Chami, Marianne et al.Download PDFPatent Trials and Appeals BoardOct 1, 201913818191 - (D) (P.T.A.B. Oct. 1, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/818,191 02/21/2013 Marianne Chami 409880US41PCT 6549 22850 7590 10/01/2019 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER PARSONS, THOMAS H ART UNIT PAPER NUMBER 1729 NOTIFICATION DATE DELIVERY MODE 10/01/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): OBLONPAT@OBLON.COM iahmadi@oblon.com patentdocket@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARIANNE CHAMI and LIONEL PICARD ____________ Appeal 2019-000972 Application 13/818,191 Technology Center 1700 ____________ Before MONTÉ T. SQUIRE, MERRELL C. CASHION, JR., and JANE E. INGLESE, Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL1 1 In this Decision, we refer to the Specification filed Feb. 21, 2013 (“Spec.”); Final Office Action dated July 1, 2016 (“Final Act.”); Advisory Action dated Nov. 28, 2016 (“Adv. Act.”); Appeal Brief filed Apr. 26, 2017 (“Appeal Br.”); Examiner’s Answer dated Sept. 22, 2017 (“Ans.”); and Reply Brief filed Nov. 16, 2018 (“Reply Br.”). Appeal 2019-000972 Application 13/818,191 2 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 17–32, which are all of the claims pending in this application.3 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter Appellant’s disclosure relates to a bipolar lithium electrochemical battery including a bipolar element, and a casing encapsulating the bipolar element. Spec. 7; Abstract. Claim 17 is illustrative of the claimed subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief: 17. A lithium bipolar electrochemical battery comprising: at least one bipolar element; and a casing encapsulating the bipolar element; wherein the casing comprises a composite material, including a matrix and at least one porous reinforcement having interconnected openings, the matrix of which including at least one hardened polymer interspersed throughout said openings such that the hardened polymer impregnates the at least one porous reinforcement, wherein the at least one porous reinforcement completely surrounds all sides of the bipolar element such that the at least one porous reinforcement and the at least one hardened polymer interspersed throughout said openings encase the bipolar element and apply a pressure to 2 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies “COMMISSARIAT A L’ENERGIE ATOMIQUE ET AUX ENERGIES ALTERNATIVES” as the real party in interest. Appeal Br. 1. 3 Claims 1–16 are canceled. Appeal Br. 7. Appeal 2019-000972 Application 13/818,191 3 either side of the bipolar element sufficient to maintain a contact between constituents of the bipolar element. Appeal Br. 7 (Claims Appendix). The References The Examiner relies on the following prior art references as evidence in rejecting the claims on appeal: Fukuzawa et al. (“Fukuzawa”) US 7,318,979 B2 Jan. 15, 2008 Kazuya (“JP ’154”) JP2000106154 (A) Apr. 11, 2000 Nakamura (“JP ’659”) 4 JP2008027659 (A) Feb. 7, 2008 Lee (“KR ’413”) KR 10-2007-0089413 Mar. 9, 2009 The Rejections On appeal, the Examiner maintains (Ans. 2) the following rejections: 1. Claims 17–29 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over JP ’659 in view of JP ’154, and further in view of KR ’413 (“Rejection 1”). Final Act. 2. 2. Claims 30–32 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over JP ’659 in view of JP ’154, and further in view of KR ’413, as applied to claim 17 above, and further in view of Fukuzawa (“Rejection 2”). Final Act. 9. 4 In rejecting the claims on appeal, the Examiner relies on and cites to Nakamura, US 2009/0197161 A1, published Aug. 6, 2009 (“Nakamura”) as the English translation of the JP ’659 reference. See Final Act. 2. Appeal 2019-000972 Application 13/818,191 4 OPINION Having considered the respective positions advanced by the Examiner and Appellant in light of this appeal record, we affirm the Examiner’s rejections based on the fact-finding and reasoning set forth in the Answer, Advisory Action, and Final Office Action, which we adopt as our own. We add the following primarily for emphasis. Rejection 1 Appellant argues claims 17 and 24 as a group and does not present separate argument for the patentability of any of the remaining claims subject to the Examiner’s rejections. Appeal Br. 3, 6. We select claim 17 as representative and remaining claims 18–29 stand or fall with claim 17. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner determines the combination of JP ’659, JP ’154, and KR ’413 suggests a lithium bipolar electrochemical battery satisfying all of the limitations of claim 17 and concludes the combination would have rendered the claim obvious. Final Act. 2–4. On the record before us, we find that a preponderance of the evidence and sound technical reasoning support the Examiner’s analysis and determination that the combination of JP ’659, JP ’154, and KR ’413 suggests a lithium bipolar electrochemical battery satisfying all of the limitations of claim 17, and conclusion that the combination would have rendered the claim obvious. JP ’659, Figs. 1–6; Nakamura, Figs. 1–6, ¶¶ 15, 16, 37, 41, 45, 15–45; JP ’154, Figs. 1–3, ¶¶ 6, 9–31, 37–42, 48, 67; KR ’413, Abstract, 3:36–4:2, 4:14–16, 5:3–6. Appellant argues that the Examiner’s rejection of claim 17 should be reversed because the cited art does not teach or suggest “at least one porous reinforcement having interconnected openings,” as recited in the claim. Appeal 2019-000972 Application 13/818,191 5 Appeal Br. 3–6; Reply Br. 1–4. In particular, Appellant contends that although KR ’413 discloses a battery case with a body that includes a fiber reinforced composite material, there is no discussion in the reference, or reasoning provided by the Examiner in the rejection, “to explain how mixing of simple fibers in the resin provides the porous reinforcement as claimed.” Appeal Br. 4. Appellant contends that, in contrast to the claimed invention, KR ’413 merely discloses installation of a “prepreg” and Appellant’s Specification does not equate a prepreg to the “porous reinforcement having interconnected openings” element of the claim. Id. at 4–5; see also Reply Br. 3 (asserting “that the term ‘prepreg’ is not used in the claim”). We do not find Appellant’s argument persuasive of reversible error in the Examiner’s determination of obviousness. Contrary to what Appellant argues (Appeal Br. 4–5; Reply Br. 3), we find a preponderance of the evidence supports the Examiner’s finding that the cited art teaches or suggests “at least one porous reinforcement having interconnected openings,” as recited in the claim. As the Examiner finds (Ans. 3; Final Act. 3–4), KR ’413 explicitly discloses a battery casing comprising a “fibre reinforced composite,” including a carbon fibre mixed with a polymer resin. KR ’413, Abstract (“The carbon fiber . . . and polymer resin are mixed and the fibre reinforced composite is formed.”), 3:36–4:2, 4:14–16, 5:3–6. As the Examiner further finds (Ans. 3), KR ’413 discloses that the fibre reinforced composite may be a “prepreg,” i.e., reinforcing composite material impregnated with a resin (KR ’413, Abstract, 3:36–4:2, 4:14–16, 5:3–6), which is consistent with Appellant’s disclosure in the Specification regarding the claimed composite material. See Spec. 8:9–10 (disclosing “at least one hardened polymer impregnating the porous reinforcement”), 9:16– Appeal 2019-000972 Application 13/818,191 6 26 (disclosing the “reinforcement according to the invention may contain . . . carbon fibres” and “is preferably a fibre-based material”), 10:21–29 (disclosing “impregnation polymer(s) which are suitable in the context of the invention”), 12:20–23 (disclosing “at least one porous reinforcement impregnated by at least one polymer”). Appellant’s arguments are not persuasive of reversible error in the Examiner’s factual-findings and analysis in this regard because they are conclusory and unsupported by persuasive evidence in the record. Attorney argument is not evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Appellant’s contentions that “the term ‘prepreg’ is not used in the claim” (Reply Br. 3) and the Specification does not equate a prepreg to the “porous reinforcement having interconnected openings” element of the claim (Appeal Br. 4–5) are not persuasive because a “specific limitation need not be disclosed in haec verba in the reference.” In re Bode, 550 F.2d 656, 660 (1977); see also In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (explaining that there is no ipsissimis verbis test for determining whether a reference discloses a claim element, i.e., identity of terminology is not required). Next, Appellant argues the Examiner’s rejection should be reversed because the cited art does not teach or suggest the “apply a pressure to either side of the bipolar element sufficient to maintain a contact between constituents of the bipolar element” recitation of the claim. Appeal Br. 5. In particular, Appellant asserts that [n]one of the cited references discuss a structure in which the reinforcing member provides pressure to maintain contact between constituents of the bipolar element . . . Appeal 2019-000972 Application 13/818,191 7 [and] [t]he Final Action does not adequately explain how this feature is disclosed in the references. Id. at 5; see also Reply Br. 4 (asserting the Examiner “ignores the role of this claimed structure in applying pressure to reduce separation failures” and “amounts to an inherency argument of the prior art structure without any reasoning”). Appellant’s contentions in this regard are equally unpersuasive because they, too, are conclusory. De Blauwe, 736 F.2d 699, 705; cf. also In re Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011) (holding that a “naked assertion” that the references fail to disclose or suggest a claim limitation is not an argument in support of separate patentability). Moreover, based on the fact-finding and reasoning provided by the Examiner at pages 4–5 of the Answer and pages 3–4 of the Final Office Action, we find a preponderance of the evidence supports the Examiner’s finding that the cited art suggests the “apply a pressure to either side of the bipolar element sufficient to maintain a contact between constituents of the bipolar element” recitation of the claim. In particular, as the Examiner finds (Final Act. 3), JP ’154 discloses a battery casing comprising a composite material that completely surrounds all sides of a battery element, encases the battery element, and applies a pressure to either side of the battery element to maintain contact between constituents of the battery element. JP ’154, Abstract, Figs. 1–3, ¶¶ 9–31, 37–42, 48. As the Examiner further finds and explains (Final Act. 3), one of ordinary skill in the art would have had reason to modify JP ’659’s battery casing with the casing of JP ’154 to provide a battery case that does not have bulging and to prevent the battery’s characteristics from being impaired by maintaining the adhesion between a totally-solid battery element and an Appeal 2019-000972 Application 13/818,191 8 armor body. See JP ’154, Abstract (disclosing that “joining of the interface between the electrodes and the solid electrolyte can be maintained”), ¶ 6 (disclosing the casing “does not have bulging of a cell case . . . and the adhesion of a totally-solid battery element and an armor body are maintained” and “provid[es] the cell by which a battery characteristic is not impaired”), ¶ 67 (“There is not bulging at the time of obturation of a cell or deformation.”). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007) (explaining that any need or problem known in the art can provide a reason for combining the elements in the manner claimed). Appellant fails to direct us to persuasive evidence or provide an adequate technical explanation to establish why the Examiner’s articulated reasoning lacks a rational underpinning or is otherwise based on some other reversible error. Appellant’s mere disagreement as to the Examiner’s factual findings and reasoning for combining the references, without more, is insufficient to establish reversible error. Cf. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[M]ere statements of disagreement . . . as to the existence of factual disputes do not amount to a developed argument.”). Accordingly, we affirm the Examiner’s rejection of claims 17–29 under 35 U.S.C. § 103(a) as obvious over the combination of JP ’659, JP ’154, and KR ’413. Rejection 2 Appellant does not present any new or additional substantive arguments in response to the Examiner’s rejection of claims 30–32 under 35 U.S.C. § 103(a) as obvious over the combination of JP ’659, JP ’154, Appeal 2019-000972 Application 13/818,191 9 KR ’413, and Fukuzawa, which we refer to above as Rejection 2. See Appeal Br. 3–6; Reply Br. 1–4. Accordingly, based on the findings and technical reasoning provided by the Examiner and for principally the same reasons discussed above for affirming Rejection 1, we affirm Rejection 2. CONCLUSION In summary: Claim(s) Rejected Basis Affirmed Reversed 17–29 § 103(a) JP ’659, JP ’154, KR ’413 17–29 30–32 § 103(a) JP ’659, JP ’154, KR ’413, Fukuzawa 30–32 Overall Outcome 17–32 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED Copy with citationCopy as parenthetical citation