Monday, December 09, 2013

Procter & Gamble loses case on zinc/air depolarized cell

In Ex parte Gibbons , Procter & Gamble lost on an In re Best issue:

See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (“[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. . . . Whether the rejection is based on ‘inherency’ under 35 U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.” (footnote omitted)). Appellants have not directed us to evidence to refute the Examiner’s determination.

A claim related to battery technology:

A zinc/air depolarized cell comprising an anode casing and a cathode casing; an anode mixture comprising zinc particles and aqueous alkaline electrolyte within said anode casing; a cathode within said cathode casing; an electrolyte permeable separator between said cathode and anode; and
a glue comprising a crosslinked polyvinylalcohol, said glue located between the separator and a side of said cathode to adhesively bond the separator to the cathode.

Yes, Papesch was also cited:

Absent evidence to the contrary, polyvinylalcohol compositions crosslinked with boron-containing compounds would be expected to share the same properties. See In re Papesch, 315 F.2d 381, 391 (CCPA 1963) (“a compound and all of its properties are inseparable”). Appellants have not directed us to any objective evidence in this appeal that the separator coating of Malinski would not possess an adhesive property to adhesively bond the separator to the cathode as required by claim 1.

The decision was authored by Donna Praiss.


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