Appeal 2007-1680
Application 10/081,087
process by which the pH is controlled during the nickel hydroxide formation
process to “deposit spherical solid solution nickel hydroxide particles” (col.
11, lines 56-60). Implicit in this teaching of Kato is that pH is an important
variable in the production of spherical particles. Hence, the overall evidence
of record reveals that the Examiner has demonstrated, by preponderance of
evidence, that the prior art and claimed products are either identical or
substantially identical. Therefore, it is reasonable for the Examiner to shift the
burden to the Appellants to prove otherwise.
The Appellants have not sufficiently demonstrated that the claimed
product is patently different from the prior art products. According to the
Appellants, their process is distinguished from the prior art processes by the
specific adjustment of pH, mixing, and temperature during the nickel
hydroxide formation phase, thus forming particles having the claimed
circularity, which are materially different the prior art particles (Br. 2).
However, the supporting portion (pages 16 and 17) of the Specification
proffered by the Appellants does not indicate that the Hayashi or Kato
reference does not produce particles of the claimed circularity. In fact, the
portion of the Specification relied upon by the Appellants reveals that the
mixing condition, temperature, and pH employed are useful in creating the
mean particle size taught by the prior art references. In other words, the
aspects of the Appellants’ disclosed process which they argue to be unique in
producing the claimed particles are actually revealed to be useful in creating
the spherical particles material described in the prior art. In any event, the
Appellants have not demonstrated that the pH, temperature, and mixing
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