Appeal No. 2002-0262
Application No. 09/127,785
The appellants urge that the absorbent material does not
reach down into the bottom of the container and thus does not
extend beyond the base of the electrode package. Further, the
appellants urge that the reference does not teach the space at the
bottom of the container. (Appeal Brief, page 9, lines 11-15).
The examiner urges that extending the separator is a simple
change in dimension, and therefore obvious, as “the skilled
artisan has sufficient sophistication to recognize that the
extension of the separator may provide good performances [sic] in
a battery.” (Examiner’s Answer, page 8, lines 5-6).
This statement is unfounded speculation without any
evidentiary support in the record before us. The examiner bears
the burden of explaining why the extensions would be made by one
of ordinary skill in the art and why such extension would have
been obvious to provide the alleged good performance. Again, in
the absence of any evidence to support the examiner’s position, we
are constrained to reverse this rejection as well.
Summary of Decision
The rejection of Claims 1, 2, and 4-8 under 35 U.S.C. §
103(a) as being unpatentable over Sanchez in view of Kadouchi is
reversed.
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