Appeal No. 1999-0769 Page 8
Application No. 08/661,532
product, the burden is on the applicant to establish with
objective evidence that the claimed product is patentably
distinct from the product of the prior art. See In re Brown,
459 F.2d at 535, 173 USPQ at 688. Appellants do not
dispute that lithium ions are incorporated into the electrode
material of Xue in their brief. We note, for example, that3
lithium ion batteries are described by Xue (page 2927) as
including a lithium compound as a positive electrode and
carbon material for the anode. The electrode material product
of Xue intercalates a large amount of lithium (Xue, paragraph
bridging pages 2927 and 2928). The battery containing such an
electrode product as contemplated by Xue appears to
substantially correspond to the product defined by product-by-
process claim 13. 4
3The lack of argument regarding these features is
consistent with appellants’ specification and admissions.
See, e.g., pages 1-3 of appellants’ specification and page 4,
last paragraph of the brief wherein prior art lithium ion
batteries are discussed and Xue described as forming such a
battery.
4We observe that appellants have not presented separate
arguments in the brief with respect any of the product-by-
process claims 13-16.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007