       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

      EVEREADY BATTERY COMPANY, INC.,
                 Appellant

                           v.

             SPECTRUM BRANDS, INC.,
                      Appellee
               ______________________

                      2015-1824
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/001,683.
                  ______________________

                Decided: May 31, 2016
                ______________________

   DAVID BOGDAN CUPAR, McDonald Hopkins LLC,
Cleveland, OH, argued for appellant. Also represented by
ROBERT BARAONA, MATTHEW JOHN CAVANAGH.

    DEBORAH ANN STERLING, Sterne Kessler Goldstein &
Fox, PLLC, Washington, DC, argued for appellee. Also
represented by ROBERT GREENE STERNE, NIRAV DESAI.

                ______________________
2       EVEREADY BATTERY CO., INC.    v. SPECTRUM BRANDS, INC.



   Before WALLACH, BRYSON, and TARANTO, Circuit
Judges.
BRYSON, Circuit Judge.
    Eveready Battery Company, Inc., appeals from a deci-
sion of the Patent Trial and Appeals Board in an inter
partes reexamination. The Board held all the claims of
Eveready’s U.S. Patent No. 6,849,360 (“the ’360 patent”)
invalid for obviousness. We affirm.
                               I
    The ’360 patent is directed to a lithium/iron disulfide
(“Li/FeS2”) electrochemical cell or battery. Li/FeS2 cells
were well known when the application for the ’360 patent
was filed on June 5, 2002. 1 The claimed invention of the
’360 patent is focused on improving the design of such
cells. Specifically, the patent describes the need for a
Li/FeS2 cell “with an increased energy density and dis-
charge efficiency that accommodates the volume increase
of the reaction products generated during discharge.” ’360
patent, col. 2, ll. 7-9.
     The patent’s background section asserts that a “key
challenge” in designing an improved Li/FeS2 cell is the
efficient use of the cell’s internal volume. Id., col. 1, ll. 27-
28. That challenge arises because a Li/FeS2 cell generates
chemical reaction byproducts when it produces electricity.
The accumulation of the reaction byproducts can cause a
battery to swell; as a result, it is necessary for the cell
design to incorporate sufficient void spaces to accommo-




    1   Section 14.10 of the 1995 edition of a standard
text in the field, David Linden, Handbook of Batteries, is
dedicated to such cells. Li/FeS2 consumer AA cells were
standardized in the American National Standards Insti-
tute’s C18.3M, Part 1-1999 standard.
EVEREADY BATTERY CO., INC.   v. SPECTRUM BRANDS, INC.     3



date the expansion. Id., col. 1, ll. 28-32. That space is
generally lost to more productive uses.
     The ’360 patent asserts that a cell with improved per-
formance was “achieved, surprisingly, with an anode
underbalance,” i.e., with less anode capacity than cathode
capacity. Id., abstract. According to the patent, conven-
tional Li/FeS2 cells were “typically . . . overbalance[d],”
i.e., they had more anode capacity than cathode capacity.
Id., col. 2, ll. 1-2.
    Claim 1 of the ’360 patent, the only independent
claim, reads as follows:
   An electrochemical cell comprising
   a cathode assembly, said cathode assembly com-
   prising 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 an-
   ode alloyed with aluminum,
   wherein the anode to cathode input ratio is less
   than or equal to 1.0.
    In 2011, Spectrum Brands filed a petition for inter
partes reexamination challenging the validity of all of the
’360 patent’s claims. During the reexamination, Eveready
canceled claims 14-22 and added claims 23-37. Those
changes eliminated all of independent claims except for
claim 1. In a lengthy opinion, the examiner found that
the remaining claims would have been obvious in view of
a number of different combinations of references.
    Eveready appealed the examiner’s rejections of
claim 1 to the Board. Eveready’s appeal did not include
any substantive discussion of the rejected dependent
claims. The Board affirmed the examiner’s determination
that claim 1 was invalid for obviousness in light of (1) a
4       EVEREADY BATTERY CO., INC.   v. SPECTRUM BRANDS, INC.



European Patent Application known as Gan; (2) the
combination of U.S. patents to Leger, Georgopoulos, and
Munshi; and (3) a U.S. patent to Smesko. The Board
found that Eveready had not made a separate argument
with respect to any of the dependent claims, and it there-
fore affirmed those rejections without discussion.
   On appeal to this court, Eveready asserts that the
Board erred in affirming those rejections. 2
                             II
     We focus on whether claim 1 would have been obvious
in light of Gan, the European Patent Application. Gan is
directed to the control of swelling in electrochemical cells
that use alkali metals, such as lithium. The discussion in
Gan centers on reducing swelling in lithium/silver vana-




    2   In the Statement of the Issues section of its brief,
Eveready states in two footnotes that it is appealing not
only the rejection of claim 1, but also the separate rejec-
tions of all of the dependent claims. However, in the
Argument section of its brief Eveready makes no separate
substantive argument with respect to the dependent
claims. Nor does Eveready challenge the Board’s ruling
that Eveready failed to challenge rejections VII to XX,
which were directed to the dependent claims. A footnote
allusion to combinations of references, without more, does
not present a cognizable argument on appeal, see Ken-
nametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376,
1383 (Fed. Cir. 2015), nor may a party raise in this court
rejections that it did not appeal to the Board, see In re
Watts, 354 F.3d 1362, 1367 (Fed. Cir. 2004). Accordingly,
with respect to the dependent claims that were rejected
based on combinations of prior art using Gan as the
primary reference, we treat Eveready’s argument as
confined to its challenge to the Board’s analysis of Gan.
EVEREADY BATTERY CO., INC.   v. SPECTRUM BRANDS, INC.       5



dium oxide (“Li/SVO”) cells by managing the creation of
decomposition products.
                              A
    Eveready first argues that Gan applies only to Li/SVO
cells and not to cells using other cathode materials, such
as Li/FeS2. Eveready does not dispute that Gan is di-
rected to swelling in lithium cells or that swelling is a key
concern in designing a Li/FeS2 cell. In fact, Eveready
acknowledges that the swelling issue in Li/FeS2 cells is
even greater than in Li/SVO cells. Instead, Eveready
argues that a person of ordinary skill in the art would not
have applied Gan to Li/FeS2 cells because of the differ-
ences in battery chemistry between Li/FeS2 cells and
Li/SVO cells.
    The Board concluded that Gan is not limited to
Li/SVO cells. Instead, the Board noted that although Gan
discusses the Li/SVO electrochemical cell “as an illustrat-
ed embodiment of the invention, Gan discloses generally
that the invention relates to balancing the anode-to-
cathode (“A/C”) capacity ratio in order to improve cell
swelling in alkali metal electrochemical cells.” Moreover,
the Board pointed out that Gan explicitly refers to Li/FeS2
cells when stating that “[a]dditional cathode active mate-
rials useful with the present invention include . . . iron
disulfide.” 3 The Board’s ruling on that issue is consistent
with the examiner’s findings that claim 1 of Gan is not
limited to Li/SVO cells and that Gan’s claims generally
cover cells with an A/C capacity ratio of less than 1.0,
including such Li/FeS2 cells.



    3   Gan states that the cathode may “comprise a met-
al element, a metal oxide, a mixed metal oxide, and a
metal sulfide, and combinations thereof”; iron disulfide is
listed as one of ten specifically identified cathode materi-
als.
6       EVEREADY BATTERY CO., INC.   v. SPECTRUM BRANDS, INC.



    In making its findings, the Board considered exten-
sive record materials besides Gan, including competing
expert declarations. Those declarations included explana-
tions of why Gan would be applicable to Li/FeS2 cells.
Spectrum’s expert explained that while the swelling
problem in Li/SVO cells is different from the swelling
problem in Li/FeS2 cells, Gan nonetheless “generally
teaches that one achieves the best performance at a
selected end point voltage, by properly balancing the
anode to cathode capacity.” He added that a person of
ordinary skill could apply Gan’s teaching to Li/FeS2 cells
using well known practices.
    In addition, as the examiner noted, the record con-
tains statements by Eveready that Gan discloses a
Li/FeS2 cell and that a person of ordinary skill would take
the disclosure of Gan into account in creating an improved
Li/FeS2 cell. In proceedings before the European Patent
Office on essentially the same patent application, Ever-
eady stated that Gan appeared to be the closest prior art
as it was “directed to the same technical problem(s).” 4
Eveready conceded that Gan “discloses electrochemical
cells containing a lithium anode, an FeS2 cathode ar-
ranged on a current collector and further containing a
non-aqueous electrolyte.” Eveready also stated that Gan
was “directed to maintaining the discharge capacity while



    4   Those statements were made in conjunction with
a challenge to EP 1,518,287. The statements concerned
both Gan and U.S. Patent No. 6,171,729, which was
derived from Gan. The application for the European
patent included a specification and claims that were
substantively identical to those in the ’360 patent. See
WO 2003/105255. The claims in EP 1,518,287 were
amended to add more precise limitations than claim 1 of
the ’360 patent, including a specific formula for calculat-
ing the A/C input ratio.
EVEREADY BATTERY CO., INC.   v. SPECTRUM BRANDS, INC.       7



minimizing swelling during discharge.” Eveready admit-
ted that “a person skilled in the art striving to solve the
problem of maintaining or improving discharge capacity
in a system that experiences swelling would have taken
into account the disclosure of [Gan].”
    In light of the evidence before the Board, we hold that
substantial evidence supports the Board’s finding that a
person of ordinary skill in the art would have considered
the teaching of Gan to be applicable to Li/FeS2 cells.
                              B
    Eveready next argues that Gan does not disclose an
anode-to-cathode input ratio less than or equal to 1.0.
The examiner found that the claim term “anode to cath-
ode input ratio” should be construed to mean “the anode
capacity divided by the cathode capacity, wherein 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.” That construction is not
disputed on appeal. Instead, Eveready asserts that the
Board erred in finding that there was sufficient evidence
to show that the “interfacial ratio” portion of the limita-
tion, as construed, is taught by Gan.
    Gan addresses the ratio of the total amount of anode
to the total amount of cathode and teaches that the total
A/C ratio should be between about 0.68 and 0.96. Accord-
ing to Eveready, the total A/C ratio is unrelated to the
interfacial A/C ratio, because there are situations in
which the total amounts of anode and cathode material in
a cell can be quite different from the amounts of anode
and cathode material that are in an interfacial relation-
ship. The examiner and the Board found that the battery
structure disclosed in Gan answers that argument.
    The examiner found that Gan discloses a battery de-
sign known as the “jellyroll.” That design consists of a
spirally wound structure of anode and cathode strips
8       EVEREADY BATTERY CO., INC.   v. SPECTRUM BRANDS, INC.



facing one another. The following figure from one of the
prior art references in the record provides an example of
the jellyroll design:




     The examiner found that the anode and cathode in the
jellyroll structure are similarly sized and almost com-
pletely interfacial to one another (as seen in the figure
above). The examiner also found that the record reflected
that it would be wasteful, and even counterproductive, to
have a significant amount of non-interfacial area in such
a structure, as non-interfacial elements generate no
reaction and take up space. The examiner concluded that
it would have been obvious to a person of ordinary skill in
the art “to prepare Gan’s electrochemical cell in jellyroll
form such that the cathode and anode are similar in size
with little cathode not in interfacial relationship with
anode so as to ensure optimal discharge rates and avoid
waste of material.” In that configuration, the examiner
found, “Gan’s anode to cathode capacity ratio of about
0.68 to about 0.96 would be equivalent to or very close to”
the interfacial A/C ratio, and thus render obvious the
claimed A/C input ratio of less than or equal to 1.0.
    The Board agreed with the examiner that the total
A/C ratio would be closely correlated to the interfacial A/C
ratio in a jellyroll battery. As the Board explained, “com-
bining the concept of an anode limited cell as taught by
Gan[] with an electrochemical cell having substantial
overlap between the cathode and anode would have
EVEREADY BATTERY CO., INC.   v. SPECTRUM BRANDS, INC.        9



resulted in the interfacial A/C ratio recited in the claims.”
The Board added that the claims of the ’360 patent did
not require any specific ratio—only that the ratio not be
overbalanced by having an excess of anode capacity.
     The Board’s findings are supported by substantial ev-
idence. The record contains ample evidence that Gan
discloses a jellyroll cell, that the A/C input ratio of a
jellyroll cell is closely correlated to the total A/C ratio in
the cell, that Gan teaches an A/C ratio less than or equal
to 1.0, and that the principles of Gan apply to a Li/FeS2
cell. In light of that evidence, we affirm the Board’s
finding that claim 1 of the ’360 patent would have been
obvious in view of Gan.
                              III
    Because we find that the Board did not err in its af-
firmance of Gan, we need not address whether the Board
was correct in affirming the rejections of claim 1 in light
of Smesko or the combination of Leger, Georgopoulos, and
Munshi.
                        AFFIRMED
