DETAILED ACTION
Notice 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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination (RCE) 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/25/2024 has been entered.
Response to Amendment
The amendment filed 06/25/2024 has been entered.
The Objections to claims 14 and 26 are overcome and is now withdrawn. New objections to claims 14 and 26 are made below in view of the current claim set.
The 35 USC 112(b) Rejection of claim 14 for indefiniteness is overcome by the amendment; the 35 USC 112(b) rejection of the previous Office action is now withdrawn.
The Double Patenting rejection of record is maintained in light of the amendment (see below).
Response to Arguments
Applicant's arguments filed 06/25/2024 at page 14 directed to the amended subject matter of independent claim 1 (specifically the silica filler being amorphous and having a certain ratio of -OH groups to Si) have been fully considered but they are not persuasive. The updated grounds of rejection presented below still relies on the base reference(s) applied in the previous rejection (as specific arguments to their deficiencies were not made) and now further additional/updated references which were found in the search conducted in response to the amendment and RCE, which render obvious modifications to the base reference to arrive at the amended subject matter of the instant claims.
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 (i.e., changing from AIA to pre-AIA ) 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-2, 5, 9-10, 13-15, 17, 19, 21, 24, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weerts et al. (US 2002/0004166 A1, as cited in previous Office actions) in view of Young et al. (US 5,679,479 A, which is incorporated into Weerts by reference, as originally cited in the and 09/29/2022 Office action), Gao et al. (US 2019/0267594 A1, as cited in previous Office actions), Balzano ("Flow induced crystallization of polyolefins" thesis, 16 Jan 2008, Eindhoven University of Technology Library, Dutch Polymer Institute (DPI) project # 132; as cited in previous Office actions), Sweat et al. (“Compressive behavior of high viscosity granular systems: Effect of particle size distribution”, Powder Technology 311 (2017)), Kimura et al. (US 20050142413 A1, as cited in the 07/08/2024 Interview Summary), and Zhuravlev (“The surface chemistry of amorphous silica. Zhuravlev model”, Institute of Physical Chemistry, Russian Academy of Sciences, accepted 21 February 2000, Colloids and Surfaces A: Physicochemical and Engineering Aspects 173 (2000) 1-38; <https://psec.uchicago.edu/library/photocathodes/SiO2_OH_model.pdf>).
Regarding claim 1, Weerts teaches a lead acid battery separator (a battery separator for use in flooded cell type lead acid batteries, Weerts [0001]) comprising:
a porous membrane comprising a polymer (microporous polyethylene material, Weerts [0003, 0035]),
said porous membrane having at least a first surface (upper planar surface 13 of separator 10, Weerts Fig. 1 and [0018]) with at least a first plurality of ribs extending therefrom (major ribs 20 and mini-ribs 30, Weerts [0019-0022]);
said first plurality of ribs comprising a first plurality of discontinuous peaks (peaks of ribs shown in Weerts Figs. 1-3), wherein each of said first plurality of discontinuous peaks are at least approximately 1.5 mm from another of said plurality of discontinuous peaks (mini-ribs 30 can have spacing distance between edges 32a and 33b of adjacent ribs of about 0.0225 inches, and flat surface width of about 0.018 inches according to Weerts [0027-0028]; from this and Fig. 3, the center-to-center spacing of mini-ribs 30 can be calculated as 0.009” + 0.0225” + 0.009” = 0.0405” = approx. 1.029 mm (see also annotation below); further, Weerts [0029] teaches that 0.0626-inch (=1.59 mm) spacing between mini-ribs is typically known in the art, while Weerts [0035] teaches that major ribs are spaced at 0.263 inches (=6.68 mm), well over 1.5 mm).
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Weerts fails to teach that: the porous membrane comprises a filler, nor that the porous membrane has shish-kebab formations with extended chain crystal (shish formation) and folded chain crystal (kebab formation); wherein there is a repetition periodicity of the kebab formation of from 55 nm to 74 nm; nor wherein the filler comprises amorphous silica having a bi-modal or tri-modal particle size distribution and a ratio of hydroxyl groups to silicon of 27:100 or higher.
Young, which is analogous in the art of ribbed, porous separators for use in lead acid batteries (Young abstract —also note that Young is incorporated into Weerts by reference per Weerts [0020]) teaches a lead-acid battery separator known/used in the art is a microporous polyolefin type that is commonly made of ultrahigh molecular weight polyethylene (UHMWPE) and a filler of typically amorphous silica (C1L20-24).
The simple substitution of one known element for another to obtain predictable results supports a conclusion of obviousness (MPEP 2143 I B). Thus, a person having ordinary skill in the art would have found it obvious to substitute the microporous polyolefin (specifically UHMWPE filled with amorphous silica) separator material taught by Young to be typical/known in the art for the PE separator material taught by Weerts in order to achieve a predictably functional porous membrane for the lead-acid battery separator. See also MPEP 2144.07 regarding obviousness of selection of suitable known material.
Gao, which is analogous in the art of membranes fabricated for battery separators (Gao [0048]), teaches a UHMWPE membrane separator having a fibrous network structure containing nanofibrils that are strings of pearl necklaces of “shish-kebab” crystals, wherein cores of the necklaces are made of extended chain shish crystals and the periodically attached beads are the folded chain kebab crystals (Gao [0049-0050] and Fig. 19). Gao [0050, 0053] teach this UHMWPE shish-kebab composite crystalline structure being self-reinforced and [0058-0059, 0065-0066] teach beneficially high tensile strength and puncture resistance due to the shish-kebab structure. Gao [0003] points to deficiencies of common PE separators losing strength at high temperatures as well as increased electrical resistance and cost when stacked.
Therefore, a person having ordinary skill in the art would have found it obvious to further ensure the UHMWPE separator material of modified Weerts (as cited above) exhibited the shish-kebab structure as taught by Gao to achieve beneficially high tensile strength and puncture resistance within the separator.
Gao, as applied to modified Weerts above, fails to specifically teach that a repetition periodicity of the kebab formation is from 55 nm to 74 nm. Gao instead gives an example of periodically attached beads which are the folded chain kebab crystals having approximate spacing (periodicity) of ≈100 nm (Gao [0049]).
Balzano, which is analogous in the art of shish-kebab formations within polyolefins, teaches that shish-kebabs can be beneficial for the mechanical properties of the material (Balzano pg. 84), which agrees with the teaching of Gao cited above that the shish-kebab structure imparts beneficially high tensile strength and puncture resistance. Specifically, Balzano teaches on page 92 that when the distance between neighboring shish-kebabs is small (i.e., their number is high), shish-kebabs impinge and form zip fastener structures, and such interlocking of kebabs in this morphology provides an extra mechanism for transferring (delocalizing) stress among neighboring chains. As a result, the mechanical properties of the material are further improved (Balzano pg. 92). As taught on Balzano page 64 (and explained throughout Balzano chapter 5), formation of kebabs can be controlled based on factors such as shear rate and temperature.
Therefore, Balzano provides motivation for optimizing controllable factors during kebab formation to impart a structure in which the distance between neighboring shish-kebabs is small so the kebab number is high, in order to achieve an interlocking kebab morphology and delocalize stress within the crystal chain structures. That is, decreasing the spacing (decreasing periodicity) between kebabs to be small is taught by Balzano to improve mechanical properties of the material. Therefore, a skilled artisan would have been further motivated to optimize the periodicity to be even smaller than the approximately 100 nm spacing as taught by Gao when modifying Weerts to have the shish-kebab structure in order to achieve even further improvement in mechanical properties of the separator material. The result of such optimization to decrease periodicity of kebabs below 100 nm reads on the instantly claimed range of 55-74 nm, which falls below 100 nm. Optimization of a result effective variable (i.e., kebab spacing) to achieve desired results (i.e., improved mechanical properties of the separator) is obvious per MPEP 2144.05 II. Further, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists per MPEP 2144.05 I.
Sweat, which is pertinent to the problem of silica filler used within polymer systems, teaches the addition of silica in a polymer-based binder (Sweat abstract) and specifically that the use of silica with a bimodal particle size distribution creates a significant increase in granular compressive strength since smaller particles are able to fill the interstitial spaces between the large particles, thus further increasing the number of particle contacts per unit volume (Sweat abstract, pg. 510 col. 1 para. 2, and pg. 512 col. 2 para. 1).
Therefore, when utilizing silica as the filler within the polymeric layer of modified Weerts in view of Young above, a person having ordinary skill in the art would have further found it obvious to use silica specifically having a bimodal particle size distribution in order to impart desirably increased compressive strength the polymeric layer as taught by Sweat.
Further regarding the amorphous silica (as applied in the modification above in view of Young as applied to Weerts above), it is not yet taught that said amorphous silica has a ratio of hydroxyl groups to silicon of 27:100 or higher.
Kimura is analogous in the art of separators with filler and teaches usable fillers in a separator being exemplary silica and silica sand ([0083]) and gives silicon oxide as an example of a hydrophilic substance having a large amount of hydrophilic functional groups such as hydroxyl groups ([0084]). Kimura teaches that when such material with hydrophilic functional group(s) is used as at least part of the separator surface, the wettability of the separator surface with water is improved, and thereby generated water can be rapidly discharged from the separator; thus, use of such material is expected to improve the fuel cell performance ([0084]).
Zhuravlev is analogous in the art of amorphous silica and pertinent to the problem of said silica having hydroxyl groups. Zhuravlev teaches that in regards to the properties of amorphous silica surface, the hydroxylation of the surface is of critical importance (abstract). Zhuravlev teaches the surface properties of amorphous silica, which is considered to be an oxide adsorbent, in many cases depend on the presence of silanol groups, and at a sufficient concentration these groups make such a surface hydrophilic since the OH groups act as the centers of molecular adsorption during their specific interaction with adsorbates capable of forming a hydrogen bond with the OH groups (p.2, col.2, para.2).
From these teachings of Kimura and Zhuravlev, it is shown the presence and concentration of hydroxyl (OH) groups on amorphous silicon is a variable which affects the resultant degree of hydrophilicity. Thus, a person having ordinary skill in the art would have found it obvious to use routine experimentation (see MPEP 2144.05 II) to arrive at the desired concentration of OH groups on the amorphous silicon surface (reading on or at least correlating to a ratio of hydroxyl groups to silicon) as taught toward by Zhuravlev in order to ensure hydrophilicity of the filler and thus impart desired hydrophilicity the overall separator containing such filler as also taught toward by Kimura.
Thereby, claim all limitations of 1 are rendered obvious.
Regarding claim 2, modified Weerts teaches the limitations of claim 1 above and teaches a continuous base portion (backweb 12, Weerts [0018]) with said first plurality of discontinuous peaks extending therefrom (Weerts Figs. 1-3), wherein said continuous base portion is optionally wider than a width of said discontinuous peaks (optional limitation need not be met) or extends continuously between said discontinuous peaks (backweb 12 extends between upper-surface ribs at their bases, Weerts Figs. 1-3).
Regarding claim 5, modified Weerts teaches the limitations of claim 1 above and teaches
said first plurality of ribs are one of the following group consisting of:
solid ribs, discrete broken ribs, continuous ribs, discontinuous ribs, discontinuous peaks, discontinuous protrusions, discontinuous teeth, angled ribs (mini-ribs 30 can have configuration of being at an angle, Weerts [0022]), linear ribs, longitudinal ribs extending substantially in a machine direction of said porous membrane, lateral ribs extending substantially in a cross-machine direction of said porous membrane, transverse ribs extending substantially in said cross-machine direction of the separator, discrete teeth, toothed ribs, serrations, serrated ribs, battlements, battlemented ribs, curved ribs, sinusoidal ribs (mini-ribs 30 may be sinusoidal, Weerts [0022]), disposed in a continuous zig-zag-sawtooth-like fashion, disposed in a broken discontinuous zig-zag-sawtooth-like fashion, grooves, channels, textured areas, protrusions, embossments, dimples, nubs, columns, mini columns, porous, non-porous, mini ribs (ribs 30 are mini-ribs, Weerts 0022]), cross-mini ribs, and combinations thereof (major ribs 20 may have any cross-sectional configuration used in the art, Weerts [0020]),
optionally wherein:
at least a portion of said first plurality of ribs are defined by an angle that is neither parallel nor orthogonal relative to an edge of said separator (mini-ribs 30 can have configuration of being at an angle to the edges of the separator, Weerts [0022] and Fig. 3);
said angle varies among said at least a portion of said first plurality of ribs (angle of major ribs 20 versus angle of mini-ribs 30, Weerts [0019, 0022] and Figs. 1-2); or
at least a portion of said first plurality of ribs are defined by an angle relative to a machine direction (machine direction is left-right in Weerts figures – see annotation with claim 9 below) of said porous membrane and said angle is chosen from the group consisting of:
between greater than zero degrees (0°) and less than 180 degrees (180°), and
greater than 180 degrees (180°) and less than 360 degrees (360°).
(Examiner notes that these groups cover the full range of angles 0°-360° excluding endpoints and 180, thus the angles ribs shown in Weerts figures read on this limitation – see also annotation with claim 9 below).
Regarding claim 9, modified Weerts teaches the limitations of claim 5 above and teaches
at least a portion of said first plurality of ribs are defined by an angle relative to a machine direction (see annotation below) of said porous membrane and said angle is chosen from the group consisting of:
between greater than zero degrees (0°) and less than 180 degrees (180°) (see annotation below), and
greater than 180 degrees (180°) and less than 360 degrees (360°), and
said angle varies among said at least a portion of said first plurality of ribs (angle of major ribs 20 versus angle of mini-ribs 30, Weerts [0019, 0022]; see also annotation below).
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Regarding claim 10, modified Weerts teaches the limitations of claim 1 above and teaches at least a portion of said first plurality of ribs have a height of approximately 100 µm to approximately 1.0 mm (height of mini-ribs 30 can be 0.003 to 0.006 inches per Weerts [0026], which is 76.2 to 152.4 microns – in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists; MPEP 2144.05 I), of approximately 400 µm to approximately 600 µm (major rib 20 height is 0.019 inch, Weerts [0035], which equals 482.6 microns), or of approximately 600 µm to approximately 800 µm (option limitation).
Regarding claim 13, modified Weerts teaches the limitations of claim 5 above but fails to teach at least a portion of said first plurality of ribs have a cross-machine direction spacing pitch of approximately 1.5 mm to approximately 10 mm.
Young, applied to claim 1 above, teaches that the spacing of ribs is specified to the separator manufacturer by the battery manufacturer and that there are many different specifications that may be required for the rib spacing in order to meet customer demands (Young C1L45-50,56-60). Thus, Young teaches in C1L54-55 and C2L10-11 that is important to be able to set spacing as needed to efficiently manufacture the lead acid battery separators. Young C2L45-50 and C8L1-7 teach setting a distance between the embossing wheels forming the rows of ribs, and Young C3L47-48 teaches an example of this cross-machine spacing being 0.25 to 1 inch (6.35 to 25.4 mm).
From the teaching of Young, a skilled artisan would have found it obvious to include a plurality of rows of the plurality of ribs to be spaced in the cross-machine direction and to be able to manufacture the separator with a wide range of spacing pitches in such direction to meet demands of battery manufacturers as taught by Young. The exemplary range of 6.35-25.4 mm taught by Young overlaps with and further renders obvious the claimed range (MPEP 2144.05 I).
Thereby, claim 13 is rendered obvious.
Regarding claim 14, modified Weerts teaches the limitations of Claim 5 above but fails to explicitly teach said first plurality ribs are discontinuous teeth having a machine direction spacing pitch of approximately 1.5 mm to approximately 10 mm.
Weerts does teach in [0035] that the major ribs 20, which form at least a portion of said first plurality of ribs, are spaced at 0.263 inches (= 6.68 mm).
Young, applied to claim 1 above, teaches that the ribs on a separator can be in the form of pointed “teeth” shapes, formed by gear teeth of embossing wheels (Young C4L36-42 and Figs. 1-3 and 6).
Since the change in form or shape is within the ambit of a person having ordinary skill in the art (MPSP 2144.05 IV B), it would have been obvious to change the shape of the ribs of modified Weerts to instead be teeth-shaped as taught by Young, while still expecting a functional separator with protrusions.
Thereby, claim 14 is rendered obvious.
Regarding claim 15, modified Weerts teaches the limitations of claim 1 above and teaches a second plurality of ribs extending from a second surface of said porous membrane (a plurality of "micro-ribs" 40 extend from the backside 14 of the separator, Weerts [0030] and Fig. 4), optionally wherein: said second plurality of ribs are one of the following group consisting of: solid ribs, discrete broken ribs, continuous ribs, discontinuous ribs, discontinuous peaks, discontinuous protrusions, angled ribs (micro-ribs may be disposed at an angle, Weerts [0031]), linear ribs, longitudinal ribs extending substantially in a machine direction of said porous membrane, lateral ribs extending substantially in a cross-machine direction of said porous membrane, transverse ribs extending substantially in said cross-machine direction of the separator, discrete teeth, toothed ribs, battlements, battlemented ribs, curved ribs, sinusoidal ribs (micro-ribs may be sinusoidal, Weerts [0031]), disposed in a continuous zig-zag-sawtooth-like fashion, disposed in a broken discontinuous zig-zag- sawtooth-like fashion, grooves, channels, textured areas, protrusions, nubs (arc-shaped cross section of micro ribs, Weerts [0032] and Fig. 4), embossments, dimples, columns, mini columns, porous, non-porous, mini ribs, cross- mini ribs, and combinations thereof.
Regarding claim 17, modified Weerts teaches the limitations of claim 15 above and teaches the second plurality of ribs extending from a second surface of said porous membrane (a plurality of "micro-ribs" 40 extend from the backside 14 of the separator, Weerts [0030] and Fig. 4), optionally wherein:
said second plurality of ribs are one of the following group consisting of: solid ribs, discrete broken ribs, continuous ribs, discontinuous ribs, discontinuous peaks, discontinuous protrusions, angled ribs (micro-ribs may be disposed at an angle, Weerts [0031]), linear ribs, longitudinal ribs extending substantially in a machine direction of said porous membrane, lateral ribs extending substantially in a cross-machine direction of said porous membrane, transverse ribs extending substantially in said cross-machine direction of the separator, discrete teeth, toothed ribs, battlements, battlemented ribs, curved ribs, sinusoidal ribs (micro-ribs may be sinusoidal, Weerts [0031]), disposed in a continuous zig-zag-sawtooth-like fashion, disposed in a broken discontinuous zig-zag- sawtooth-like fashion, grooves, channels, textured areas, protrusions, nubs (arc-shaped cross section of micro ribs, Weerts [0032] and Fig. 4), embossments, dimples, columns, mini columns, porous, non-porous, mini ribs, cross- mini ribs, and combinations thereof, and
at least a portion of said second plurality of ribs are defined by an angle that is neither parallel nor orthogonal relative to an edge of said separator (micro-ribs may be disposed at an angle to separator edges, Weerts [0031]).
Regarding claim 19, modified Weerts teaches the limitations of claim 15 above and teaches the second plurality of ribs extending from a second surface of said porous membrane (a plurality of "micro-ribs" 40 extend from the backside 14 of the separator, Weerts [0030] and Fig. 4), optionally wherein:
said second plurality of ribs are one of the following group consisting of: solid ribs, discrete broken ribs, continuous ribs, discontinuous ribs, discontinuous peaks, discontinuous protrusions, angled ribs (micro-ribs may be disposed at an angle, Weerts [0031]), linear ribs, longitudinal ribs extending substantially in a machine direction of said porous membrane, lateral ribs extending substantially in a cross-machine direction of said porous membrane, transverse ribs extending substantially in said cross-machine direction of the separator, discrete teeth, toothed ribs, battlements, battlemented ribs, curved ribs, sinusoidal ribs (micro-ribs may be sinusoidal, Weerts [0031]), disposed in a continuous zig-zag-sawtooth-like fashion, disposed in a broken discontinuous zig-zag- sawtooth-like fashion, grooves, channels, textured areas, protrusions, nubs (arc-shaped cross section of micro ribs, Weerts [0032] and Fig. 4), embossments, dimples, columns, mini columns, porous, non-porous, mini ribs, cross- mini ribs, and combinations thereof, and
at least a portion of said second plurality of ribs are defined by an angle relative to a machine direction of said porous membrane and said angle is chosen from the group consisting of:
between greater than zero degrees (0°) and less than 180 degrees (180°) (see annotation below showing angle of micro-ribs 40), and
greater than 180 degrees (180°) and less than 360 degrees (360°) (optional limitation).
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Regarding claim 21, modified Weerts teaches the limitations of claim 15 above and teaches at least a portion of said second plurality of ribs have a height of approximately 100 µm to approximately 1.0 mm (height of micro-ribs 40 can be 0.003 to 0.006 inches per Weerts [0032], which is 76.2 to 152.4 microns – in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists; MPEP 2144.05 I), of approximately 400 µm to approximately 600 µm, or of approximately 600 µm to approximately 800 µm.
Regarding claim 24, modified Weerts teaches the limitations of claim 15 above and teaches the second plurality of ribs extending from a second surface of said porous membrane (a plurality of "micro-ribs" 40 extend from the backside 14 of the separator, Weerts [0030] and Fig. 4), optionally wherein:
said second plurality of ribs are one of the following group consisting of: solid ribs, discrete broken ribs, continuous ribs, discontinuous ribs, discontinuous peaks, discontinuous protrusions, angled ribs (micro-ribs may be disposed at an angle, Weerts [0031]), linear ribs, longitudinal ribs extending substantially in a machine direction of said porous membrane, lateral ribs extending substantially in a cross-machine direction of said porous membrane, transverse ribs extending substantially in said cross-machine direction of the separator, discrete teeth, toothed ribs, battlements, battlemented ribs, curved ribs, sinusoidal ribs (micro-ribs may be sinusoidal, Weerts [0031]), disposed in a continuous zig-zag-sawtooth-like fashion, disposed in a broken discontinuous zig-zag- sawtooth-like fashion, grooves, channels, textured areas, protrusions, nubs (arc-shaped cross section of micro ribs, Weerts [0032] and Fig. 4), embossments, dimples, columns, mini columns, porous, non-porous, mini ribs, cross- mini ribs, and combinations thereof.
Modified Weerts fails to explicitly teach that at least a portion of said second plurality of ribs have a cross-machine direction spacing pitch of approximately 1.5 mm to approximately 10 mm or at least a portion of said first plurality of discontinuous teeth have a machine direction spacing pitch of approximately 1.5 mm to approximately 10 mm.
Young, applied to claim 1 above, teaches a separator having pluralities of ribs spaced in the cross-machine direction (left-to-right in Young Fig. 1). Young teaches that the spacing of ribs is specified to the separator manufacturer by the battery manufacturer and that there are many different specifications that may be required for the rib spacing in order to meet customer demands (Young C1L45-50,56-60). Thus, Young teaches in C1L54-55 and C2L10-11 that is important to be able to set spacing as needed to efficiently manufacture the lead acid battery separators. Young C2L45-50 and C8L1-7 teach setting a distance between the embossing wheels forming the rows of ribs, and Young C3L47-48 teaches an example of this cross-machine spacing being 0.25 to 1 inch (6.35 to 25.4 mm).
From the teaching of Young, a skilled artisan would have found it obvious to include a plurality of rows of the second plurality of ribs to be spaced in the cross-machine direction and to be able to manufacture the separator with a wide range of spacing pitches in such direction to meet demands of battery manufacturers as taught by Young. The exemplary range of 6.35-25.4 mm taught by Young overlaps with and further renders obvious the claimed range (MPEP 2144.05 I).
Thereby, claim 24 is rendered obvious.
Regarding claim 26, modified Weerts teaches the limitations of claim 1 above and teaches at least one of the following:
said porous membrane has a thickness of approximately 50 µm to approximately 500 µm (backweb thickness is 0.006 inches (= 152.4 microns), Weerts [0035]);
said first surface comprises one or more ribs that are of a different height than said first plurality of ribs disposed adjacent to an edge of said lead acid battery separator (major ribs 20 and mini ribs 30 have different heights in Weerts Figs. 1-2);
said polymer comprises one of the following group consisting of a polymer, polyolefin, polyethylene (Weerts [0003]), polypropylene, ultra-high molecular weight polyethylene ("UHMWPE") (Young C1L23-24 and Gao [0049-0050], applied within modified Weerts per claim 1 above), phenolic resin, polyvinyl chloride ("PVC"), rubber, latex, synthetic wood pulp ("SWP"), lignins, glass fibers, synthetic fibers, cellulosic fibers, and combinations thereof;
said separator further comprises a fibrous mat (optional limitation only within claim 26); or
said separator is in a shape of one of the following group consisting of a cut- piece, a leaf, a pocket, a sleeve, a wrap, an envelope (wrap-around envelope shape per Weerts [0005]), and a hybrid envelope.
Claim(s) 18, 20, 31 and 54-55 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weerts et al. (US 2002/0004166 A1, as cited in previous Office actions) in view of Young et al. (US 5,679,479 A, which is incorporated into Weerts by reference, as originally cited in the and 09/29/2022 Office action), Gao et al. (US 2019/0267594 A1, as cited in previous Office actions), Balzano ("Flow induced crystallization of polyolefins" thesis, 16 Jan 2008, Eindhoven University of Technology Library, Dutch Polymer Institute (DPI) project # 132; as cited in previous Office actions), Sweat et al. (“Compressive behavior of high viscosity granular systems: Effect of particle size distribution”, Powder Technology 311 (2017)), Kimura et al. (US 20050142413 A1, as cited in the 07/08/2024 Interview Summary), and Zhuravlev (“The surface chemistry of amorphous silica. Zhuravlev model”, Institute of Physical Chemistry, Russian Academy of Sciences, accepted 21 February 2000, Colloids and Surfaces A: Physicochemical and Engineering Aspects 173 (2000) 1-38; <https://psec.uchicago.edu/library/photocathodes/SiO2_OH_model.pdf>) as applied to claims 1 and 26 above, and further in view of Whear et al. (US 2012/0070713 A1, as originally cited in the and 09/29/2022 Office action).
Regarding claim 18 and claim 20, modified Weerts teaches the limitations of claims 17 and 19 above but fails to teach said angle varies among said at least a portion of said second plurality of ribs.
Whear, which is analogous in the art of lead-acid battery separators (Whear abstract), teaches that the selection of a profile (related to angle) or ribbing design plays a role in impacting battery performance such as lifecycle and battery performance (Whear [0048, 0050]).
Weerts does teach in [0009, 0020, 0025, 0032] and [0019, 0022, 0032] that various cross-sectional shapes and angles can be used for different sections of ribbing.
From these teachings, a skilled artisan would have found it obvious to change the shape thus angles of the ribs within a section of the second plurality of ribs to achieve tailored battery performance. Furthermore, the change in form or shape is within the ambit of a person having ordinary skill in the art (MPEP 2144.05 IV B).
Thereby, claims 18 and 20 are rendered obvious.
Regarding claim 31, modified Weerts teaches the limitations of claim 26 above but fails to teach said separator further comprises a fibrous mat, and said fibrous mat comprises one of the following group consisting of glass fibers, synthetic fibers, silica, at least one performance enhancing additive, latex, natural rubber, synthetic rubber, and combinations thereof, or said fibrous mat is one selected from a nonwoven, a woven, a mesh, a fleece, a net, or combinations thereof.
Whear, which is analogous in the art of lead-acid battery separators (Whear abstract), teaches that the life-cycle of a battery can be improved by modifying the separator thereof, including using a laminated separator including a glass mat made of glass fibers in order to help retain intimate contact between the positive active material and the positive grid as well as help reduce acid stratification (Whear [0043-0045, 0103, 0111]).
It would have been obvious, at the time of filing, for a person having ordinary skill in the art to modify the polymeric separator of modified Weerts to include a fibrous glass mat laminate as taught by Whear with the motivation of achieving the benefit of increasing active material contact and reducing acid stratification where needed.
Thus, the instant claim 31 is rendered obvious.
Regarding claim 54, modified Weerts teaches the limitations of claim 1 above but fails to explicitly teach the separator being a resilient separator, a balanced separator, an EFB separator, an ISS separator, and/or combinations or sub-combinations thereof.
Whear, which is analogous in the art of lead-acid battery separators (Whear abstract), teaches an improved separator for use as lead acid battery separators, flooded lead acid battery separators, enhanced flooded lead acid battery separators, ISS or micro-hybrid battery separators, ISS flooded lead acid battery separators, ISS enhanced flooded lead acid battery separators (Whear [0002]).
Since the separator of Weerts is also taught to be an improved separator for use in flooded cell type lead acid batteries (Weerts abstract, [0001]), a skilled artisan would have found it obvious that such separator could also be used within the battery types as taught by Whear, wherein flooded lead acid, ISS, and EFB separators are listed as known in the art to use the same separator. Thus, it would have been obvious to use the separator of modified Weerts as an ISS or EFB separator as taught by Whear because the substitution of one known element for another, to achieve predictable results, is prima facie obvious per MPEP 2143 I B.
Thereby, claim 54 is rendered obvious.
Regarding claim 55, modified Weerts teaches the limitations of claim 1 above but fails to explicitly teach being a truck battery separator having low ER, reduced water loss, and acid mixing ribs.
Modified Weerts does teach the separator having lower electrical resistance as modified Gao above regarding claim 1 (Gao [0003]).
Whear, which is analogous in the art of lead-acid battery separators (Whear abstract), teaches improved separators for lead acid batteries within electric vehicles such as fork trucks, for example (Whear [0146]). Whear teaches in [0075] that separators having low electrical resistance (ER) is important to maximize charge acceptance during regenerative braking and power delivery during restart of the internal combustion engine. Whear teaches that polyethylene-based separators, specifically those made of UHMWPE, are beneficial and known for use in applications specifying low water loss (Whear [0154, 0158]). Whear further teaches that benefits to promote acid mixing are important to prevent acid stratification, including the use of ribs (Whear [0049-0050]).
Since Whear teaches that a separator for a flooded lead acid battery can be used in vehicles including a truck, a person having ordinary skill in the art would have found it obvious that the separator of modified Weerts could also be used in a truck battery; MPEP 2143 I B. Further, a person having ordinary skill in the art would have found it obvious to ensure the separator of modified Weerts had low ER, reduced water loss, and that the ribs thereon included acid-mixing ribs in order to achieve the benefits of maximizing charge acceptance, save water, and prevent detrimental acid stratification, all as taught by Whear.
Thus, all limitations of claim 55 are rendered obvious.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of U.S. Patent No. 11,316,231 to Miller (“‘231 Patent” below) in view of Young et al. (US 5,679,479 A, as originally cited in the and 09/29/2022 Office action and cited above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim 1 limitations are encompassed by and obvious over the limitations of the Miller '231 Patent claim limitations in view of Young, as noted below:
From instant claim 1:
A lead acid battery separator comprising
(“A separator for a lead acid battery” – ‘231 patent claim 1)
a porous membrane comprising a polymer and a filler
(“a microporous membrane comprising a polyolefin polymer, a particle-like filler” – ‘231 patent claim 1)
wherein the porous membrane has shish-kebab formations with extended chain crystal (shish formation) and folded chain crystal (kebab formation)
(“wherein the polyethylene comprises polymer in a shish-kebab formation comprising a plurality of extended chain crystals (the shish formations) and a plurality of folded chain crystals (the kebab formations)” – ‘231 patent claim 1)
said porous membrane having at least a first surface with at least at least a first plurality of ribs extending therefrom; said first plurality of ribs comprising a first plurality of discontinuous peaks;
(“wherein the microporous membrane is characterized by one from the group consisting of … ribbing, serrated ribbing, embossed ribbing, and/or negative cross ribs” – ‘231 patent claim 1)
wherein there is a repetition periodicity of the kebab formation of from 55 nm to 74 nm
(“the average repetition or periodicity of the kebab formations is from 1 nm to 150 nm, preferably less than 120 nm” – ‘231 patent claim 1; see MPEP 2144.05 I regarding obviousness of overlapping ranges)
wherein the filler comprises amorphous silica having a bi-modal or tri-modal particle size distribution and a ratio of hydroxyl groups to silicon of 27:100 or higher
(“the filler is selected from the group consisting of … precipitated amorphous silica” – ‘231 patent claim 5; see MPEP 2144.07 regarding obvious selection of suitable material)
(“(b) the particle-like filler is friable to such a degree that after 30 seconds of ultra-sonication, the median silica particle size is approximately 5.2 μm or less; (c) the particle-like filler is friable to such a degree that after 60 seconds of ultra-sonication, the median silica particle size is approximately 0.5 μm or less” – ‘231 patent claim 5; two different particle size peak ranges at two different sonication times reads on “bi-modal particle size distribution” as evidences by instant specification page 48 paragraph 1 as filed 07/30/2020)
(“molecular ratio of OH to Si groups within said filler, measured by 295i-NMR, is within a range of from 21:100 to 35:100, preferably 27:100 or more” – ‘231 patent claim 5).
The Miller ‘231 Patent Claim 1 fails to explicitly teach: each of said first plurality of discontinuous peaks are at least approximately 1.5 mm from another of said plurality of discontinuous peaks.
Young, which is analogous in the art of porous and ribbed separators for lead acid batteries (Young abstract), teaches that the spacing of ribs is specified to the separator manufacturer by the battery manufacturer and that there are many different specifications that may be required for the rib spacing in order to meet customer demands (Young C1L45-50,56-60). Thus, Young teaches in C1L54-55 and C2L10-11 that is important to be able to set spacing as needed to efficiently manufacture the lead acid battery separators. Additionally, per MPEP 2144.04 IV A changes in size and proportion are design choices within the ambit of a skilled artisan.
Since the Miller ‘231 Patent claims are silent toward rib spacing, it would have been obvious for a person having ordinary skill in the art to set a spacing distance between discontinuous peaks formed by the ribs thereof in order to meet desired design requirements, since Young teaches that that the spacing of ribs is specified to the separator manufacturer by the battery manufacturer and that there are many different specifications that may be required for the rib spacing in order to meet customer demands.
Thereby, instant claim 1 is unpatentable over U.S. Patent No. 11,316,231 in view of Young.
Conclusion
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/JESSIE WALLS-MURRAY/Primary Examiner, Art Unit 1728
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