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 .
Status of Amendment
The amendment filed on 8 July 2026 fails to place the application in condition for allowance.
Claims 1 and 6-10 are currently pending and under examination.
Status of Rejections
The rejection of claims 1 and 6-9 under 35 U.S.C. 103(a) under Yoshinaga in view of Wilde is herein maintained.
All other rejections are herein withdrawn.
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.
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 1-9 are rejected under 35 U.S.C. 103 as being obvious over Yoshinaga et al (US 2019/0071784 A1) in view of Wilde et al (US 2014/0205919 A1).
As to claims 1 and 6, Yoshinaga discloses a membrane electrode assembly (Title Fig. 1)comprising:
a first electrode (Fig. 1 # 11 [0019])including
a first diffusion layer (Fig. 1 #16 [0024]), and
a first catalyst layer (Fig. 1 #14 catalysts layer [0018]); including a porous catalyst layer of a precious metal or a sheet-like precious metal ([0038], [0032], [0033])
a second electrode for generating hydrogen (#12 Fig. 1 [0019]), the second electrode including
a second diffusion layer (#17 [0024])),
a second catalyst layer including a second porous catalyst layer including a porous precious metal or sheet-like precious metal (Fig. 1 #14 [0018])) , and
an electrolyte membrane provided between the first electrode and the second electrode, the first catalyst layer being provided between the first diffusion layer and the electrolyte membrane, and the second catalyst layer being provided between the second diffusion layer and the electrolyte membrane (#13 Fig. 1 [0018]).
Yoshinaga discloses the use of microporous layers(=”hydrophobic moisture management layer”) between a catalyst and the diffusion layers ([0029]) with a thickness of 1-50 micrometers (which overlaps the instantly claimed range of instant claim 3 thus prima facie obvious in accordance with MPEP 2144.05 I). Yoshinaga fails to explicitly disclose the constituents of the microporous layer.
Wilde discloses a hydrophobic moisture management layer comprising ([0005] “a micro porous layer (MPL) that enhances the transport of water inside the fuel cell and electrically couples the gas diffusion layer to the adjacent catalyst layer”), the hydrophobic moisture management layer including carbon particles and carbon fibers ([0062]), a weight of the carbon fibers being between 1wt% and 20wt% of a weight of the second diffusion layer ([0062] where 50-99% comprise the carbon black and carbon nanotubes, where the amount of carbon nanotubes is 10-50% of the total carbon thus overlaps the instantly claimed range assuming 50% of the layer is carbon 10% is carbon nanotubes amounts to 5% of the total layer weight and where 99 % of the layer is carbon and 50 % of that carbon being nanotubes thus a carbon nanotube amount of 49.5% of the total layer weight and thus prima facie obvious. See MPEP 2144.05 I) and wherein the hydrophobic moisture management further includes a water repellant agent ([0022]-[0023],[0067] polytetrafluoroethylene as required by instant claim 4) and wherein an average primary particle size of the carbon particles and the carbon fibers is preferably 10nm or more and 300nm or less. ([0008] at most 25 nm for the nanotubes and [0017] 30-100 nm particle diameter of the carbon black as required by instant claim 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the instant application to have used a hydrophobic moisture management layer as taught by Wilde in place of the microporous layer in Yoshinaga because it provides increased electrical conductivity and greater gas permeability (Wilde [0007]).
Yoshinaga discloses using microporous layers to adjust the water repellency property and that the amount of water repellant agent in the diffusion layer should be between 2 and 30 wt%. As combined with Wilde which used the carbon particles and fibers as the water repellent agents, this provide the amount of carbon fibers to be 10%-50% of the total amount of carbon and where carbon makes up of 50-99.9 wt% of the entire MPL layer, thus the weight of the water repellent agents amount relative to the diffusion layer using the range of Yoshinaga which desires an among of water repellant agent as cited in [0029] to be 0.2 % to 30 wt % of the diffusion layer, provides a range of 0.1% (calculated using 10% amount of carbon fiber of a 50% carbon in an MPL layer as taught in Wilde using 0.2 wt % as desired by Yoshinaga) to 15 % (calculated using 50% amount of carbon fiber of a 99.9% carbon in an MPL layer as taught in Wilde using 30 wt % as desired by Yoshinaga) to provide extreme upper and lower ends of the ranges disclosed in combined Yoshinaga and Wilde, which overlaps the instantly claimed range and thus prima facie obvious. See MPEP 2144.05 I.
As to claim 7, Yoshinaga discloses an electrochemical cell including the membrane assembly of claim 1 (Title and citation above).
As to claim 8, Yoshinaga discloses a stack including the membrane electrode assembly of according to claim 1 (Title [0058] and citation above).
As to claim 9, Yoshinaga discloses an electrolyzer including the membrane assembly of claim 1 (Title “electrochemical cell” which electrolyzes water as disclosed at [0004] thus satisfying the instant claim language).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Yoshinaga, as modified by Wilde, as applied to claim 1 above, and further in view of Hunegnaw et al (US 2020/0216968 A1).
As to claim 10, Yoshinaga, as modified by Wilde, fails to explicitly disclose wherein each of the first porous catalyst layer and the second porous catalyst layer includes a particle of a catalyst metal, the catalyst metal being not supported on a carrier.
Hunegnaw discloses the catalyst may be unsupported particles ([0237], [0179], [0183]) in porous cathode and anode layers ([0053], [0175], [0187], [01288], [0212]).
Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have used unsupported catalyst particles as taught by Hunegnaw as the catalyst particles of Yoshinaga, as modified by Wilde, in the routine selection of appropriate particles for used within electrolysis cells where unsupported particles are recognized for their intended use in provided an expected result of catalyzing the electrochemical reactions. See MPEP 2144.07 and 2143 B.
Response to Arguments
Applicant's arguments filed 8 July 2026 have been fully considered but they are not persuasive.
In response to Applicant’s arguments towards Wilde, the arguments are deemed moot in light of incorporation of dependent claims 2, 3, and 4 into claim 1 and thus the rejection withdrawn.
In response to Applicant’s arguments that the second electrode 12 does not generate hydrogen as presented on pg. 11 top partial paragraph, this argument is not persuasive because as Applicant also concedes in the cited argument, “anode [12] decomposes water…to generate”
In response to Applicant’s arguments towards the weight percent of carbon fibers relative the diffusion layer, this argument is not persuasive in light of the combination of Yoshinaga and Wilde provided the explicit calculations presented above based on previously cited passages of Yoshinaga and Wilde. Yoshinaga discloses the amount of water repellant agent to use with the diffusion layer and Wilde discloses amounts of each constituent in a hydrophobic management layer. When calculated from the combined teaching, the values overlap the claimed range as presented above and the rejection maintained as such.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the structure of the electrochemical cell is the same for both the fuel cell and electrolyzer cell. While the disclosure of [0029] may be drawn towards a PEFC, the Examiner maintains this would not dissuade one of ordinary skill in the art using the type of microporous layer common to electrolyzer cells as such. It has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992).
In response to Applicant’s argument towards the result presented in Example 1-10 with respect to a voltage rise rate, this argument is not persuasive because the results are not compliant with MPEP 716.02(d) as they are drawn towards specific materials and methods of operating the cell. It is further noted the rejection does not rely upon routine optimization, but rather use of the explicit materials within the explicit ranges as disclosed which fall within the claimed ranges. As a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith." In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
No further arguments are presented.
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 LOUIS J RUFO whose telephone number is (571)270-7716. The examiner can normally be reached Monday to Friday, 9 am to 5 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Luan Van can be reached at 571-272-8521. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LOUIS J RUFO/Primary Examiner, Art Unit 1795
