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 .
Response to Amendment
Per Applicant amendment dated November 13, 2025, claims 35-40 are withdrawn due to being drawn to a non-elected invention. Claim 30 remains withdrawn due to being drawn to a non-elected invention. No claims are otherwise amended.
Status of Application
The previous 35 U.S.C. 103 rejections provided in the Office Action dated May 14, 2025 are maintained with additional explanations regarding application of the prior art relevant to Applicant’s arguments in the Response to Arguments section below.
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.
Claims 1, 3, 8, 13, 15-18, 29, 33, and 41 are rejected under 35 U.S.C. 103 as being unpatentable over Von Bulow et al. [WO2017/032789, dated March 2, 2017 (as provided on the IDS dated April 28, 2021)], hereinafter Von Bulow, in view of Sugiura [US20160028080A1].
Regarding Claim 1, 13, 18, and 41, Von Bulow discloses a lithium positive electrode active material for a high voltage secondary battery [Von Bulow abstract], said lithium positive electrode active material comprising at least 94 wt% spinel, said spinel having a net chemical composition of LixNiyMn2-yO4, wherein:
0.95 ≤x ≤ 1.05 ; 0.43 ≤y ≤ 0.47; [Von Bulow page 17, lines 27-30 and Claim 18 (Von Bulow discloses an embodiment with a lithium positive electrode active material comprising at least 95 wt% of spinel phase LixNiyMn2-yO4 ; wherein 0. 9 ≤x ≤ 1.1 and 0. 4 ≤y ≤ 0.5 [Von Bulow page 17, lines 27-30], which overlaps the instantly claimed ranges for spinel composition (limitation in Claim 1), x (limitations in Claims 1 and 13), and y (limitations in Claims 1 and 18). Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.]
and wherein said lithium positive electrode active material is made up of particles, wherein the particles have average aspect ratio below 1.6 (claim 1) or 1.46 (claim 41), wherein the aspect ratio is defined as the ratio of particle length to particle breadth, where length is the maximum distance between two points on a perimeter and breadth is the maximum distance between two perimeter points linked by a line perpendicular to length [Von Bulow does not explicitly disclose the particles have an average aspect ratio less than 1.6 (claim 1) or 1.46 (claim 41). However, Von Bulow discloses the benefits of spherical particles for lithium positive electrode active materials, which are spherical due to the co-precipitation process [Von Bulow page 2, lines 21-24], which Von Bulow further teaches [Von Bulow title, Examples on pgs. 19-36 and throughout] as explained in more detail below. The skilled artisan knows that spherical particles generally have an aspect ratio of approximately 1.0 since the diameter of a sphere is assumed to be the same in any cross-section through the central axis and therefore the ratios of those lengths in a spherical particle would be approximately 1.0. Further, Von Bulow specifically teaches that irregular particles have a lower tap density than spherical particles [Von Bulow page 2, lines 21-24], and the skilled artisan would understand that irregular particles would be associated with a higher aspect ratio than spherical particles. Therefore, to form spherical particles, the skilled artisan would know to process the particles to have an aspect ratio close to 1.0, which is within the claimed ranges of below 1.6 (claim 1) and 1.46 (claim 41). Further, Von Bulow references a motivation for spherical particles is related to improving the tap density [Von Bulow page 2, lines 24-32 through page 2, lines 1-6]. The skilled artisan knows that tap density is used to support packing density, which is directly related to the energy density of a battery [Von Bulow page 4, lines 14-16]. Therefore, the skilled artisan would know from Von Bulow’s teachings that an aspect ratio close to 1.0 supports good tap density and therefore good energy density. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.)].
A person of ordinary skill in the art would have to consider the evidence in Von Bulow’s disclosure as a whole for all that it inherently contains. See MPEP 2144.02(V). Von Bulow discloses a method for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout, most specifically Examples 4-6 pgs. 24-28 with tap densities of 2.4 g/cm3 ]. Further, Von Bulow describes the particles as free flowing and homogeneous [Von Bulow pgs. 24, 27], which gives the skilled artisan evidence of the morphology of the resulting particles. Given Von Bulow’s disclosure about the relationship between spherical particles, tap density, and energy density [Von Bulow page 4, lines 14-16] and in coordination with Von Bulow’s method’s for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout], a person of ordinary skill in the art would understand that Von Bulow’s particles with a high tap density would be characterized as substantially spherical [Von Bulow page 2, lines 21-24]. Therefore, it would be within the ambit of the skilled artisan to apply the methods taught by Von Bulow [Von Bulow, methods pgs. 19-36 involving co-precipitation in the presence of acids and bases with continuous, vigorous stirring at a controlled temperature, and subsequent heat treatment] to control the tap density, and corresponding aspect ratio.
Further so, with Von Bulow’s teachings the skilled artisan would understand that the aspect ratio of particles is a result effective variable due to its relationship with tap density. If the aspect ratio is too high, the tap density and resulting energy density of positive active material is too low. Eventually, further adjustments to achieve perfectly spherical particles with an aspect ratio of 1.0 will lead to only marginal increases in tap density and resulting energy density at a higher process cost and possibly lower yield. Determining the proper range of the aspect ratio would merely require routine experimentation in order to balance and optimize the need for a high tap density, energy density positive active material vs. cost/yield, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to combine Von Bulow’s disclosure of the benefits of spherical particles regarding high tap density and energy density with Von Bulow’s disclosure of lithium nickel manganese oxide active materials for the predictable result of high voltage secondary batteries with high capacity and cycle stability [Von Bulow page 4, lines 24-32 through page 5, lines 1-2] and adjust the ranges of spinel composition, x, y, and aspect ratio using the disclosure of Von Bulow to obtain the desired battery characteristics. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
For purpose of compact prosecution, Sugiura discloses lithium composite oxide particles with manganese and nickel [Sugiura abstract and throughout] for a high energy density battery [Sugiura 0021 and throughout] and further teaches that active material particles can be substantially spherical shaped with a typical average aspect ratio of 1-1.5, for example 1 to 1.2 [Sugiura 0040], which overlaps and obviates the claimed ranges of Claims 1 (1.6) and 41 (1.46). Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. Given that Von Bulow discloses the benefits of spherical particles regarding tap density and energy density, it would be obvious to combine Sugiura’s teachings about the aspect ratio of spherical lithium composite oxide particles with manganese and nickel particles with the lithium composite oxide of Von Bulow for the predictable result of secondary batteries with high capacity and cycle stability [Von Bulow page 4, lines 24-32 through page 5, lines 1-2; Sugiura 0021]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 3, modified Von Bulow discloses the lithium positive electrode active material according to claim 1, wherein said lithium positive electrode active material in a half-cell [Von Bulow page 19, lines 19-21] has a difference of at least 50 mV between the potentials at 25% and 75% of the capacity above 4.3 V during discharge with a current of around 29 mA/g [Von Bulow Fig. 10 (modified below) shows a dV of approximately 70 mV as calculated from the estimates of 25% capacity of 27.5 mAh-1 and 75% capacity of 82.5 mAh-1, where potential at 25% is approximately 4.71V and at 75% is 4.64V (4.71-4.64= 70 mV). The Examiner notes these are estimates based on the quality of the graphs and measurement technique; however, Von Bulow’s disclosure provides sufficient evidence of an overlap with the instantly claimed range of at least 50 mV or alternatively if it does not overlap it is merely close. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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.
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Modified VB Fig. 10
Regarding Claim 8, modified Von Bulow discloses the lithium positive electrode active material according to claim 1, wherein said lithium positive electrode active material has a tap density equal to or greater than 2.2 g/cm3 [Von Bulow page 26, lines 11-14 through page 27 lines 1-2 (Von Bulow discloses 96.6 wt% spinel phase with a tap density of 2.4 g/cm3, which anticipates the claimed range.].
Regarding Claim 15, modified Von Bulow disclose the lithium positive electrode active material according to claim 1, wherein said lithium positive electrode active material has a capacity of at least 138 mAh/g [Von Bulow pg. 14, lines 11-15, pg. 20, lines 23-25, Figs. 8 and 9, Von Bulow discloses an initial specific discharge capacity of equal to or greater than 130 mAh/g [Von Bulow page 14, lines 11-15] and a theoretical specific capacity of 148 mA/g [Von Bulow pg. 20, lines 23-25]. Von Bulow’s disclosure of above 130 mAh/g would be considered to overlap and obviate the claimed range or be merely close. Further, Von Bulow’s graphs show specific capacities during cycling at 25 ° C [Fig. 8] and 55 ° C [Fig. 9] with capacities either above the claimed range of 138 mAh/g or merely close. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" or are “merely close” a prima facie case of obviousness exists.
Regarding Claim 16, modified Von Bulow discloses the lithium positive electrode active material according to claim 1. The limitation of “said lithium positive electrode active material is synthesized from a precursor containing Li, Ni, and Mn in a ratio Li:Ni:Mn: X:Y:2-Y, wherein: 0.95 < X < 1.05; and 0.42 s Y < 0.5” is a product-by-process limitation, which does not limit the claimed final product. Von Bulow discloses Li:Ni:Mn: X:Y:2-Y through the expression of the material composition is LixNiyMn2-yO4 and the ranges of x and y provided as described in Claim 1. (See MPEP 2144.05, regarding overlapping ranges.). Per MPEP 2113, "[E]ven 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."
Regarding Claim 17, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 but does not disclose methods for determination of y. The limitation “wherein y is determined by means of a method selected from the group consisting of electrochemical determination, X-ray diffraction and scanning transmission electron microscopy (STEM) in combination with energy dispersive X-ray spectroscopy (EDS)” is a product-by-process limitation, which does not limit the claimed final product. Von Bulow discloses y in the range of 0.4 to 0.5, which overlaps the claimed range, and per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. Any variation in the actual amount of y would be small and would either lie within the range disclosed by Von Bulow or be close. 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.
Regarding Claim 29, modified Von Bulow discloses a secondary battery comprising the lithium positive electrode active material according to claim 1 [Von Bulow, page 18, lines 8-10].
Regarding Claim 33, modified Von Bulow discloses the lithium positive electrode active material according to claim 1, wherein the particles have a circularity above 0.55 [Von Bulow does not explicitly disclose the circularity above 0.55; however, Von Bulow discloses spherical particles, which are spherical due to the co-precipitation process [Von Bulow page 2, lines 21-24]. Further, Von Bulow references a motivation for spherical particles is related to improving the tap density. [Von Bulow page 2, lines 24-32 through page 2, lines 1-6]. The skilled artisan knows that tap density is used to support packing density, which is directly related to the energy density of a battery [Von Bulow page 4, lines 14-16]. Therefore, the skilled artisan would know a circularity close to 1.0 supports good energy density and it would be within their ambit to adjust the circularity to achieve the desired results. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.)].
Even further, Von Bulow discloses a method for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout]. Given Von Bulow’s disclosure about the relationship with spherical particles, tap density, and energy density [Von Bulow page 4, lines 14-16] and method’s for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout], it would be within the ambit of the skilled artisan to apply the methods taught by Von Bulow [Von Bulow, methods pgs. 19-36 involving co-precipitation in the presence of acids and bases with continuous, vigorous stirring at a controlled temperature] to control the tap density, and corresponding circularity. Further so, with Von Bulow’s teachings the skilled artisan would understand that the circularity of particles is a result effective variable due to its relationship with tap density. If the circularity is too low, the tap density and resulting energy density of positive active material is too low. Eventually, further adjustments to achieve perfectly spherical particles with a circularity of 1.0 will lead to only marginal increases in tap density and resulting energy density at a higher process cost and possibly lower yield. Determining the proper range of the circularity would merely require routine experimentation in order to balance and optimize the need for a high tap density, energy density positive active material vs. cost/yield, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Von Bulow’s disclosure of lithium nickel manganese oxide active materials for the predictable result of high voltage secondary batteries with high capacity and cycle stability [Von Bulow page 4, lines 24-32 through page 5, lines 1-2] and adjust the range circularity using the disclosure of Von Bulow to obtain the desired battery characteristics.
Claims 31 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Von Bulow et al. [WO2017/032789, dated March 2, 2017 (as provided on the IDS dated April 28, 2021)], hereinafter Von Bulow, in view of Sugiura [US20160028080A1], as applied to Claim 1, in view of Harada et al. [JP2012234772, dated November 29, 2012, machine translation previously provided], hereinafter Harada.
Regarding Claim 31, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 but does not explicitly disclose roughness. Harada teaches lithium transition metal compound oxides for positive electrode materials [Harada abstract] for high capacity lithium secondary batteries [Harada 0002]. Harada teaches the root mean square roughness of the primary particle surface with an upper limit of 1 nm and that it is preferably less because there is less damage to the surface of the particle [Harada 0026], which improves the initial charging efficiency of the battery [Harada 0108]. Harada’s range of less than 1 nm overlaps the claimed range of 1.35. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Harada’s teaching for controlling the particle roughness to reduce the surface damage in the active material of Von Bulow to improve the initial charging performance [Harada 0108]. (Examiner’s note: Though Harada does not explicitly disclose the roughness as a ratio between the measured perimeter of the particle and the perimeter of the fitted ellipse as defined in the instant Specification, it would be understood by the skilled artisan for the instantly defined roughness a perfectly undamaged particle would have a roughness of 1.0. Harada teaches a roughness less than 1 nm and teaches reducing roughness because of the improvements to initial charging efficiency. Particles with a roughness of less than 1 nm and a preferable average particle size of 5 to 15 µm as disclosed by Harada would have a ratio close to 1.0, which is within the claimed range. Therefore, the claim limitation is obvious.)
Further, with the teachings of Harada, the skilled artisan would know that surface roughness is a result effective variable. If the particle surface is too rough, the particles are damaged, and the cycle life and rate characteristics of the battery may be reduced [Harada 0026, 0049]. Eventually, there is no further improvement to the cycle life and rate characteristics by reducing roughness, despite additional process time, cost, and yield loss [Harada 0026]. Determining the proper range of the surface roughness would merely require routine experimentation in order to balance and optimize the need for a good cycle performance and rate characteristics vs. cost/yield, which would be obvious per MPEP 2144.05II. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 32, modified Von Bulow discloses the lithium positive electrode active material according to claim 31, wherein the particles have a circularity above 0.55 [Von Bulow does not explicitly disclose the circularity above 0.55; however, Von Bulow discloses spherical particles, which are spherical due to the co-precipitation process [Von Bulow page 2, lines 21-24]. Further, Von Bulow references a motivation for spherical particles is related to improving the tap density. [Von Bulow page 2, lines 24-32 through page 2, lines 1-6]. The skilled artisan knows that tap density is used to support packing density, which is directly related to the energy density of a battery [Von Bulow page 4, lines 14-16]. Therefore, the skilled artisan would know a circularity close to 1.0 supports good energy density and it would be within their ambit to adjust the circularity to achieve the desired results. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.)].
Even further, Von Bulow discloses a method for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout]. Given Von Bulow’s disclosure about the relationship with spherical particles, tap density, and energy density [Von Bulow page 4, lines 14-16] and method’s for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout], it would be within the ambit of the skilled artisan to apply the methods taught by Von Bulow [Von Bulow, methods pgs. 19-36 involving co-precipitation in the presence of acids and bases with continuous, vigorous stirring at a controlled temperature] to control the tap density, and corresponding circularity. Further so, with Von Bulow’s teachings the skilled artisan would understand that the circularity of particles is a result effective variable due to its relationship with tap density. If the circularity is too low, the tap density and resulting energy density of positive active material is too low. Eventually, further adjustments to achieve perfectly spherical particles with a circularity of 1.0 will lead to only marginal increases in tap density and resulting energy density at a higher process cost and possibly lower yield. Determining the proper range of the circularity would merely require routine experimentation in order to balance and optimize the need for a high tap density, energy density positive active material vs. cost/yield, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Von Bulow’s disclosure of lithium nickel manganese oxide active materials for the predictable result of high voltage secondary batteries with high capacity and cycle stability [Von Bulow page 4, lines 24-32 through page 5, lines 1-2] and adjust the range circularity using the disclosure of Von Bulow to obtain the desired battery characteristics.
Claims 2, 9, 10, 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Von Bulow et al. [WO2017/032789, dated March 2, 2017 (as provided on the IDS dated April 28, 2021)], hereinafter Von Bulow, in view of Sugiura [US20160028080A1], as applied to Claim 1, in view Zhu et al. [“Preparation of spherical hierarchical LiNi0.5Mn1.5O4 with high electrochemical performances by a novel composite co-precipitation method for 5 V lithium ion secondary batteries”, dated November 2013 (as provided on the IDS dated April 28, 2021), hereinafter Zhu.
Regarding Claim 2, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 and discloses the disordered space group Fd-3m [Von Bulow page 7, lines 1-7] but does not disclose the amount. Zhu teaches LiNi0.5Mn1.5O4 with Fd-3m structure and the high capacity of 144.9 mAhg-1 [Zhu abstract]. Zhu teaches slow cooled samples with a majority Fd-3m structure with minimal Ni/Mn ordering [Zhu 295 right column and Fig. 5]. Zhu’s disclosure of minimal ordering would be consistent with a small percentage of space groups other than the Fd-3m space group, which would overlap or be close to the claimed range of “at least 90 wt% of said spinel is crystallized in disordered space group Fd-3m”. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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. Further Zhu teaches the retention of the Fd-3m structure is important for cycling performance, rate performance, and capacity [Zhu 296], which makes the amount of Fd-3m a result-effective variable. In other words, if the Fd-3M amount of crystallized disordered space group Fd-3m is too low, the cycling performance, rate performance, and capacity of the active material is poor. As the amount of crystallized disordered space group Fd-3m approaches 100%, the benefits are marginal for additional process cost and potentially yield. Determining the proper range of crystallized disordered space group Fd-3m would merely require routine experimentation in order to balance and optimize the need for sufficient cycling performance, rate performance, and capacity over considerations of cost and yield, which is obvious per MPEP 2144.05 (II)B.
Further, given Von Bulow discloses a space group Fd-3m [Von Bulow page 7, lines 1-7] and lithium nickel manganese oxide with a spinel structure similar to Zhu’s disclosure [Zhu abstract], Von Bulow’s spinel active material may be inherently at least 90% crystallized in disordered space group Fd-3m. Per MPEP 2112, there is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference. In the event that Von Bulow’s spinel active material is not at least 90% crystallized in disordered space group Fd-3m, it may be close to this range and per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists and, 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. If Von Bulow’s spinel active material does not overlap or is not close to the claimed range, the skilled artisan would be motivated to apply Zhu’s teachings of process methods to obtain the benefits of increasing the amount of Fd-3m structure as a result-effective variable for the spinel as taught by Zhu [Zhu 296]. It would have been obvious to one of ordinary skill in the art at the time of filing to apply the teachings of Zhu for processing methods [Zhu 290-291] to retain the highest possible amount of the Fd-3m structure in the active material of Von Bulow to improve cycling performance, rate performance, and capacity [Zhu 296]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 9, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 but uses larger particle sizes than the claimed range. Zhu teaches LiNi0.5Mn1.5O4 with D50 in the claimed range for a high capacity of 144.9 mAhg-1 battery [Zhu abstract]. Zhu discloses D50 of 5-5.6 [Zhu 293 left column, Fig. 4a, Table 2, SEM images in Fig. 3]. Zhu’s disclosed particle sizes lie within the claimed range of 3 µm < D50 < 12 µm, and therefore it would be obvious to select a particle size range near Zhu’s demonstrated range. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. It would have been obvious to one of ordinary skill in the art at the time of filing to apply the teachings of Zhu for controlling particle size in the active material of Von Bulow since Zhu’s range provided tap density of 2.41 g/cm3 [Zhu 293 right column, Table 2] and the skilled artisan knows that good tap density supports battery energy density. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 10, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 but is silent to the BET surface area. Zhu teaches LiNi0.5Mn1.5O4 with a BET surface area in the claimed range for a high capacity of 144.9 mAhg-1 battery [Zhu abstract]. Zhu discloses a BET surface area of said lithium positive electrode active material is below 1.5 m2/g [Zhu Table 2 (Zhu discloses a BET surface area of 0.47 m2/g for the 5 µm particles in Table 2, which lies with the claimed range of less than 1.5 m2/g.)] It would have been obvious to one of ordinary skill in the art before the effective filing date to select a BET surface area range near Zhu’s demonstrated surface area for the active material particles of Von Bulow since Zhu teaches that the small surface area weakens the unexpected side reactions during the electrochemical process and thereby significantly improves cycling performance [Zhu 290 left column]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 14, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 where the capacity of the half cell decreases by 7.9% over 100 cycles [Von Bulow Table 13] for the active material of claim 1. Zhu teaches LiNi0.5Mn1.5O4 for a high capacity of 144.9 mAhg-1 battery [Zhu abstract] where the capacity of said material in a half cell decreases by no more than 3.7% over 200 cycles between 3.5 to 5.0 V [Zhu 295] and roughly 2% (estimated from Fig. 7b) at 100 cycles per Fig. 7b, which is significantly improved over Zhu’s disclosed traditional spinel active material process, which resulted in approximately 12% fade (estimated from Fig. 7b) after 100 cycles. Since Von Bulow’s active material showed 7.9% fade, it would be expected that applying the spinel active material process teachings of Zhu to the active material of Von Bulow would improve the performance to less than 4% fade or close to that range. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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. It would have been obvious to one of ordinary skill in the art before the effective filing date to apply the teachings of Zhu for processing methods [Zhu 290-291] to improve the cycle performance to obtain low capacity fade for the spinel active material of Von Bulow with an expectation of success since Zhu demonstrates improvement over the traditional processing method for spinel LiNi0.5Mn1.5O4 active materials in the capacity degradation after cycling [Zhu Fig. 7b]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 15, modified Von Bulow disclose the lithium positive electrode active material according to claim 1, wherein said lithium positive electrode active material has a capacity of at least 138 mAh/g [Von Bulow pg. 14, lines 11-15, pg. 20, lines 23-25, Figs. 8 and 9, Von Bulow discloses an initial specific discharge capacity of equal to or greater than 130 mAh/g [Von Bulow page 14, lines 11-15] and a theoretical specific capacity of 148 mA/g [Von Bulow pg. 20, lines 23-25]. Von Bulow’s disclosure of above 130 mAh/g would be considered to overlap and obviate the claimed range or be merely close. Further, Von Bulow’s graphs show specific capacities during cycling at 25 ° C [Fig. 8] and 55 ° C [Fig. 9] with capacities either above the claimed range of 138 mAh/g or merely close. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" or are “merely close” a prima facie case of obviousness exists.
For purpose of compact prosecution, Zhu teaches LiNi0.5Mn1.5O4 for a high capacity of 144.9 mAhg-1 battery [Zhu abstract], which is within the claimed range of at least 138 mAh/g. Zhu’s disclosure of 144.9 mAh/g is very close to the theoretical limit for capacity. Since Von Bulow and Zhu teach similar compositions with overlapping Ni content, it would be expected that applying the process teachings of Zhu, which resulted in a 144.9 mAhg-1 battery, to the active material of Von Bulow would improve the capacity of Von Bulow’s active material. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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. It would have been obvious to one of ordinary skill in the art before the effective filing date to apply the processing method teachings of Zhu [Zhu 290-291] to Von Bulow’s active material for capacity improvements with an expectation of success since a capacity of 144.9 mAh/g near the theoretical limit has been demonstrated by Zhu [Zhu abstract]. (C) Use of known technique to improve similar devices (methods, or products) in the same way.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Von Bulow et al. [WO2017/032789, dated March 2, 2017 (as provided on the IDS dated April 28, 2021)], hereinafter Von Bulow, in view of Sugiura [US20160028080A1], as applied to Claim 1, in view of Kunduraci et al. [“Effect of oxygen non-stoichiometry and temperature on cation ordering in LiMn2-xNixO4 (0.50 ≥ x ≥ 0.36) spinels”, Journal of Power Sources, 2007, 165 (1), 359-367], as provided on the IDS dated April 28, 2021, hereinafter Kunduraci.
Regarding Claim 6, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 wherein said lithium positive electrode active material is calcined so that the lattice parameter a is around 8.2 Å [Von Bulow page 7, lines 4-7] but does not disclose the lattice parameter a is between (-0.1932y+8.2613) Å and (-0.1932y+8.2667) Å. Kunduraci teaches spinel LixNiyMn2-yO4 positive electrode active material where y is 0.36 to 0.50 (Kunduraci title) and the lattice constant a as a function of Ni content (which is the same as y) in Kunduraci Fig. 5. For Ni=0.47, Kunduraci discloses 8.168 Å [Kunduraci Fig. 5] as compared to the claimed range of 8.170-8.176 (calculated) Å and for Ni=0.42, Kunduraci discloses 8.173 Å [Kunduraci Fig. 5] as compared to the claimed range of 8.180 to 8.186 (calculated) Å. Further Kunduraci teaches lattice parameter a is affected by heat treatment [Kunduraci Table 2, 363 left column]. As shown here, the lattice parameters disclosed by Kunduraci are smaller but close to the claimed calculated ranges and show the same dependence on Ni content. The estimated lattice parameter 8.2 Å disclosed by Von Bulow is slightly larger than the claimed range. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Kunduraci’s teachings about controlling the lattice parameter by varying the Ni content and heat treatment in the spinel active material of Von Bulow as Kunduraci further discloses the change in lattice parameter is expected due to the replacement of larger Mn3+ ions by smaller Mn4+ ions with increasing Ni content in the spinel [Kunduraci 363 left column]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 7, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 wherein said lithium positive electrode active material is calcined so that the lattice parameter a is around 8.2 Å [Von Bulow page 7, lines 4-7] but does not disclose the lattice parameter a is between (-0.1932y+8.2613) Å and (-0.1932y+8.2641) Å. Kunduraci teaches spinel LixNiyMn2-yO4 positive electrode active material where y is 0.36 to 0.50 (Kunduraci title) and the lattice constant a as a function of Ni content (which is the same as y) in Kunduraci Fig. 5. For Ni=0.47, Kunduraci discloses 8.168 Å [Kunduraci Fig. 5] as compared to the claimed range of 8.170-8.173 (calculated) Å and for Ni=0.42, Kunduraci discloses 8.173 Å [Kunduraci Fig. 5] as compared to the claimed range of 8.180 to 8.183 (calculated) Å. Further, Kunduraci teaches lattice parameter is affected by heat treatment [Kunduraci Table 2, 363 left column]. As shown here, the lattice parameters disclosed by Kunduraci are smaller but close to the claimed calculated ranges and show the same dependence on Ni content. The estimated lattice parameter 8.2 Å disclosed by Von Bulow is slightly larger than the claimed range. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Kunduraci’s teachings about controlling the lattice parameter by varying the Ni content and heat treatment in the spinel active material of Von Bulow as Kunduraci further discloses the change in lattice parameter is expected due to the replacement of larger Mn3+ ions by smaller Mn4+ ions with increasing Ni content in the spinel [Kunduraci 363 left column]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Von Bulow et al. [WO2017/032789, dated March 2, 2017 (as provided on the IDS dated April 28, 2021)], hereinafter Von Bulow, in view of Sugiura [US20160028080A1], as applied to Claim 1, in view of Kang [US 2009/0208847, dated August 20, 2008].
Regarding Claim 11, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 being made of particles but is silent to the solidity. Kang teaches active material particles where “good solidity” is related to improved high rate discharge characteristics [Kang 0021]. To the skilled artisan, Kang’s teaching of the relationship between high rate discharge characteristics and solidity provides evidence that solidity is a result-effective variable. For example, if the solidity is too low, the rate discharge characteristics would be insufficient. Eventually, further improvement in solidity would have a negligible effect on rate discharge characteristic despite possibly higher cost and process time. Determining the proper range of solidity would merely require routine experimentation in order to balance and optimize the need for good high rate discharge characteristics in consideration of cost and process time, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Kang’s teachings of the relationship between high rate discharge and solidity to make the solidity above 0.8 since discovering an optimum range of a result-effective variable only requires routine skill in the art. 2144.05(II)B. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Von Bulow et al. [WO2017/032789, dated March 2, 2017 (as provided on the IDS dated April 28, 2021)], hereinafter Von Bulow, in view of Sugiura [US20160028080A1], as applied to Claim 1, in view of Noda et al. [JP2012074390A, dated April 12, 2012, machine translation previously provided], hereinafter Noda.
Regarding Claim 12, modified Von Bulow discloses the lithium positive electrode active material according to claim 1 but is silent to porosity. Noda discloses lithium nickel manganese oxide active materials [Noda 0028] with a spinel structure [Noda 0026] and teaches that high porosity reduces tap density and therefore provides low capacity [Noda 0006]. Further, Noda discloses for the tap density of the active material to exceed 2.2 g/cc, the average porosity is preferably less than 5% [Noda 0021] as evidenced by examples 4-5 in Table 1, where porosity of 2.3 and 1.8% result in a tap density of 2.33 g/cc and 2.35 g/cc, respectively, which is higher than the tap densities for examples with higher porosity (>5%) in Table 1. Further, the skilled artisan would recognize from Noda’s teachings that porosity is a result effective variable related to tap density. If the porosity is too high, the tap density is lower and resultingly the energy density is lower. Eventually, further reducing the porosity would require additional process time and cost with marginal benefit. Determining the proper range of the porosity would merely require routine experimentation in order to balance and optimize the need for a high tap density, energy density positive active material vs. cost and process time, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Noda’s teachings about porosity as a result-effective variable affecting tap density, and therefore capacity, and the evidence of examples 4-5 with porosities less than 3% to apply these teachings to the spinel active material of Von Bulow to obtain “wherein said particles are characterized by a porosity below 3%”. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Von Bulow et al. [WO2017/032789, dated March 2, 2017 (as provided on the IDS dated April 28, 2021)], hereinafter Von Bulow, in view of Sugiura [US20160028080A1], as applied to Claim 1, in view of Harada et al. [JP2012234772, dated November 29, 2012, machine translation previously provided], hereinafter Harada, in further view of Kang [US 2009/0208847, dated August 20, 2008], and in even further view of Noda et al. [JP2012074390A, dated April 12, 2012, machine translation previously provided], hereinafter Noda.
Regarding Claim 34, modified Von Bulow discloses the lithium positive electrode active material according to claim 1. Von Bulow does not explicitly disclose wherein the particles have a circularity above 0.59 and wherein the particles have an average aspect ratio below 1.46; however, Von Bulow discloses the benefit of spherical particles, which are spherical due to the co-precipitation process [Von Bulow page 2, lines 21-24], which Von Bulow further teaches [Von Bulow title, Examples on pgs. 19-36 and throughout] as explained in more detail below. The skilled artisan knows that spherical particles generally have a circularity near 1.0 and an aspect ratio of approximately 1.0 (since the diameter of a sphere is assumed to be the same in any cross-section through the central axis and therefore the ratios of those lengths in a spherical particle would be approximately 1.0). Additionally, to form spherical particles, the skilled artisan would know to process the particles to have a circularity close to 1.0 and a circularity and an aspect ratio close to 1.0, which is within the claimed ranges of circularity above 0.59 and aspect ratio below 1.46. Further, Von Bulow references a motivation for spherical particles is related to improving the tap density. [Von Bulow page 2, lines 24-32 through page 2, lines 1-6]. The skilled artisan knows that tap density is used to support packing density, which is directly related to the energy density of a battery [Von Bulow page 4, lines 14-16]. Therefore, the skilled artisan would know from Von Bulow’s teachings that a circularity near 1.0 and an aspect ratio close to 1.0 supports good energy density and it would be within their ambit to adjust the circularity/ aspect ratio to achieve the desired results. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.)].
Even further, Von Bulow discloses a method for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout]. Given Von Bulow’s disclosure about the relationship with spherical particles, tap density, and energy density [Von Bulow page 4, lines 14-16] and method’s for producing particles with high tap density [Von Bulow title, Examples on pgs. 19-36 and throughout], it would be within the ambit of the skilled artisan to apply the methods taught by Von Bulow [Von Bulow, methods pgs. 19-36 involving co-precipitation in the presence of acids and bases with continuous, vigorous stirring at a controlled temperature] to control the tap density, and corresponding circularity and aspect ratio. Further so, with Von Bulow’s teachings the skilled artisan would understand that the circularity and aspect ratio of particles are result effective variables due to their relationship with tap density. If the aspect ratio is too high, the tap density and resulting energy density of positive active material is too low. Likewise, if the circularity is too low, the tap density and resulting energy density of positive active material is too low. Eventually, further adjustments to achieve perfectly spherical particles with a circularity of 1.0 and an aspect ratio of 1.0 will lead to only marginal increases in tap density and resulting energy density at a higher process cost and possibly lower yield. Determining the proper ranges of the circularity and aspect ratio would merely require routine experimentation in order to balance and optimize the need for a high tap density, energy density positive active material vs. cost/yield, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Von Bulow’s disclosure of the benefits of spherical particles and methods for forming high tap density particles within the claimed ranges of circularity and aspect ratio of lithium nickel manganese oxide active materials for the predictable result of high voltage secondary batteries with high capacity and cycle stability [Von Bulow page 4, lines 24-32 through page 5, lines 1-2]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
For purpose of compact prosecution, Sugiura discloses lithium composite oxide particles with manganese and nickel [Sugiura abstract and throughout] for a high energy density battery [Sugiura 0021 and throughout] and further teaches that active material particles can be substantially spherical shaped with a typical average aspect ratio of 1-1.5, for example 1 to 1.2 [Sugiura 0040], which overlaps and obviates the claimed ranges of Claims 1 (1.6) and 41 (1.46). Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. Given that Von Bulow discloses the benefits of spherical particles regarding tap density and energy density, it would be obvious to combine Sugiura’s teachings about the aspect ratio of spherical particles with the lithium composite oxide of Von Bulow for the predictable result of secondary batteries with high capacity and cycle stability [Von Bulow page 4, lines 24-32 through page 5, lines 1-2; Sugiura 0021]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Von Bulow does not explicitly disclose
Wherein the particles have a roughness below 1.29
Wherein the particles have solidity above 0.86,
Wherein the particles have a porosity of below 2%.
Regarding roughness, Harada teaches lithium transition metal compound oxides for positive electrode materials [Harada abstract] for high capacity lithium secondary batteries [Harada 0002]. Harada teaches the root mean square roughness of the primary particle surface with an upper limit of 1 nm and that it is preferably less because there is less damage to the surface of the particle [Harada 0026], which improves the initial charging efficiency of the battery [Harada 0108]. Harada’s range of less than 1 nm overlaps the claimed range of 1.29. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Harada’s teaching for controlling the particle roughness to reduce the surface damage in the active material of Von Bulow to improve the initial charging performance [Harada 0108]. (Examiner’s note: Though Harada does not explicitly disclose the roughness as a ratio between the measured perimeter of the particle and the perimeter of the fitted ellipse as defined in the instant Specification, it would be understood by the skilled artisan for the instantly defined roughness a perfectly undamaged particle would have a roughness of 1.0. Harada teaches a roughness less than 1 nm and teaches reducing roughness because of the improvements to initial charging efficiency. Particles with a roughness of less than 1 nm and a preferable average particle size of 5 to 15 µm as disclosed by Harada would have a ratio close to 1.0, which is within the claimed range. Therefore, the claim limitation is obvious.)
Further, with the teachings of Harada, the skilled artisan would know that surface roughness is a result effective variable. If the particle surface is too rough, the particles are damaged, and the cycle life and rate characteristics of the battery may be reduced [Harada 0026, 0049]. Eventually, there is no further improvement to the cycle life and rate characteristics by reducing roughness, despite additional process time, cost, and yield loss [Harada 0026]. Determining the proper range of the surface roughness would merely require routine experimentation in order to balance and optimize the need for a good cycle performance and rate characteristics vs. cost/yield, which would be obvious per MPEP 2144.05II. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding solidity, Kang teaches active material particles where “good solidity” is related to improved high rate discharge characteristics [Kang 0021]. To the skilled artisan, Kang’s teaching of the relationship between high rate discharge characteristics and solidity provides evidence that solidity is a result-effective variable. For example, if the solidity is too low, the rate discharge characteristics would be insufficient. Eventually, further improvement in solidity would have a negligible effect on rate discharge characteristic despite possibly higher cost and process time. Determining the proper range of solidity would merely require routine experimentation in order to balance and optimize the need for good high rate discharge characteristics in consideration of cost and process time, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Kang’s teachings of the relationship between high rate discharge and solidity to make the solidity above 0.86 since discovering an optimum range of a result-effective variable only requires routine skill in the art. 2144.05(II)B. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding porosity, Noda discloses lithium nickel manganese oxide active materials [Noda 0028] with a spinel structure [Noda 0026] and teaches that high porosity reduces tap density and therefore provides low capacity [Noda 0006]. Further, Noda discloses for the tap density of the active material to exceed 2.2 g/cc, the average porosity is preferably less than 5% [Noda 0021] as evidenced by examples 4-5 in Table 1, where porosity of 2.3% (example 4 is merely close to the claimed range) and 1.8% (example 5 is within the claimed range) result in a tap density of 2.33 g/cc and 2.35 g/cc, respectively, which is higher than the tap densities for examples with higher porosity (>5%) in Table 1. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" or are “merely close), a prima facie case of obviousness exists.
Further, the skilled artisan would recognize from Noda’s teachings that porosity is a result effective variable related to tap density. If the porosity is too high, the tap density is lower and resultingly the energy density is lower. Eventually, further reducing the porosity would require additional process time and cost with marginal benefit. Determining the proper range of the porosity would merely require routine experimentation in order to balance and optimize the need for a high tap density, energy density positive active material vs. cost and process time, which would be obvious per MPEP 2144.05II. It would have been obvious to one of ordinary skill in the art before the effective filing date to use Noda’s teachings about porosity as a result-effective variable affecting tap density, and therefore capacity, and the evidence of examples 4-5 with porosities either merely close to or less than 2% to apply these teachings to the spinel active material of Von Bulow to obtain “wherein said particles are characterized by a porosity below 3%”. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Double Patenting
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The nonstatutory double patenting rejection in the Office Action dated May 14, 2025 are maintained and copied below.
Claim 1-3, 6-18, 29, 31-34, and 41 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-23, and 36-38 of copending Application No. 17/289266 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-5, 7-23, and 36-38 of copending Application No. 17/289266 recite a lithium positive electrode active material comprising at least 94 wt% spinel having a net chemical composition of LixNiyMn2-yO4, wherein 0.95 ≤ x ≤ 1.05 and 0.43 ≤ y ≤ 0.47 (claim 1) and having an aspect ratio of less than 1.6 (claim 14), which anticipates the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 1-3, 6-18, 29, 31-34, and 41 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 and 31-32 of copending Application No. 17/289432 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-19 and 31-32 of copending Application No. 17/289432 recite a lithium positive electrode active material comprising at least 94 wt% spinel having a net chemical composition of LixNiyMn2-yO4, wherein 0.95 ≤ x ≤ 1.05 and 0.44 ≤ y ≤ 0.47 (claim 1) and having an aspect ratio of less than 1.6 (claim 11), which anticipates the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed November 13, 2025 have been fully considered but they are not persuasive.
On pgs. 10-14, the Applicant argues against the Examiner’s arguments regarding high-tap density and its relationship to near-spherical particles. In summary, Applicant argues that achieving high tap density does not require near-spherical particles. Applicant further argues that Von Bulow’s particles are dense but Von Bulow does not teach how to achieve the claimed morphology of near-spherical particles with the claimed spinel purity, amount of lithium, amount of nickel, and the aspect ratio of below 1.6. Applicant references the Expert Declaration, paragraph 16, which recites that the process of Von Bulow is expected to create small and larger particles with poor morphology.
First, in the Office Action dated May 14, 2025 and as copied above, the Examiner has consider the whole of Von Bulow’s teaching as it applies to the instant invention and provided an obviousness rejection regarding this claim limitation, as described above. The Examiner does not solely rely on Von Bulow’s disclosure of high tap density. Indeed, Von Bulow’s invention is a high tap density lithium positive electrode active material and a process of preparation such particles [Title and throughout]. Von Bulow also discloses the benefits of spherical particles for the claimed lithium positive active material for their high tap density and its relationship to energy density, as described in the rejections above. Further, the only shapes of particles that Von Bulow recites are spherical particles, which are associated with high tap density, and irregular particles, which are associated with low tap density. Therefore, it would be obvious to combine Von Bulow’s teachings about spherical particles for their benefits leading to higher energy density with Von Bulow’s high tap density lithium positive electrode active material to understand that Von Bulow’s invention requires substantially spherical particles. Further, the skilled artisan would know that spherical particles would have an aspect ratio close to 1.0 as described above. Therefore, in combining Von Bulow’s teachings about the benefits of spherical particles and Von Bulow’s positive electrode active material, the skilled artisan would look to the teachings of Von Bulow for a lithium positive electrode active material with an aspect ratio that is closer to 1.0, like a spherical particle, instead of an irregular particle, which would be associated with larger aspect ratios.
Second, the Examiner has provided in the recited Office Action, and as copied above, evidence that the claimed aspect ratio is a result effective variable for the reasons provided above.
Third, the Examiner has reconsidered the Expert Declaration filed on March 19, 2025 specifically in relationship to the Applicant arguments that Von Bulow does not teach how to achieve the claimed morphology of near-spherical particles with the claimed spinel purity, amount of lithium, amount of nickel, and the aspect ratio of below 1.6. Since the instant invention is drawn to a product and not a process, it is not required that Von Bulow teaches the argued how. Further, the Applicant has provided evidence that Von Bulow obviates the invention of claim 1. In paragraph 11 of the Expert Declaration, Applicant provides an image of particles produced allegedly by the conditions of Von Bulow example 4. While the Applicant characterizes the image as producing “wildly different morphologies” due to Von Bulow’s deficiency in teaching how to control the morphology, as the Examiner has argued previously, the broadest reasonable interpretation of the particles in the first image would be considered near-spherical particles. Further, it would be expected that the near-spherical of the first image would have an average aspect ratio of less than 1.6. If the aspect ratio is not less than 1.6, it would be considered merely close. Per MPEP 2144.05, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. Therefore, the Applicant’s Expert Declaration provides further evidence that Von Bulow’s invention has the claimed aspect ratio.
Fourth, for purposes of compact prosecution, the Examiner has added the prior art of Sugiura for its teachings about spherical particles and aspect ratio in lithium composite oxide positive active materials with manganese and nickel. Sugiura’s disclosure provides additional evidence that the skilled artisan would expect substantially spherical particles in Von Bulow’s high tap density positive active material.
Regarding the Applicant’s summary of their arguments regarding tap density and near-spherical particles that Von Bulow merely teaches that spherical particles can raise tap density but Von Bulow fails to teach obtaining spherical particles, the Examiner respectfully disagrees. The evidence provided by the Applicant in paragraph 11 of the Expert Declaration provides significant evidence of obviousness over the prior art in addition to the evidence provided by the Examiner above.
Therefore, the evidence that claim 1 is obvious over the prior art outweighs evidence of nonobviousness.
On pgs. 14-20, the Applicant provides arguments of distinction over Von Bulow due to the unpredictability of Von Bulow’s process and the requirements of precise precipitation for the claim 1 invention. In summary, Applicant’s arguments are drawn to predictability of the precise precipitation due to the simultaneous addition of the recited solutions, a prolonged precipitation process, and vigorous stirring while controlling pH. First, the instant invention is drawn to a product and not a process; thus, Applicant ‘s repetitive arguments regarding a predictable process to control the morphology of the particles of instant claim 1 are not commensurate with what is claimed. Further, since the instant invention is drawn to a product, a predictable process for controlling morphology is not required to meet the limitations of claim 1. Second, Von Bulow describes a process for high tap density particles with the claimed composition that involves co-precipitation in the presence of acids and bases with continuous, vigorous stirring at a controlled temperature, and subsequent heat treatment [Examples 4-6 pgs. 24-28 with tap densities of 2.4 g/cm3]. The Applicant on pgs. 16-20 repeats arguments of distinction over Von Bulow due to the recited vigorous stirring. To this, the Examiner again respectfully disagrees and references Von Bulow disclosure of vigorous stirring [Examples 4-6 pgs. 24-28 with tap densities of 2.4 g/cm3]. Further, as described above, the Applicant has provided evidence that, at minimum, Von Bulow Example 4 can produce a product that makes claim 1 obvious for the reasons described above.
Regarding Applicant’s assertion on pgs. 20-21 that the images provided in the Expert Declaration replicated Von Bulow’s examples, such assertion provides additional evidence that, at minimum, Von Bulow’s example 4 makes claim 1 obvious due to the images in paragraph 11 as described above.
Applicant argues on pgs. 22-23 that in the instant application the process involves vigorous stirring in combination with other aspects. Then, a few paragraphs below, the Applicant again argues Von Bulow does not disclose sufficient vigorous stirring. Respectfully, the Applicant’s arguments are circular and the Examiner has provided evidence that Von Bulow discloses vigorous stirring AND the invention of claim 1 is obvious over Von Bulow in view of Sugiura for the reasons provided.
Regarding Applicant arguments on pgs. 22-23 against the combination with Sugiura, the Examiner respectfully disagrees the Applicant’s persistent argument that Von Bulow does not teach how to achieve the claimed morphology is relevant to the combination of Von Bulow and Sugiura. The inventions of Von Bulow and Sugiura are analogous art and Sugiura’s discloses substantially spherical shaped particles with a typical average aspect ratio of 1-1.5, for example 1 to 1.2 [Sugiura 0040], which overlaps and obviates the claimed ranges of Claims 1 (less than 1.6) and 41 (less than 1.46) per MPEP 2144.05. The combination of Von Bulow and Sugiura provides additional evidence of the obviousness of claim 1.
To summarize, the Applicant’s arguments are that the instant invention is distinct over the prior art due to a specific process that provides predictable morphology. However, the Examiner has described the following evidence that the prior art makes the invention of claim 1 obvious.
Von Bulow discloses the benefits of spherical particles and a high tap density lithium positive electrode active material with the claimed composition, making the claimed aspect ratio obvious.
Von Bulow discloses a method for producing free flowing homogenous particles with a high tap density, which in combination with Von Bulow’s disclosure about the benefits of substantially spherical particles, makes the claimed aspect ratio obvious.
The claimed aspect ratio is a result effective variable, which is obvious per MPEP 2144.05II.
Sugiura, which is considered analogous art, discloses a range which overlaps and obviates the claimed aspect ratio.
The instant application lacks evidence of the criticality of the claimed range; thus, the prior art applies.
Regarding Applicant assertion on pgs. 23-24 that the Office admits that Von Bulow does not teach the claimed capacity, the Examiner respectfully disagrees. In the Office Action dated May 14, 2025, and as copied above, the Examiner provided two rejections for the claimed capacity. The first obviousness rejection is over Von Bulow in view of Sugiura where Von Bulow discloses examples which obviate the claimed capacity. The Applicant has not provided arguments regarding this rejection, which is maintained above. The second rejection is over Von Bulow in view of Sugiura and further in view of Zhu. With respect to Applicant arguments regarding the prior art of Zhu, the Applicant argues that Zhu teaches a high capacity material with a y value of 0.5. Zhu’s active material is derived using a co-precipitation process and has a composition LiNi0.5Mn1.5O4 that overlaps the range disclosed by Von Bulow LixNiyMn2-yO4 ; wherein 0. 9 ≤x ≤ 1.1 and 0. 4 ≤y ≤ 0.5 [Von Bulow page 17, lines 27-30]. The skilled artisan would compare the processes of Zhu and Von Bulow to find ways to combine process methodology to potentially improve the capacity. The Applicant summarizes that this argument is “conjecture and a wish”. The Examiner finds this argument to be without merit as no evidence is provided and, further, the instant application lacks evidence of criticality of the claimed capacity as it relates to Ni composition. As previously provided in the recited Office Action, in the Applicant’s instant example 5 shown in Table 1, the Ni composition ranges from .43 to 0.49. The capacity at both ends of the range is 138 mA/g. Therefore, there is no evidence of the criticality of the range with respect to Ni concentration, and the skilled artisan would expect that the capacity 144.9 mAh/g achieved by Zhu for when Ni composition is 0.5 would be similar to what could be obtained by Zhu in the claimed range of 0.43 to 0.47.
For these reasons, evidence of obviousness of claim 15 outweighs evidence of differentiation over the prior art.
For these reasons, evidence of obviousness outweigh the evidence of differentiation over the prior art provided in the Declaration and Applicant Arguments, and the above rejections over the prior art are maintained.
Regarding the Double Patenting rejections provided in the recited Office Action, the rejections are maintained above.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to M. T. LEONARD whose telephone number is (571)270-1681. The examiner can normally be reached Mon-Fri 8:30-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Miriam Stagg can be reached at (571)270-5256. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M. T. LEONARD/Examiner, Art Unit 1724
/STEWART A FRASER/Primary Examiner, Art Unit 1724