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 1-5, 7, and 8 are rejected under 35 U.S.C. 103 as being obvious by Matsueda et al. (JP2014171971) and further in view of Dettling et al. (CN1411394).
Regarding claim 1, Matsueda et al. discloses an exhaust purifying catalyst comprising crystallite A and B (paragraph 0020). An example in the patent is powder A8B3 (paragraph 0048). B3 is a Ce-based particle which is 100% CeO2 (paragraph 0048). The mol % of crystallite A8 in terms of oxides is Zr/Ce/Y/La = 85/5/5/5. Converting these to mass % we get Zr/Ce/Y/La = 74/6/8/12. The amount of Ce in terms of CeO2 in the composite oxide is 6% by mass. Calculations are shown below.
With a 100mol basis, mol CeO2 = 5
Mass CeO2 = 5mol*(140.116g/mol+32g/mol)
Total mass = 5(138.906(2)+48)+5(88.90585(2)+48)+5(140.116+32)+85(91.224+32)
Mass% CeO2 =
5
*
(
140.116
+
32
)
5
138.906
2
+
48
+
5
88.90585
2
+
48
+
5
140.116
+
32
+
85
(
91.224
+
32
)
*
100
%
=
6
%
The crystallite support is loaded with a noble metal element Pt (paragraph 0048). Matsueda et al. also teaches an average crystallite size of 5-50 nm which clearly meets the range of 10 nm or more claimed by the applicant.
In addition to the example in paragraph 0048, Matsueda et al. teaches a range of 75-99 mol% Zr in the composite oxide in terms of the Zr oxide and a range of 20-99 mol% Ce in terms of Ce oxide in the Ce-based oxide (paragraph 20). This has overlap of the applicant’s claims. The subject matter as a whole would have been obvious to one of ordinary skill in the art at the time of invention to select the portion of the prior art’s range which is within the range of the applicants’ claims because it has been held prima facie case of obviousness to select a value in a known range by optimization for the results. In re Aller, 105 USPQ 233. Additionally, the subject matter as a whole would have been obvious to one of ordinary skill in the art at the time 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 USPQ.
Matsueda et al. does not disclose a Ce-based oxide particle with an average particle size greater than 0.10 and less than 15 microns.
Dettling et al. discloses a substrate in a gas purifying catalyst comprising an oxygen storage component that is cerium oxide with the particles having a size from 1-15 microns (paragraph 0099).
It would have been obvious to one having ordinary skill in the art to use a ceria particle size with the range of 0.10 to 15 micron because it is a conventional particle size in the field of substrate coating in exhaust gas purifying catalysts as seen in Dettling et al. Because both compositions are useful in the purification of exhaust gas, one would have reasonable expectation of success from the combination.
Regarding claim 2, Matsueda et al. teaches a mass % of Zr in terms of ZrO2 in the Ce-Zr-based composite oxide particle of 76% (paragraph 0048). See claim one rejection for more details.
Regarding claim 3, Matsueda et al. discloses that the platinum is supported by powder A8B3 which comprises both the Ce-based oxide particle and the Ce-Zr-based composite oxide particle (paragraph 0048).
Regarding claim 4, Matsueda et al. discloses the use of X-ray diffraction but does not provide peak intensity measurements to find a ratio of peak intensity. However, according to claim 1 rejection, the reference discloses a crystallite size of ceria in the Ce-based oxide particle that is 5-50 nm. Additionally, paragraph 0020 of the specification discloses that X-ray diffraction measurements are a result of crystallite size. Therefore, it is the position of the examiner that the peak intensity would inherently be the same. When the examiner has reason to believe that the functional language asserted to be critical for establishing novelty in a claimed subject matter may in fact be an inherent characteristic of the prior art, the burden of proof is shifted to Applicants to prove that the subject matter shown in the prior art does not possess the characteristics relied upon. In re Fitzgerald et al. 205 USPQ 594.
Regarding claim 5, Matsueda et al. discloses the use of platinum and rhodium as a catalyst metal (paragraph 0017).
Regarding claim 7, Matsueda et al. discloses 49.25 g of A8B3 powder in the catalyst but does not specify individual amounts (paragraph 0048). Matsueda et al. discloses highly dispersed crystallites so that seven or more crystallites of the same kind do not exist in contact with each other (paragraph 0010). Thus, at a minimum, the powder is 1/7 Ce-based oxide particle. We use the molar mass of each particle to account for the differences in mass of the two oxide particles. A 15 g dinitrodiamine Pt nitric acid solution (5% my mass Pt) is added to the powder and 100% of the Pt is loaded. We get a mass % of the Ce-based oxide particle in the catalyst of at least 17%. Calculations are shown below.
Molar mass composite = 0.85(91.224+32)+0.05(140.116+32)+0.05(88.90585(2)+48)+0.05(138.906(2)+48) = 141 g/mol
CeO2 molar mass = 172 g/mol
Ce-based oxide mass = (1/7)*(172/141)*49.25g = 8.6g
Pt mass = 15g*0.05 = 0.75g
Ce mass% = 8.6g/(0.75g+49.25g)*100% = 17%
Regarding claim 8, Matsueda et al. discloses a catalyst layer formed on a substrate (paragraph 0014). The catalyst layer containing a catalyst metal and a carrier such as the one described in the example used above (paragraph 0014) (paragraph 0048).
Response to Arguments
Applicant's arguments filed 06/10/2026 have been fully considered but they are not persuasive. Regarding Argument 1, applicant argues that that the crystallite size of the Ce-based oxide particle in Matsueda et al. does not satisfy the limitation of an average particle size of 1.0 μm or more and 15 μm or less in amended claim 1. The examiner agrees and therefore has rejected the amended claim over Matsueda et al. in view of Dettling et al.
Regarding Arguments 2-5, applicant argues that the Ce-based oxide particle in claim 1 is an individual particle constituting the powder A8B3 of Comparative Example 8 in Matsueda et al. Because of this, the composition of A8B3 mass% is calculated to be CeO2/Zr-O2/Y2O3/La3O3 = 48.7/45.3/2.4/3.5 which does not satisfy the limitation of an amount of CeO2 in the Ce-based oxide particle of 80% by mass or more.
Applicant’s reply fails to address why the individual crystallites A8 and B3 cannot correspond to the Ce-Zr-based composite oxide particle and Ce-based oxide particle respectively. Matsueda et al. defines the term “crystallite” as the largest collection (particle) of basic structures (paragraph 0013). The catalyst layer is composed of oxide particles in which the two different crystallites (A and B) are mixed (paragraph 0014). In comparative example 8 (paragraphs 47 and 48), the crystallite A is A8 and corresponds to the Ce-Zr-based composite oxide particle and the crystallite B is B3 and corresponds to the Ce-based oxide particle. Based on these definitions, the mol% of the individual crystallites of comparative example 8 (paragraph 0048) can be used to calculate the mass% of CeO2 in the individual crystallites as done above in the rejection of claim 1. Therefore, the scope of the rejection is maintained.
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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/DAVID ANDREW CALDERON/Examiner, Art Unit 1742 /CHRISTINA A JOHNSON/Supervisory Patent Examiner, Art Unit 1742
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