Note the text within Ex parte Budinkski :
While Yan does teach and claim that the decal material may be porous and/or non-porous as found by the Examiner (Ans. 9), we fail to see how such disclosure would have suggested forming a non-porous decal-electrode layer-porous decal structure as required by the claims absent impermissible hindsight reasoning. Rather, within the context of Yan such a disclosure reasonably means that porous and non-porous decals may be used to form different, individual electrode layers for attachment to a fuel cell membrane. Yan teaches that the multiple electrode layers with different ionomer gradients may be formed and transferred to a membrane with the different layers adjacent one another to form a particular ionomer gradient in the fuel cell (see, e.g., Yan, para. ).
On this record, the Examiner has not established that the prior art would have suggested the proposed modification to Yan to arrive at the claimed non-porous-electrode material-porous decal structure. Rather, we agree with Appellant that the proposed modification of Yan is based on impermissible hindsight.