Ex Parte 6,849,360 B2 et al

Patent Trial and Appeal Board

Apr 9, 2015

95001683 (P.T.A.B. Apr. 9, 2015)

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.
95/001,683 07/11/2011 6,849,360 B2 X40597 2538
19527 7590 04/09/2015
Eveready Battery Company, Inc.
c/o Greenblum & Bernstein, P.L.C.
1950 Roland Clarke Place
Reston, VA 20191
EXAMINER
DIAMOND, ALAN D
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
04/09/2015 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 PATENT TRIAL AND APPEAL BOARD
____________

Spectrum Brands, Inc.
Requester

v.

Patent of
Eveready Battery Company, Inc.
Patent Owner and Appellant
____________

Appeal 2014-006751
Reexamination Control 95/001,683
Patent 6,849,360 B2
Technology Center 3900
____________

Before ROMULO H. DELMENDO, RICHARD M. LEBOVITZ, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
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Patent Owner Eveready Battery Company, Inc. (“Patent Owner”)
appeals under 35 U.S.C. §§ 134(b) and 315(a) (pre-AIA) the Examiner’s
decision to reject claims 1–13 and 23–37.1 Third-Party Requester Spectrum
Brands, Inc. (hereinafter “Requester”) urges that the Examiner’s decision
must be affirmed.2 We have jurisdiction under 35 U.S.C. §§ 134(b) and
315(a).3 We affirm the Examiner’s decision to reject claims 1–13 and 23–
37.

STATEMENT OF THE CASE
United States Patent 6,849,360 B2 (hereinafter the “’360 Patent”),
which is the subject of the current inter partes reexamination, issued to Jack
W. Marple on February 1, 2005.
The ’360 Patent relates to a non-aqueous electrochemical cell
including a lithium active anode material and an iron disulfide active
cathode material, where the anode to cathode input ratio is less than or equal
to 1.0. (Col. 1, ll. 5–11.) The ’360 Patent states that the energy density for
the cell “can be improved by approximately 20 to 25% while only increasing
the volume of the cathode coating solids by approximately 10% through a
unique and novel cathode coating formulation.” (Col. 2, ll. 33–38.) The

1 See Patent Owner’s Appeal Brief 1 (filed December 11, 2013) (hereinafter
“App. Br.”) Examiner’s Answer (mailed April 1, 2014) (hereinafter “Ans.”);
Right of Appeal Notice (mailed September 11, 2013) (hereinafter “RAN.”).
2 See Requester’s Respondent Brief (filed March 21, 2014) (hereinafter
“Resp. Br.”).
3 We heard oral arguments from counsels for both Patent Owner and
Requester on September 17, 2014.
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’360 Patent discloses that the electrochemical cell has an anode
underbalance, or an anode to cathode (A/C) ratio of less than or equal to 1.0.
(Col. 2, ll. 24–33.) The ’360 Patent discloses further that the A/C ratio is
calculated using the “interfacial electrode width,” which is defined as the
“linear dimension that shares an interfacial area between the cathode and the
anode.” (’360 Patent, col. 4, ll. 50–66.)
Claim 1, which is illustrative of the appealed subject matter, reads as
follows:
1. An electrochemical cell comprising a cathode
assembly, said cathode assembly comprising a metallic cathode
current collector having two major surfaces and a cathode
coating disposed on at least one of said two major surfaces, said
coating comprising iron disulfide, said cell further comprising a
metallic lithium anode alloyed with aluminum, wherein the
anode to cathode input ratio is less than or equal to 1.0.
(App. Br. 38 Claims App’x.)

The Examiner maintained the following grounds of rejection:
I. Claim 1 under 35 U.S.C. § 102 as anticipated by Kaun;4
II. Claims 1, 24, 28, and 29 under 35 U.S.C. § 102 as anticipated by
Spillman;5
III. Claims 2–4, 25, 31, and 33-36 under 35 U.S.C. § 103 as obvious
over Spillman;
IV. Claims 29 and 30 under 35 U.S.C. § 103 as obvious over
Spillman in view of Webber;6

4 U.S. Pat. No. 4,764,437, issued Aug. 16, 1988.
5 U.S. Pat. No. 6,165,638, issued Dec. 26, 2000.
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V. Claim 37 under 35 U.S.C. § 103 as obvious over Spillman in view
of Georgopoulos;7
VI. Claims 1–4, 23-25, 28, 29, 31, and 33–36 under 35 U.S.C. § 103
as obvious over Gan;8
VII. Claims 5, 6, 10, and 11 under 35 U.S.C. § 103 as obvious over
Gan in view of Ilic;9
VIII. Claim 7 under 35 U.S.C. § 103 as obvious over Gan in view of
Ilic and Watanabe;10
IX. Claims 8 and 9 under 35 U.S.C. § 103 as obvious over Gan in
view of Ilic, Watanabe, and Timrex;11
X. Claims 5, 6, 10, and 11 under 35 U.S.C. § 103 as obvious over
Gan in view of Anderman;12
XI. Claim 7 under 35 U.S.C. § 103 as obvious over Gan in view of
Anderman and Watanabe;
XII. Claims 8 and 9 under 35 U.S.C. § 103 as obvious over Gan in
view of Anderman, Watanabe, and Timrex;
XIII. Claims 5, 6, and 10–12 under 35 U.S.C. § 103 as obvious over
Gan in view of Marugan;13

6 U.S. Pat. No. 5,514,491, issued May 7, 1996.
7 U.S. Pat. No. 4,855,195, issued Aug. 8, 1989.
8 EP 0 930 664 A2, published July 21, 1999.
9 U.S. Pat. No. 5,158,722, issued Oct. 27, 1992.
10 U.S. Pat. No. 6,083,644, issued July 4, 2000.
11 Brochure entitled "TIMREX® Solutions for Alkaline Batteries" (2000).
12 U.S. Pat. No. 4,853,305, issued Aug. 1, 1989.
13 U.S. Pat. No. 6,455,202 B1
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XIV. Claim 7 under 35 U.S.C. § 103 as obvious over Gan in view of
Marugan and Watanabe;
XV. Claims 8 and 9 under 35 U.S.C. § 103 as obvious over Gan in
view of Marugan, Watanabe, and Timrex;
XVI. Claim 13 under 35 U.S.C. § 103 as obvious over Gan in view of
Marugan, and Liu14 or Manna;15
XVII. Claims 26 and 27 under 35 U.S.C. § 103 as obvious over Gan
in view of Marple;16
XVIII. Claims 29 and 30 under 35 U.S.C. § 103 as obvious over Gan
in view of Webber;17
XIX. Claim 32 under 35 U.S.C. § 103 as obvious over Gan in view of
Watanabe, Manna, Marugan;
XX. Claim 37 under 35 U.S.C. § 103 as obvious over Gan in view of
Georgopoulos;
XXI. Claims 1–4, 23-25, 28, 29, 31, 33–37 under 35 U.S.C. § 103 as
obvious over Leger,18 Georgopoulos, and Munshi;19
XXII. Claims 5, 6, and 10–12 under 35 U.S.C. § 103 as obvious over
Leger, Georgopoulos, Munshi, Ilic, and Marugan;
XXIII. Claim 7 under 35 U.S.C. § 103 as obvious over Leger,
Georgopoulos, Munshi, Ilic, Marugan, and Watanabe;

14 WO 99/44246, published Sept. 2, 1999.
15 US Pub. No. 2002/0172868 A1, published Nov. 21, 2002.
16 U.S. Pat. No. 4,963,445, issued Oct. 16, 1990.
17 U.S. Pat. No. 5,514,491, issued May 7, 1996.
18 U.S. Pat. No. 4,952,330, issued Aug. 28, 1990.
19 U.S. Pat. No. 6,627,353, issued Sept. 30, 2003.
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XXIV. Claims 8 and 9 under 35 U.S.C. § 103 as obvious over Leger,
Georgopoulos, Munshi, Ilic, Marugan, Watanabe, and Timrex;
XXV. Claims 26 and 27 under 35 U.S.C. § 103 as obvious over
Leger, Georgopoulos, Munshi, and Marple;
XXVI. Claim 30 under 35 U.S.C. § 103 as obvious over Leger,
Georgopoulos, Munshi, and Webber; and
XXVII. Claims 1–4, and 23 under 35 U.S.C. § 103 as obvious over
Smesko.20

In addition to the prior art cited in the rejections, Requester relies on
additional evidence as noted in the Evidence Appendix to the Respondent
Brief. (Resp. Br. 17.)
Patent Owner relies on additional evidence as noted in the Evidence
Appendix to the Appeal Brief. (App. Br. 40-41.)
We have considered Patent Owner’s and Requester’s evidence in this
decision as further discussed infra.

Claim Interpretation
Much of the dispute in the current appeal relates to the recitation in
Claim 1, which is the only independent claim on appeal, that the “anode to
cathode input ratio is less than or equal to 1.0.” Claim 1 does not expressly
recite that the A/C ratio is the “interfacial” A/C ratio. However, the
Examiner determined that, in view of the description in the ’360 Patent
discussed above, the A/C ratio recited in the claims means the anode

20 U.S. Pat. No. 5,569,553, issued Oct. 29, 1996.
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capacity divided by the cathode capacity, where the anode and cathode
capacities are determined based on the interfacial area (i.e., the portions of
the anode and cathode which overlap with each other) . (RAN 4–5.) Patent
Owner agrees with this interpretation. (App. Br. 4.) While Requester notes
that the term “interfacial” does not appear in the claims, Requester does not
specifically argue this claim interpretation. (Resp. Br. 3–4.)
We agree with the Examiner’s interpretation for the reasons stated in
the RAN. The ’360 Patent expressly defines how the A/C ratio is calculated
based on the interfacial width as discussed above. Accordingly, we interpret
the A/C input ratio recited in the claims as the anode capacity divided by the
cathode capacity, where the anode and cathode capacities are determined
based on the interfacial area.

PRIOR ART REJECTIONS
Rejections VI–XX - Gan
ISSUE
The Examiner found that Gan discloses an alkali metal
electrochemical cell with an A/C capacity ratio of 0.68 to about 0.96 to limit
swelling of the cell during discharge. (RAN 7.) The Examiner found that
Gan discloses a cathode comprising a current collector plate that is coated
with an active material including iron disulfide. (RAN 7.) The Examiner
found that Gan does not expressly require that the anode and cathode
capacities are determined based on the area where the anode and cathode
overlap each other. (RAN 8.) However, the Examiner found that because
Gan disclosed “jellyroll” structures, where the cathode and anode are similar
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in size, there is very little cathode that is not in a facial relationship with
anode. (RAN 8.) The Examiner found additionally that having a large
amount of area in a jellyroll structure that is non-interfacial is wasteful and
counterproductive to ensuring optimal discharge rates. (RAN 8.) The
Examiner concluded that it would have been obvious to have prepared the
electrochemical cell of Gan in jellyroll form with the anode and cathode
having similar sizes “with little cathode not in interfacial relationship with
anode so as to ensure optimal discharge rates and avoid waste of material.”
(RAN 8.) As a result of this configuration, the Examiner stated that the A/C
capacity ratio of GAN would be equivalent, or very close to the claimed A/C
ratio, rendering claim 1 obvious. (RAN 8–9.)
Patent Owner argues that the RAN improperly relies on the
Declaration of Dr. Gerbrand Ceder dated July 11, 2011 (“First Ceder
Declaration”) to provide the reasoning to modify Gan to arrive at the
claimed invention. (App. Br. 24.) Patent Owner contends that Gan
discloses total A/C ratios that are limited to lithium/silver vanadium oxide
(Li/SVO) batteries and result in sacrificed capacity, such that the RAN does
not provide sufficient reasoning to relate these teachings to lithium iron
disulfide batteries as required by claim 1. (App. Br. 5, 25–26.) Patent
Owner argues that because the battery chemistries of a Li/SVO battery and a
lithium iron disulfide battery are different, one of ordinary skill in the art
would not have modified Gan to arrive at the claimed invention. (App. Br.
5, 26–28.) Specifically, although Patent Owner acknowledges that both
Li/SVO batteries and lithium iron disulfide batteries are subject to swelling,
Patent Owner argues that the nature of the swelling in Li/SVO batteries is
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different than the swelling associated with iron disulfide batteries, such that
one of ordinary skill in the art would not have applied the solution described
in Gan to iron disulfide batteries. (App. Br. 26–28.) Patent Owner contends
that the RAN does not explain sufficiently how the total A/C ratio in Gan
relates to the interfacial A/C ratio of the claims. (App. Br. 5, 28–29.)
Requester argues that the Examiner properly considered the First
Ceder Declaration as providing background knowledge of one having
ordinary skill in the art in relation to the Gan reference. (Resp. Br. 11.)
Requester contends that a person having ordinary skill in the art would have
understood that the A/C ratios disclosed in Gan would have been applicable
to iron disulfide batteries because an iron disulfide material is expressly
disclosed in Gan as useful in the invention, and any optimization of the A/C
ratio as a result of a different cathode material would have been obvious to
one of ordinary skill in the art with a reasonable expectation of success.
(Resp. Br. 11–12.)
Regarding the interfacial A/C ratio, Requester argues that there is no
requirement that there be perfect overlap between the anode and cathode in
order to have rendered the claims of the ’360 Patent obvious. (Resp. Br. 12.)
Requester contends that given the A/C ratios disclosed by Gan, e.g., 0.68,
the amount of excess cathode that would have to be present such that the
interfacial A/C ratio would not fall within the claimed range would be at
least 40%, which is not a practical design for an electrochemical cell. (Resp.
Br. 12–13.)
Accordingly, the dispositive issue on appeal is: Did the Examiner err
in concluding that it would have been obvious to have constructed an
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electrochemical cell comprising iron disulfide having an interfacial A/C ratio
less than or equal to 1.0, as required by claim 1?

FINDINGS OF FACT (“FF”)
1. Gan discloses an alkali metal electrochemical cell having an
anode-to-cathode (A/C) capacity ratio that is “specifically
balanced to improve cell swelling without appreciably
detracting from cathode efficiency.” (Para. [0001].)
2. Gan discloses that the cathode active material can be iron
disulfide. (Para. [0020].)
3. Gan discloses that the cathode active material may be rolled
spread or pressed onto a suitable current collector. (Para.
[0022].)
4. Gan discloses that the cathode and anode may be wound in a
structure similar to a “jellyroll.” (Para. [0022].)
5. Gan discloses that the A/C ratio is in a range of 0.96 to 0.68 for
a Li/SVO electrochemical cell. (Para. [0031].)
6. Gan discloses that “for efficient utilization of a SVO [silver
vanadium oxide] cathode, more anode capacity is needed in the
cell active component balance. The same conclusion can be
drawn for all other A/C ratio cells.” (Para. [0039].)
7. Gan discloses that the lower the A/C ratio, the less the cell
swelling in the electrochemical cell. (Para. [0040].)

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ANALYSIS
Iron disulfide electrochemical cells
Initially, Patent Owner contends that Gan is directed to Li/SVO
electrochemical cells, and not the lithium iron disulfide electrochemical cells
recited in the claims. We do not agree. Although Gan discusses the Li/SVO
electrochemical cell as an illustrated embodiment of the invention, Gan
discloses generally that the invention relates to balancing the A/C capacity
ratio in order to improve cell swelling in alkali metal electrochemical cells.
(FF 1.) Gan names expressly iron disulfide as a cathode active material that
is useful with the invention. (FF 2.) Gan discloses further that the
electrochemical cells are in wound form such as a jellyroll structure. (FF 3,
4.) Accordingly, Gan discloses electrochemical cells including iron
disulfide as recited in claim 1.

Interfacial A/C Ratio
Patent Owner contends that the Examiner erred by relying on the total
A/C ratio in order to conclude that the interfacial A/C ratio recited in the
claims would have been obvious over Gan, because, according to Patent
Owner, interfacial A/C ratio was not a previously recognized concept in the
prior art.
We are not persuaded by Patent Owner’s argument. Rather, we agree
with the Examiner that in view of the evidence of record, the interfacial A/C
ratio recited in the claims would have been obvious over Gan.
It is undisputed that iron disulfide electrochemical cells undergo
swelling. (First Ceder Declaration, para. 83; Declaration of Ralph E. White
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dated December 2, 2011 attached to Patent Owner’s Appeal Brief “First
White Declaration,” para 26.) It is also undisputed that the Li/SVO
electrochemical cells exemplified in Gan undergo swelling by a different
mechanism than iron disulfide electrochemical cells. (First Ceder
Declaration, para. 83; First White Declaration, para 26.) However, we
cannot agree with Patent Owner’s argument that one of ordinary skill in the
art would not have applied the teachings of Gan regarding the A/C capacity
ratio range to iron disulfide batteries. Gan discloses broadly that the A/C
ratio is specifically balanced to improve cell swelling. (FF 1, 7.) Although
the experimental results used to produce the A/C ratio range of 0.96 to 0.68
in Gan relate to Li/SVO electrochemical cells, Gan concludes that the
“lower the A/C ratio, the less the swelling” (FF 7). In addition, Gan
discloses that “cell swelling can be minimized or eliminated by using an
anode limited design according to the present invention.” (Para. [0048].)
While this disclosure is in the context of Li/SVO and Li/CSVO cells, in the
Summary of the Invention, Gan discloses the concept more broadly, stating:
The object of the present invention is, therefore, to
improve the cell swelling performance of an alkali metal
transition metal oxide electrochemical cell such as a
lithium/silver vanadium oxide cell or a lithium/copper silver
vanadium oxide cell without appreciably detracting from the
cell's discharge capacity. This goal is accomplished by
rebalancing the anode-to-cathode capacity ratio of the cell
(based on the gram amount of active material in the anode and
in the cathode) such that the cell is still capable of delivering
high discharge capacity and high current pulses while at the
same time minimizing case swelling typically associated with
such power sources.
(Para. [0005].)
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Thus, the skilled working reading Gan would have recognized that
while the specific A/C range was determined by an Li/SVO cell, it would
have been broadly applicable to other cathode materials.
We observe that the Examiner relied on the combination of the total
A/C ratio combined with the fact that Gan discloses that the electrode may
be in the form of a jellyroll, which the Examiner found typically has a
structure where the anode and cathode are similar in size with little cathode
not in facial relationship with anode. (RAN 8). Although the Examiner
cited to the First Ceder Declaration in supporting the findings regarding the
jellyroll structure, we are not persuaded by Patent Owner’s argument that the
Examiner’s use of the First Ceder Declaration was improper.21 As pointed
out by Requester, the Examiner’s rejection of the claims is based on Gan,
where the First Ceder Declaration is used as evidence of the knowledge of
one of ordinary skill in the art. (Resp. Br. 9.) Indeed, the Examiner’s
findings with regard to the jellyroll structure are supported by other prior art
of record.
For example, Pedicini,22 referenced in the Declaration of Dr. Gerbrand
Ceder dated January 4, 2013 (“Third Ceder Declaration,” para. 4), discloses
that cells with jellyroll construction “have been used to increase the

21 Despite Patent Owner’s criticisms of Dr. Ceder’s qualifications (see First
White Declaration, paras. 10–14), we view Dr. Ceder as qualified to attest to
the level of skill in the art of lithium electrochemical cells. Dr. Ceder has a
Ph.D. in Materials Science and Engineering and has been working in the
field of lithium batteries since 1996, his contributions, among other things,
include working as a consultant with small and large companies to optimize
lithium primary and secondary batteries. (First Ceder Declaration, paras. 5–
12.)
22 U.S. Patent No. 4,794,056, issued December 27, 1988.
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interfacial area contact between the active cell components.” (Pedicini, col.
1, ll. 35–38.) In addition, the Handbook of Batteries,23 cited in the Third
Ceder Declaration, discloses that cells with spirally wound electrode design,
improve rate capability with a higher electrode interfacial area and a thin
separator, which reduces the voltage drop due to internal impedance. (Third
Ceder Declaration, para. 13; Handbook of Batteries, p. 2.2, see also page
2.1.)
Dr. White, Patent Owner’s expert, states that electrochemical cells
may contain non-overlapping areas for a variety of reasons, for example, at
the ends of an electrode strip, in order to allow for proper electrical
connection of the leads, to improve safety and reliability of the cell, and to
simplify the manufacturing process. (First White Declaration, para. 47.) Dr.
White analyzes an available lithium/iron disulfide AA-sized battery made by
Eveready, and points out areas where overlap is lacking between the cathode
and anode. (First White Declaration, paras. 49–50.) That is, there are
portions of the anode that extend beyond the cathode as well as cathode
portions that extend beyond the anode. However, Dr. White does not state
how the presence of non-overlapping regions of the anode and cathode affect
the interfacial A/C ratio. Specifically, if Gan is adapted to a jellyroll
assembly, even with non-overlapping regions, Dr. White did not explain
why Gan’s general teaching of a low A/C ratio would not be achieved or
applicable. (See FF 6, 7.) Such a configuration is not inconsistent with the
concept that the total A/C ratio in a jellyroll assembly as disclosed in Gan
would have rendered claim 1 obvious.

23 Linden, Handbook of Batteries, 3rd Ed. 2002.
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We are not persuaded by the statement in the First White Declaration
that one of ordinary skill in the art would not have considered the interfacial
capacities, but would have adjusted the electrode porosity and thickness to
increase capacity. (Para. 48) Indeed, Dr. Ceder testimony is consistent Dr.
White’s statements that the electrode porosity and thickness can be adjusted
to affect capacity. (First Ceder Declaration, paras. 49, 50.) However, we
understand Dr. Ceder’s testimony to be that adjusting such properties in the
context of a jellyroll structure would correspond to an adjustment of the
interfacial A/C ratio, a concept with which we agree. (First Ceder
Declaration, paras. 65-68.) Thus, we are of the view that combining the
concept of an anode limited cell as taught by Gans with an electrochemical
cell having substantial overlap between the cathode and anode would have
resulted in the interfacial A/C ratio recited in the claims. In this regard, we
observe that the claims require only that the anode capacity be equal to the
cathode capacity or less than the cathode capacity to any extent in the
interfacial area between the cathode and the anode. (’360 Patent, col. 4, ll.
50–66.)
While the “interfacial A/C ratio” may be a different way to indicate
the extent the electrochemical cell is anode limited, we are not persuaded
that this measurement is sufficient to distinguish an electrochemical cell
where the total A/C ratio is such that the electrochemical cell is negative
electrode limited, as is disclosed in Gan. The claims require only that the
anode input capacity be either equal or less than the cathode input capacity
by any amount, in order to produce the recited ratio of less than one and this
concept is described in Gan.
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As a result, we affirm the Examiner’s rejection of claim 1 as obvious
over Gan.
Rejections VII–XX
Patent Owner does not argue separately the Rejections VII – XX
directed to the dependent claims. Accordingly, we affirm the Examiner’s
rejections for the same reasons.

Rejections XXI- XXVI - Leger in view of Georgopoulos and Munshi
ISSUES
The Examiner found that Leger discloses an electrochemical cell
having a total A/C input ratio of 0.99 in Examples 1 and 2. (RAN 40.) The
Examiner found that Munshi discloses A/C input capacities of less than or
equal to 1. (RAN 42.) The Examiner concluded that it would have been
obvious to have prepared Leger’s cells having an anode to cathode capacity
of less than or equal to 1.0 as claimed. To support this conclusion, the
Examiner pointed to the anode to cathode input capacity exemplified in
Leger where some of the cathode capacity remains unconsumed, which
permits the cell to be incinerated or otherwise disposed without personal
injury, property damage, or harm to the environment. (RAN 42.)
Alternatively, the Examiner found that Georgopoulos, which is cited in
Leger, discloses an electrochemical cell with a cathode made from iron
disulfide and an anode made from a lithium alloy and is constructed as a
spirally wound electrode assembly or “jellyroll.” (RAN 44–45.) The
Examiner concluded that it would have been obvious to have prepared
Leger’s electrochemical cell as a “jellyroll” assembly, because such an
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assembly is conventional for iron disulfide cathode / lithium alloy anode
electrochemical cells. (RAN 45.) Thus, as with the rejections based on Gan,
the combination of the A/C ratio disclosed in Leger with the formation of a
“jellyroll” assembly would result in the interfacial A/C ratio recited in the
claims.
Patent Owner contends that one of ordinary skill in the art would not
have combined Leger and Munshi because Munshi does not relate to
electrochemical cells having iron disulfide cathodes, the cathode electrode
active material used in the cells of Leger. (App. Br. 30–31.) Patent Owner
argues also that Munshi teaches against the use of iron disulfide cathodes
because Munshi refers to electrochemical reactions that result in intercalated
lithium ions or the formation of harmless lithium salts, neither of which is
the case in iron disulfide cathode active materials. (App. Br. 30.) Patent
Owner argues that neither Leger nor Munshi disclose either a total A/C input
ratio or an interfacial A/C input ratio having the levels recited in claim 1,
and the Examiner’s calculations that Leger discloses a total A/C input ratio
of 0.99 are incorrect. (App. Br. 31–33.)
Requester contends that Munshi does not discourage the use of
lithium/iron disulfide cells, and that the combination of Leger and Munshi
was proper. (Resp. Br. 14.) Requester argues that a person of ordinary skill
in the art would have understood that the electrochemical cell created as a
result of combining the teachings of Leger and Munshi must have an
interfacial A/C ratio of less than 1.0. (Resp. Br. 14.)
The issues are:
Would it have been obvious to have combined Leger and Munshi?
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Would the interfacial A/C input capacity range recited in the claims
have been obvious in view of Leger, Georgopoulos, and Munshi?

FINDINGS OF FACT (“FF”)
8. Leger discloses an electrochemical cell with an iron disulfide
cathode active material and a lithium alloy anode active
material. (Col. 4, ll. 18–54.)
9. Munshi discloses that electrochemical cells having lithium
anodes have safety issues including disposability and
recyclability due to the presence of lithium metal, which can
lead to fire and explosions when the lithium batteries are
disposed due to the presence of free lithium metal. (Col. 1, ll.
52–61 and col. 2, ll. 7–15.)
10. Munshi discloses a primary lithium battery incorporating a
lithium alloy with either a balanced anode and cathode capacity,
or an anode limited capacity, such that all of the anode material
has been consumed, and therefore would have virtually no free
lithium. (Col. 3, ll. 2–23, 27–38.)
11. Georgopoulos discloses an electrochemical cell comprising a
spirally wound electrode assembly including an iron disulfide
cathode active material and a lithium alloy anode active
material. (Col. 2, ll. 17–19, col. 4, ll. 34–49.)

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ANALYSIS
Combinability of Leger and Munshi
We agree with the Examiner that it would have been obvious to have
combined Leger and Munshi to produce an electrochemical cell having an
iron disulfide cathode active material with an A/C input capacity ratio of less
than 1.0.
Initially, we disagree that one of ordinary skill in the art would have
been discouraged from combining Leger and Munshi. Munshi emphasizes
that electrochemical cells having lithium anodes have safety issues including
disposability and recyclability. (FF 9.) Although Munshi discloses specific
cathode materials other than iron disulfide (Munshi, col. 2, ll. 21–28), we do
not view Munshi’s disclosure in this regard to be a teaching away from using
other cathodes such as iron disulfide, because the formation of lithium
sulfide results neither in intercalated lithium ions nor the formation of
harmless lithium salts as argued by Patent Owner. (App. Br. 30, Second
Declaration of Ralph E. White dated September 26, 2012, “Second White
Declaration,” para. 17.) Munshi’s disclosure is focused on the problems
associated with lithium anodes, an anode material disclosed in Leger, and in
particular the effect of free lithium on the disposal of electrochemical cells
vis-à-vis a risk of fire and explosions. (FF 9, 10.) Thus, one of ordinary
skill in the art would have considered Munshi relevant in the formation of
the batteries disclosed in Leger, as Leger discloses lithium alloy anode
materials. (RAN 42, Resp. Br .13–14; First Ceder Declaration, paras. 91–
93; Third Declaration of Dr. Gerbrand Ceder dated January 4, 2013, “Third
Ceder Declaration,” para 24.) Patent Owner has not provided persuasive
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evidence that applying the concept of an anode underbalance disclosed in
Munshi to the electrochemical cells disclosed in Leger would not alleviate
the disposal issues related to fires or explosions disclosed in Munshi and
associated with electrochemical cells having lithium alloy anode materials.
Accordingly, we are not persuaded by Patent Owner’s argument.

Interfacial A/C Ratio
Patent Owner contends that the total A/C ratio lower than 1 does not
imply an interfacial A/C ratio lower than 1, absent specific information
about parameters that make up capacities at the interface, and that the total
A/C input ratio does lead to knowledge of the interfacial A/C input ratio.
(App. Br. 32.)
We are not persuaded by Patent Owner’s argument. Rather, we agree
with the Examiner that in view of the evidence of record, the interfacial A/C
ratio recited in the claims would have been obvious in view of Leger in view
of Georgopoulos and Munshi. The Examiner relied on the combination of
the total A/C ratio calculated from the Examples in Leger and the disclosure
in Munshi that the anode and cathode must be balanced or have a limited
anode capacity such that some cathode capacity remains unconsumed to
reach the claimed limitation. (RAN 41–42.) In addition, the Examiner
concluded that it would have been obvious to have formed the
electrochemical cell disclosed in Leger in the form of a jellyroll in view of
Georgopoulos. (See RAN 44–45, 110; FF 11). Although Patent Owner
contends that in art available after the filing date of the ’360 Patent, the total
A/C input capacity ratio and the interfacial A/C input capacity ratio were
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acknowledged to be different (App. Br. 32), as discussed above, with respect
to Gan, a jellyroll has a structure where the anode and cathode are similar in
size with little cathode not in facial relationship with anode, such that the
total A/C input ratio and interfacial A/C input ratio would be approximate.
We agree with Patent Owner that the purity of the iron disulfide
would impact the total A/C ratio. (App. Br. 32–33.) However, even if the
evidence of record indicates that the level of purity of battery grade iron
disulfide is 95%, which according to Patent Owner, would result in an A/C
ratio of 1.04 rather than 0.99 as calculated by the Examiner (App. Br. 33),
the claim only requires that the A/C ratio is less than or equal to 1.0.
Assuming the same level of significant figures recited in the claim applies to
the calculated ratio, the calculated total A/C ratio would be 1.0, which would
still fall within the range recited in claim 1. In addition, because Munshi
describes either a balanced anode and cathode capacity or an anode limited
capacity, we agree with the Examiner, that it would have been obvious to
have constructed an electrochemical cell with a jellyroll structure having an
A/C ratio within the range recited in claim 1.

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Rejections XII–XXV
Patent Owner does not argue separately the Rejections XII – XXV
directed to the dependent claims. Accordingly, we affirm the Examiner’s
rejections for the same reasons.

Rejection XXVII - Smesko
ISSUE
In rejecting the claims as obvious over Smesko, the Examiner found
that Smesko discloses a “jellyroll” battery. (RAN 53–54.) The Examiner
pointed to Smesko’s teaching of an anode having a reduced thickness
portion, which is oxidized completely before an anode portion of greater
thickness. (RAN 53–54, citing Smesko, col. 2, ll. 60–66.) The Examiner
found that Smesko teaches that the amount of cathode has sufficient
electrode active material to completely intercalate all the metal ions
migrated from the anode. (RAN 114–115, citing Smesko col. 5, ll. 24–45.)
The Examiner stated that “[a] battery in which the anodes is completely
exhausted and some excess cathode remains is said to be ‘anode
underbalanced’ or ‘anode limited’ and will necessarily have an anode to
cathode input ratio of less than or equal to 1.0” (RAN 54.) Thus, based on
these teachings, the Examiner concluded that Smesko discloses the claimed
interfacial A/C ratio.
Patent Owner contends that Smesko does not disclose the claimed
A/C ratio because Smesko only discloses unbalanced portions or
components of a single electrode, and not the entire electrode that is
interfacially aligned. (App. Br. 34-35.) Patent Owner contends that the
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interfacially aligned cathode material at the portion of the anode having
reduced thickness does not discharge completely. (App. Br. 34–35.) Patent
Owner argues that there would have been no reason to arrive at the
electrochemical cell recited in the claims because Smesko does not teach
that the entire amount of interfacial capacity in the cell is significant. (App.
Br. 36.) Patent Owner contends that Smesko runs contrary to the teachings
of Pedicini, because Pedicini recommends maximizing interfacial area to
improve rate performance, whereas Smesko reduces interfacial area. (App.
Br. 36.) Patent Owner contends also that the cell capacities disclosed in
Smesko are discharge capacities, as opposed to theoretical amounts input to
the cell, and it is not possible to calculate the theoretical input capacities
form the discharge capacities disclosed in Smesko. (App. Br. 36–37.)
Requester contends that Smesko discloses a cathode with sufficient
electrode material to completely intercalate all the metal ions migrated by
the anode, including the portions of reduced thickness as well as those
portions without reduced thickness. (Resp. Br. 15, citing Smesko col. 5, ll.
24–45.) Thus, Requester contends that Smesko discloses the interfacial ratio
as recited in the claims. (Resp. Br. 15.)
Accordingly, the dispositive issue on appeal with respect to this
rejection is whether Smesko discloses the interfacial A/C input ratio as
recited in claim 1?
FINDINGS OF FACT
12. Smesko discloses an electrochemical cell in which:
either the anode or the cathode is characterized by an
underbalanced structure provided by at least two
dissimilar electrode components or electrode portions
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which each electrochemically react with the other
electrode to provide electrochemical energy. The
unbalanced electrode components can have dissimilar
physical dimensions or dissimilar percent loadings of
electrode active material.
(Col. 1, ll. 16-23; emphasis added.)

13. Smesko discloses:
One embodiment of an electrochemical cell
constructed according to the present invention has a
"spirally wound" or jellyroll-type electrode assembly
with either the anode or the cathode having a reduced
thickness portion and a portion of a greater thickness.
Assuming that the cathode has sufficient electrode
active material to completely accommodate all the
metal ions migrated from the anode, the reduced
thickness anode portion completely oxidizes to form
metal ions which migrate to the adjacent cathode to
there be converted into atomic or molecular forms
during discharge before the anode portion of greater
thickness is exhausted. Given the similar interfacial
surface areas between the spirally wound anode and
cathode, the early electrochemical unreactiveness of
the reduced thickness anode portion results in a
measurable increase in internal cell impedance as an
end-of-life indication.

(Col. 2, l. 56- col. 3, l. 4; emphases added.)

14. Smesko discloses:
As is well known to those skilled in the art, the anode 52
contains the active reducing material and the cathode 58
contains the active oxidizing material. In that respect, the
electrochemical reaction at the anode 52 includes
oxidation to form metal ions during discharge of the cell
50 and the electrochemical reaction at the cathode 58
involves conversion of ions which migrate from the
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anode 52 to the cathode 58 into atomic or molecular
forms. Assuming that the cathode 58 has sufficient
electrode active material to completely intercalate all the
metal ions migrated from the anode 52, the reduced
thickness of anode portion 54 as compared to the
thickness of anode portion 56 dictates that anode portion
54 will completely oxidize to form metal ions which
migrate to the adjacent cathode 58 and there be converted
into atomic or molecular forms during discharge of the
cell 50 before the greater thickness anode portion 56 is
exhausted. In other words, the greater thickness of anode
portion 56 dictates that this portion will continue to
oxidize to form metal ions sufficient to support discharge
of the cell 50 for a period of time after ionic migration to
that portion of the cathode 58 adjacent to the reduced
thickness anode portion 54 has ceased. Given the similar
interfacial surface areas between the anode 52 and the
cathode 58, this early electrochemical unreactiveness of
anode portion 54 results in a reduction in the total cell
interfacial working electrode surface area.

(Col. 5, ll. 30-55; emphasis added.)

15. Smesko discloses cathode components including iron disulfide
and anode components including lithium-aluminum. (Col. 10,
ll. 40-55.)

ANALYSIS
We have considered Patent Owner’s arguments in view of the
evidence of record, and we are not persuaded that Smesko fails to render
obvious the interfacial A/C ratio of claim 1. Specifically, Smesko discloses
a “jellyroll” electrochemical cell, where the interfacial surface areas of each
electrode are similar. (FF 12, 13.) Smesko discloses expressly that in order
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to create an unbalance in the electrochemical cell, the electrode components
have dissimilar physical dimensions or dissimilar percent loadings of
electrode active material. (FF 12.) In the case where the anode has reduced
thickness creating an anode underbalance, Smesko makes clear that there is
sufficient cathode material to exhaust completely the metal ions of the
anode, and not just of the portion of the anode that has a reduced thickness.
(FF 14.) Smesko discloses iron disulfide cathode electrode material and
lithium aluminum anode material. (FF 15.) Accordingly, Smesko discloses
an anode-limited “jellyroll” electrochemical cell with the chemical
composition recited in claim 1.
Patent Owner’s view that Smesko only relates to discharge capacities
and would not inform one of ordinary skill in the art as to the input
capacities of the electrodes misses the mark. Regardless of whether the
active material actually discharges and is accounted for in the discharge
capacity ratio disclosed in Smesko, the manner in which Smesko discloses
the electrochemical cells are constructed indicates that the theoretical input
capacities are utilized in order to construct the electrochemical cell. Thus,
while we have considered Dr. White’s declarations regarding Smesko’s
focus on discharge capacities (2nd White Decl. para. 25; 3rd White Decl. para.
30), we are not persuaded that the A/C input ratio recited in claim 1 would
not be met.
As a result, we agree with the Examiner that Smesko renders obvious
an electrochemical cell having the A/C input ratio recited in claim 1.

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Rejection I - Kaun
In rejecting claim 1 as anticipated by Kaun, the Examiner found, inter
alia, that Kaun discloses an iron disulfide coating on perforated current
collectors. (RAN 36–37, citing Kaun, col. 3, l. 65 – col. 4, l. 8, col. 5, ll. 37–
46.) Specifically, the Examiner relied on U.S. Patent No. 4,540,64224 (“the
’642 Patent”), which is incorporated by reference in Kaun for the
proposition that the iron disulfide electrode material in Kaun may be made
to have sufficient pastiness to stay proximate to the current collector. (RAN
104-105, citing the ’642 Patent, col. 6, ll. 8–21.)
Patent Owner contends that Kaun discloses that the electrode is made
by filling a chamber with extruded slurry, forming a pellet within the
chamber, and not a coating. (App. Br. 14-15.)
Requester contends that Kaun discloses a current collector with two
major surfaces, and that Kaun discloses that the electrode material can be
made to have sufficient pastiness to stay proximate to the current collector,
and therefore is a thin layer that adheres to a substrate. (Resp. Br. 6, citing
3rd Ceder Decl. paras. 19, 20.)
The dispositive issue is: Does Kaun disclose a cathode assembly
having a coating comprising iron disulfide?
The following findings of fact are relevant:
Kaun discloses that the positive electrode in accordance with the
method set forth in U.S. Patent No. 4,386,019. (See Kaun, col. 4, ll. 9–13.)
Also, the ’642 Patent discloses:

24 Issued to Kaun on Sept. 10, 1985.
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This extrusion can be done following the teachings of my U.S.
Pat. No. 4,386,019, at room temperatures using appropriate
solvents and with suitable pressures or alternatively at elevated
temperatures using molten salts. The extruded electrode
material is sufficiently flexible to fill the confining chamber
completely, but the electrode material would not be injected
with such pressures so as to flow through the perforations of the
confining current collector or through the separators.
Nonetheless, the electrode material can be made to have
sufficient pastiness to stay proximate the adjacent current
collector subassembly even without and before sealing the caps
48 and 68 in place.
(Col. 6, ll. 4-16.)

We agree with Patent Owner that Kaun does not disclose a coating of
iron disulfide as recited in claim 1. According to the dictionary definition of
record, “coat” means “a layer of one substance covering another.” (App. Br.
Ex. A6, Merriam-Webster Dictionary.) As shown in the passage reproduced
above, Kaun discloses filling a chamber with an electrode material.
Although the electrode material may be made to have sufficient pastiness to
stay adjacent to the current collector, there is inadequate evidence to
establish that one of ordinary skill in the art would have considered an
extruded electrode material used to fill a chamber as a layer of a substance
covering another. Accordingly, Kaun fails to disclose an iron disulfide
coating as required by claim 1.
As a result, we reverse the Examiner’s rejection of claim 1 as
anticipated by Kaun.

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Rejections II-V - Spillman
ISSUE
In rejecting claim 1, the Examiner found that Spillman discloses an
electrochemical cell in a jellyroll assembly having a medium rate region and
a high rate region, where both regions have a cathode active material such as
iron disulfide and an anode material of a lithium alloy, which is preferably
lithium-aluminum alloy. (RAN 30–31.) The Examiner found that Spillman
teaches that the total A/C ratio is 0.75 and 0.82, which the Examiner stated
would meet the interfacial A/C ratio recited in claim 1 when converted to a
ratio based on interfacial area. (RAN 31.) The Examiner stated that based
on Figure 1 of Spillman, the surface area of the anode is clearly greater than
the combined surface areas of the cathodes. (RAN 31.)
Patent Owner contends that Spillman does not disclose sufficient
detail in order to determine whether the multiplate and jellyroll cell structure
disclosed in Spillman has the interfacial A/C input ratio recited in the claims.
(App. Br. 17–20.) Patent Owner argues that Examiner erred in attributing
the capacities disclosed in Spillman as input capacities because Spillman
relates to discharge capacities and it is not possible to calculate theoretical
input capacity based on the discharge capacity without knowing the
parameters associated with the discharge reaction. (App. Br. 20.) Patent
Owner contends that even if the discharge capacities disclosed in Spillman
could be converted to input capacities, Spillman discloses the values with
respect to a Li/SVO battery, which may not apply to a lithium iron disulfide
battery. (App. Br. 20–21.) Patent Owner argues that the RAN combines
improperly different portions of Spillman in order to arrive at the
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electrochemical cell recited in the claims, namely, selection of a lithium-
aluminum alloy, selection of an iron disulfide cathode active material,
application of the numerical values from the A/C ratio disclosed in Table 1
pertaining to LiSVO batteries, and Figure 1, which according to Patent
Owner, is not drawn to scale. (App. Br. 21–22.)
Requester contends that there is no need to calculate the capacities of
the electrode at the surface, and that Figure 1 reasonably conveys the subject
matter of claim 1 because it is clear the anode fully wraps around the
cathode in every region of the cell. (Resp. Br. 7–8.) Requester argues that
the anode and cathode capacities are theoretical input capacities. (Resp. Br.
8-9.) Requester contends also that the combined passages of Spillman are
related for the purposes of anticipation and Patent Owner has not made a
showing that the thirteen cathode materials in Spillman is so large that the
combination would not be apparent immediately. (Resp. Br. 9–10.)
Accordingly, the dispositive issue is: Does Spillman disclose with
sufficient specificity, the electrochemical cell recited in claim 1?

ANALYSIS
We agree with Patent Owner that Spillman does not anticipate claim
1.
Spillman discloses an electrochemical cell with iron disulfide as a
cathode active material and a lithium aluminum alloy as a preferred anode
active material. (Col. 3, ll. 47–61, col. 4, ll. 10–19.) Spillman discloses that
the electrochemical cell has a medium rate electrode region in the form of a
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plate, and a high electrode region disposed in a jellyroll configuration. (Col.
2, ll. 13–56; Fig. 1.)
Assuming for the sake of argument that Spillman discloses input
capacities, Spillman’s disclosure with respect to the A/C ratio is not
sufficient to anticipate the interfacial A/C ratio recited in claim 1.
Specifically, Spillman discloses a range of A/C capacity ratios from 1.1:1.0
to 0.8:1.0 for both the medium rate region and high rate region in a first
exemplary condition and a second condition where the high rate region may
have an A/C capacity ratio of 0.4:1.0 and a medium rate region may have a
capacity of 1.1:1.0. (Col. 7, ll. 25–57.) Although Spillman exemplifies total
A/C capacity ratios of 0.75:1.0 and 0.82:1.0 (Tables 1 and 2, col. 7, l. 54 –
col. 8, l. 9), there is insufficient evidence in Spillman that when iron
disulfide is selected as a cathode active material and a lithium aluminum
alloy is selected as the anode active material, the A/C ratio selected would
necessarily be less than or equal to 1.0 as recited in claim 1. The range of
A/C capacity ratios may be as high as 1.1:1.0 according to the first condition
disclosed in Spillman.
Accordingly, we reverse the Examiner’s rejection of claims 1, 24, 28,
and 29 as anticipated by Spillman.

Rejections III-V
The claims subject to Rejections III-V all depend from claim 1. The
additional references relied upon by the Examiner do not remedy the
deficiencies of Spillman as discussed above. Accordingly, we reverse
Rejections III-V for the same reasons.
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CONCLUSION
We affirm the Examiner’s rejections based on Gan (Rejections VI -
XX), Leger in view of Munshi and Georgopoulos (Rejections XXI-XXVI),
and Smesko (Rejection XXVII).
However, we reverse the Examiner’s rejections based on Kaun
(Rejection I) and Spillman (Rejections II - V).

DECISION
The Examiner’s decision to reject claims 1-13 and 23-37 is affirmed.

In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under
37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a)
of this section, for requesting further rehearing under paragraph (d) of this
section, and for submitting comments under paragraph (c) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
2, 2002 may not be taken “until all parties' rights to request rehearing have
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been exhausted, at which time the decision of the Board is final and
appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MPEP § 2682 (8th ed., Rev. 7, July 2008).

AFFIRMED

PATENT OWNER:
Eveready Battery Company, Inc.
c/o Greenblum & Berstein, P.L.C.
1950 Roland Clarke Place
Reston, VA 20191

THIRD-PARTY REQUESTER:
Sterne, Kessler, Goldstein & Fox PLLC
1100 New York Avenue, N.W.
Washington, D.C. 20005