Appeal 2007-3414
Application 10/194,032
. . . may not be established by probabilities or possibilities. The mere fact
that a certain thing may result from a given set of circumstances is not
sufficient.” Mehl/Biophile Intl. Corp. v. Milgraum, 192 F.3d 1362, 1365,
52 USPQ2d 1303, 1305 (Fed. Cir. 1999) (quoting In re Oelrich, 666 F.2d
578, 581, 212 USPQ 323, 326 (CCPA 1981)).
Obviousness over Goodenough in view of Kumar
In rejecting the claims as obvious over Goodenough in view of
Kumar, the Examiner finds that Goodenough discloses a LiFePO4 material
useful as a lithium battery anode material (Answer 5). The Examiner
acknowledges that Goodenough does not specify particle sizes or pore free
surfaces for the material (Answer 5). To meet these aspects of the claim, the
Examiner turns to Kumar. According to the Examiner, Kumar describes
producing composite metal oxide particles that are less than 1 micron in size
and pore free (Answer 5). The Examiner concludes that it would have been
obvious to one of ordinary skill in the art to make the LiFePO4 of
Goodenough by the method of Kumar “because Kumar et al teach that the
ability of metal oxide to intercalate lithium can used advantageously for the
production of lithium and lithium ion batteries (Col 1 lines 20-34).” (Answer
5 and 6).
Appellants contend that one of ordinary skill in the art would not
understand the process of Kumar, a process of forming lithium metal oxide,
as useful for the formation of the LiFePO4 material of Goodenough.
The issue on appeal arising from the contentions of Appellants and the
Examiner is: Has the Examiner established that one of ordinary skill in the
art would have found it obvious to use the process of Kumar to form the
LiFePO4 material of Goodenough? We answer this question in the negative.
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