Appeal 2007-1680
Application 10/081,087
hydroxide particles” (col. 11, lines 56-60), thus suggesting the pH control as
an important variable in the production of spherical (highly circular) particles.
Given the advantage of forming highly spherical particles and the need
to control the pH in forming spherical particles, we concur with the Examiner
that a person with ordinary skill in the art would have been led to produce the
claimed product using appropriate optimum processing variables within the
meaning of 35 U.S.C. § 103. KSR Int’l v. Teleflex, Inc., 127 S. Ct. 1727,
1740-41, 82 USPQ2d 1385, 1396 (2007) quoting In re Kahn, 441 F.3d 977,
988, 78 USPQ2d 1329, 1336-37 (Fed. Cir. 2006) (“[A]nalysis [of whether the
subject matter of a claim is obvious] need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person of ordinary skill
in the art would employ.”); In re Hoeschele, 406 F.2d 1403, 1406-07,
160 USPQ 809, 811 (CCPA 1969) (“[I]t is proper to take into account not
only specific teachings of the references but also the inferences which one
skilled in the art would reasonably be expected to draw therefrom....”).
The Appellants only argue that the mean circularity and circularity
distribution of the particles are the reason for the invention’s non-obviousness.
(Br. 8). The Appellants allege that the claimed mean circularity and
circularity distribution impart unexpected results. (id.) In support of their
allegation, the Appellants have provided a chart depicting the resultant
changes in battery capacity arising from changes in the particle circularity. “It
[is] incumbent upon [A]ppellants to submit clear and convincing evidence to
support their allegation of an unexpected property.” In re Heyna, 360 F.2d
222, 228, 149 USPQ 692, 697 (CCPA 1966); In re Klosak, 455 F.2d 1077,
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