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 .
Drawings
2. The drawings were received on 3/18/2024. These drawings are acceptable.
Claim Rejections - 35 USC § 103
3. 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.
4. 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.
5. 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.
6. Claim(s) 1-3 and 8-10is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1).
Regarding claim 1, Kim discloses an electrochemical cell (10) comprising an anode (14); a cathode (16); and a catalyst layer (56) of anode or cathode. An electrolyte membrane layer (12) extending between the anode catalyst layer and the cathode catalyst layer; and a graphene-based layer (52 or 54) disposed between the cathode catalyst layer and the electrolyte membrane layer and/or the anode catalyst layer and the electrolyte membrane layer, the graphene-based layer is configured to suppress crossover gases to enhance performance of the electrochemical cell [Figs. 1 and 2; 0021-27]. Kim also teaches that other two-dimensional layered structured materials such as graphyne may be coated onto a surface of catalyst material layer 56. Kim further teaches that graphyne may be used to replace in whole or in part of the graphene-based materials in the electrode catalyst layer coating [paragraph 0030].
Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
Regarding claims 2 and 3, Kim et al. teaches that the graphene may be in the form of sheets, flakes, powders and/or combinations thereof [paragraph 0027]. Kim further teaches that the graphene-based layer includes a graphene-based material or sheet having a number of layers. Crystalline graphene or graphene-based material having layers of sp2-type carbon atoms has sublayers substantially parallel to each other in the stacked configuration [Fig. 2; paragraph 0023-0025]. Since Kim teaches to replace graphene with graphyne [paragraph 0030], it would have been obvious that the graphyne-based layer includes sublayers of graphyne-based flakes forming a stacked configuration of the sublayers of the graphyne flakes.
Regarding claim 8, Kim teaches that the graphene-based layer includes a graphene oxide material or a functionalized graphene-oxide material [paragraph 0023]. Since Kim teaches to replace graphene with graphyne [paragraph 0030], it would have been obvious that the graphyne oxide material or a functionalized graphyne-oxide material.
Regarding claim 9, Kim teaches that the graphene-based layer is in direct contact or commingled with the anode and/or cathode catalyst layers [paragraph 0026]. Since Kim teaches to replace graphene with graphyne [paragraph 0030], it would have been obvious that the graphyne-based layer is placed in direct contact catalyst layers.
Regarding claim 10, Kim teaches that the electrode of Fig. 2 is configured to be used as anode 14 and/or cathode 16 of fuel cell 10 [paragraph 0022].
7. Claim(s) 4-5 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1) as applied in claim 2 and further in view of Frost et al (US 2015/0180073 A1)
Regarding claims 4-5, Kim remains silent about claimed ionomer material. Frost teaches a fuel cell comprising ion-conducting membrane includes: (i) a first ion-conducting layer including one or more first ion-conducting polymers; and (ii) a barrier layer including graphene-based platelets. Frost teaches that the graphene-based material configured to suppress crossover gases through an ion-conducting membrane of the fuel cell and teaches that the barrier layer comprises a second component, e.g. an ionomer (for example a perfluorosulphonic acid ionomer, such as NafionTM or a hydrocarbon ionomer) [Abstract; paragraph 0009-0018]. Given that the material is the same, the Nafion ionomer would have been capable of maintaining the stacked configuration of the sublayers of the graphyne-based flakes or maintaining the first regions of single layer graphyne flakes and the second regions of stacks of multi-layer graphyne flakes as claimed. Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
Regarding claim 7, Kim does not expressly teach that a thickness of the graphene-based layer is 0.1 to 5.0 µm. However, Frost relates to a barrier layer including a graphene-based material and configured to suppress crossover gases through an ion-conducting membrane of an electrochemical cell [Abstract; paragraph 0009-0018] and teaches that the barrier layer has a minimum thickness of two graphene-based platelets, such as 0.7 nm, and is suitably from 1 nm to 5 µm thick, more suitably from 1 nm to 1 µm thick, more suitably 5 nm to 500 nm thick, preferably from 10 nm to 250 nm thick [paragraph 0024].
8. Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1) as applied in claim 1 and further in view of Sun et al (CN 103840174)
Regarding claim 6, Kim teaches that the graphene-based layer includes a graphene oxide material [paragraph 0023] and remains silent about claimed ionomer material. However, Sun teaches a direct alcohol fuel cell comprising an anode catalyst layer; a cathode catalyst layer; an electrolyte membrane layer extending between the anode catalyst layer and the cathode catalyst layer; and a graphene-based layer or a graphene oxide layer disposed between the anode catalyst layer and the electrolyte membrane layer. Sun further teaches that the graphene oxide layer includes a graphene oxide and Nafion, an ionomer material that is capable of binding the graphene oxide, a weight ratio of the ionomer material to the graphene-based material is 1:5-5:1 [claim 1; paragraph 0011-0012]. Kim also teaches that other two-dimensional layered structured materials such as graphyne may be coated onto a surface of catalyst material layer 56. Kim further teaches that graphyne may be used to replace in whole or in part of the graphene-based materials in the electrode catalyst layer coating [paragraph 0030]. Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
9. Claim(s) 11-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1).
Regarding claim 11, Kim discloses an electrochemical cell (10) comprising an anode (14); a cathode (16); and a catalyst layer (56) of anode or cathode. An electrolyte membrane layer (12) extending between the anode catalyst layer and the cathode catalyst layer; and a graphene-based layer (52 or 54) disposed between the cathode catalyst layer and the electrolyte membrane layer and/or the anode catalyst layer and the electrolyte membrane layer. The graphene-based layer is separate and discrete from the anode catalyst layer, the cathode catalyst layer, and the electrolyte membrane layer and the graphene-based layer is configured to suppress crossover gases to enhance performance of the electrochemical cell. [Figs. 1 and 2; 0021-27]. Kim also teaches that other two-dimensional layered structured materials such as graphyne may be coated onto a surface of catalyst material layer 56. Kim further teaches that graphyne may be used to replace in whole or in part of the graphene-based materials in the electrode catalyst layer coating [paragraph 0030].
Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
Regarding claim 12, Kim teaches that the contents of the graphene-based layer does not commingle with the contents of the anode catalyst layer, the cathode catalyst layer, or the electrolyte membrane layer upon fabrication of the electrochemical cell, as the graphene-based material layers 52 and 54 are loosely bound, e.g., located a short distance from catalyst material layer 56 [paragraph 0026].
Regarding claims 13 and 14, Kim et al. teaches that the graphene may be in the form of sheets, flakes, powders and/or combinations thereof [paragraph 0027]. Kim further teaches that the graphene-based layer includes a graphene-based material or sheet having a number of layers. Crystalline graphene or graphene-based material having layers of sp2-type carbon atoms has sublayers substantially parallel to each other in the stacked configuration [Fig. 2; paragraph 0023-0025]. Since Kim teaches to replace graphene with graphyne [paragraph 0030], it would have been obvious that the graphyne-based layer includes sublayers of graphyne-based flakes forming a stacked configuration of the sublayers of the graphyne flakes.
10. Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1) as applied in claim 13 and further in view of Frost et al (US 2015/0180073 A1)
Regarding claim 15, Kim remains silent about claimed ionomer material. Frost teaches a fuel cell comprising ion-conducting membrane includes: (i) a first ion-conducting layer including one or more first ion-conducting polymers; and (ii) a barrier layer including graphene-based platelets. Frost teaches that the graphene-based material configured to suppress crossover gases through an ion-conducting membrane of the fuel cell and teaches that the barrier layer comprises a second component, e.g. an ionomer (for example a perfluorosulphonic acid ionomer, such as NafionTM or a hydrocarbon ionomer) [Abstract; paragraph 0009-0018]. Given that the material is the same, the Nafion ionomer would have been capable of maintaining the stacked configuration of the sublayers of the graphyne-based flakes. Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
11. Claim(s) 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1).
Regarding claim 16, Kim discloses an electrochemical cell (10) comprising an anode (14); a cathode (16); and a catalyst layer (56) of anode or cathode. An electrolyte membrane layer (12) extending between the anode catalyst layer and the cathode catalyst layer; and a graphene-based layer (52 or 54) disposed between the cathode catalyst layer and the electrolyte membrane layer and/or the anode catalyst layer and the electrolyte membrane layer, the graphene-based layer is configured to suppress crossover gases to enhance performance of the electrochemical cell [Figs. 1 and 2; 0021-27]. Kim also teaches that other two-dimensional layered structured materials such as graphyne may be coated onto a surface of catalyst material layer 56. Kim further teaches that graphyne may be used to replace in whole or in part of the graphene-based materials in the electrode catalyst layer coating [paragraph 0030].
Kim teaches that the graphene may be in the form of, e.g. flakes [paragraph 0027]), but does not expressly teach that the graphyne layer includes first regions of single layer graphyne flakes and second regions of stacks of multi-layer graphyne flakes.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have arrived at the claimed combination of single layer graphyne and multi-layer graphyne in the graphyne -based layer, because Kim teaches a range of layers in the graphyne -based sheet including a single monolayer of graphyne and a plurality or range (2-15) of monolayers [paragraph 0025, 0030] and thus recognizes functional equivalence with regards to the single- and multi-layer materials. The skilled artisan would have obtained expected results combining known elements.
Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
Regarding claim 17, Kim teaches that the graphyne-based material includes graphyne oxide and may be in the form of, e.g. flakes [paragraph 0023, 0027, 0030].
12. Claim(s) 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1) as applied in claim 13 and further in view of Frost et al (US 2015/0180073 A1)
Regarding claims 18-19, Kim remains silent about claimed ionomer material. Frost teaches a fuel cell comprising ion-conducting membrane includes: (i) a first ion-conducting layer including one or more first ion-conducting polymers; and (ii) a barrier layer including graphene-based platelets. Frost teaches that the graphene-based material configured to suppress crossover gases through an ion-conducting membrane of the fuel cell and teaches that the barrier layer comprises a second component, e.g. an ionomer (for example a perfluorosulphonic acid ionomer, such as NafionTM or a hydrocarbon ionomer) [Abstract; paragraph 0009-0018]. Given that the material is the same, the Nafion ionomer would have been capable of maintaining the stacked configuration of maintaining the first regions of single layer graphyne flakes and the second regions of stacks of multi-layer graphyne flakes as claimed. Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
13. Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20210159528 A1) as applied in claim 16 and further in view of Sun et al (CN 103840174)
Regarding claim 20, Kim teaches that the graphene-based layer includes a graphene oxide material [paragraph 0023] and remains silent about claimed ionomer material. However, Sun teaches a direct alcohol fuel cell comprising an anode catalyst layer; a cathode catalyst layer; an electrolyte membrane layer extending between the anode catalyst layer and the cathode catalyst layer; and a graphene-based layer or a graphene oxide layer disposed between the anode catalyst layer and the electrolyte membrane layer. Sun further teaches that the graphene oxide layer includes a graphene oxide and Nafion, an ionomer material that is capable of binding the graphene oxide, a weight ratio of the ionomer material to the graphene-based material is 1:5-5:1 [claim 1; paragraph 0011-0012]. Kim also teaches that other two-dimensional layered structured materials such as graphyne may be coated onto a surface of catalyst material layer 56. Kim further teaches that graphyne may be used to replace in whole or in part of the graphene-based materials in the electrode catalyst layer coating [paragraph 0030].
Therefore, the claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art (KSR v. Teleflex, 82 USPQ2d 1385, 127 S. Ct. 1727 (2007)) and an ordinarily skilled artisan would have recognized such a substitution without undue experimentation and with a reasonable expectation of success.
Double Patenting
14. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
15. Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18401239 (reference application). Although the conflicting claims are not identical, they are not patentably distinct from each other because the claimed subject matter in the instant patent application encompasses the claimed subject matter as recited in the ‘239 application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MUHAMMAD S SIDDIQUEE whose telephone number is (571)270-3719. The examiner can normally be reached Monday - Friday, 8:00 am - 5:00 pm.
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/MUHAMMAD S SIDDIQUEE/Primary Examiner, Art Unit 1723
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