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 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 4th, 2026 has been entered.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-3, 9 & 12 are rejected under 35 U.S.C. 103 as being unpatentable over Yang (CN106654210, see Machine Translations for citations) (Provided in Applicant’s IDS filed on February 18th, 2022) in view of Ichisaka (US20150137028).
Regarding Claim 1, 9, & 12, Yang discloses a positive electrode active material for non-aqueous electrolyte secondary batteries ([002]) comprising:
A positive electrode active material including a lithium transition metal oxide having a layered structure and containing Ni, Nb, and an arbitrary element of Co ([004], [0021]),
Yang does not directly disclose wherein A ratio of Ni relative to the total amount of metal elements excluding Li in the lithium transition metal oxide is in a range of 91 mol% ≤ Ni ≤ 95 mol%; A ratio of Nb relative to the total amount of metal elements excluding Li in the lithium transition metal oxide is in a range of 0.5 mol% ≤ Nb ≤ 3 mol%; A ratio of Co relative to the total amount of metal elements excluding Li in the lithium transition metal oxide is in a range of Co ≤ 2.0 mol%; A ratio of metal elements other than Li present in a Li layer in the layered structure is in a range from 1.2 mol % to 2.2 mol% relative to the total amount of metal elements excluding Li in the lithium transition metal oxide;
The examiner notes that Yang discloses wherein the chemical formula for the active material is Li1+zNi-1-x-yCoxAlyNbzO2 * wNb2O5, wherein w,x,y,z are the number of moles, 0 ≤ x ≤ 0.2, 0 ≤ y ≤ 0.1, 0 ≤ x+y ≤ 0.2, 0 ≤ w ≤ 0.02 and 0 ≤ z+w ≤ 0.06, ([0010]), which provide mole ranges that overlap the instant ranges above for Ni, Nb, Co, and other metals that are not Li.
Therefore, because such a ratio is disclosed in the general formula taught by Yang, it would be obvious to one of ordinary skill in the art using the disclosure of Yang to provide an active material that has A ratio of Ni relative to the total amount of metal elements excluding Li in the lithium transition metal oxide is in a range of 91 mol% ≤ Ni ≤ 95 mol%; A ratio of Nb relative to the total amount of metal elements excluding Li in the lithium transition metal oxide is in a range of 0.5 mol% ≤ Nb ≤ 3 mol%; A ratio of Co relative to the total amount of metal elements excluding Li in the lithium transition metal oxide is in a range of Co ≤ 2.0 mol%; A ratio of metal elements other than Li present in a Li layer in the layered structure is in a range from 1.2 mol % to 2.2 mol% relative to the total amount of metal elements excluding Li in the lithium transition metal oxide.
Yang does not directly disclose wherein the lithium transition metal oxide has a half width n of a diffraction peak of a (208) plane in an X-ray diffraction pattern obtained by X-ray diffractometry is such that 0.30o ≤ n ≤ 0.50o.
The examiner notes that X-ray diffraction patterns are dependent on the mol percentages of the elements used in the lithium transition metal oxide. Therefore, because one of ordinary skill in the art using the disclosure of Yang can obtain the mol percentages of the metal elements that are the same as the instant claim 1 range, , one of ordinary skill in the art would understand that Yang’s disclosure can provide an active material made of a lithium transition metal oxide that has a half width n of a diffraction peak of a (208) plane in an X-ray diffraction pattern obtained by X-ray diffractometry is such that 0.31o ≤ n ≤ 0.49o.
"In relying upon the theory of inherency, the examiner must provide a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristic necessarily flows from the teachings of the applied prior art." Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App. & Inter. 1990) (emphasis in original). In PAR Pharmaceutical, Inc. v. TWI Pharmaceuticals, Inc., 773 F.3d 1186, 112 USPQ2d 1945 (Fed. Cir. 2014), the Federal Circuit remanded a decision to the district court because the record did not present sufficient evidence to prove inherency in the context of obviousness. The district court concluded the pharmacokinetic parameters of a claim are inherent properties of the obvious formulation. The Federal Circuit stated that while "inherency may support a missing claim limitation in an obviousness analysis", "the use of inherency, a doctrine originally rooted in anticipation, must be carefully circumscribed in the context of obviousness." Id. at 1194-95, 112 USPQ2d at 1952. "[I]n order to rely on inherency to establish the existence of a claim limitation in the prior art in an obviousness analysis – the limitation at issue necessarily must be present, or the natural result of the combination of elements explicitly disclosed by the prior art." Id. at 1195-96, 112 USPQ2d at 1952.
Therefore it would be obvious to one of ordinary skill in the art using the disclosure of Yang to have wherein the lithium transition metal oxide has a half width n of a diffraction peak of a (208) plane in an X-ray diffraction pattern obtained by X-ray diffractometry is such that 0.31o ≤ n ≤ 0.49o.
Yang does not directly disclose wherein the positive electrode active material layer has a binder including a fluorine-based polymer and a conductive material including carbon powder.
Ichisaka discloses a positive electrode active material that can be formed a lithium transition metal oxide ([0089]). Ichisaka further discloses wherein the lithium transition metal oxide can include Nickel, Cobalt, and Niobium ([0091]). Ichisaka further discloses wherein the binder material that can be used in the positive electrode is polyvinylidene fluoride ([0017]). Ichisaka further discloses wherein the carbon black can be used as a conductive additive ([0116]). Ichisaka teaches that improved energy density of the nonaqueous electrolyte secondary cells ([003]).
Therefore it would be obvious to one of ordinary skill in the art to modify the positive electrode of Yang with the teachings of Ichisaka to have wherein the positive electrode active material layer has a binder including a fluorine-based polymer and a conductive material including carbon powder.
Regarding Claim 2 & 3, Yang in view of Ichisaka discloses the limitations as set forth above.
Yang does not directly disclose wherein the positive electrode active material has a lattice constant a indicating an a-axis length and a lattice constant c indicating a c-axis length in a crystal structure obtained from a result of analysis of an X-ray diffraction pattern obtained by X-ray diffractometry are respectively in a range of 2.870 A ≤ a ≤ 2.877 A and a range of 14.18 A ≤ c ≤ 14.20 A, or wherein a crystallite size s calculated by the Scherrer equation from a half width of a diffraction peak of a (104) plane in a X-ray diffraction pattern obtained by X-ray diffractometry is in a range of 400 A ≤ s ≤ 600 A.
The examiner notes that the lattice constant a, lattice constant c, x-ray diffraction patterns, and crystallite size are determined by the mol % of the active material metal elements. Therefore, since Yang discloses mol % of the metal elements that are substantially the same as the instant invention, one of ordinary skill in the art would understand that Yang’s disclosure can provide an active material made of a lithium transition metal oxide with a lattice constant a indicating an a-axis length and a lattice constant c indicating a c-axis length in a crystal structure obtained from a result of analysis of an X-ray diffraction pattern obtained by X-ray diffractometry are respectively in a range of 2.870 A ≤ a ≤ 2.877 A and a range of 14.18 A ≤ c ≤ 14.20 A, or wherein a crystallite size s calculated by the Scherrer equation from a half width of a diffraction peak of a (104) plane in a X-ray diffraction pattern obtained by X-ray diffractometry is in a range of 400 A ≤ s ≤ 600 A.
Therefore it would be obvious to one of ordinary skill in the art using the disclosure of Yang to have wherein a lattice constant a indicating an a-axis length and a lattice constant c indicating a c-axis length in a crystal structure obtained from a result of analysis of an X-ray diffraction pattern obtained by X-ray diffractometry are respectively in a range of 2.870 A ≤ a ≤ 2.877 A and a range of 14.18 A ≤ c ≤ 14.20 A, or wherein a crystallite size s calculated by the Scherrer equation from a half width of a diffraction peak of a (104) plane in a X-ray diffraction pattern obtained by X-ray diffractometry is in a range of 400 A ≤ s ≤ 600 A.
Regarding Claim 10, Yang in view of Ichisaka discloses the limitations as set forth above. Yang further discloses wherein the lithium transition metal oxide contains at least one metal element selected from the group consisting of Al ([0059]).
Regarding Claim 11, Yang in view of Ichisaka discloses the limitations as set forth above. Yang further discloses wherein the lithium transition metal oxide contains at least one metal element selected from the group consisting of Aluminum ([0019]).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yang (CN106654210, see Machine Translations for citations) in view of Ichisaka (US20150137028) further in view of Yura (JP2019096596(A), see US National Stage Entry, US20190355970A1, for citations).
Regarding Claim 13, Yang in view of Ichisaka discloses the limitations as set forth above.
Yang does not directly disclose wherein the positive electrode active wherein the positive electrode active material for non-aqueous electrolyte secondary batteries is produced by a multi-step firing process including: a first firing step of firing a mixture including a Li-containing compound, a compound containing Ni and an arbitrary element of Co, and a Nb-containing compound, in a firing furnace under an oxygen stream at a first heating rateup to a first set temperature no lower than 450 °C and no higher than 680 °C; and a second firing step of firing the fired product obtained by the first firing step, under an oxygen stream at a second heating rate up to a second set temperature exceeding 680 °C and no higher than 800 °C, wherein the first heating rate is in a range from 1.5 °C/min to 5.5 °C/min, and the second heating rate is lower than the first heating rate and is in a range from 0.1 °C/min to 3.5 °C/min.
The examiner notes that this limitation is a product by process limitation. Yang discloses wherein the positive electrode active material is heating in a first step from 400- 700 C ([0020]), which overlaps the instant claim range from 450 to 680 C. Yang further discloses wherein the positive electrode active material is heated at a second step of 700-1000 C ([0020]), which overlaps the instant claim range of 690 to 800 C.
“[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.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (Claim was directed to a novolac color developer. The process of making the developer was allowed. The difference between the inventive process and the prior art was the addition of metal oxide and carboxylic acid as separate ingredients instead of adding the more expensive pre-reacted metal carboxylate.
Yura discloses a method of forming a lithium transition metal oxide positive electrode active material ([0015]). Yura further discloses a two step multi-firing process to form the active material ([0052]). Yura further discloses wherein the positive electrode active material can include Cobalt, Niobium, and Nickel ([0031]). Yura further discloses wherein the first heating step has a lower heating temperature than the second firing step ([0052]). Yura further discloses wherein the heating rate for the firing step can be 200 °C /hr ([0076]), which converts to 3.33 °C/min, which is within both the first firing step and second firing step heating rates of 1.5 °C/min to 5.5 °C/min and 0.1 °C/min to 3.5 °C/min respectively. Yura further discloses that this method provides improved capacity of the positive electrode ([004]).
The examiner notes that Yura is brought in to teach that the heating rate of the first and second firing step can be adjusted to be within the claimed range values. Furthermore, the examiner notes that the claim language claims “a first heating range is in a range from 1.5 °C/min to 5.5 °C/min” and further claims “a second heating rate is lower than the first heating rate and is in a range from 0.1 °C/min to 3.5 °C/min”. Under the broadest reasonable interpretation of the claim in view of the specifications, because the heating rate of the first and second heating range overlap each other, only an infinitesimal difference in heating rates in required to meet the claim language. Furthermore, since this is a product by process claim, and Yang teaches that the product as claimed, a lithium transition metal oxide with Ni, Nb, and Co, can be formed in a two-step firing test using the heating rate that is within the claim ranges, it is the examiner’s position that Yang in view of Yura discloses the product of claim 1.
Therefore it would be obvious to one of ordinary skill in the art to modify Yang with the teachings of Yura to have wherein the positive electrode active wherein the positive electrode active material for non-aqueous electrolyte secondary batteries is produced by a multi-step firing process including: a first firing step of firing a mixture including a Li-containing compound, a compound containing Ni and an arbitrary element of Co, and a Nb-containing compound, in a firing furnace under an oxygen stream at a first heating rateup to a first set temperature no lower than 450 °C and no higher than 680 °C; and a second firing step of firing the fired product obtained by the first firing step, under an oxygen stream at a second heating rate up to a second set temperature exceeding 680 °C and no higher than 800 °C, wherein the first heating rate is in a range from 1.5 °C/min to 5.5 °C/min, and the second heating rate is lower than the first heating rate and is in a range from 0.1 °C/min to 3.5 °C/min. This modification would yield the expected result of improved capacity of the positive electrode.
Response to Arguments
Applicant’s amendments in view of arguments, see Claims, filed March 4th, 2026, with respect to the rejection(s) of claim(s) 1 under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Yang in view of Ichisaka.
Applicant's arguments filed March 4th, 2026, in regards to the Yura reference have been fully considered but they are not persuasive.
Applicant argues that Yura does not provide teaching for a the two-step firing process, because Yura is directed to forming a sintered positive electrode plate, not to defining the crystal structural characteristics of a positive electrode active material.
The examiner notes that this limitation is a product by process limitation. Yang discloses wherein the positive electrode active material is heating in a first step from 400- 700 C ([0020]), which overlaps the instant claim range from 450 to 680 C. Yang further discloses wherein the positive electrode active material is heated at a second step of 700-1000 C ([0020]), which overlaps the instant claim range of 690 to 800 C.
“[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.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (Claim was directed to a novolac color developer. The process of making the developer was allowed. The difference between the inventive process and the prior art was the addition of metal oxide and carboxylic acid as separate ingredients instead of adding the more expensive pre-reacted metal carboxylate.
Yura discloses a method of forming a lithium transition metal oxide positive electrode active material ([0015]). Yura further discloses a two step multi-firing process to form the active material ([0052]). Yura further discloses wherein the positive electrode active material can include Cobalt, Niobium, and Nickel ([0031]). Yura further discloses wherein the first heating step has a lower heating temperature than the second firing step ([0052]). Yura further discloses wherein the heating rate for the firing step can be 200 °C /hr ([0076]), which converts to 3.33 °C/min, which is within both the first firing step and second firing step heating rates of 1.5 °C/min to 5.5 °C/min and 0.1 °C/min to 3.5 °C/min respectively. Yura further discloses wherein the lithium layered rock-salt structure is a crystalline structure ([0030]). Yura further discloses that this method provides improved capacity of the positive electrode ([004]).
The examiner notes that Yura is brought in to teach that the heating rate of the first and second firing step can be adjusted to be within the claimed range values. Furthermore, the examiner notes that the claim language claims “a first heating range is in a range from 1.5 °C/min to 5.5 °C/min” and further claims “a second heating rate is lower than the first heating rate and is in a range from 0.1 °C/min to 3.5 °C/min”. Under the broadest reasonable interpretation of the claim in view of the specifications, because the heating rate of the first and second heating range overlap each other, only an infinitesimal difference in heating rates in required to meet the claim language. Furthermore, since this is a product by process claim, and Yang teaches that the product as claimed, a lithium transition metal oxide with Ni, Nb, and Co, can be formed in a two-step firing test using the heating rate that is within the claim ranges, it is the examiner’s position that Yang in view of Yura discloses the product of claim 1.
Therefore, since Yura discloses wherein the sintered positive electrode plate is in a crystalline structure, and the limitation is a product by process claim, applicant’s arguments are not commensurate in scope with the claims.
Therefore it would be obvious to one of ordinary skill in the art to modify Yang with the teachings of Yura to have wherein the positive electrode active wherein the positive electrode active material for non-aqueous electrolyte secondary batteries is produced by a multi-step firing process including: a first firing step of firing a mixture including a Li-containing compound, a compound containing Ni and an arbitrary element of Co, and a Nb-containing compound, in a firing furnace under an oxygen stream at a first heating rateup to a first set temperature no lower than 450 °C and no higher than 680 °C; and a second firing step of firing the fired product obtained by the first firing step, under an oxygen stream at a second heating rate up to a second set temperature exceeding 680 °C and no higher than 800 °C, wherein the first heating rate is in a range from 1.5 °C/min to 5.5 °C/min, and the second heating rate is lower than the first heating rate and is in a range from 0.1 °C/min to 3.5 °C/min. This modification would yield the expected result of improved capacity of the positive electrode.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANKITH R SRIPATHI whose telephone number is (571)272-2370. The examiner can normally be reached Monday - Friday: 7:30 am - 5:00pm.
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/ANKITH R SRIPATHI/Examiner, Art Unit 1728
/MATTHEW T MARTIN/Supervisory Patent Examiner, Art Unit 1728