Appeal 2007-1680
Application 10/081,087
controlled process described in the Specification is the only way to produce
particles of the claimed circularity.
The Appellants are in the best position to provide evidence that the
Hayashi and/or Kato product does not possess the invention’s claimed
circularity, and other parameters. This is particularly true in this situation
where the prior art and current inventions have common assigned parties
(Matsushita Electric Industrial Co., Ltd). Absent factual evidence showing a
patentable difference between the prior art and claimed products, the
Appellants have not carried their burden of showing that the claimed product
is not anticipated by the prior art.
II. To the extent the products of the prior art and invention are not identical
or substantially identical, the Examiner’s rejection of the claimed invention as
obvious in light of Hayashi or Kato is also well-founded. As evidence of
obviousness of the claimed subject matter under § 103, the Examiner has
again relied on the disclosure of Hayashi or Kato. The Examiner has correctly
found that Hayashi and Kato disclose that nickel hydroxide is produced by
mixing and stirring nickel sulfate and sodium hydroxide solutions.
Furthermore, as indicated supra, Hayashi teaches that uniform crystal growth
reduces the amount of disordered crystals which improves the conductivity of
nickel hydroxide, thus suggesting the desirability of forming highly spherical
nickel hydroxide particles (uniform circularity). Similarly, Kato’s example 1
also describes the process by which the pH is controlled during the nickel
hydroxide formation process to “deposit spherical solid solution nickel
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