Appeal 2007-1524
Application 09/770,725
1 127 S. Ct. 1727, 1741, 82 USPQ2d 1385, 1396, (2007). Rather, “[w]hen
2 there is a design need or market pressure to solve a problem and there are a
3 finite number of identified, predictable solutions, a person of ordinary skill
4 in the art has good reason to pursue the known options within his or her
5 technical grasp.” KSR, 127 S. Ct. at 1732, 82 USPQ2d at 1397.
6 “When the PTO shows prima facie obviousness, the burden then shifts
7 to the applicant[s] to rebut.” In re Mayne, 104 F.3d 1339, 1342, 41 USPQ2d
8 1451, 1454 (Fed. Cir. 1997). “Such rebuttal or argument can consist of a
9 comparison of test data showing that the claimed compositions possess
10 unexpectedly improved properties or properties that the prior art does not
11 have…” In re Dillon, 919 F.2d 688, 692-93, 16 USPQ2d 1897, 1901 (Fed.
12 Cir. 1990)(en banc).
13
14 ANALYSIS
15 Applicants have argued claims 1-17 together. We select claim 1 as
16 representative of all the appealed claims 1-17. We therefore confine our
17 discussion to this representative claim. Furthermore, any argument not
18 made has been waived. 37 C.F.R. § 41.37(c)(vii).
19 Turning to the merits, Takami discloses a lithium secondary battery
20 comprising a positive electrode, a negative electrode comprising a
21 carbonaceous material capable of absorbing and desorbing Li ions, and a
22 non-aqueous electrolyte, wherein the carbonaceous material has a region of
23 amorphous carbon structure and a region of graphite structure and has a true
24 density of 1.8 g/cm3 or more and a peak in powder X-ray diffraction
25 corresponding to not more than 0.340 nm in an interplanar spacing d002
26 derived from (002) reflection. (Takami, 2:55-65.) In particular, Takami
10
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