Ex Parte Sherwood

Patent Trial and Appeal Board

Jun 20, 2017

13564057 (P.T.A.B. Jun. 20, 2017)

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.
13/564,057 08/01/2012 Gregory J. Sherwood 279.J40US1 1442
45458 7590 06/22/2017
SCHWEGMAN LUNDBERG & WOESSNER/BSC
PO BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
KIMBALL, JEREMIAH T
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
06/22/2017 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):
uspto@slwip.com
SLW @blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY J. SHERWOOD
Appeal 2015-005406
Application 13/564,057
Technology Center 3700
Before MICHAEL L. HOELTER, JEFFREY A. STEPHENS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Office Action (“Final Act.”) rejecting claims 1—20. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as Cardiac Pacemakers, Inc. App.
Br. 2.
Appeal 2015-005406
Application 13/564,057
Claimed Subject Matter
Claims 1,12, and 17 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter.
1. An apparatus, comprising:
a capacitor case sealed to retain electrolyte;
at least one electrode disposed in the capacitor case, the at
least one electrode comprising a sintered portion disposed on a
current collector formed of a framework defining cells extending
to three axes;
a conductor coupled to the current collector in electrical
communication with the sintered portion, the conductor sealingly
extending through the capacitor case to a terminal disposed on
an exterior of the capacitor case with the terminal in electrical
communication with the sintered portion;
a second electrode disposed in the capacitor case;
a separator disposed between the electrode and the second
electrode; and
a second terminal disposed on the exterior of the capacitor
case and in electrical communication with the second electrode,
wherein the terminal and the second terminal electrically are
isolated from one another.
Rejections
1. Claims 1—5, 7—13, and 16—20 stand rejected under 35 U.S.C.
§ 102(a) as anticipated by Sherwood et al. (US 2011/0152958 Al, pub. June
23, 2011) (“Sherwood”). Final Act. 2-5.
2. Claims 6 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sherwood and Yoshida et al. (US 6,351,371 Bl, iss. Feb.
26, 2002) (“Yoshida”). Final Act. 5-6.
3. Claim 14 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Sherwood and Umemoto et al. (US 2010/0246100 Al,
pub. Sept. 30, 2010) (“Umemoto”). Final Act. 6—7.
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Application 13/564,057
ANALYSIS
Anticipation Rejection (Claims 1—5, 7—13, and 16—20)
Claims L 3, 5, 7—13, and 16—20
Appellant argues claims 1, 3, 5, 7—13, and 16—20 together as a group
based on representative claim 1. App. Br. 8—11. Appellant contends
Sherwood fails to disclose “a current collector formed of a framework
defining cells extending to three axes” (hereinafter, the “framework
limitation”), as recited in claim 1. Id. at 8. For the reasons discussed below,
we agree with the Examiner that a preponderance of the evidence supports
the finding that Sherwood discloses the framework limitation.
The Examiner notes the framework limitation is broad and finds
Sherwood’s “substrate would be the ‘framework’ while the sintered areas
would be the ‘cells’ which loosely defines an encompassed area,” and that
“[t]he framework including cells extend into 3-dimensions, as they must.”
Final Act. 7. In the Answer, the Examiner further clarifies that spaces
between grains of the electrode may be considered cells. Ans. 7 (citing
Sherwood para. 28 (“Sintering results in many interstices (i.e., spaces)
between grins of the electrode.”)).
We note Appellant does not dispute that Sherwood’s sintered material
has “cells extending to three axes.” Rather, Appellant contends that “[i]f the
current collector of Sherwood is [both] the substrate 410 and the sintered
portion 408, as asserted by the Examiner, then the Examiner is missing an
element from claim 1 since then Sherwood has no ‘sintered portion.’” App.
Br. 9; see also Reply Br. 3. Appellant argues the claimed “sintered portion”
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Application 13/564,057
is a “separately recited and defined element from the ‘current collector’ and
they cannot be construed to be the same element in a prior art reference.” Id.
“All limitations in a claim must be considered meaningful.” Lantech,
Inc. v. Keip Mach. Co., 32 F.3d 542, 546 (Fed. Cir. 1994). In Lantech, the
Federal Circuit held that a claim reciting “at least two” conveyor structures
was not infringed by one conveyor. Id. at 546-47. Similarly, the Federal
Circuit in In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999), determined
that one fastening means in the prior art did not meet the claim’s
requirement of two separately recited fastening means, even though it could
perform two different functions.
Unlike Lantech and Robertson, however, in the present case there is
no actual overlap of structure. A portion of Sherwood’s sintered electrode
meets the “sintered portion” limitation of claim 1. A different part of the
sintered electrode, together with the substrate to which it is attached, meets
the framework limitation. Moreover, dividing Sherwood’s sintered
electrode among two limitations in this way is consistent with the broadest
reasonable interpretation of claim 1 and the Specification.
Claim 1 does not indicate that the “framework defining cells
extending to three axes” is not sintered. Indeed, based on claim
differentiation and dependent claim 3’s recitation that “the framework is
non-sintered,” it is reasonable to interpret claim l’s framework as
encompassing sintered material. Our interpretation is also consistent with
Appellant’s Specification, which teaches a framework formed of sintered
material. See Spec. para. 48, Figs. 6A—6B; App. Br. 4 (identifying Spec,
paras. 48 49 and Figs. 6A—6B as support for the framework limitation).
Because the claimed “current collector formed of a framework defining cells
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Application 13/564,057
extending to three axes” encompasses sintered material, the prior art need
not teach a particular dividing line between the claimed “sintered portion”
and the “current collector” on which it is disposed. In short, claim 1 fails to
distinguish over Sherwood’s sintered electrode.
Appellant argues “[t]he current collector of the electrode of Sherwood
is the substrate 410,” and that elsewhere Sherwood teaches “substrate 310 is
an aluminum foil.” App. Br. 8—9. Appellant argues “[a]luminum foil is a
monolithic sheet of material” and does not meet claim l’s framework
limitation. Id. at 9. Appellant does not explain, however, why the claimed
“current collector” may not also include at least a part of the sintered
material taught by Sherwood. In addition, even if Sherwood’s substrate 410
alone constituted the claimed “current collector,” and was also limited to the
example of aluminum foil described (see Sherwood para. 44), aluminum foil
is three-dimensional and Appellant has not provided support for an
interpretation of “cells” that would exclude interstices that one of ordinary
skill in the art would understand to be present in aluminum foil. Cf. Spec,
para. 30 (“Examples of framework include, but are not limited to, lattice in
which cells are defined by conductive lattice members.”).
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner’s rejection of claim 1 under
35 U.S.C. § 102(a) as anticipated by Sherwood. Thus, we sustain the
rejection of representative claim 1, and, for the same reasons, the rejection of
claims 3, 5, 7—13, and 16—20, which are not argued separately.
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Claim 2
Claim 2 depends from claim 1 and recites that “the sintered portion is
disposed in the cells.” Appellant argues, in addition to the reasons argued in
support of claim 1, that, “[according to the Examiner’s reasoning above, the
‘cells’ are the sintered portion so it is unclear where the second sintered
portion is shown in Sherwood.” App. Br. 9.
Contrary to Appellant’s argument, and for similar reasons discussed
above with respect to claim 1, we do not interpret claim 2 to require a
second sintered portion. Rather, the claim effectively requires some overlap
or intermixing between the “sintered portion” and the cells of the
framework, which may also be formed by sintering. Claim 2’s limitations
are met by the application of Sherwood to claim 1, wherein a portion of
Sherwood’s sintered electrode is joined to the rest of the sintered material,
which disposes the sintered portion among and within the cells of the other
sintered portion.
Accordingly, we sustain the Examiner’s rejection of claim 2 as
anticipated by Sherwood.
Claim 4
Claim 4 depends from claim 1 and recites “wherein the framework
defining cells extending to three axes is formed of metallic foam.”
Appellant argues the Examiner points to Figure 8 of Sherwood and “there is
no discussion in FIG. 8 of any metallic foam used for a framework.” App.
Br. 10. We interpret metallic foam to be comprised of interstices, consistent
with our interpretation of the cells of claim 1 discussed above. Appellant
does not inform us of or provide support for a narrower interpretation of
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metallic foam that would exclude the sintered material of Sherwood’s
electrode used in rejecting claim 1. Accordingly, we sustain the Examiner’s
rejection of claim 4 as anticipated by Sherwood.
Obviousness Rejections (Claims 6, 14, 15)
Appellant argues the secondary references used in rejecting claims 6,
14, and 15 as obvious do not overcome the deficiencies of Sherwood. App.
Br. 11. Because we do not find Sherwood deficient, we sustain the
rejections under 35 U.S.C. § 103(a) of claims 6 and 15 as obvious over
Sherwood and Yoshida, and claim 14 as obvious over Sherwood and
Umemoto.
DECISION
We affirm the Examiner’s rejection of claims 1—5, 7—13, and 16—20 as
anticipated. We affirm the Examiner’s rejections of claims 6, 14, and 15 as
obvious.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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