Appeal No. 2002-1284 5
Application No. 09/098,730
Footnote 2, Brief page 5, on the record before us there is no direct challenge to the
examiner’s findings that it is common knowledge that a solid electrolyte layer is non-porous
and that similarly an insulating layer should be non-porous. Accordingly, we accept the
examiner’s finding as fact that both the electrolyte layer and the insulating layer of Mase
are non-porous and layers corresponding to the boundary layers of the claimed subject
matter are preferably porous.
The examiner recognized however, that there is no disclosure of any relationship
between porosity and the particle size difference required by the claimed subject matter.
See Answer, page 3. Accordingly the reference to Suzuki, likewise directed to an oxygen
concentration detector for testing exhaust gas from an automobile was relied upon for its
coating of porous refractory metal oxides. See column 1, lines 5-8 and 46-54.
Specifically, Suzuki teaches a relationship between porosity and particle size, wherein
courser grains of alumina have substantially greater porosity and correspondingly larger
particle sizes than finer grains of alumina. See column 2, lines 38-53. We conclude
therefrom that porous particles of refractory metal oxides have larger particles than less
porous particles and likewise have larger particle sizes than corresponding electrolytic
particles and insulating particles which are not disclosed as being porous.
Based upon the above findings and analysis, we conclude that the examiner has
established a prima facie case of obviousness with respect to the claimed subject matter.
As a rebuttal to the prima facie case of obviousness, appellants rely on the disclosure
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