Appeal No. 2006-0832 Παγε 7
Application No. 10/155,253
would be discouraged from following the path set out in
the reference, or would be led in a direction divergent
from the path that was taken by the applicant.
Here, we agree with the examiner that Schubert provides
facts which support the examiner’s obviousness contention
regarding the proposed modification of Parker as outlined in the
answer and above. Certainly, Schubert does not serve as a
teaching away from the claimed subject matter as appellant
maintains. In this regard, we find no discouragement with
respect to using particle sizes for the electrode active
materials in the size range claimed for forming the electrode
layers of Parker based on the teachings of Schubert with respect
to the marginal or poor rate capabilities of jet-milled
electrolytic magnesium dioxide (EMD), as discussed in paragraph
0062 of Schubert. That potential disadvantage of using
jet-milled EMD cathode material discussed in Schubert is limited
to certain battery applications using EMD cathode material and
can be offset by employing a larger area electrode and/or using
different graphite contents as further discussed in paragraph
0062 of Schubert. Of more significance, we note that the
representative appealed claim 1 does not require the use of
jet-milled EMD and neither does Parker require such an active
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