Appeal 2007- 3662
Application 09/997,604
‘104 describes a very specific heating regime for a specific composition.
Zhong ‘104 further specifically desires to obtain spinel crystalline structure
and optimizes the particles for use in lithium batteries. Based on the
similarities of the composition and heating regime as well as the crystalline
structure, it is reasonable to shift the burden to Appellants to show that there
is, in fact, a difference between the particles of Example 3 of Zhong ‘104
and those claimed. Appellants have not presented convincing evidence of a
patentable difference.
We determine that each one of Okada, Zhong ‘104, and Manev teach
or suggest primary particles “having a substantially octahedral shape” and
“including particles having at least one side of each flat crystal face of length
of 1 µm or more” as required by the claims.
With regard to the combination of Okada, Zhong ‘104, and Manev,
respectively with Zhong ‘597 and Watanabe, Appellants make generalized
statements about differences between what the references teach and what is
claimed (Br. 16-17, Br. 20-21, Br. 23-24), but Appellants do not identify any
specific reversible error in the Examiner’s rejections. There is, therefore, no
further issue in this regard for us to consider.
With respect to the rejection of claim 24, Appellants present no
further arguments specific to the limitation for which Idota was added as
evidence of obviousness. Again, there is no further issue for us to consider.
Enablement
Given the level of guidance in the Specification and in the prior art
concerning how to obtain primary particles of spinel crystallinity, i.e.,
crystals of substantially octahedral shape, and how to control particle size,
we cannot agree with the Examiner that Appellants need limit their claims to
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