Appeal 2007-1024
Application 10/231,144
Applicant states that Tomiyama does not suggest how to control the
size of the agglomerated conductive agent particles. (Id.). Applicant
contends that:
Only Appellants teach how to achieve a secondary battery
comprising a conductive agent contained in the positive
electrode material layer forming agglomerated particles having
a particle size of less than 10 μm.
(Id.). Applicant cites its own specification, and in particular Example
1, as evidence that one skilled in the art would have been unable to
control the particle size.
Applicant’s specification states that Comparative Example 4
had larger agglomerated particles than Example 1. (Specification 37-
38). Applicant’s specification does not state that, absent the teachings
of the specification, one of ordinary skill in the art lacked the skills
necessary to control the agglomerated particle size.
We find that Applicant has failed to establish that one of
ordinary skill in the art lacked the ability to control the agglomerated
particle size. Rohm & Haas Co. v. Brotech Corp., 127 F.3d 1089,
1092, 44 USPQ2d 1459, 1462 (Fed. Cir. 1997)(Nothing in the rules or
in jurisprudence requires trier of fact to credit unsupported or
conclusory assertions). Additionally, we find that Applicant does not
dispute the Examiner’s finding that one of ordinary skill in the art
would have had a reason to control the agglomerated particle size of
the conductive agent. Based upon the evidence presented, we
conclude that Applicant’s claims 12-17 are obvious over Tomiyama.
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