4Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Status
Claim 1 has been amended. Claims 1-2, 6, 9, and 11-16 are currently pending.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1996), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 1-3, 6, 9, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Sawa et al. (US 2016/0322669) in view of Kitagawa et al. (U.S. 20140212761) and De Jonghe et al. (U.S. 20040248009).
With respects to claims 1-2, 6, and 9 Sawa discloses a non-aqueous electrolyte secondary battery comprising a positive electrode, a negative electrode, and a non-aqueous electrolyte solution (abstract), wherein:
the positive electrode active material layer includes a positive electrode active material and (lithium phosphate, lithium phosphate (Li3PO4) is a synonym for trilithium phosphate) [0657] and a positive active material of lithium transition metal oxide containing at least lithium, nickel, manganese, and cobalt [0655]. More particularly, Sawa gives the examples of using LiNi0.5Mn0.3Co0.2O2 and LiNi1/3Mn1/3Co1/3O2 as lithium-nickel-manganese-cobalt composite oxides, thus teaching a nickel content of at least 34 mole percent [0655] (as applies to claim 2).
Sawa discloses the negative electrode having a coating on its surface [0651]. In addition, the lithium phosphate and electrolyte solution will interact with each other to form the coating on the surface of the negative electrode. The coating is produced by using identical compositions as the instant application, thus the coating is formed by the interaction between the lithium phosphate and the electrolyte solution (as it applies to claim 1).
Additionally, while Sawa discloses the addition of the lithium phosphate and teaches that the lithium phosphate is added preferably in the amount of 0.5-5 mass % [0657], Sawa does overlap the disclosed the claimed 0.9-4.25 mass percent lithium phosphate. Furthermore, Sawa teaches the addition of the lithium phosphate enhances continuous charging characteristics [0657].
Sawa discloses the nonaqueous electrolyte solution consists of carbonates ([0039]), LiPF6 ([0426]), lithium fluorosulfonate ([0470]), lithium bis(oxalato)borate ([0463]), and lithium difluorophosphate ([1031]);
While Sawa discloses the addition of lithium fluorosulfonate [0470] in the electrolyte solution and teaches that the lithium fluorosulfonate is added in the amount of 0.05 -10 mass percent, and preferably in the amount of 0.4-1.0 mass percent [0472], Sawa does overlap the disclosed claimed 0.135-0.850 mass percent lithium fluorosulfonate. Sawa does further teaches the addition of lithium fluorosulfonate enhances initial and storage characteristics [0468].
Therefore it would have been obvious to one of ordinary skill in the art at the time the application was filed to include the lithium phosphate and lithium fluorosulfonate in the claimed amounts because the lithium phosphate enhances continuous charging characteristics and the lithium fluorosulfonate enhances initial and storage characteristics.
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Furthermore, it is deemed that the coating on the negative electrode is an inherent characteristic and/or property of the specifically disclosed battery. In this respect, MPEP 2112 sets forth the following:
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
“Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Sawa discloses that the non-aqueous electrolyte solution further comprises lithium bis(oxalato)borate [0463] and teaches that the lithium bis(oxalato)borate is added in the amount of 0.01-10 mass percent, and preferably in the amount of 0.3-1 mass percent, regarding claims 1 and 6 [0465]. Sawa does not explicitly disclose the claimed range of 0.1 or 0.2 mass percent of lithium bis(oxalato)borate in the non-aqueous solution. However, Sawa does further teaches the amount of oxalate salt ensures easy control of output, load, low-temperature, cycle and high-temperature storage characteristics [0465].
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). In this case, Sawa discloses the claim range of at least 0.1 mass percent and at least 0.2 mass percent.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to include the lithium bis(oxalato)borate in the amount of 0.2 mass % because this amount ensures easy control of output, load, low-temperature, cycle and high-temperature storage characteristics.
Sawa discloses the addition of 0.5 mass percent lithium difluorophosphate as the lithium salt in the electrolyte solution [1031], and teaches the difluorophosphate salts is added in the amount of 0.001- 5 mass percent, and preferably 0.1-1 mass percent, regarding claims 1 and 9 [0437]. Sawa does not explicitly disclose the claimed 0.1 or 0.2 mass percent lithium difluorosulfate in the electrolyte solution. However, Sawa does teach that the amount of difluorophosphate salt ensures that the salts produce significant effects in the enhancement of initial irreversible capacity [0437].
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). In this case, Sawa discloses the claim range of at least 0.1 mass percent and at least 0. mass percent.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to include lithium difluorophosphate in the amount of 0.1-1 mass percent because this amount ensures the salts produce significant effects in the enhancement of initial irreversible capacity.
Sawa does not disclose that the nonaqueous electrolyte solution consists only of carbonates, LiPF6, lithium fluorosulfonate, lithium bis(oxalato)borate, and lithium difluorophosphate, also requiring an aromatic carboxylate ester ([abstract]). However, the problem that the inclusion of the aromatic carboxylate ester solves is that when electrolytic solutions include compounds having an aromatic group and an ester group, the reactivity of the compound is so high that it is difficult for the nonaqueous electrolyte secondary battery to achieve enhancement in initial battery characteristics ([0021]). According to Sawa, this problem is solved by the inclusion of specific aromatic carboxylate esters to the electrolytic solution ([0023]). Applicant is reminded that an omission of an element and its function is obvious if the function of the element is not desired (MPRP 2144.04.II.A.). In the instant case, there are no compounds having an aromatic group and ester group which would cause the heightened reactivity which the specific aromatic carboxylate ester solves. Therefore, the omission of the aromatic carboxylate ester is obvious.
Sawa does not disclose the average particle diameter of the trilithium phosphate used in the positive electrode active material layer, only that the average particle diameter of primary aggregated into secondary particles in the positive electrode active material is between 0.1 µm and 5 µm ([0671]).
Kitagawa discloses using lithium phosphate as an electrode active material ([0010]) and teaches the average particle diameter (d50) of active material particles are 0.01 to 20 micrometers ([0071]), thus encompassing the claimed range of 6-10 micrometers. Kitagawa further teaches that this range allows for sufficient coating of the particles while keeping internal resistance low ([0072]).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to ensure the average particle diameter (d50) of the lithium phosphate disclosed by Sawa was in the range taught by Kitagawa to ensure the active material particles can be sufficiently coated without raising the internal resistance.
Applicant is reminded that In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
The limitations “the trilithium phosphate is a particulate having an average particle diameter of more than 2 um and not more than 10 um, the average particle diameter is a value of a 50% cumulative particle diameter considered from a microfine particle side in a cumulative particle size distribution curve obtained by laser diffraction/scattering using N-methylpyrrolidone as solvent,” and “a film formation component which decomposes to form a coating film on the negative electrode” are an example of a product by process limitation, as this limitation seeks to limit the average diameter of the lithium phosphate based on how it is measured. Applicant is reminded that "Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." (In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)). In this instance, the manner in which the average particle diameter of lithium phosphate is measured does not impact the resultant average particle diameters and the deformation of components to form the film does not impact the resultant film, and therefore, this limitation imparts no patentability for claim 1.
While neither Sawa nor Kitigawa disclose that lithium phosphate is present in the positive electrode active material layer as a “film formation component,” Sawa does explicitly teach is presence as disclosed above. Sawa also discloses the importance of creating a quality film on the negative electrode via adding components directly to the electrolytic solution or “…the compounds may be generated in the battery by the application of electrode loads such as charging and discharging.” ([0156-0157]). According to applicant’s specification, the coating film is formed due to the activation treatment that is carried out after a nonaqueous battery has been assembly ([0007]), and that conditioning and aging treatments act as the activation treatments, which consist of an initial charging step ([0029]).
Additionally, the prior art of De Jonghe discloses lithium phosphate present in a positive electrode and teaches that it is already known in the prior art that lithium phosphate can be used to facilitate the formation of protective film between discharge events ([0047]). Therefore, it is obvious to one having ordinary skill in the art based on the teachings of Sawa that negative electrode films can be formed during charging and discharging events (similar to the instant application) and through the teachings of De Jonghe that the lithium phosphate present in Sawa could be used to aid in the formation of the film disclosed by Sawa.
With respect to claim 15, Sawa discloses the nonaqueous electrolytic solution contains carbonates as the solvent, specifically citing ethylene carbonate ([0479]), ethyl methyl carbonate ([0484]), and dimethyl carbonate ([0484]), as well as LiPF6 ([0426]), lithium fluorosulfonate ([0470]), lithium bis(oxalato)borate ([0463]), and lithium difluorophosphate ([1031]). While Sawa does not disclose that these are the only components in the electrolytic solution, it was already shown that excluding the additional required component is an obvious modification of the prior art. See the above rejection of claim 1 for further details.
With respect to claim 16, Sawa discloses the negative electrode has a negative electrode active material layer (slurry) formed on a negative electrode current collector (copper foil) ([0727]), the negative electrode active material layer contains a negative electrode active material ([0727]), and the negative electrode active material is an amorphous carbon-coated graphite in which graphite is coated with an amorphous carbon material ([0727]).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Sawa in view of Kitagawa and De Jonghe as applied to claim 1 above, and further in view of Iwanaga et al. (U.S. 20090181311).
With respect to claim 11, Sawa discloses lithium phosphate present in the positive electrode active material (see above rejection of claim 1), but does not disclose the mass proportion of lithium phosphate in the positive electrode active material.
Iwanaga discloses a positive electrode active material comprising lithium phosphate ([0019]) and teaches the mass proportion of lithium phosphate in the positive electrode active material is 0.01 mass% to 5 mass% ([0019]), thus overlapping the claimed range of 1 mass% to 5 mass%. Iwanaga further teaches that this range improves cell discharge property and cell preservation recovery ratios ([0018-0020]).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to ensure the mass proportion of the lithium phosphate present in the positive electrode active material disclosed by Sawa was in the range taught be Iwanaga in order to improve cell discharge property and cell preservation recover ratios.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Sawa in view of Kitagawa and De Jonghe as applied to claim 1 above, and further in view of Takehara. (U.S. 20090286155).
With respect to claim 12, Sawa discloses a positive electrode active material present in a positive electrode active material layer (see above rejection of claim 1), but does not disclose the mass proportion of the positive electrode active material present in a positive electrode active material layer.
Takehara discloses positive electrode active material present in a positive electrode active material layer ([1300]) and teaches the content of the positive electrode active material present in the positive electrode active material layer is 50 mass% to 99 mass% ([1300]), thus overlapping the claimed range of at least 70 mass%. Takehara further teaches that these ranges ensure satisfactory electric capacity and strength of the electrode ([1300]).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to ensure the mass proportion of the positive electrode active material present in a positive electrode active material layer disclosed by Sawa was in the range taught by Takehara to ensure satisfactory electric capacity and strength of the electrode.
Claims 13-14 is rejected under 35 U.S.C. 103 as being unpatentable Sawa in view of Kitagawa and De Jonghe as applied to claim 1 above, and further in view of Onizuka (U.S. 20130244118).
With respect to claims 13-14, Sawa discloses a coating present on the surface of the negative electrode (see rejection of claim 1), but does not disclose the coating is derived from the lithium phosphate and the nonaqueous electrolyte solution formed via an activation treatment.
Onizuka discloses negative electrode active material (86) formed on the surface of a negative electrode (84) (Fig. 4) and teaches a coating film (96 – phosphate film) is formed during an activation step of an initial charge (S4). Onizuka also teaches that lithium phosphate is present in the positive electrode active material ([]) and in the electrolyte solution ([0041]) and that it is the activation step (initial charge) which forms the film (96 – phosphate film) upon reaction with the negative electrode and electrolyte solution ([0019]). Onizuka further teaches that this process provides high initial efficiency and excellent cycle characteristics for the electrode ([0018]).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to form the coating film on the negative electrode disclosed by Sawa using the lithium phosphate and electrolyte solution during an activation treatment as taught by Onizuka in order to produce an electrode with high initial efficiency and excellent cycle characteristics.
It is noted that while the activation treatment of Onizuka is performed after the assembly of the battery, similar to the battery of the instant application, the treatment steps of a conditioning and ageing treatment as limited in claim 13 are not disclosed by Onizuka. However, the conditioning and aging treatments are examples of a product by process limitation. Applicant is reminded that "Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." (In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)). In this instance, there is no difference in the coating film of Onizuka when compared to that of the instant application that is due to the difference in activation treatment steps, and therefore, the conditioning and aging treatments provide no patentability to claim 13.
Response to Arguments
The affidavit filed under 37 CFR 1.132 filed 12/12/2025 is insufficient to overcome the rejection of claim 1 based upon 35 U.S.C. 103 of the non-final rejection. Examiner’s citation of the prior art of De Jonghe to teach that lithium phosphate present in a positive electrode can be used to facilitate the formation of the protective film between discharge events was not addressed in the affidavit. While the affidavit addresses the shortcomings Sawa and Kitigawa as they relate to the film formation component, lithium phosphate, De Jonghe, the relied upon piece of prior art which teaches it is commonly known in the art that lithium phosphate can act as a film formation component was not addressed.
Applicant's arguments filed 12/12/2025 have been fully considered but they are not persuasive. Applicant’s arguments are premised on the assertion that the affidavit provided is insufficient to overcome the rejection of claim 1 as the cited piece of prior art, De Jonghe, which was relied upon to show it is commonly known in the art that lithium phosphate can be used as a film formation component was not addressed.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/J.E.B./Examiner, Art Unit 1727
/BARBARA L GILLIAM/Supervisory Patent Examiner, Art Unit 1727