USPTO 12/777,252 - Method of Preparing Ceramic Powders

[Tom Villars]

Our favorite patent examiner, Jun Li, sent the first Final Rejection for USPTO patent application 12/777,252 - Method of Preparing Ceramic Powders.

Claims 1-,4,6-9 and 12,23-33 are rejected under 35 U.S.C. 103(a) as being unpatenable over Bruno (US5116790) in view of Ametani (JP63248719), Riman (US5252311), and Dawson (US5453262) and Sakai (EP1013608).

I believe this is nothing new except the examiner cited reference to Dawson (US5453262) which Jun Li later says,

Applicant's arguments with respect to newly amended limitation of hydrothermal treating temperature and presure have been considered but are moot in view of ground of rejections based on teachings of newly applied Dawson reference.

US5453262 expired 2003-10-29 because:

Patent Expired Due to NonPayment of Maintenance Fees Under 37 CFR 1.362

[Wasmaba]

Hope DAP can find his way here to comment. 

[devotEE]

I say "Splunge"

Splunge, what does that mean?

Dawson allows chlorides

Dawson requires washing

Is it possible that this continuing saga is being perpetrated to deny EEStor IP protection while other competitors (and nations) catch up?

Trying not to be a conspiracy theory paranoid, but just because you are paranoid, does not mean that they are not out to get you.

We are living in a wiggly world.

11% of any quantity is a shit ton.

[DAP]

There is no conspiracy.  Since the U.S. Supreme Court essentially redefined how the obviousness test should be applied in KSR v. Teleflex, it has become much harder for applicants to argue non-obviousness without the introduction of comparative data during application prosecution.  If EEstor can show that tetramethylammonium hydroxide is not a functional equivalent of sodium or potassium hydroxide, they may be able to convince the examiner that their claimed method does not yield a predictable result.  In other words, unless they run side-by-side experiments (one using sodium hydroxide as the base and one using tetramethylammonium hydroxide as the base, with all other things being equal) and show that the method using tetramethylammonium hydroxide produces superior CMBT by one or more measurable properties, this application is dead in the water.

This presents a problem for DW.  Those who have followed this story closely may remember the following statement from the surreptitiously recorded investor’s conference call back in 2009:

DW said:

So we're very happy that we really have superior chemistry here and from the aqueous process. 

Then we went into a great detail purification process. The two ions that are very detrimental to getting to high voltage [are] sodium and potassium.

Making this unconfirmed information available to a limited audience is one thing.  Confirming this information with real data in a publicly available affidavit is quite another.  And even with such a confirmation, there is still no guarantee that the claims will be allowed.  Without such data, however, it is almost a certainty that the claims of this application will not be allowed.

devotEE said:

Is it possible that this continuing saga is being perpetrated to deny EEStor IP protection while other competitors (and nations) catch up?

Trying not to be a conspiracy theory paranoid, but just because you are paranoid, does not mean that they are not out to get you.

[devotEE]

Thanks DAP.

As always I appreciate the comment and insight. If I may embellish the audio tape, it might be more thorough is it said Group 1 and Group 17 elements.

If one can drink the Kool-Aid, the cat is long ago out of the bag.

Clearly, I have no idea what level of proof would satisfy Ms. Li or her handlers, methinks it may be the null set. Perhaps we'll find out before Summer.

We are living in a wiggly world.

11% of any quantity is a shit ton.

[Tom Villars]

DAP said:

Making this unconfirmed information available to a limited audience is one thing.  Confirming this information with real data in a publicly available affidavit is quite another.  And even with such a confirmation, there is still no guarantee that the claims will be allowed.  Without such data, however, it is almost a certainty that the claims of this application will not be allowed.

If EEStor does make this data available will it be in the Non-Patent Literature (NPL) documents on Public PAIR?  I hope not as these are a pain to access but want to be sure I'm not over looking something.

[devotEE]

Will it matter to Jun Li?

We are living in a wiggly world.

11% of any quantity is a shit ton.

[Prof Neilson]

The law has changed

The court has ruled

Prior Art is more likely to be found, easy to be introduced to the patent office and more likely to cause rejection

Obviousness is in the eye of the examiner

Are there any legal remedies available for rejections for obviousness or just USPTO administrative procedures?

[devotEE]

It was Tesla, not Marconi.

But who cares now.

I'm not a golfer, but the word stymied seems to fit.

Will it matter to Jun Li?

We are living in a wiggly world.

11% of any quantity is a shit ton.

Will it matter to Jun Li?

We are living in a wiggly world.

11% of any quantity is a shit ton.

[DAP]

Prof Neilson said:

The law has changed

The court has ruled

Prior Art is more likely to be found, easy to be introduced to the patent office and more likely to cause rejection

That’s right, and there are ways to plan for this.

Prof Neilson said:

Obviousness is in the eye of the examiner

The Examiner in this case is merely following policy.  Did you not find Examiner’s Li’s arguments cogent?

Prof Neilson said:

Are there any legal remedies available for rejections for obviousness or just USPTO administrative procedures?

One can first appeal to the Board of Patent Appeals and Interferences (which will soon become the Patent Trial and Appeal Board).  If unsuccessful with the BPAI, one can then appeal to the Federal Circuit.  If unsuccessful there, one can then appeal to the U.S. Supreme Court.  The Supremes don’t have to take up your case but the lower appeals levels must.

[Prof Neilson]

Li is cogent - but there is wiggle room

Who has the burden of proof and in which venue?

Appealing to the Federal Circuit - is that jury appeal - or a Judge appeal?

East Texas's juries are somewhat different from the bench!

[Tom Villars]

EEStor tackled the Dawson objections in a different application (12/758,628).

Response to Non-Final Office Action (2012-06-26)

Presumably if they overcome the objection on that application, they'll be able to overcome on this one as well.

[DGDanforth]

Tom,

I personally greatly appreciate your postings dealing with EEStor's patents

The current EEStor response looks weak to me.  It is based on particle size.

For the other guys less than 1 micron.  For EEStor greater than 1 micron and less than 5 microns.

That seems like a piddly distinction.  EEStor (in my opinion) would have to mention that the particle

size is extremely important to the overall functioning of their product and would have to claim that

small particle size does not have the same (at all) characteristics necessary.  They don't say that in

the response to non-final action

-Doug