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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/11/2026 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities. Appropriate correction is required.
Claim 1 recites, “wherein the concentration gradient region has constant concentrations of Mn” (emphasis added). Since it is understood that the concentration of Mn is constant, it is therefore understood that there is only one concentration of Mn. As such, this limitation should read “wherein the concentration gradient region has a constant concentration of Mn” (emphasis added) or “wherein the concentration of Mn is constant in the concentration gradient” (emphasis added) in order to clearly indicate that there is only one concentration of Mn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 11 and 13-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. (WO-2019103363-A1; previously cited; see English equivalent US-20200259173-A1 for citations) in view of Noh et al. (WO-2020036396-A1; previously cited; see English equivalent US-20210359293-A1 for citations) and in further view of Han (US-20180175388-A1; previously cited).
Regarding Claims 1 and 11, Kim discloses a cathode active material (positive electrode active material; [0008-0009]) for a lithium secondary battery [0002, 0068] comprising
a lithium metal oxide particle (lithium composite transition metal oxide; [0019]) containing nickel (Ni) and cobalt (Co) [0009, 0019].
Kim discloses that the lithium metal oxide particle comprises at least one selected from the group consisting of manganese (Mn) and aluminum (Al) [0009, 0019, 0021, 0025-0026]. In a specific embodiment (Example 1; [0094-0098]), Kim discloses that the lithium metal oxide particle comprises Ni, Co, and Mn, thereby rendering obvious with sufficient specificity a lithium metal oxide particle comprising Mn in addition to Ni and Co.
Kim discloses that the lithium metal oxide particle includes a core region (core part; [0016, 0019]) including a predetermined distance represented as a first distance from a center toward a surface [0025, 0066]. The core region is provided as a first constant concentration region [0020, 0094, 0096]. Since the lithium metal oxide particle comprises Ni, Co, and Mn, the first constant concentration region therefore has “constant concentrations of Ni, Co, and Mn”.
Kim discloses that a surface layer may be formed on the outer periphery of a shell part [0041]. The shell part has a concentration gradient [0022]. The surface layer corresponds the recited limitation of a “shell region”. Since the shell region (surface layer) is formed on the outer surface of a concentration gradient region (shell part), the shell region (surface layer) is understood to include “a predetermined distance represented as a second distance from the surface toward the center”.
Kim discloses that the shell region (surface layer) may include at least one or more selected from the group consisting of Ni, Co, Mn and Al, and that the concentration of the transition metal in the surface layer may be constant [0041]. Kim also discloses that it is important that no dramatic phase boundary region is formed within the lithium metal oxide particle in order to secure the stability of the crystal structure of the particle [0028].
Therefore, although Kim does not explicitly disclose that the shell region (surface layer) is a second constant concentration region having constant concentrations of Ni, Co, and Mn, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have formed the shell region (surface layer) to be a second constant concentration region having constant concentrations of Ni, Co, and Mn with a reasonable expectation that providing a shell region (surface layer) as a second constant concentration region having constant concentrations of Ni, Co, and Mn would result in a successful lithium metal oxide particle without dramatic phase boundary regions, thereby ensuring structural stability of the particle.
Kim discloses a concentration gradient region (corresponds to shell part; [0022, 0025]). Since the shell region (surface layer) is formed on the outer surface of the concentration gradient region (shell part) [0041], the concentration gradient region is thereby “formed between the core region and the shell region” as required by Claim 1, and the concentration gradient region thereby “extends from the surface of the core region to an inner surface of the shell region” as required by Claim 11 [0016, 0024-0026, 0041].
Kim discloses that the concentration of at least one of Mn and Co is gradually increased in the concentration gradient region (shell part) [0025, 0057]. Accordingly, the Examiner notes that Kim is open to a configuration wherein the concentration of Mn does not increase while the concentration of Co increases.
Therefore, although Kim does not explicitly teach an embodiment wherein the concentration gradient region has a constant concentration of Mn or a concentration gradient of Co, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have selected the concentration of Mn to remain constant in the concentration gradient region and to have selected the concentration of Co to increase in the concentration gradient region with a reasonable expectation that such a configuration would result in a successful lithium metal oxide particle (see MPEP 2123, II).
Assuming, arguendo, that Kim does not teach with sufficient specificity that the concentration of Mn can be held constant throughout the lithium metal oxide particle while the concentration of Co changes, such a configuration would still have been obvious over the teachings of Noh. Noh teaches a similar lithium metal oxide particle [0012-0014, 0022-0024]. Noh teaches that Mn can be included in a constant content and concentration throughout the lithium metal oxide particle [0025, 0073]. Advantageously, Mn compensates for chemical and mechanical instabilities caused by nickel, and increases the life-span of a lithium secondary battery [0054, 0072]. By including a constant concentration of Mn throughout the particle, uniform penetration stability and high temperature stability throughout the particle is secured [0073].
Additionally, Noh teaches that particle has a concentration gradient region (shell region) wherein the content of Ni decreases in the concentration gradient region while the concentration of Co increases in the same region [0023-0024, 0057]. Advantageously, by providing a high content of cobalt at the surface of the particle, the conductivity of the secondary battery improves, an increase in resistance of the lithium metal oxide particle can be suppressed, and capacity and output characteristics can be improved [0032, 0058, 0069]. A high content of cobalt at the surface of the particle also suppresses surface oxidation and decomposition of active metals such as lithium and nickel of the core part [0065-0066].
One of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have provided Mn with a constant concentration throughout the lithium metal oxide particle and to have increased the concentration of Co in the concentration gradient region with a reasonable expectation that such a configuration would result in a successful lithium metal oxide particle with increased stability and life-span as well as increased capacity and output characteristics.
Since the concentrations of Ni and Co are understood to be continuously (i.e. constantly) changed within the concentration gradient region [0024-0026, 0056-0057, 0096], it is interpreted that the concentration gradient region has “constant concentration gradients of Ni and Co”.
Kim discloses that the lithium metal oxide particle (lithium composite transition metal oxide) is designed to have a very high nickel content in order to ensure high capacity [0016-0017, 0022], and discloses examples wherein the maximum content of nickel is 95% (Example 1; [0094]) and 90% (Example 2; [0099]). Therefore, although Kim does not specifically teach the total average composition of Ni throughout the lithium metal oxide particle, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have selected the total average composition of Ni throughout the lithium metal particle to fall within the range of at least 60 atomic% and less than 96 atomic% in order to achieve a particle with a very high nickel content to ensure high capacity. Accordingly, modified Kim is understood to fulfill the contingent requirement of “when a total average composition of Ni throughout the lithium metal particle is 60 atomic% or more and less than 96 atomic%” (MPEP 2111.04, II). Accordingly, the limitations following the contingent limitation are mapped to the prior art.
Kim discloses that the concentrations of transition metals in the concentration gradient region (shell part) are gradually changed [0024, 0056-0057], such that there is no dramatic phase boundary region from the start to the end of the concentration gradient region, thereby stabilizing the crystal structure of the particle, enhancing the structural stability, and increasing the thermal stability of the positive electrode active material [0027-0028]. The Examiner notes that this establishes a correlation between the total change in concentration of the transition metals within the concentration gradient region and the distance of the concentration gradient region. In other words, if the concentration gradient region is larger, a larger change in concentration of the transition metals can be accommodated without creating a “dramatic phase boundary region”, while if the concentration gradient region is smaller, a smaller change in concentration of the transition metals can accommodated.
The distance of the concentration gradient region corresponds to the claimed “a predetermined distance represented as a third distance from the core region to the shell region” (see last 3 lines of Claim 1) [0016, 0041]. Although Kim does not explicitly teach a radius of the third distance, and therefore does not explicitly teach that the third distance is “in a range from about 40 nm to about 300 nm” as required by Claim 1 (see last 3 lines), Kim does disclose that a ratio of thickness of the concentration gradient region (shell part) to the radius of a particle of the positive electrode active material is 0.15 to 0.5 [0030, 0066]. If the concentration gradient region (shell part) has a ratio less than 0.15, the structural stability and chemical stability of the particle is decreased [0030], while if the ratio is more than 0.5, it is difficult to ensure high capacity [0030].
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have optimized the ratio of the thickness of the concentration gradient region in relation to the radius of the lithium metal oxide particle, including selecting a radius of the lithium metal oxide particle and a thickness of the concentration gradient region such that the third distance is in a range from about 40 nm to about 300 nm, with a reasonable expectation that such a configuration would result in a successful balance between ensuring structural and chemical stability while maximizing capacity (MPEP 2144.05, II).
Modified Kim does not explicitly teach the maximum acceptable change in Co concentration over a distance of 40 nm to 300 nm, and therefore does not explicitly teach that “a concentration represented as an atomic percent of Co at the surface relative to an average concentration represented as an atomic percent of Co throughout the lithium metal oxide particle is 9.2 to 10.8” or that “a ratio of the concentration of Co at the surface relative to a concentration represented as an atomic percent of Co at the center is 27.5 to 32.5”.
Noh teaches a similar lithium metal oxide particle [0012-0014, 0022-0024]. Noh teaches that the content of Ni in the lithium metal oxide particle is associated with capacity, and a higher content of Ni results in a higher capacity and output of the lithium secondary battery [0053]. However, an excessively high content of Ni is disadvantageous for the mechanical and electrical stability of the lithium secondary battery, thereby reducing the life-span of the lithium secondary battery [0054].
Additionally, Noh teaches that a lithium metal oxide particle with a surface coating layer containing a relatively high concentration of cobalt is advantageous in that it suppresses an increase in resistance, improves capacity and output characteristics, enhances chemical stability, and increases conductivity of the lithium metal oxide particle [0032, 0069]. Furthermore, a high concentration of Co at the surface suppresses surface oxidation and decomposition of active materials such as lithium and nickel [0065-0066].
Noh teaches that in a concentration gradient region with a distance of 10 to 100 nm [Abstract, 0012, 0047], the concentration of Co at the end of the concentration gradient region should not exceed 6 times that of the core part, otherwise a phase separation occurs due to an excessive difference in the composition between the core part and the shell part, and the crystal structure may be weakened [0057-0058].
One of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have maximized the content of Co at the surface of the lithium metal oxide particle of modified Kim in order to suppresses surface oxidation and decomposition of active materials such as lithium and nickel. Additionally, in view of the teachings of Noh, one of ordinary skill in the art would understand that the absolute maximum that the concentration of Co can be changed is by a factor of 6 every 10 nm in order to maintain a gradual change in concentration, and to avoid any drastic phase boundaries which deteriorate crystal structure. Since Kim renders obvious a concentration gradient region of 40 to 300 nm (see above), the maximum change that one of ordinary skill in the art would have appreciated as a gradual change over the distance of the concentration gradient region would be a maximum change by a factor of 24 (i.e. for a distance of 40 nm) to 180 (i.e. for a distance of 300 nm).
Accordingly, in view of the teachings of Noh, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have optimized the content of Ni and Co throughout the lithium metal oxide particle, including selecting “a ratio of a concentration represented as an atomic percent of Co at the surface relative to an average concentration represented as an atomic percent of Co throughout the lithium metal oxide particle to be 9.2 to 10.8, with a reasonable expectation that such a content of Co would result in a successful balance between the content of Ni and its resulting impact on capacity with the content of Co and its resulting impact on enhancing stability and output characteristics of the lithium metal oxide particle (MPEP 2144.05, II).
Additionally, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have selected a ratio of the concentration of Co at the surface relative to a concentration represented as an atomic percent of Co at the center to be 27.5 to 32.5, with a reasonable expectation that such a selection would result in a successful lithium metal oxide particle without drastic phase boundaries in the concentration gradient region (MPEP 2144.05, I).
The limitation “when a total average composition of Ni throughout the lithium metal oxide particle is 96 atomic % or more…” (Claim 1: Pg. 3, lines 1-6) is an alternative contingent limitation. The broadest reasonable interpretation of a claim having contingent limitation “requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met” (see MPEP 2111.04, II). Since the prior art does not teach that the average composition of Ni throughout the lithium metal oxide particle is 96 atomic % or more, the requirements of the contingent limitation need not be met.
Kim discloses that the concentration of Ni decreases in the concentration gradient region in the direction from the center to the surface [0024, 0056, 0094]. Accordingly, the concentration of Ni is interpreted as decreasing “according to a slope of Ni concentration gradient”.
Kim also renders obvious that the concentration of Co increases in the concentration gradient region in the direction from the center to the surface (see above). Accordingly, the concentration of Co is interpreted as increasing “according to a slope of Co concentration gradient”.
Kim discloses that the core region can be formed to have a diameter ratio of 0.5 to 0.85 with respect to the total particle diameter of the positive electrode active material precursor [0018, 0030, 0054, 0065-0066]. This corresponds to a core region which occupies 50% or more (i.e. 50% to 85%) of a radius of the lithium meal oxide particle from the center (MPEP 2144.05, I). As previously discussed, concentrations of metal elements are constant in the core region [0020, 0094, 0096].
Although Kim does not explicitly teach the second distance of the shell region (surface layer), and therefore does not explicitly teach “wherein the second distance of the shell region is less than the first distance of the core region”, since Kim discloses a core region which comprises 50% or more of the radius of the lithium metal oxide particle, and since Kim discloses a concentration gradient region (shell part) between the core region and the shell region, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have selected the second distance of the shell region (surface layer) to be less than the first distance of the core region (core part) with a reasonable expectation that such a configuration would result in a successful lithium metal oxide particle a sufficient thickness of core region to secure capacity, and a sufficient thickness of concentration gradient region to secure structural and chemical stability (MPEP 2144.05, I).
Modified Kim does not teach the radius of the shell region (surface layer), and therefore does not teach that the second distance is in a range from about 30 nm to about 60 nm.
Han teaches a cathode active material comprising a lithium metal oxide particle including Ni, Mn, and Co [0011-0012, 0014, 0018-0020]. Han teaches that the lithium metal oxide particle includes a central portion with a constant concentration of elements, a concentration gradient layer, and a surface portion with a constant concentration of elements [0019-0020]. Han teaches that the surface portion (corresponds to shell region) is the outermost surface of the active material particle, and may include a predetermined thickness from the outermost surface [0054]. For example, the surface portion may include a region “within a thickness of about 0.1 µm” (i.e. 100 nm) from the outermost surface of the active material particle [0054].
One of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have provided the shell region of modified Kim as a region with a thickness within about 100 nm of the outermost surface of the lithium metal oxide particle, with a reasonable expectation that such a shell region thickness would result in a successful lithium metal oxide particle.
The thickness range of within about 100 nm rendered obvious by the prior art overlaps the claimed range of “about 30 nm to about 60 nm”. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have selected any portion of the range rendered obvious by the prior art, including the overlapping portion, with a reasonable expectation that such a thickness would result in a successful lithium metal oxide particle (MPEP 2144.05, I).
As previously discussed, modified Kim renders obvious that “Mn does not form a concentration gradient from the center of the lithium metal oxide particle to the surface of the lithium metal oxide particle” (see above; [Noh: 0025, 0054, 0072-0073]).
Modified Kim does not teach that diameter of the lithium metal oxide particle, and therefore Kim does not teach that the lithium metal oxide particle has a diameter of 3 µm to 17 µm.
Han teaches a cathode active material particle including a lithium metal oxide particle [0011-0012, 0014, 0018-0020, 0049] which has an average diameter (D50) of about 3 µm to about 15 µm [0080]. A particle with a D50 of less than 3 µm may be too small to realize a desired composition, and activity and stability may not be realized and controlled [0099]. However, if a particle has a D50 larger than about 15 µm, an excessive amount of heat may be required for particle formation [0099].
Furthermore, Noh also teaches a similar average diameter (D50) for a lithium metal oxide particle (i.e. 3 µm to 25 µm) [0048], thereby evidencing that such a particle diameter is well-known within the art of lithium metal oxide particles with concentration gradients.
Therefore, is seeking to obtain a particle composition with the desired activity and stability while ensuring particle formation efficiency, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have optimized the D50 of the lithium metal oxide particle of modified Kim, including selecting the lithium metal oxide particle to have a D50 of 3 µm to 15 µm, which is within the claimed range of 3 µm to 17 µm (MPEP 2144.05, II).
Regarding Claims 13-14, modified Kim renders obvious all of the limitation as set forth above. Kim discloses that the core and shell parts (i.e. core and concentration gradient regions) may contain active material represented by the chemical Formula 1 [0032-0034]:
LipNi1-(x1+y1+z1)Cox1May1Mbz1Mcq1O2
The ranges disclosed for each element [0033] overlap or fall within the claimed ranges as detailed below:
Regarding the content of Li: Kim discloses Lip wherein 0.9≤p≤1.5, which overlaps the claimed Lix range of 0<x≤1.2.
Regarding the content of Ni: Kim discloses Ni1-(x1+y1+z1) wherein 0<x1+y1+z1≤0.4 (i.e. Ni can range from 0.6 to 0.999…), which falls within the claimed Nia range of 0.6≤a<1 as required by Claim 13 and further falls substantially within the claimed range of 0.6≤a≤0.99 as required by Claim 14.
Regarding the content of Co: Kim discloses Cox1 wherein 0<x1≤0.4, which falls within the claimed Cob range of 0<b<1.
Regarding the content of Mn: Kim discloses May1 wherein Ma can be selected from a group that includes Mn [0033] (see also rejection of Claim 1 which renders obvious Ma as Mn), and wherein 0<y1≤0.4, which falls within the claimed Mnc range of 0<c<1.
Regarding the content of O: Kim discloses O2, which falls within the claimed Oy range of 2≤y≤2.02.
Kim also discloses that Mb and Mc are optional components (i.e. the concentration of each can be 0; [0033]).
As detailed above, the content of Li overlaps the claimed Li range, while the contents of Ni, Co, Mn, and O all fall within the claimed ranges. Therefore, although Kim does not explicitly teach Chemical Formula 1 as recited in the instant application, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have selected the overlapping potion of the Li range disclosed in the prior art (MPEP 2144.05, I), as well as selecting the content of Mb and Mc to be 0 with a reasonable expectation that such contents of elements would result in a successful lithium metal oxide particle.
Regarding Claim 15, modified Kim renders obvious the cathode active material of Claim 1. Kim further discloses a lithium secondary battery [0068, 0078], comprising: a cathode including the cathode active material of claim 1 [0068-0069, 0074]; and an anode facing the cathode [0078].
Response to Arguments
Applicant's arguments filed 05/11/2026 have been fully considered but they are not persuasive. Applicant has argued that when the bulk Ni concentration is between 60-96%, the surface/central Co is limited to 27.5 to 32.5 and the surface/bulk Co is 9.2 to 10.8, the resulting lithium secondary batteries exhibit a significant step-change is 0.1C discharge capacity 0.1C efficiency, and life span as exhibited by Examples 5-6 as compared to Examples 1-4 and Comparative Examples 1-2 (Remarks, Pgs. 9-10).
The Examiner has carefully considered this argument, but respectfully does not find it persuasive. The Examiner notes that, if Applicant is arguing unexpected results, the showing of evidence must be commensurate with the independent claim. For instance, as a non-limiting example, Examples 5 and 6 each require the Ni bulk concentration to be 80 atomic% (Table 1). It is unclear whether the alleged unexpected results would occur over the entire claimed range (i.e. 60-96%), or whether the unexpected results only occur at 80%. As other non-limiting examples, the showing of evidence (i.e. Examples 5 and 6) appear to further require the following:
a central Ni content of 84 atomic% and a surface Ni content of 21-31 atomic% (Table 1);
a bulk Co content of 6 atomic %, a central Co content of 2 atomic%, and a surface Co content of 55-65 atomic% (Table 1);
a bulk Mn content, a central Mn content, and a surface Mn content of 14 atomic % (Table 1);
an average particle diameter of 13 µm [00121].
Absent persuasive argument or evidence to the contrary, it would appear that each of the above features in critical to achieving the allegedly unexpected results. Additionally, the Examiner notes that the allegedly unexpected results appear directed towards a lithium secondary battery (Table 3; [00121-00122, 00176, 00179]), while Claim 1 is currently directed towards a cathode active material. Based on the current evidence of record, it is unclear whether the allegedly unexpected results could occur with any anode, any electrolyte, etc.
Applicant has argued that the teaching reference Noh warns that if Co exceeds about 6 times that of the core part, phase separation occurs due to excessive composition differences, leading to a weakened crystal structure, as evidenced by Noh’s Comparative Example 7 (Remarks, Pg. 11).
The Examiner has carefully considered this argument, but respectfully does not find it convincing. Noh teaches that a phase separation can occur if the concentration of the shell part exceeds the concentration of the core part by more than 6 times [0057-0058], over a distance of 10 nm to 100 nm [Noh: Abstract, 0012, 0047]. Since modified Kim renders obvious that the concentration gradient region has a distance of 40 nm to 300 nm (see rejection of Claim 1, above), one of ordinary skill in the art would have appreciated that the concentration of Co could be changed a maximum of 6 fold every 10 nm, thereby allowing for a change by a factor of 24 (i.e. for a distance of 40 nm) to 180 (i.e. for a distance of 300 nm), without resulting in an excessive composition difference that would lead to a weakened crystal structure.
Applicant has argued that Kim’s Table 3 shows that as the Co ratio increases from 6.0 to 7.5, the capacity retention decreases, thereby supporting the non-obviousness in choosing the claimed ranges (Remarks, Pg. 11).
The Examiner has carefully considered this argument, but does not find it persuasive. The Examiner notes that Example 1 (which has a Co increase of 7.5) also exhibited advantages over Example 2 (which has a Co increase of 6.0), including no average leakage current and a slightly higher charge capacity / discharge capacity (Kim: Table 2). Additionally, the Examiner notes that the particle rendered obvious by modified Kim is not analogous to the particles disclosed in Examples 1 and 2, and therefore the resulting capacity retention of Examples 1 and 2 would not dissuade one of ordinary skill in the art from applying the teachings of Noh to increase the concentration of Co towards the shell of the particle.
Applicant has argued that Kim and Noh disclose opposed requirements for particle stability (Remarks, Pgs. 11-12). Applicant has argued that Kim requires a concentration difference of at least 30 mol% while Noh teaches minimizing compositional differences to prevent phase separation, thereby making the combination of Kim’s requirement for maximized Ni change with Noh’s strategy of minimizing compositional differences technically incompatible (Remarks, Pgs. 11-12).
The Examiner has carefully considered this argument, but does not find it persuasive. The Examiner notes that Kim also desires a gradual increase in concentration of the transition metals so as to preserve crystal stability [Kim: 0028]. The Examiner submits that the change in concentration is a factor of the distance of the concentration gradient region. Although Noh teaches a concentration gradient region of 10 nm to 100 nm [Noh: Abstract, 0012, 0047], Kim is not limited to such a distance, and indeed contemplates that the concentration gradient region can occupy a larger portion of the particle (i.e. a ratio of the thickness of the concentration gradient region to the thickness of the particle can be 0.15 to 0.5; [Kim: 0030]). Accordingly, the Examiner submits that the teachings of Noh are applicable to Kim, but Kim is not limited to the maximum change in concentration disclosed by Noh.
Applicant has argued hindsight bias in combining Kim and Noh references (Remarks, Pg. 12). Applicant has also argued that since Kim, Noh, and Han do not teach the ratio of surface Co concentration relative to average (bulk) Co concentration throughout the particle, that Claim 1 cannot be derived without the benefit of Applicant’s own teachings (Remarks, Pg. 12).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. Here, the rejections of record rely on the teachings of Kim and Noh. For instance, regarding the average (bulk) Co concentration, the Examiner notes that the particle is understood to inherently have a bulk Co concentration, and Noh provides motivation to optimize the content of Co and Ni within the particle (see rejection of Claim 1, above; [Noh: 0032, 0053-0054, 0065-0066, 0069]). Therefore, the prior art provides motivation to optimize the content of Co in the center and surface of the particle, thereby inherently altering the bulk concentration of Co.
Conclusion
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/D.C.N./Examiner, Art Unit 1751
/JONATHAN G LEONG/Supervisory Patent Examiner, Art Unit 1751 5/27/2026
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