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 1-5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (US 2012/0031085), in view of (JP-6851219-B2, hereafter the ‘219 patent).
Regarding claims 1-3, 5 and 8
Zhang discloses a catalyst for purifying exhaust gas comprising a base material (i.e., substrate) and two catalyst layers (abstract).
Zhang discloses a slurry A comprising gamma-alumina, ceria-zirconia, barium hydroxide (i.e., compound with greater basicity the metal oxide) and palladium nitrate; and a slurry B comprising gamma-alumina (i.e., metal oxide), ceria-zirconia (i.e., metal oxide) and rhodium nitrate (para 0030).
Zhang discloses that slurry A is applied to 80% (i.e., Lb) of the length of the exhaust gas passage (i.e., Ls) from the gas introduction port side (i.e., upstream portion) (para 0031); and the slurry B is applied to 80 % (i.e., La) of the length of the exhaust gas passage (i.e., Ls) from the exhaust gas discharge port side (i.e., downstream portion) (para 0032). Here La + Lb = 1.6 Ls.
Although Zhang does not disclose the particle size of the rhodium particles, Zhang does disclose the other limitations of the claim. However, ‘219 patent discloses that in exhaust catalyst using rhodium that the rhodium particles may have a size of 2 to 15 nm (Claim 1). 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 Zhang by using rhodium particles with a size of 1 to 2 nm with a standard deviation of 0.8 nm or less, with a reasonable expectation of success, as suggested by the ‘219 patent.
As the particle size of the ‘219 patent overlaps the claimed size, 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 4
Shimano discloses that the rhodium is used in an amount of 3 wt % or less based on the weight of the carrier (approx.. para 0032).
Response to Arguments
Applicants argue against the prior art rejection.
Applicants argue that the claimed particle size would not be obvious in view of Shimano. This is not persuasive and it is noted that Shimano is no longer applied as a reference.
Applicants argue that they receive unexpected results do to the rhodium particle size and the overlap region. This is not persuasive as the primary reference of Zhang discloses the claimed overlap amount, and the newly applied ‘219 patent makes the claimed particle size of the rhodium obvious. Further, it is noted that the comparative examples do not compare the closest prior art.
The remaining arguments have been fully considered but are not persuasive for the same reasons given above.
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.
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JAMES E. MCDONOUGH
Examiner
Art Unit 1734
/JAMES E MCDONOUGH/Primary Examiner, Art Unit 1734
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