Appeal No. 2005-0178
Application No. 10/091,502
secondary power source, and hence is not supportive of a
patentable subject matter. In so doing, the examiner overlooks
the above-mentioned case law.
Because it is not disputed by the examiner that the applied
art fails to recognize that the negative electrode density is a
result effective variable, it follows, according to In re
Antonie, that appellants’ claimed subject matter is unobvious.
Id.
In view of the above, we determine the examiner has not set
forth a prima facie case of obviousness. As such, we need not
discuss any evidence in connection with unexpected results.
We therefore reverse the rejection under 35 U.S.C. § 103 as
being obvious over Kuruma in view of Honbo.
We also reverse each of the rejections under the judicially
created doctrine of obviousness-type double patenting for the
same reasons that we reverse the rejection under 35 U.S.C. § 103
as being obvious over Kuruma in view of Honbo. As indicated,
supra, each of the primary references applied in the rejections
under the judicially created doctrine of obviousness-type double
patenting did not teach appellants’ claimed negative electrode
density, and Honbo is not properly combinable with each of these
primary references for the same reasons that Honbo is not
properly combinable with Kuruma.
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