Appeal 2007-2659
Application 09/940,541
insulation between the positive and negative electrodes when the container is
deformed, e.g., when a needle or nail penetrates the container wall
(Specification 5:27-35; 29:5-23; and Fig. 15). We determine that JP ‘564,
which is relied upon by the Examiner to show an improved battery container
covering (Answer 4), clearly discloses that any deformation of the container
produces a hole which is subsequently occluded but where the covering
layer does not provide insulation between the electrodes. See JP ‘564, ¶¶
[0008], [0014], [0020], [0021], [0027], [0034], and especially Fig. 6.
Accordingly, since the Examiner has not shown why this limitation has been
rendered obvious by the combination of JP ‘708 and JP ‘564, we determine
that the Examiner has not met the initial burden of proof in establishing a
prima facie case of obviousness. See In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Therefore, we cannot sustain the
rejection on appeal.
The decision of the Examiner is reversed.
REVERSED
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BIRCH, STEWART, KOLASCH & BIRCH
P.O. BOX 747
FALLS CHURCH, VA 22040-0747
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