Appeal 2007-1680
Application 10/081,087
II. PRIOR ART
As evidence of unpatentability of the claimed subject matter, the
Examiner has relied upon the following prior art references:
Hayashi US 6,358,648 B2 May 10, 2002
Kato US 6,083,642 Jul. 4, 2000
III. REJECTION
The Examiner has rejected the claims on appeal as follows:
1. Claims 1-4, 6-8 under 35 U.S.C. § 102(e) as anticipated by or, in
the alternative, under U.S.C. § 103(a) as obvious over Hayashi; and
2. Claims 1-4, 6-8 under 35 U.S.C. § 102(e) as anticipated by or, in
the alternative, under U.S.C. § 103(a) as obvious over Kato.
IV. ISSUES
1. Does Hayashi or Kato describe a positive electrode active
material either identical or virtually identical to that claimed within the
meaning of 35 U.S.C. § 102(e)?
2. Would Hayashi or Kato have led a person of ordinary skill in the
art to produce a positive electrode material with the claimed circularity
specifications within the meaning of 35 U.S.C. §103?
V. ANALYSIS, FACTS, AND CONCLUSIONS OF LAW
I. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977)
states in relevant part:
Where. . . the claimed and prior art products are identical or
substantially identical, or are produced by identical or
substantially identical processes, the PTO can require an
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