Appeal 2007-0128
Reexamination Control 90/006,208
Patent 5,573,648
As the optimization of a result effective variable for a known device is within the
skill of the art, we also conclude that the Examiner has established that it was
prima facie obvious to discover the optimum diameter for the sensing and counter
electrodes.
iii. Reasonable Expectation of Success
Atwood contends that there is no reasonable expectation of success to arrive
at Atwood=s claimed subject matter. Specifically, Atwood argues that:
When considering each of claims 1, 3-6, 8-17, 75, 79 and 80 of the
>648 Patent as a whole, rather than considering only the differences
between the claims and the citations, the citations do not provide
sufficient guidance such that one skilled in the art would have any
reasonable expectation of success in arriving at Appellant=s claimed
subject matter. Therefore, each of claims 1, 3-6, 8-17, 75, 79 and 80
of the >648 Patent is patentable over the citations.
(Appeal Br. at p. 40).
Atwood=s argument is not supported by the record. Dempsey, Grot, Uchida
and Vanderborgh all describe membrane and electrode structures that generate
electricity in the presence of oxidation/reduction reactions. Dempsey, Grot, and
Uchida all describe their electrodes as suitable for use in gas sensors, as well as
fuel cells. Further, Grot goes so far as to teach that its proton-electron mixed
conductive electrodes are superior to electrodes described and employed by
Dempsey. Similarly, Vanderborgh explicitly states that its electrodes may be
employed in devices that generate electrical current based upon the consumption of
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