Appeal 2007-1024
Application 10/231,144
is the same as that described in Applicant’s specification. (Compare,
Tomiyama ¶¶ 35 and 62 with Applicant’s Specification 12).
Applicant argues that Tomiyama fails to disclose necessary conditions
to form an agglomerated conductive agent particle having a size of less than
10 microns as Tomiyama does not explicitly disclose the selection and use
of two binders satisfying the equation θB – θA ≥ 15o. (Appeal Br. 9). The
Examiner however, found that Tomiyama will inherently have the same
agglomerated particle size since Tomiyama mixes the same conductive
agent, binders, active material and solvent as described by Applicant.
(Answer 12). Based upon the evidence presented, we find that the Examiner
has provided a sufficient evidentiary basis for concluding that Tomiyama’s
positive electrode will inherently have the same agglomerated particle size
for its carbon black conductive agent as that claimed by Applicant.
The Examiner has made out a case of anticipation under the principles
of inherency. Applicant has failed to provide sufficient evidence to rebut the
Examiner’s findings on inherency. As such, we find that Applicant’s claims
12-17 are anticipated by Tomiyama.
The Examiner has rejected claims 12-17 as obvious over Tomiyama to
the extent that Tomiyama fails to inherently posses the claimed
agglomerated particle size. (Answer 5). In particular, the Examiner found
that one of ordinary skill in the art would have used agglomerated particles
having a size of less than 10 microns to increase the homogeneousness of the
mixture and the quality of the electrodes. (Id.). Applicant disagrees. (See,
e.g., Reply Br. 2).
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