DETAILED ACTION
Response to Amendment
This is a final office action in response to a communication filed on May 26, 2026. Claims 1-5, 7-9, 11-16, and 18-23 are pending in the application.
Status of Objections and Rejections
All objections from the previous office action are withdrawn in view of Applicant’s amendment.
The rejection of claims 6, 10, and 17 is obviated by Applicant’s cancellation.
All rejections under 35 U.S.C. § 112 from the previous office action are withdrawn in view of Applicant’s amendment.
Some rejections under 35 U.S.C. § 103 from the previous office action are maintained, and new grounds of rejection are necessitated by the amendments.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim(s) 21-23 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 21 recites the limitation “ the retainer is provided with a notch at the outside circumferential portion, the notch extending from the tip of the retainer to a tip of the negative electrode” in last three lines, which is not disclosed in the specification and is deemed to be new matter. The specification does not mention the term “notch” in the text, and Fig. 2 merely shows the retainer 15 having a curvature from its tip and then having a step to the height of the negative electrode 13 (also see annotated Fig. 2 in Response, p. 17). As evidenced by Merriam-Webster, notch is a V-shaped indentation as shown in the figure of Wikipedia document, which is different from the disclosure in Fig. 2 of the instant specification. Thus, this limitation raises new matter.
Claims 22-23 are rejected due to their dependencies on claim 21.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-2, 7-9, and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitazawa (US 2019/0219535) in view of Dumschat (US 2020/0240948).
Regarding claims 1-2, Kitazawa teaches an oxygen sensor (Fig. 1; ¶19: a galvanic cell type oxygen sensor) comprising:
an electrolyte (Fig. 1; ¶20: electrolyte solution 7);
a liquid-containing portion (Fig. 1; ¶20: a holder 9) that has an opening (Fig. 1; ¶60: a through hole 16 that serves as an oxygen supply pathway) and that contains the electrolyte therewithin (Fig. 1: the holder 9 holding electrolyte solution 7);
a permeable membrane (Fig. 1; ¶20: the membrane 4A) that has oxygen permeability (¶66: the membrane 4A controls the entry of oxygen) and that covers the opening (Fig. 1); and
a positive electrode (Fig. 1; ¶21: positive electrode 45) and a negative electrode (Fig. 1; ¶21: negative electrode 8) that are arranged so as to come in contact with the electrolyte (Fig. 1; ¶20: a bore 11 for the supply of the electrolyte solution; thus the electrolyte solution must be in contact with the positive electrode for the sensor function);
wherein the negative electrode contains tin (¶50: the material of the negative electrode is Sn).
Kitazawa does not disclose wherein the electrolyte contains polyol (claim 1) or wherein the polyol includes glycerol (claim 2).
However, Dumschat teaches a galvanic oxygen sensor ([Abstract]) including a housing, a cathode, an anode, and an aqueous electrolyte including a polyol (¶2). The addition of polyol to an aqueous electrolyte prevents passivation of the anode in the galvanic oxygen sensor (¶6) and maintains a constant current ([Abstract]). The polyol can be glycerol (¶15).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kitazawa by incorporating polyol, e.g., glycerol, in the electrolyte as taught by Dumschat because the addition of polyol to an aqueous electrolyte prevents passivation of the anode in the galvanic oxygen sensor (¶6) and maintains a constant current ([Abstract]). Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A).
Regarding claim 7, Kitazawa teaches wherein the oxygen sensor is a galvanic cell-type sensor (Fig. 1; ¶19) that causes an electric potential to be spontaneously produced between the positive electrode and the negative electrode (¶18: Specifically, in the galvanic cell type oxygen sensor, a current generated by electrochemical reduction of oxygen on the positive electrode is converted to a voltage at the resistor).
Regarding claim 8, Kitazawa in view of Dumschat teaches a device comprising the oxygen sensor according to claim 1 (as described in claim 1).
The preamble “water quality measuring” is deemed to be a statement with regard to the intended use and are not further limiting in so far as the structure of the product is concerned. In article claims, a claimed intended use must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. MPEP § 2111.02(II). The apparatus as taught by Kitazawa in view of Dumschat is identical to the presently claimed device and would therefore would have the ability to perform the use recited in the claim.
Regarding claim 9, Kitazawa in view of Dumschat teaches an oxygen measuring method (¶12: operation of the present invention) wherein the oxygen sensor according to claim 1 (as described in claim 1) is used to measure dissolved oxygen at a target liquid (¶2: checking the degree of oxygen deficiency for detecting the oxygen concentration).
Further, the limitation “used to measure dissolved oxygen at a target liquid” does not further limit the method as claimed because it is the intended result of the measuring method. Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed. In method claims, it is the overall method steps that are given patentable weight not the intended result thereof because the intended result does not materially alter the overall method. Here, this designation is not given patentable weight when it simply expresses the intended result of a method without positively performed steps. MPEP 2111.04.
Regarding claim 15, Kitazawa and Dumschat disclose all limitations of claim 1. Kitazawa does not disclose wherein a specific volume of polyol within the electrolyte is not less than 10%
However, Dumschat teaches addition of polyol, e.g., glycerol, into an aqueous electrolyte, and the glycerol can be present in the range of about 20% to about 30% by volume (¶15), which overlaps the claimed range.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kitazawa and Dumschat by adjusting the polyol amount in the electrolyte within the claimed range as suggested because it provides a suitable amount of polyol for suppressing passivation of the anode (¶15). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05(I).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitazawa in view of Dumschat, and further in view of Neti (US 4,268,370).
Regarding claim 3, Kitazawa and Dumschat disclose all limitations of claim 1. Kitazawa further discloses wherein the positive electrode contains gold (¶23).
Kitazawa and Dumschat do not disclose wherein pH of the electrolyte is not less than 12.2.
However, Neti teaches an electrochemical sensor for determining the O2 content of a fluid ([Abstract]). A typical electrolyte has a pH of approximately 13.5 (col. 2, ll. 38-39), which lies in the claimed range.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kitazawa and Dumschat by adjusting the pH of electrolyte solution within the claimed range as suggested because it provides a suitable pH range of the electrolyte for an electrochemical oxygen sensor. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05(I).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitazawa in view of Dumschat, and further in view of Kiesele (EP 0546291, machine translation used for citation).
Regarding claim 14, Kitazawa and Dumschat disclose all limitations of claim 1, but fails to teach wherein a freezing point of the electrolyte is -30 ⁰C to -5 ⁰C.
However, Kiesele teaches an electrochemical measuring cell for the amperometric determination of ammonia or hydrazine in a gaseous or liquid measuring sample (p. 1, Description, para. 1), which has a reduced minimum working temperature (para. 4). The hygroscopic salts cause the freezing point of the electrolyte to be lowered so that the sensors can be used in cold at temperatures down to approx. -50 ⁰C (p. 2, para. 1), which overlaps the claimed range.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kitazawa and Dumschat by incorporating hygroscopic salts into the electrolyte as taught by Kiesele to reduce the minimum operation temperature of the electrochemical censor. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05(I).
Allowable Subject Matter
Claim(s) 4-5 and 11-13 is/are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 16 and 18-20 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: The prior art does not disclose nor render obvious all of the cumulative limitations of claims 4-5, 11-13, 16, and 18-20 with particular attention to the limitations:
a surface of the positive electrode is arranged at the tip of the retainer, the surface of the positive electrode having a curvature so that at least a portion of the surface of the positive electrode protrudes from the retainer (claims 4 and 16).
Here, Kitazawa (US 2019/0219535) teaches an oxygen sensor (Fig. 1: a galvanic cell type oxygen sensor) comprising: an electrolyte (Fig. 1: electrolyte solution 7); a liquid-containing portion (Fig. 1: a holder 9) that has an opening (Fig. 1: a through hole 16) and that contains the electrolyte therewithin; a permeable membrane (Fig. 1: the membrane 4A) that has oxygen permeability (¶66) and that covers the opening; and a positive electrode (Fig. 1: positive electrode 45) and a negative electrode (Fig. 1: negative electrode 8) that are arranged so as to come in contact with the electrolyte; wherein the negative electrode contains tin (¶50: Sn). Dumschat (US 2020/0240948) teaches a galvanic oxygen sensor ([Abstract]) including a housing, a cathode, an anode, and an aqueous electrolyte including a polyol (¶2). The addition of polyol to an aqueous electrolyte prevents passivation of the anode in the galvanic oxygen sensor (¶6) and maintains a constant current ([Abstract]). Further, Hayashi (JP 2004-132915) teaches a galvanic type oxygen sensor (¶10), which includes a retainer (Fig. 3: insulator 10) that retains the positive electrode (Fig. 3: Anode 3) and the negative electrode (Fig. 3: Cathode 1); the negative electrode and the positive electrode each is formed so as to be cylindrical (Fig. 3; ¶10: outer cylinder 7; thus Anode 3, Cathode 1, and the insulator 10 are also cylinder); and the insulator 10 is arranged to be secured between Anode 3 and Cathode 1 (Fig. 3); and a surface of the inner electrode (Fig. 3: Cathode 1) is at the tip of the insulator 10. However, none of the references teaches either electrode having a curvature so that at least a portion of the surface of that electrode protrudes from the insulator.
Therefore, claims 4 (including its dependent claims 5 and 11-13) and 16 (including its dependent claims 18-20) contain this allowable subject matter.
Response to Arguments
Applicant’s arguments have been considered but are unpersuasive.
Applicant argues Dumschat teaches away from using a tin negative electrode (Response, p. 12, para. 3) by citing ¶¶5-6 of Dumschat (p. 12, para. 3; p. 13, para. 1). This argument is unpersuasive. First, Kitazawa explicitly discloses for a galvanic cell type oxygen sensor (Fig. 1; ¶19), using a negative electrode made of Sn (¶50). Although Dumschat discloses that a tin anode of a galvanic oxygen sensor may have limited lifetime due to the self-corrosion and passivation of the anode surface (Dumschat, ¶5), it shows that tin anode is a non-preferred embodiment but not an inoperable one. Further, Dumschat teaches the addition of a polyol to the electrolyte would prevent passivation of a bismuth anode in the galvanic oxygen sensor (¶6), which prevents the formation of a passivation layer, i.e., the formation of a Bi2O3 layer, on the electrode surface (¶14). It would motivate one of ordinary skill to use the polyol in the electrolyte to prevent the passivation of a metal electrode, i.e., the oxidation of the metal, for example, the oxidation of tin. Thus, there is no teaching away of use of tin anode or use of polyol for a tin anode.
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 extension fee 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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/C. SUN/Primary Examiner, Art Unit 1795
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