Appeal No. 1996-2805
Application No. 08/103,055
substitution of known anode components. However, as
persuasively argued by appellants, the use of a lithium
electrode is at the heart of the Hayashi patented invention.
Accordingly, the modifications of the Hayashi electrode in the
manner suggested by the examiner run directly contrary to the
specific teachings of the Hayashi patent.
In light of the above, we cannot sustain the stated
rejection of the appealed claims based on Hayashi.
REMAND TO THE EXAMINER
Appellants emphasize in their brief at page 7 that the
non-applied Japanese Patent Publication No. 58-93176, referred
to above, is directed to the pyrolysis of synthetic polymers
to form cathodes and anodes in a secondary battery or cell.
Appellants contend that nothing in this publication suggests
any criticality in obtaining and using a carbon material
having a crystallite size of 10D or less, much less how to
select the proper starting materials and processing conditions
to obtain such a material. However, we remand this
application to the examiner to consider whether or not based
on product-by-process principles and the legal principles
regarding inherency as set forth in In re Best, 562 F.2d 1252,
5
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