Appeal No. 2001-2557
Application No. 08/888,996
refuted the persuasive rational of appellant that the composite
of Bothwell is not a solid electrolyte composite comprising an
ionically conductive ceramic matrix. As emphasized by appellant,
the composite of Bothwell is utilized as a thermal insulator for
the exhaust system of an internal combustion engine, and is
preferably porous. As such, we agree with appellant that
Bothwell is non-analogous to the art of cermat electrodes
disclosed by Isenberg and is not reasonably pertinent to the
problem confronted by appellant in the field of solid electrolyte
composites. In our view, the examiner has resorted to
impermissible hindsight in combining the cited prior art.
All of the appealed claims also stand rejected under the
judicially created doctrine of obviousness-type double patenting
as being unpatentable over claim 1 of U.S. Patent 5,069,987 and
claim 1 of U.S. Patent 5,332,483. Appellant has not offered a
substantive argument against this rejection but have offered to
file a terminal disclaimer (see page 11 of brief, penultimate
paragraph). Accordingly, we will, perforce affirm the examiner’s
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