Appeal No. 2000-1075
Application 08/838,910
Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1783 (Fed. Cir.
1992). The examiner must explain why the prior art would have
suggested to one of ordinary skill in the art the desirability of
the modification. See Fritch, 972 F.2d at 1266, 23 USPQ2d at
1783-84.
The examiner has not provided the required explanation as to
how the applied prior art itself would have fairly suggested, to
one of ordinary skill in the art, making Torisu’s protective
layer such that it has the porosity of Pollner’s porous coating.
Torisu teaches that his protective layer is adapted to protect
the electrodes and to limit the flow of oxygen through the
cathode (col. 3, lines 7-8), whereas Pollner believes that his
porous coating mixes exhaust gas, the oxygen content of which is
being measured, and causes the gas molecules to diffuse along the
catalytically active electron conductive layer (col. 4, line 55 -
col. 5, line 4). The references, therefore, indicate that the
function of Pollner’s porous coating differs from that of
Torisu’s protective layer. The examiner has not explained why,
regardless of these differences, one of ordinary skill in the art
would have been led by the references themselves to provide
Torisu’s protective layer with the porosity of Pollner’s porous
coating. It is not sufficient for the examiner to merely assert
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