Appeal 2007-0128
Reexamination Control 90/006,208
Patent 5,573,648
atmosphere, and would be poisoned, for example, by CO.
(Id. at 24).
The analogous-art test articulated in Graham requires that:
[A] reference is either in the field of the applicant's endeavor or is
reasonably pertinent to the problem with which the inventor was
concerned in order to rely on that reference as a basis for rejection.
In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1335-36 (Fed. Cir. 2006.
Atwood identifies the field of its endeavor as electrochemical gas sensors.
Both Grot and Uchida are references in the field of electrochemical gas sensors.
Grot states that its electrodes may be used in Agas dosimeters and sensing devices
and the like.@ (Grot, col. 1, ll. 19-30). Similarly, Uchida states that its electrodes
may be used in Avarious gas sensors such as oxygen sensors and alcohol sensors.@
(Uchida, col. 10, lines 60-64).
At oral argument counsel for Atwood suggested that the particular gas
sensor statements in Grot and Uchida do not reflect the true nature of the
references. We
do not agree. Grot has three independent claims, claims 1, 11 and 12. While Grot
independent claim 11 is directed towards a fuel cell, independent claims 1 and 12
are directed to electrodes and do not recite an intended use. Similarly, Uchida
claims 19 and 20 are directed towards a Asolid polymer electrolyte membrane and
electrode assembly@ and make no mention of an intended use. Accordingly,
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