Appeal 2007-1384
Application 10/122,683
All appealed claims are rejected under 35 U.S.C. § 103 (a) as being
unpatentable over Mayer in view of Fitterman.1
On this record, it is undisputed that Mayer discloses all aspects of the
claim 1 apparatus except for the use of an aqueous sodium chloride solution
for humidifying the galvanic cells. In Mayer’s apparatus, KOH is used as
the humidifying solution as well as the electrolyte. According to the
Examiner, it would have been obvious for one with ordinary skill in this art
to replace Mayer’s KOH solution with a sodium chloride solution for
humidifying the galvanic cells in view of Fitterman’s teaching of using a
sodium chloride solution for humidifying purposes.
Appellant argues that an artisan would not have modified the Mayer
apparatus in the manner proposed by the Examiner because the artisan
would have believed that the electrolyte and the humidifying solution
needed to be the same salt in order to avoid deleterious cross-contamination
(Br. 4). As support for this argument, Appellant relies on the § 1.132
Affidavit of record by Michelle Stevens (id.) and particularly relies on ¶ 12
of this Affidavit (id. at 5). Paragraph 12 of the Stevens Affidavit is
reproduced below:
12. Prior to filing of the Application, it was widely
accepted that (i) KOH was the electrolyte of choice due [sic] in
an oxygen sensor due to its sensitivity to oxygen, while (ii)
1 Appellant has not separately argued the rejected claims (Br. 4-5).
Accordingly, in assessing the merits of the rejection on appeal, we will focus
on claim 1 which is the sole independent claim before us. The remaining
claims under rejection will stand or fall with claim 1.
3
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