Appeal 2007-3426
Application 10/400,954
ordinary skill in this art to increase the volume of the battery, and thus, the
extent of active material in the battery, which would provide “energy storage
proportional to thickness” if the components of the battery are similarly
structured to provide that proportional capacity. Appellants have not
established that the components of the microbatteries described by
LaFollette are not so structured even though the reference does not discuss
energy capacity relative to structure. See, e.g., In re Skoner, 517 F.2d 947,
950-51, 186 USPQ 80, 82-83 (CCPA 1975) (“Appellants have chosen to
describe their invention in terms of certain physical characteristics . . . .
Merely choosing to describe their invention in this manner does not render
patentable their method which is clearly obvious in view of [the reference].”
(citation omitted)).
With respect to claim 9, as we interpreted this claim above, we
determine that one of ordinary skill in the art would appreciate the
differences between soft lithography and photolithography. We cannot
agree with Appellants' arguments that only soft lithography is capable of
forming a microbattery because it can create three-dimensional structures on
non-planar surfaces. Indeed, LaFollette teaches the use of lithography
generally for forming microbatteries in such manner, even though describing
microbatteries prepared by photolithography. Thus, on this record, we agree
with the Examiner that the microbatteries described by LaFollette fall within
claim 9 as Appellants have not patentably distinguished the reference by
establishing with persuasive argument and/or objective evidence that a
microbattery prepared by soft lithography in fact has different characteristics
than microbatteries with the same components prepared by photolithography
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