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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-12 in the reply filed on 8/18/2026 is acknowledged.
Claims 13-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/18/2026.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brunk (U.S. Patent Publication 2005/0100776).
Regarding claim 1, Brunk discloses a unitized membrane electrode assembly comprising: a membrane electrode assembly (MEA) 12, 11, 12’, a first gas diffusion backing layer 13 on one side of the MEA, a second gas diffusion backing layer 13’ on the other side of the MEA, and a sealing polymer at the edges of the gas diffusion layers, wherein the sealing polymer is a thermoplastic polymer, and wherein the sealing polymer is impregnated into the edges of the gas diffusion layers (Paragraphs 0034-0035 and Figs. 1A, 1B).
As to claim 2, Brunk teaches that the sealing polymer envelops a peripheral region of both the first and second gas diffusion backing layer and the polymer membrane (Paragraph 0028).
Regarding claims 3-5, Brunk states that the gas diffusion backing layers can comprise fibrous carbon structures, such as a woven fabric, and that the sealing polymer impregnates the edges of the fibrous material (Paragraphs 0035, 0038 and Fig. 2). Additionally, Brunk states that the sealing polymer can be reinforced with fibers, which are compounded into the sealing polymer (Paragraph 0077).
As to claim 6, Brunk discloses that the seal can comprise ribs by having recesses in the plates adjacent the seal, and that flow field plates are provided with recesses that mesh with the ribs (Paragraphs 0088, 0095).
Regarding claim 7, Brunk teaches that the membrane electrode assembly comprises a first electrocatalyst layer 12, a polymer electrolyte membrane 11, and a second electrocatalyst layer 12’, wherein the electrocatalyst layers are anode and cathode electrocatalysts (Paragraph 0004, 0034).
As to claim 8, Brunk states that the sealing polymer envelops a peripheral region of the polymer membrane (Paragraph 0028).
Regarding claim 9, Brunk discloses that a layer of the sealing polymer is placed between the polymer electrolyte membrane and each of the gas diffusion layers (Paragraph 0083 and Fig. 1B).
As to claim 10, Brunk shows in Fig. 2 that after the sealing polymer is impregnated into the gas diffusion layer edges, the center active area is thicker than the edge portions.
Regarding claim 11, Brunk teaches that flow field plates are formed on the gas diffusion layers opposite to the membrane electrode assembly (Paragraph 0095).
Brunk teaches every limitation of claims 1-11 of the present invention and thus anticipates the claims.
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.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Brunk (U.S. Patent Publication 2005/0100776) in view of Andrin (U.S. Patent Publication 2006/0188773).
The teachings of Brunk have been discussed in paragraph 5 above.
Brunk fails to disclose that the electrochemical device is a proton exchange membrane water electrolyzer.
Andrin discloses a polymer electrolyte membrane fuel cell comprising an MEA disposed between two flow field separator plates, the MEA including a catalyst-coated membrane between two gas diffusion layers, and a polymeric composite plate material of the flow field plate impregnated into the gas diffusion layers for joining the two (Paragraphs 0034, 0036). Andrin also discloses that polymer electrolyte membranes may be operated as fuel cells or as electrolyzers (Paragraph 0002).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention that the membrane electrode assembly of Brunk could be used in an electrolyzer because Andrin teaches that MEAs can be used in either fuel cells, as in Brunk, or in electrolyzers.
Double Patenting
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.
Claims 1-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18/789953 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because Application No. 18/789953 teaches an electrochemical device comprising: a membrane electrode assembly comprising a proton exchange membrane with a cathode catalyst between the proton exchange membrane and a gas diffusion layer, and with an anode catalyst between the proton exchange membrane and a porous transport layer, and wherein the cathode catalyst and the anode catalyst extend substantially to an outermost peripheral edge of the proton exchange membrane; and a thermoplastic film impregnated within outer peripheral edges of the gas diffusion layer and the porous transport layer to form an electrochemical assembly with a sealed outer edge (claim 1).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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BRITTANY L. RAYMOND
Primary Examiner
Art Unit 1722
/BRITTANY L RAYMOND/ Primary Examiner, Art Unit 1722
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