a stack, a PEM stack would be electrically connected, whether in parallel or in series (Paragraph 0031).
Claims 1 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by DE 10 2013 214 392 A1 to Schellback (Schellbach).
As to claim 1, Schellbach teaches an electrochemical cell, such as a synthesis cell for generating gases from electrolyte, the cell comprising a reservoir (5) for containing a liquid electrolyte, a first gas diffusion electrode (1) positioned fully outside the reservoir, a second electrode (2) positioned partially outside the reservoir and a porous capillary spacer (2a) having an end that extends into the reservoir (5), wherein the first gas diffusion layer (1) and the second electrode (2) are sandwiched against opposite sides of the porous capillary spacer (2a), the porous capillary spacer (2a) is able to fill itself with the liquid electrolyte when the end of the porous capillary spacer is in liquid contact with the liquid electrolyte in the reservoir (5) (Paragraphs 0001 and 0049-0051; Figure 1).
As to claim 4, Schellbach teaches the apparatus of claim 1. Schellbach teaches that the second electrode (2) extends into the reservoir (5) and thus contacts the liquid electrolyte in the reservoir at a top edge of the reservoir (5) (Figure 1).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 13 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Jehle as applied to claim 1 above, and as further discussed below.
As to claim 13, Jehle teaches the apparatus of claim 1. Jehle fails to teach the specific geometric surface area of the first and second electrodes. However, mere changes in size/proportion are not patentably significant (MPEP 2144.04 IV A).
As to claim 34, Jehle teaches the apparatus of claim 1. Jehle teaches that the first gas diffusion electrode and the second gas diffusion electrode are compressed against the capillary spacer (Figure 1). However, Jehle is silent as to the specific pressure of the compression. However, it would have been obvious to one of ordinary skill in the art at the time of filing to optimize the compression pressure to ensure appropriate cell contact in view of the operating conditions chosen for the apparatus (MPEP 2144.05).
Claims 13 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Ulrich as applied to claim 1 above, and as further discussed below.
As to claim 13, Ulrich teaches the apparatus of claim 1. Ulrich fails to teach the specific geometric surface area of the first and second electrodes. However, mere changes in size/proportion are not patentably significant (MPEP 2144.04 IV A).
As to claim 34, Ulrich teaches the apparatus of claim 1. Ulrich teaches that the first gas diffusion electrode and the second gas diffusion electrode are compressed against the capillary spacer (Figure 1). However, Ulrich is silent as to the specific pressure of the compression. However, it would have been obvious to one of ordinary skill in the art at the time of filing to optimize the compression pressure to ensure appropriate cell contact in view of the operating conditions chosen for the apparatus (MPEP 2144.05).
Response to Arguments
Applicant's arguments filed 29 May 2026 have been fully considered but they are not persuasive.
In regards to Jehle, Applicants first argue that there is no teaching of “liquid electrolyte”. However, it is first important to note that the claims do not actively require a liquid electrolyte, the liquid electrolyte is merely included in functional language i.e. “a reservoir for containing a liquid electrolyte” or “able to fill itself with the liquid electrolyte”. Second, the composition of the liquid electrolyte has not been claimed. Therefore, the examiner maintains both that the apparatus of Jehle, while specifically discussing liquid water would be capable of operating filled with any number of other fluids and that the water of Jehle itself can be appropriately considered a liquid electrolyte in that it is the liquid undergoing electrolytic reaction in combination with the membrane.
Second, Applicants argue that Jehle is not an electro-synthetic cell as an electro-synthetic cell is defined in the specification as a cell that manufactures one or more chemical materials continually or continuously, over indefinite periods of time. However, the Examiner disagrees, this disclosure in the specification has not been presented as a special technical definition and therefore does not limit the interpretation of this limitation. Furthermore, the Examiner maintains that even by this definition Jehle is capable of being considered an electro-synthetic cell in that “indefinite” does not mean that the cell would never require replenishment nor service.
Third, Applicants argue that Jehle fails to teach a single porous spacer; however, this limitation is not claimed. Use of comprising language and the limitation “a porous capillary spacer” does not mean that there cannot be additional porous spacer, nor does it mean that a porous spacer cannot be made of a plurality of layers. Use of the term “sandwich” does not mean that items must directly be touching, a proper reasonable interpretation includes indirectly sandwiched.
Fourth, Applicants argue that the Examiner’s interpretation of “extending into” is not proper. The Examiner disagrees, absent narrowing definitions of the specific bounds of the reservoir the Examiner maintains that the bottom location of the capillary spacer can be considered itself part of the reservoir, as it must hold liquid in order to contact the capillary spacer, and thus the capillary spacer extends into this part of the reservoir.
Applicants further argue that Jehle fails to teach a metallic perforated plate in regards to claims 14 and 16; however, the Examiner disagrees, the electrode of Jehle is nickel, planar and porous, thus in reasonable broad terms can be considered a metallic perforated plate.
Applicants further argue that Jehle fails to teach adjacent as claimed in claim 15. However, the Examiner disagrees, the limitation is merely adjacent, not “directly” adjacent.
In regards to Ulrich, applicants again argue that a single porous spacer is not taught; however, this limitation is not claimed. Use of comprising language and the limitation “a porous capillary spacer” does not mean that there cannot be additional porous spacer, nor does it mean that a porous spacer cannot be made of a plurality of layers. Use of the term “sandwich” does not mean that items must directly be touching, a proper reasonable interpretation includes indirectly sandwiched. Similarly, Applicants argue that the space between the electrode is occupied by “only” a porous capillary spacer which cannot be taught by the membranes of Ulrich; however, this limitation has not been claimed.
In regards to Ulrich applicants again argue that Ulrich is not an electro-synthetic cell as an electro-synthetic cell is defined in the specification as a cell that manufactures one or more chemical materials continually or continuously, over indefinite periods of time. However, the Examiner disagrees, this disclosure in the specification has not been presented as a special technical definition and therefore does not limit the interpretation of this limitation. Furthermore, the Examiner maintains that even by this definition Jehle is capable of being considered an electro-synthetic cell in that “indefinite” does not mean that the cell would never require replenishment nor service.
In regards to Schellbach Applicant’s argue that the second electrode is not positioned “fully” outside the reservoir; however, this limitation has not been claimed.
Further in regards to Schellbach Applicant’s argue that Schellbach fails to teach the specific column height or liquid and gas crossover requirements of the present invention. However, none of these limitations have been claimed.
In regards to Schellbach applicants again argue that Ulrich is not an electro-synthetic cell as an electro-synthetic cell is defined in the specification as a cell that manufactures one or more chemical materials continually or continuously, over indefinite periods of time. However, the Examiner disagrees, this disclosure in the specification has not been presented as a special technical definition and therefore does not limit the interpretation of this limitation. Furthermore, the Examiner maintains that even by this definition Jehle is capable of being considered an electro-synthetic cell in that “indefinite” does not mean that the cell would never require replenishment nor service.
In regards to claim 4 Applicant’s further argue that Schellbach fails to teach that the electrode touches the liquid at an edge of the reservoir instead extending into the reservoir; however, extending into require that the electrode touch the liquid at a top edge of the reservoir. The limitation does not read more narrowly that this is the only location it touches nor define specifics limitations on to what dimensions an “edge” of the reservoir can be considered to have.
In regards to claim 34 Applicants argue that it would not have been obvious to one of ordinary skill in the art to optimize the compression based on the operating conditions as the spacer could be comprised and risk narrowing or closing the cavities; however, the Examiner disagrees, 2 bar is not a high pressure and a degree of compression would be required to ensure that the apparatus doesn’t fail under operation. Furthermore, there are no limitations present as to if this compression occurs during assembly, during all of operation, during part of operation, etc.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 CIEL P Contreras whose telephone number is (571)270-7946. The examiner can normally be reached M-F 9 AM to 4 PM.
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/CIEL P CONTRERAS/Primary Examiner, Art Unit 1794
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