Ex Parte Schubert et al

Board of Patent Appeals and Interferences

Dec 17, 2010

10682223 (B.P.A.I. Dec. 17, 2010)

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.
10/682,223 10/09/2003 Mark A. Schubert SP-1665.1 US 8111
20875 7590 12/17/2010
MICHAEL C. POPHAL
EVEREADY BATTERY COMPANY INC
25225 DETROIT ROAD
P O BOX 450777
WESTLAKE, OH 44145
EXAMINER
CONLEY, OI K
ART UNIT PAPER NUMBER
1726
MAIL DATE DELIVERY MODE
12/17/2010 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte MARK A. SCHUBERT
and Jack W. Marple
________________

Appeal 2009-014759
Application 10/682,223
Technology Center 1700
________________

Before TERRY J. OWENS, TONI R. SCHEINER, and MARK NAGUMO,
Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-014759
Application 10/682,223

2
A. Introduction2
Mark A. Schubert and Jack W. Marple (“Schubert”) timely appeal
under 35 U.S.C. § 134(a) from the final rejection3 of claims 1-25, which are
all of the pending claims. We have jurisdiction under 35 U.S.C. § 6.
We REVERSE.
The subject matter on appeal relates to an electrochemical battery cell
containing a nonaqueous solvent electrolyte and fitted with an improved
pressure-relief seal. According to the 223 Specification, nonaqueous
electrolyte cells are being used more frequently in spite of their higher cost
due to their high energy density, high capacity at low temperatures, low
weight, and long shelf life over a broad range of temperatures. (Spec. 1,
ll. 16-20.) Such cells require seals that can withstand a wide range of
environmental conditions, including chemical attack by and vaporization of
the internal nonaqueous electrolytes. Relief from internal pressure buildup
above some set level is said to be important. (Id. at 7, ll. 1-4.) Prior art
thermoplastic seals are said to be inadequate due to excessive cold flow,
which becomes more severe at higher temperatures. (Id. at 3, ll. 24-29.)
According to the inventors, this problem is overcome by providing a
thermoplastic material that contains more than 10 weight percent of a
thermal-stabilizing filler, such as glass fibers. (Id. at 6, l. 29 to 7, l. 4.)

2 Application 10/682,223, Nonaqueous Cell with Improved Thermoplastic
Sealing Member, filed 9 October 2003. The specification is referred to as
the “223 Specification,” and is cited as “Spec.” The real party in interest is
listed as Eveready Battery Co., Inc. (Appeal Brief, filed 23 December 2009
(“Br.”), 3.)
3 Office action mailed 23 September 2008.
Appeal 2009-014759
Application 10/682,223

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Representative Claim 1 reads:
1. An electrochemical battery cell comprising:
a housing comprising a metal container with at least one
open end and at least
a first metal cover disposed in the at least one open end
of the container;
a positive electrode; a negative electrode; a separator
disposed between the positive and negative electrodes; an
electrolyte; and
a first thermoplastic seal member, comprising
a thermoplastic resin and more than 10 weight
percent of a thermal-stabilizing filler,
the first thermoplastic seal member sealing an aperture in
at least one of the container and the first cover and
forming at least a part of a pressure relief vent for
releasing pressure from the cell.
(Br., Claims App. 1 [unnumbered pages]; indentation, paragraphing, and
emphasis added.)
The Examiner has maintained the following grounds of rejection:4
A. Claims 1-15, 18, and 20-22 stand rejected under 35 U.S.C.
§ 103(a) in view of the combined teachings of Zupancic,5
Malay,6 and Doose.7

4 Examiner’s Answer mailed 30 March 2009 (“Ans.”). A rejection under
§ 102(e) in view of a patent to Schubert has been withdrawn. (Ans. 2, ¶ 5.)
5 Ronald E. Zupancic, Electrochemical Cell having a Safety Vent Closure,
US Patent 4,592, 970 (1986).
6 Manuel Rafols Malay and Robert E. Ray, Jr., Electrochemical Cell with
Improved Gasket and Seal, US Patent 6,468,691 (22 October 2002), based
on an application filed 28 February 2000.
7 Paul R. Doose, Sintered Polytetrafluoroethylene Composite Material and
Seal Assembly, U.S. Patent 4,580,790 (1986).
Appeal 2009-014759
Application 10/682,223

4
B. Claims 16, 17, and 23 stand rejected under 35 U.S.C. § 103(a)
in view of the combined teachings of Zupancic, Malay, Doose
and Turchan.8
C. Claims 19, 24, and 25 stand rejected under 35 U.S.C. § 103(a)
in view of the combined teachings of Zupancic, Malay, Doose
and Yoshinaka.9
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Schubert argues that Doose, on which the Examiner relies for
teachings regarding a thermoplastic containing more than 10 weight percent
of a thermal stabilizing filler, is concerned with bearings for reciprocating or
rotating surfaces and as bearing pads for large structures. Accordingly, in
Schubert’s view, Doose provides no teaching that would have suggested the
use of that material in an electrochemical cell. (Ans. 11-12.) Moreover,
according to Schubert, while Zupancic teaches a pressure-relief seal and
liner that comprises a resiliently deformable member, Doose teaches that
fillers are added to polytetrafluorethylene (“PTFE”) in order to “prevent the
PTFE from becoming deformed during continued use.” (Id. at 12, quoting
Doose, col. 1, ll. 37-39; emphasis omitted.) Finally, Schubert argues that the
Examiner has not established that the teachings of Malay regarding a shaped
sealing gasket, which may be made from polymers such as PTFE filled with

8 Michael J. Turchan et al., Cell with Safe Venting Electrolyte, (U.S. Patent
4,482,613 (1984).
9 Minoru Yoshinaka et al., Conductive Resin Composition Containing Zinc
Oxide Whiskers having a Tetrapod Structure, US Patent 5,183,594 (1993).
Appeal 2009-014759
Application 10/682,223

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glass, are relevant to the pressure-relief seal described by Zupancic.
(Reply10 3.)
The Examiner maintains that the disclosure by Doose that PTFE
containing 15% to 25% E-glass is capable of withstanding pressure forces of
2800 psi would have provided the motivation to use such a material in the
sealing gaskets taught by Malay to withstand such pressures in an
electrochemical cell, and “to withstand electrolyte creepage and reducing
corrosion of the electrochemical cell as disclosed by the Zupancic
reference.” (Ans. 5; 9.) The Examiner argues further that the decreased
tensile strength of filled PTFE relative to pure PTFE is evidence that PTFE
filled with E-glass is more deformable than PTFE, and hence more suitable
than PTFE for use in the safety non-resealable vent closures taught by
Zupancic. (Id. at 14.)
A classical instance of obviousness is the substitution of a second
material for a first material in view of a prior teaching that the properties of
the second material are such that a person having ordinary skill in the art
would have had a reasonable expectation that the substitution would yield a
successful embodiment. The issue in the present case is whether Schubert
has shown, by a preponderance of the evidence, that the Examiner has failed
to establish such a reasonable expectation of successfully substituting the
filled PTFE materials taught by Doose to be useful as bushings, sliding
bearings, or bearings for bridges or buildings, for the resiliently deformable
liners described by Zupancic as components of a pressure relief vent closure.

10 Reply Brief (“Reply”) filed 1 June 2009.
Appeal 2009-014759
Application 10/682,223

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As Schubert points out, Doose teaches that the “filler materials are
designed to prevent the PTFE from becoming deformed during continued
use.” This disclosure is, on its face, contrary to Zupancic’s requirement that
liners for the vent closures are preferably “resiliently deformable”
(Zupancic, col. 3, ll. 57-58). The Examiner’s response, that “deformable” is
a relative term, and the Examiner’s argument that tensile strength correlates
directly with deformability, and that the filled PTFEs are “[t]herefore, by
Zupancic’s standards . . . more deformable than PTFE” (Ans. 14), are noted.
The Examiner has not, however, explained what teachings in the prior art
show that the glass fillers that Doose characterizes as “preventing the PTFE
from becoming deformed during continued use” would have been expected
to provide a filled PTFE that is “resiliently deformable” under the conditions
required by Zupancic for the safety vent closures in electrochemical cells.
Nor has the Examiner directed our attention to any credible evidence that
Zupancic seeks lower tensile strength materials. Finally, as Schubert argues,
Malay is concerned solely with static seals for electrochemical cells that
contain nonaqueous electrolytes. The Examiner has not established the
relevance of such teachings to the safety vents described by Zupancic.
On the present record, we conclude that the Examiner has failed to
come forward with sufficient evidence in support of the arguments for the
prior-art recognized suitability of glass-filled PTFEs as substitutes for the
unfilled PTFE’s described by Zupancic. Accordingly, we REVERSE the
rejections of record.
Appeal 2009-014759
Application 10/682,223

7
C. Order
We REVERSE the rejection of claims 1-15, 18, and 20-22 under
35 U.S.C. § 103(a) in view of the combined teachings of Zupancic, Malay,
and Doose.
We REVERSE the rejection of claims 16, 17, and 23 under 35 U.S.C.
§ 103(a) in view of the combined teachings of Zupancic, Malay, Doose, and
Turchan.
We REVERSE the rejection of claims 19, 24, and 25 under
35 U.S.C. § 103(a) in view of the combined teachings of Zupancic, Malay,
Doose, and Yoshinaka.
REVERSED

sld

MICHAEL C. POPHAL
EVEREADY BATTERY COMPANY INC
25225 DETROIT ROAD
P O BOX 450777
WESTLAKE OH 44145