DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09 July 2025 has been entered.
Response to Amendment
Claims 1-13 are pending and considered in the present Office action.
Applicant has not amended the claims. Rather, applicant has provided a declaration (dated 20 June 2025) and argued unexpected results (most recent response is dated 01 July 2025). The arguments presented in the declaration and response (20 June 2025, and 01 July 2025, respectively) are not persuasive and are addressed next.
Response to Arguments
The current claims are narrower than originally filed, e.g., the mole ratio of Mn has been narrowed to 0.04 or less. Thus, Applicant’s previous amendment (dated 05 September 2023) and current response (01 July 2025) appears to try to establish the newly cited claimed range (e.g., a mole ratio of Mn is 0.04 or less) as providing unexpected results. A successful showing of unexpected results regarding a narrower range than was originally claimed/taught would bring forth a new matter issue, as it would show that the newly claimed range is a different invention than the originally disclosed range. See MPEP 2163(I)(B). No new matter issue has been made at this time, as arguments of unexpected results are not persuasive.
A successful showing of unexpected results should meet several criteria to outweigh the evidence supporting prima facie obviousness (see e.g., MPEP 716.02(c)). Any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986), MPEP 716.02. "A greater than expected result is an evidentiary factor pertinent to the legal conclusion of obviousness ... of the claims at issue." In re Corkill, 771 F.2d 1496, 226 USPQ 1005 (Fed. Cir. 1985). Applicants must further show that the results were greater than those which would have been expected from the prior art to an unobvious extent, and that the results are of a significant, practical advantage. Ex parte The NutraSweet Co., 19 USPQ2d 1586 (Bd. Pat. App. & Inter. 1991), MPEP 716.02(a). Further, whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980), MPEP 716.02(d). To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960), MPEP 716.02(d), II. In short, applicant’s arguments are not persuasive because the data fails to sufficiently show a greater than expected result over the entire claimed range and a sufficient number of test both inside and outside the claimed range have not been provided to determine criticality.
On page 2 of the response (dated 01 July 2025) and items 4. - 8. of the declaration (dated 20 June 2025), Applicant argues unexpected results with respect to the amount of Ba in the claimed range (i.e., 0.0005 to 0.010). Specifically, data is presented in Table A and includes Ba at values of 0.0009, 0.0005, 0.0004, and 0.0003, and Figure A plots the decrease in first discharge capacity (mAh/g) as a function of the amount of Ba. Applicant concludes, the experimental results prove that Ba added in the range of 0.0005 to 0.010 has a very special effect of suppressing the rate of increase in mass. Specifically, applicant argues that when Ba is added in an amount less than 0.0005 moles, the rate of increase is “significantly larger” than 0.58%. Examiner finds applicant’s conclusions unpersuasive because applicant has not shown that the increase in the rate of increase in mass is greater than expected, and there is an insufficient number of data points inside the claimed range and outside the claimed range to evaluate with certainty the trends in the data and whether criticality is present for the claimed range. Below is a plot of the mass increase based on the data provided in Table A.
[Chart]
In arguing the rate of increase in mass is “significantly” lower when Ba is in the claimed range, applicant discusses only two data points inside the claimed range and two data points outside the claimed range which is problematic because at least three points are necessary to indicate a trend; to confirm the results/trends are reliable and accurate, even more data points are necessary. In other words, with the data provided it is difficult to even assess whether the differences observed are meaningful, reliable, or accurate, let alone greater than expected and/or critical. Nonetheless, the trend of the rate of increase in mass as a function of Ba is fairly linear (provided the slope does not appear to change appreciably inside and outside the claimed range) and shows as the amount of Ba decreases, the decrease in the rate of increase in mass increases. The plot appears to show the difference observed inside the claimed range (i.e., from 0.0009 and 0.0005) is about the same as the difference observed between the endpoint and the immediate point outside the claimed endpoint (i.e., from 0.0005 and 0.0004), as evidenced by the lack of appreciable change in the slope; in other words, the difference in the rate of increase in mass outside the claimed range (e.g., 0.0004) does not appear to increase by an unexpected amount provided if follows a similar trend as the data points inside the claimed range. In view of the foregoing, the data does not appear to show greater than expected or “significantly larger” results. Moreover, the four data points fail to address the upper end of the claimed range (i.e., Ba at 0.010), thus it is unclear how any conclusion can be made about the unexpectedness or criticality of the entire claimed range (i.e., Ba between 0.0005-0.010).
Applicant goes further to relate the rate of increase in mass % to the decrease in first discharge capacity, and argues below 0.0005 the decrease in first discharge capacity “significantly increases” and that Ba in the amount of 0.0005 moles is “critical”. At the outset, the claimed Ba range is 0.0005-0.010; applicant must show criticality of the claimed range, not just criticality of the lower endpoint (i.e., 0.0005). Further, applicant discusses only two data points inside the claimed range and two data points outside the claimed range which is problematic because at least three points are necessary to indicate a trend; further, to confirm the results/trends are reliable and accurate, even more data points are necessary. In other words, with the data provided it is difficult to even assess whether the differences observed are meaningful, reliable, or accurate, let alone greater than expected and/or critical. Nonetheless, the lower end point does not appear to be critical, and the results do not appear greater than expected with respect to the decrease in first discharge capacity. Examiner includes a plot of the decrease in first discharge capacity vs. the amount of Ba for the data point immediately outside the lower end of the claimed range (i.e., 0.0004), the amount of Ba at the lower endpoint of the clamed range (0.0005), and the only other data point provided inside the claimed range (i.e., 0.0009), which is above the lower endpoint of the claimed Ba range (0.005).
[Chart]
Again, the trend observed is fairly linear (i.e., nearly linear slope) and shows as the amount of Ba decreases, the decrease in the first discharge capacity increases. The plot shows the difference observed inside the claimed range (i.e., from 0.0009 and 0.0005) is about the same as the difference observed between the endpoint and the immediate point outside the claimed endpoint (i.e., from 0.0005 and 0.0004), as evidence by substantially no change in the slope; in other words, the decrease in first discharge capacity outside the claimed range (e.g., 0.0004) does not appear to increase by an unexpected amount provided the trend observed outside the claimed range continues to follow the same trend observed inside the claimed range. As stated earlier, the data fails to address the upper end of the range (i.e., Ba at 0.010), thus it is unclear how any conclusion can be made about the unexpectedness and/or criticality of the entire claimed range (Ba range 0.0005-0.010).
The declaration (20 June 2025, item 10. – 11.) further argues the data submitted in the declarations (20 February 2024, and 20 June 2025), together with the examples in the application (5, 8, 11, 14, 6, 7, 9, 10, 19), demonstrates “superior performance” with respect to the rate of increase. These arguments are not persuasive. The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992). Moreover, "appellants have the burden of explaining the data in any declaration they proffer as evidence of non-obviousness." Ex parte Ishizaka, 24 USPQ2d 1621, 1624 (Bd. Pat. App. & Inter. 1992). See MPEP 716.02(b). Applicant has not presented or compared the data (from the declarations and disclosure) together in a cohesive table, or plot, let alone detailed how the data shows greater than expected results, or criticality, in the claimed range.
In the response (01 July 2025, page 3) applicant mentions the declaration filed 20 February 2024 as showing unexpected results; specifically, that the selection of Ba, relative to other dopants (Sn, Mg) in Shimooka, offers unexpected superior properties; similar arguments are submitted for the rejections of the claims over Imahashi in view of Gao (page 7). These arguments have already been addressed as unpersuasive under the Response to Arguments section of the Final Office action dated 06 May 2024 (see e.g., pages 3-6, item 6), thus not repeated here in full for brevity. However, in short, there are not enough tests inside and outside the claimed range (i.e., Ba 0.0005-0.010), so it is difficult to determine whether the claimed range is critical. Further in determining whether Ba is unexpectedly improved over other elements, there has to be some discussion of what is expected chemically between the different elements (e.g., with respect to expected reactivity), considering the different elements are expected to differ in properties to some degree based on their relative positions on the periodic table. In other words, without some established understanding of expected chemical properties (i.e., hydrophilicity, hydrophobicity, etc.) it is not clear from applicant’s argument and/or data that the differences observed between the elements are greater than expected, to an unobvious extent.
Regarding applicant’s comments that Sun, Imahashi, Abe, Suhara, and Horichi (pages 3-6 of the 01 July 2025 remarks) fails to teach, or suggest, Ba has an effect on suppressing the rate of increase in mass are not persuasive. The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), MPEP 2144. "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). MPEP 2112, I. None of the aforementioned reference were used to suggest Ba, but rather other features of the method recitations recited in the dependent claims; thus, it is unclear why there is any expectation for these references to suggest a motivation related to the inclusion of Ba (i.e., effect of suppressing the rate of increase in mass), let alone the same one used by applicant.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 1-3 and 8-13 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Shimooka et al. (US 2011/0262796, of record), hereinafter Shimooka.
Regarding Claims 1 and 11, Shimooka teaches a method of manufacturing a positive electrode material for a lithium secondary battery (see e.g., title), wherein the material is a complex oxide (e.g., LiNi0.638Co0.2Mn0.15Mg0.01Ba0.002O2, see example 16). Aside from Mg, Shimooka clearly names the claimed species (Al) from a small number (16) of clearly define elements (i.e., Al, Ti, Cr, Fe, Cu, Zn, Ge, Sn, Ag, Ta, Nb, B, P, Zr, Ca, Sr) in combination with Ni, Co, and Mn; thus, the elements of the N position in the composition of example 16 are sufficiently limited and well delineated, see [0033]. One of ordinary skill in the art could at once envisage the following arrangement, e.g., Al for Mg in the N position, i.e., LiNi0.638Co0.2Mn0.15Al0.01Ba0.002O2, under the guidance provided in Example 16 and Shimooka’s disclosure, given the claimed species (Al) is specifically named, and because the elements are sufficiently limited (only 16 to choose from) and are well delineated (explicitly named).
The claimed composition is rejected over Shimooka’s broader disclosure instead of preferred embodiments as follows. Shimooka discloses Li is in a range of 0.85 to 1.15 moles, Ni (claimed Nib) is in a range of 0.45 moles to 0.90 moles (e.g., 45 mol% to 90 mol%), Co is in a range of 0.05 moles to 0.3 moles, Mn is in a range of 0.05 moles to 0.30 moles (where the sum of Co and Mn (claimed Mc) is 0.1 moles to 0.55 moles), and Al (claimed Nd), and Ba (claimed Le) are present (in total) at 0.15 moles or less (or 0.03 moles or less), see e.g., [0026-0033]; for example, Al and Ba are preferably at 0.0002 moles or more ( see [0034] and samples suggesting Al is 0.01 and Ba (claimed Le) is 0.002 mol). Thus, Shimooka suggests the molar ratio of Li (i.e., Lia) is between 0.80 to 1.30 (e.g., a/(b+c+d) = 1/0.86+0.128+0.01 = ~1), the molar ratio of Ni (e.g., Nib) is between 0.30 to 0.95 (e.g., b/(b+c+d) = 0.86/0.86 + 0.128 + 0.01 = ~0.86), the molar ratio of Mn and Co (Mc) is between 0.05 to 0.60 (e.g., c/(b+c+d) = 0.128/0.86 + 0.128 + 0.01 = ~0.128), the molar ratio of Al (Nd) is 0.005 to 0.10 (e.g., d/(b+c+d) = 0.01/0.86 + 0.128 + 0.01 = ~0.01), the molar ratio of Ba is 0.0005 to 0.010 ((e.g., 0.002/(b+c+d) = 0.002/0.86 + 0.128 + 0.01 = ~0.002)), sum of b, c, and d, is ~1 (i.e., 0.8 6+ 0.128 + 0.01 = 0.998), and the molar ratio of Mn is close to 0.04 or less (e.g., Mn/(b+c+d) = 0.05/0.86 + 0.128 + 0.01 = ~0.05 which is close to 0.04). The amount of L (e.g., Ba at 0.002) is smaller than N (e.g., Al at 0.01), see e.g., examples.
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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties."), see MPEP 2144.05, I. The prior makes obvious the claimed composition because the elements either overlap with those claimed or are close.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), MPEP 2144.05, II.
Shimooka teaches the method comprises: mixing raw material chemical elements or compounds containing the raw material chemical elements to form a mixture (paras. [0137- 0138]), baking the mixture at a temperature of 700°C or higher and 950°C or lower (e.g., 900 °C) in a baking process forming a processed baking material, and performing a treatment using a water-washing process after the baking, see e.g., para. [0139].
Regarding Claim 2, Shimooka teaches the baking is carried out in air, hence the baking is performed under oxygen.
Regarding Claim 3, Shimooka teaches the baking comprises pre-baking (heated to 600 °C), a heating stage after the pre-baking (i.e., held at temperature for 2 hours) and a final baking stage (i.e., heated for 12 hours at 900 °C).
Regarding Claim 8-10, Shimooka teaches the raw material chemical elements or compounds include a hydroxide formed by co-precipitating Ni and M (Mn and Co) elements, or Ni, M and N (Mg) elements, see e.g., paras. [0137]-[0138], [0162], [0165].
Regarding Claims 1, 12 and 13, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. 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). "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). 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 this case, the prior art teaches the claimed structure, composition, and claimed method of production as detail above; thus, the claimed properties (i.e., rate of increase in mass, difference between D90 and D10, and press density) are presumed to be present.
Claims 4-5 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Shimooka, in view of KR 2012-0028072 (of record), where Sun et al. (US 2013/0183585, of record) is used as a translation for KR 2012-0028072, hereinafter Sun.
Regarding Claims 4-5, Shimooka teaches a pre-baking temperature of 600 ° for 2 hours but does not teach a temperature between 300 °C to 500 °C for 2 hours to 6 hours, and a heating stage where the prebaked mixture is heated at a rate of 5 C/min to 30 C/min. However, Sun suggests the baking treatment should include a primary firing from 250 °C to 650 °C for 5 hours to 20 hours (e.g., 280 °C for 5 hours), a heating stage where the heating rate is 1 °C/min to 10 °C/min, and a secondary firing at 700 °C to 1100 °C held, for example, 10 hours, see e.g., Example 2, paras. [0083]-[0085]). This baking method allows for moisture and impurities to be effectively removed, thereby improving the purity of the active material, effectively control growth of the active material particles and secure excellent electrochemical characteristics, and may effectively control a crystal structure, see e.g., paras. [0083]-[0085]. It would be obvious to one having ordinary skill in the art the baking of Shimooka includes a pre-baking stage from 300 °C to 500 °C for 2 hours to 6 hours, and a heating stage after the pre-baking stage to reach the final baking stage, where the prebaked mixture is heated at a rate of 5 °C/min to 30 °C/min (e.g., 1 °C/min - 10 °C/min), to allow for moisture and impurities to be effectively removed, thereby improving the purity of the active material, to effectively control growth of the active material particles and secure excellent electrochemical characteristics, and to effectively control a crystal structure, as suggested by Sun.
Claims 6-7 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Shimooka in view of Imahashi et al. (US 2014/0087262, of record) and Abe et al. (US 2007/0231691, of record), hereinafter Imahashi and Abe.
Regarding Claims 6-7, Shimooka teaches the baking material is pulverized (hence crushed) after the baking process (e.g., 900 °, paras. [0138]-[0139]), but does not teach the water washing process includes mixing the crushed baking material with water and stirring, wherein the active material is dried and dewatered after the water washing process. However, Abe teaches fired powders are crushed before a water washing treatment to yield spherical fired powders, thus capable of high bulk density, see e.g., paras. [0055], [0102]-[0103]. Imahashi teaches in the water washing process, positive electrode material powder made by crushing (deaggregating) the processed baking material in the baking process, is mixed with water and stirred, see e.g., para. [0126]. The water washing removes surplus amounts of lithium hydroxide and lithium carbonate, paras. [0066]-[0067]. Imahashi teaches the positive electrode material powder is further dried and dewatered after the water-washing process, i.e., water washed slurry is subjected to filtration (interpreted as dewatering) and drying (120 °C for 20 hr), see e.g., para. [0126]. It would be obvious to one having ordinary skill in the art to crush the baking material and then perform a water washing treatment to yield spherical fired powders capable of high bulk density with surplus amounts of lithium hydroxide and lithium carbonate removed. Further, drying and dewatering are obvious to remove moisture from the active material as desired by Shimooka, as evidenced by the use of a desiccator, see e.g., para. [0139].
Claim 12 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Shimooka, in view of Suhara et al. (US 2009/0017383, of record), hereinafter Suhara.
Regarding Claim 12, Shimooka does not teach a difference between d90 and d10 is 5.0 µm or more in a particle distribution of secondary particles of the complex oxide. However, Suhara teaches a lithium composite having first particles (i.e., large particles) having d90 (with respect to secondary particles of the first particles) of at most 150% of d50 and d10 of at least 50% of d50, wherein d50 is between 7 µm - 20 µm. The particle size/particle distribution allows for second particles (i.e., smaller particles) to fill the space between/among the first particles to achieve a positive electrode active material having a compact dense structure having a large volume capacity density and press density, see e.g., paras. [0011]-[0016], [0035], [0037], and [0054]. It would be obvious to one having ordinary skill in the art the difference between d90 and d10 based on a number of particles is 5.0 micrometers or more in a particle size distribution of secondary particles of the complex oxide to achieve a positive electrode active material having a compact dense structure having a large volume capacity density and press density, as suggested by Suhara.
Claim 13 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Shimooka, in view of Horichi et al. (US 2005/0214645, of record) and Suhara et al. (US 2005/0271944, of record), hereinafter Horichi and Suhara II.
Regarding Claim 13, Shimooka does not teach the press density of the material at a load of 95.5 MPa. However, Horichi discloses a press density for a lithium cobalt composite oxide (see e.g., paras. [0024]-[0025]) is preferably between 3.15 g/cm3 to 3.8 g/cm3 when pressed under a pressure of 0.96 t/cm2 (which is about equivalent to 95.5 mPa), see e.g., paras. [0030], [0040]. Suhara II teaches a lithium composite LiNiCoMnMO2, where M is at least one selected from Al, Mg, Ti, Ba, Ca, etc, see e.g., para. [0019]-[0020]. The active material of the lithium composite oxide has a large press density (e.g., 3.1 to 3.4 g/cm3) to obtain a high volume capacity, see e.g., para. [0041]. It would be obvious to one having ordinary skill in the art the press density of the material of Shimooka is high (i.e., 3.4 g/cm3 to 4.50 g/cm3, as claimed) to obtain a high volume capacity density, as suggested by Horichi and Suhara II. The press density suggested in the prior art overlaps with that claimed, or is close, hence obvious for the same reasons detailed above in view of MPEP 2144.05, I.
Claims 1-2 and 6-13 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Imahashi et al. (US 2014/0087262), in view of Gao et al. (US 6,620,400), hereinafter Imahashi and Gao (both of record).
Regarding Claim 1, Imahashi teaches a method of manufacturing a positive electrode material for a lithium secondary battery (see e.g., title, and paras. [0037], and [0040]), wherein the material is a complex oxide (i.e., LixNi1-y-w-z-vCoyMnwMazMbvO2; wherein Ma is Al; Mb is B; x is between 0.9 to 1.1, y is between 0.05 to 0.25, w is between 0 to 0.25, z greater than 0 to 0.15 and v is between 0 to 0.03, see e.g., para. [0031]). See examples. Specifically, Example 16 (Li1.04Ni0.792Co0.099Mn0.099Al0.01O2) satisfies Li, Ni, M (Co and Mn), and N (Al) and O in the claimed composition LiaNibMcNdLeOx. This example fails to teach Le (i.e., Ba). However, Gao teaches lithium mixed transition metal M (i.e., Ni, Co, Mn) oxides where the transition metal M is replaced with dopants A (i.e., Al, Ba) in an amount of greater than or equal to 0 and less than about 0.5 (see e.g., col. 4); the compositions described by Gao allow for crystal structures having good structural stability that maintain their structure through cycling, thereby resulting in consistent chemical performance, see e.g., col. 2 lines 11-22. It would be obvious to one having ordinary skill in the art to further dope Example 16 of Imahashi includes with Ba in combination with Ni, Co, Mn, and Al, as suggested by Gao, with the expectation of maintaining structural stability during cycling and consistent chemical performance.
The concentrations of the elements (i.e., Li, Ni, Mn+Co, Al and Ba) in the prior art overlap with the claimed values or are close. 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties."). Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) See MPEP 2144.05, I. and II.
Further regarding the method of claim 1, Imahashi teaches the method comprises: mixing raw material chemical elements or compounds containing the raw material chemical elements to form a mixture, baking the mixture at a temperature of 700°C or higher and 950°C or lower (e.g., 770 °C) in a baking process forming a processed baking material, and performing a treatment using a water-washing process after the baking. See e.g., para. [0122]-[0126].
Regarding Claim 2, Imahashi teaches the baking is performed under oxygen, see e.g., para. [0125].
Regarding Claim 6, Imahashi teaches in the water washing process, positive electrode material powder made by crushing (deaggregating) the processed baking material in the baking process, is mixed with water and stirred, see e.g., para. [0126].
Regarding Claim 7, Imahashi teaches the positive electrode material powder is further dried and dewatered after the water-washing process, i.e., water washed slurry is subjected to filtration (interpreted as dewatering) and drying (120 °C for 20 hr), see e.g., para. [0126].
Regarding Claim 8, Imahashi teaches the raw material chemical elements or compounds containing the raw material chemical elements include a hydroxide formed by co-precipitating the Ni and M elements, see e.g., para. [0122]-[0123].
Regarding Claim 9, Imahashi teaches the raw material chemical elements or compounds containing the raw material chemical elements include the hydroxide formed by co-precipitating the Ni and M elements, and N elements (i.e., Ma which is Al) or other elements (Mb, such as Bi, B, etc., see e.g., paras. [0125] and [0134]).
Regarding Claim 10, Imahashi teaches the raw material chemical elements or compounds containing the raw material chemical elements include the hydroxide formed by co-precipitating the Ni and M elements (i.e., Mn+Co), and N elements (i.e., Ma which is Al), see e.g., paras. [0125], and [0134].
Regarding Claim 11, Imahashi, as modified by Gao, suggests the amount of element N (i.e., Al) is 0.01 and the amount of element L (i.e., Ba) is about 0 to less than 0.5; as such, the amount of L (Ba) is smaller than amount of N (Al).
Regarding Claims 1, 12 and 13, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. 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). "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). 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 this case, the prior art teaches the claimed structure, composition, and claimed method of production as detail above; thus, the claimed properties (i.e., rate of increase in mass, difference between D90 and D10, and press density) are presumed to be present.
Claims 3-5 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Imahashi and Gao in view of KR 2012-0028072 (of record), where Sun et al. (US 2013/0183585, of record) is used as a translation for KR 2012-0028072, hereinafter Sun.
Regarding Claims 3-5, Imahashi teaches a final baking stage held for 2 hours to 30 hours from 700 °C to 950 °C (e.g., 770 °C for 20 hr, see e.g., para. [0125]); Imahashi does not teach the baking includes a pre-baking stage subjected to a temperature between 300 °C to 500 °C for 2 hours to 6 hours, and a heating stage where the prebaked mixture is heated at a rate of 5 C/min to 30 C/min. However, Sun suggests the baking treatment should include a primary firing from 250 °C to 650 °C for 5 hours to 20 hours (e.g., 280 °C for 5 hours), a heating stage where the heating rate is 1 °C/min to 10 °C/min, and a secondary firing at 700 °C to 1100 °C held, for example, 10 hours, see e.g., Example 2, paras. [0083]-[0085]). This baking method allows for moisture and impurities to be effectively removed, thereby improving the purity of the active material, may effectively control growth of the active material particles and secure excellent electrochemical characteristics, and may effectively control a crystal structure, see e.g., paras. [0083]-[0085]. It would be obvious to one having ordinary skill in the art the baking of Imahashi includes a pre-baking stage from 300 °C to 500 °C for 2 hours to 6 hours, and a heating stage after the pre-baking stage to reach the final baking stage (secondary firing), where the prebaked mixture is heated at a rate of 5 °C/min to 30 °C/min (e.g., 1 °C/min - 10 °C/min), to allow for moisture and impurities to be effectively removed, thereby improving the purity of the active material, to effectively control growth of the active material particles and secure excellent electrochemical characteristics, and to effectively control a crystal structure, as suggested by Sun.
Claims 6-7 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Imahashi and Gao, further in view of Abe et al. (US 2007/0231691, of record), hereinafter Abe.
Regarding Claim 6, Imahashi’s teaching of deaggregation suggests breaking down (hence crushing) larger particles into smaller ones, but the word “crushing” is not used explicitly. However, Abe teaches fired powders are crushed before a water washing treatment to yield spherical fired powders, thus capable of high bulk density, see e.g., paras. [0055], [0102]-[0103]. It would be obvious to one having ordinary skill in the art the powders of Imahashi are crushed before water washing to yield spherical fired powders, hence capable of high bulk density.
Regarding Claim 7, Imahashi teaches the positive electrode material powder is further dried and dewatered after the water-washing process, i.e., water washed slurry is subjected to filtration (interpreted as dewatering) and drying (120 °C for 20 hr), see e.g., para. [0126].
Claim 12 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Imahashi and Gao, in view of Suhara et al. (US 2009/0017383, of record), hereinafter Suhara.
Regarding Claim 12, Imahashi teaches d50 is between 3.0 µm to 28 µm (para. [0055]), but does not teach a difference between d90 and d10 is 5.0 µm or more in a particle distribution of secondary particles of the complex oxide. However, Suhara teaches a lithium composite having first particles (i.e., large particles) having d90 (with respect to secondary particles of the first particles) of at most 150% of d50 and d10 of at least 50% of d50, wherein d50 is between 7 µm - 20 µm. The particle size/particle distribution allows for second particles (i.e., smaller particles) to fill the space between/among the first particles to achieve a positive electrode active material having a compact dense structure having a large volume capacity density and press density, see e.g., paras. [0011]-[0016], [0035], [0037], and [0054]. It would be obvious to one having ordinary skill in the art the difference between d90 and d10 based on a number of particles is 5.0 micrometers or more in a particle size distribution of secondary particles of the complex oxide to achieve a positive electrode active material having a compact dense structure having a large volume capacity density and press density, as suggested by Suhara. The modification of Imahashi, who teaches similarly sized d50 particles as Suhara (i.e., 3.0 µm to 28 µm and between 7 µm - 20 µm, respectively), with Suhara, who teaches d90 is at most 150% of d50 and d10 is at least 50% of d50, satisfies the claimed difference of 5 micrometers or more as follows:
d90 = 140 % x 10 µm (d50 of prior art) = 14 µm;
d10 = 60 % of 10 µm = 6 µm;
d90 – d10 = 14 – 6 = 8 µm, which is 5 µm or more, as claimed.
In the above illustrative example for the modification of Imahashi with Suhara, the value of d50 value (i.e., 10 µm) was so chosen because it falls between both d50 ranges disclosed in the prior art (i.e., 10 µm is between 3.0 µm to 28 µm disclosed by Imahashi and between 7 µm - 20 µm disclosed by Suhara).
Claim 13 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Imahashi and Gao, in view of Horichi et al. (US 2005/0214645, of record) and Suhara et al. (US 2005/0271944, of record), hereinafter Horichi and Suhara II.
Regarding Claim 13, Imahashi does not teach the press density of the material at a load of 95.5 MPa. However, Horichi discloses a press density for a lithium cobalt composite oxide (see e.g., paras. [0024]-[0025]) is preferably between 3.15 g/cm3 to 3.8 g/cm3 when pressed under a pressure of 0.96 t/cm2 (which is about equivalent to 95.5 mPa), see e.g., paras. [0030], [0040]. Suhara II teaches a lithium composite LiNiCoMnMO2, where M is at least one selected from Al, Mg, Ti, Ba, Ca, etc, see e.g., para. [0019]-[0020]. The active material of the lithium composite oxide has a large press density (e.g., 3.1 to 3.4 g/cm3) to obtain a high volume capacity, see e.g., para. [0041]. It would be obvious to one having ordinary skill in the art the press density of the material of Imahashi is high (i.e., 3.4 g/cm3 to 4.50 g/cm3, as claimed) to obtain a high volume capacity density, as suggested by Horichi and Suhara II. The press density suggested in the prior art overlaps with that claimed, or is close, hence obvious for the same reasons detailed above in view of MPEP 2144.05, I.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANNA KOROVINA whose telephone number is (571)272-9835. The examiner can normally be reached M-Th 7am - 6 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ula Ruddock can be reached at 5712721481. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANNA KOROVINA/Examiner, Art Unit 1729
/ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729