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
In response to Applicant’s reply dated January 29, 2026, no claims are amended. Claim 20 is added. Claims 1-6 and 12-20 are pending and examined.
Status of Application
The Examiner has substantially copied the previously applied rejections from the Office Action dated July 30, 2025 below and provided a rejection of claim 20 over the prior art of record. Applicant’s arguments are addressed 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 1-6 and 12-19 are rejected under 35 U.S.C. 103 as being unpatentable over Ying et al. [Surface treatment of LiNi0.8Co0.2O2, Journal of Power Sources 102 (2001) 162-166, as provided on the IDS dated January 18, 2023], hereinafter Ying, in view of Kaneda et al. [JP2016115658A dated June 23, 2016, as provided on the IDS dated October 7, 2021, machine translation relied upon previously provided], hereinafter Kaneda, and in further view of Han et al. [US20170170474A1], hereinafter Han.
Regarding Claim 1, Ying discloses a lithium metal composite oxide powder having a layered crystal structure [Ying p. 163, results and discussion, 2nd paragraph], comprising: at least Li, Ni, an element X, and an element M, wherein the element X is one or more elements selected from the group consisting of Co, Mn, Fe, Cu, Ti, Mg, Al, W, Mo, Nb, Zn, Sn, Zr, Ga, and V, the element M is one or more elements selected from the group consisting of B, Si, S, and P [Ying p. 163 Table 1 discloses Li, Ni, Co as element X, and B as element M.], and
a spectrum that is obtained when the lithium metal composite oxide powder is measured by X-ray photoelectron spectroscopy [Ying p. 163, results and discussion] satisfies the following requirement (2),
X(M)/X(Li) that is a ratio between X(Li) that is a lithium atom concentration obtained based on peak areas of a Li1s spectrum, a Ni2p spectrum, a spectrum of the element X, and a spectrum of the element M, and X(M) that is an atomic concentration of the element M obtained based on peak areas of the Li 1s spectrum, the Ni2p spectrum, the spectrum of the element X, and the spectrum of the element M is 0.2 or more and 2.0 or less [Ying p. 163, Table 1 Ying discloses atomic composition ratios of an atomic concentration X(Li) of 19.5 % and an atomic concentration X(M) where M= boron of 11.1 % based on x-ray photoelectron spectroscopy, where a ratio of X(M)/X(Li) = 0.57, which anticipates the claimed range of 0.2 to 2.0. Ying calculates the atomic concentrations from X-ray photoelectron spectroscopy, which would inherently include peak areas of Li1s spectrum, Ni2p spectrum, the spectrum of the element X and the spectrum of the element M, where X is cobalt and M is boron. Per MPEP 2112 II, 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.]
Ying does not explicitly disclose requirement (1) where a peak top is present in a binding energy range of 52 eV to 58 eV, and, when the spectrum in the above-described range is separated into waveforms of a peak A having a peak top at 53.5 +/- 1.0 eV and a peak B having a peak top at 55.5 +/- 1.0 eV, a value of P(A)/P(B) that is a ratio between integrated intensities of the peak A and the peak B is 0.3 or more and 3.0 or less. However, the ratio of the integrated peak intensities would be considered a result-effective variable as evidence by Kaneda and Han.
Kaneda teaches a binding energy peak around 53.8 eV associated with the layered lithium nickel metal oxide and a peak around 55 eV associated with lithium carbonate, lithium hydroxide, and lithium oxide present on the surface of the lithium composite oxide [Kaneda 0055]. As disclosed by Han, such compounds would be considered impurities which suppress battery capacity [Han 056] due to rapid differences in composition [Han 0061] destabilizing the structure of the lithium composite oxide [Han 0069] and resulting in battery defects [Han 0070]. Therefore, the skilled artisan would know to limit the level of impurities present. Further, the skilled artisan would know that some level of impurities will remain at the surface and further processing to remove the impurities is too costly or there is no additional battery performance benefit. It would also be known by the skilled artisan that the level of these impurities can be determined by x-ray photoelectron spectroscopy by comparing the integrated intensity of the peaks associated the lithium nickel metal oxide, which would be the claimed P(A) [Kaneda 0057, layered lithium nickel metal oxide at around 53.8 eV] and the peaks associated with the impurities of lithium carbonate, lithium hydroxide, and lithium oxide [Kaneda 0057, peak around 55 eV], or the claimed P(B). Therefore, the skilled artisan would know that if the ratio of the integrated peak intensities P(A)/P(B) is too low, the level of impurities may be too high and battery performance would be affected [Han 0056, 0061, 0069-0070]. Similarly, the skilled artisan would know if the ratio is too high, there may be additional cost or no performance benefit. Determining the workable range of P(A)/P(B) merely requires routine experimentation, which is obvious per MPEP 2144.05II,A. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It would have been obvious to one of ordinary skill in the art before the effective filing date to combine the teaches of Kaneda and Han with the lithium metal composite oxide of Ying for determination of a workable range of P(A)/P(B) as claimed for the predictable result of a layered lithium composite oxide with a stable structure with good capacity and performance [Han 0056, 0061, 0069-0070; Kaneda 0006, 0016; Ying abstract]. Further, the teachings of Kaneda and Han would be considered an improvement for the lithium metal composite oxide of Ying since their teachings of limiting the impurities in the layered oxide through monitoring the binding energy peaks by x-ray photoelectron spectroscopy would likely lead to improved battery performance. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results; Use of known technique to improve similar devices (methods, or products) in the same way.
Regarding Claim 2, modified Ying discloses the lithium metal composite oxide powder according to Claim 1 that is represented by the following composition formula (I), Li[Li n1(Ni(1-n-w)XnMw)1-n1]O2 (I) (the element M is one or more elements selected from the group consisting of B, Si, S, and P, and the element X is one or more elements selected from the group consisting of Co, Mn, Fe, Cu, Ti, Mg, Al, W, Mo, Nb, Zn, Sn, Zr, Ga, and V; here, -0.1 ≤n1≤ 0.2, 0<n≤0.8, 0<w≤0.05, and n + w < 1 are satisfied) [Ying pp. 162-163 (Ying discloses LiNi0.8Co0.2O2 with 1 wt% Li2O-2B203, where X is Co and M is B, n1 is approximately 0, n is approximately 0.2, and w is approximately 0.004 per calculation based on 1 wt% Li2O-2B203, anticipating the claimed ranges)].
Regarding Claim 3 and Claim 14, modified Ying discloses the lithium metal composite oxide powder according to Claim 1 (as referenced in Claim 3) and Claim 2 (as referenced in Claim 14), wherein, when a nickel atom concentration that is calculated from peak areas of the Li1s spectrum, the Ni2p spectrum, the spectrum of the element X, and the spectrum of the element M is indicated by X(Ni), and an atomic concentration of the element X is indicated by X(X),
X(Li)/{X(Ni) + X(X) } that is a ratio of the lithium atom concentration to a total atomic concentration of nickel and the element X is 1.0 or more and 5.0 or less [Ying p. 163, Ying discloses in Table 1 the ratio of X(Li)/{X(Ni) + X(Co) is 3.1, which anticipates the claimed range of 1.0 to 5.0.)].
Regarding Claim 4 and Claim 15, modified Ying discloses the lithium metal composite oxide powder according to Claim 1 (as referenced in Claim 4) and Claim 2 (as referenced in Claim 15), wherein, when a nickel atom concentration that is calculated from peak areas of the Li1s spectrum, the Ni2p spectrum, the spectrum of the element X, and the spectrum of the element M is indicated by X(Ni), and an atomic concentration of the element X is indicated by X(X),
X(M)/{X (Ni) + X (X)} that is a ratio of the atomic concentration of the element M to a total atomic concentration of nickel and the element X is 0.3 or more and 6.0 or less [Ying p. 163, Ying discloses in Table 1 the ratio of X(B)/{X(Ni) + X(Co) is 1.8, which anticipates the claimed range of 0.3 to 6.0.)].
Regarding Claim 5 and Claim 16, modified Ying discloses a lithium metal composite oxide powder according to Claim 1 (as referenced in Claim 5) and Claim 2 (as referenced in Claim 16), wherein an average particle diameter D50 that is a 50% cumulative diameter obtained from wet-type particle size distribution measurement is 2 µm or more and 20 µm or less [Kaneda 0049, Ying is silent to the average particle diameter. Kaneda discloses an average particle diameter of 0.8 µm to 20 µm by SEM measurement, but does not disclose a D50 cumulative diameter. Given the significant overlap of Kaneda’s range measured by SEM with the claimed range, the skilled artisan would expect the D50 cumulative diameter of Kaneda’s particles to overlap and obviate the claimed range. If not, it would be expected that the ranges would be merely close. Per MPEP 2144.05I, 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, Kaneda teaches the average particle diameter is a result-effective variable. If the particle size is too small, the filling property of the positive electrode active material decreases and the energy density per unit volume of the battery decreases [Kaneda 0050]. If the particle size is too large, the surface area becomes too small resulting in a significant decrease in output characteristics [Kaneda 0050]. Determining the workable range by balancing the energy density and output characteristics would merely require routine experimentation. See MPEP 2144.05 II, routine optimization. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." Given the teachings of Kaneda, It would have been obvious to one of ordinary skill in the art before the effective filing date to determine the working range for the average particle diameter through routine experimentation and apply this teaching to Ying’s disclosure with the predictable result of a high performance battery [Ying abstract and throughout] with good energy density and output characteristics [Kaneda 0002, 0050]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results.
Regarding Claim 6 and Claim 17, modified Ying discloses a positive electrode active material for a lithium secondary battery, comprising: the lithium metal composite oxide powder according to Claim 1 (as referenced in Claim 6) and Claim 2 (as referenced in Claim 17) [Ying abstract and throughout].
Regarding Claim 12 and Claim 18, modified Ying discloses a lithium secondary battery positive electrode containing the lithium secondary battery positive electrode active material according to Claim 6 (as referenced in Claim 12) and Claim 17 (as referenced in Claim 18) [Ying p. 162, last paragraph of experimental section].
Regarding Claim 13 and Claim 19, modified Ying discloses a lithium secondary battery having the lithium secondary battery positive electrode according to claim 12 (as referenced in Claim 13 through Examiner’s edit) and claim 18 (as referenced in Claim 19) [Ying pp. 162-165, (The last paragraph of experimental section on p. 163 describes formation of battery using the electrode with the disclosed cathode active material, and results are presented on pp. 163-165.)].
Regarding Claim 20, modified Ying discloses the lithium metal composite oxide powder according to Claim 2, wherein X is one or more elements selected from the group consisting of Mn, Fe, Cu, Ti, Mg, Al, W, Mo, Nb, Zn, Sn, Zr, Ga, and V, or X is Co and one or more elements selected from the group consisting of Mn, Fe, Cu, Ti, Mg, Al, W, Mo, Nb, Zn, Sn, Zr, Ga, and V [As applied to claim 1, Kaneda teaches a layered rock salt structure for a positive electrode active material represented by the general formula Li1+uNixCoyAlzMtO 2 (where −0.03 ≦ u ≦ 0.10, x + y + z + t = 1, 0.65 <x ≦ 1.00, 0 ≦ y ≦ 0 .35, 0 ≦ z ≦ 0.10, 0 ≦ t ≦ 0.15, and M can contain Si) [Kaneda 0037 and throughout], and Si one of the M elements of claim 2. In Kaneda’s formula, Co and Al could be considered the claimed X is one or more elements selected from the group consisting of Mn, Fe, Cu, Ti, Mg, Al, W, Mo, Nb, Zn, Sn, Zr, Ga, and V, or X is Co and one or more elements selected from the group consisting of Mn, Fe, Cu, Ti, Mg, Al, W, Mo, Nb, Zn, Sn, Zr, Ga, and V. Therefore, the Kaneda’s lithium metal composite oxide formula overlaps and obviates the claimed composition. 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 be within the ambit of the skilled artisan to apply Kaneda’s teachings about a lithium nickel composite oxide which additionally include aluminum and cobalt to Ying’s teachings about lithium nickel cobalt oxide. It would have been obvious to one of ordinary skill in the art before the effective filing date to combine Kaneda’s teachings about the composition for a lithium metal composite oxide with the composition for a lithium metal composite oxide of Ying for the predictable result of a lithium composite oxide for a positive active layer material [Ying throughout, Kaneda throughout]. Further, the teachings of Kaneda would be considered an improvement for the lithium metal composite oxide of Ying since Kaneda teaches cobalt is expensive and has limited reserves [Kaneda 0005]; therefore, the use of more abundant aluminum with cobalt would be expected to reduce cost and additionally aluminum contributes to improving the thermal stability of the lithium metal composite oxide [Kaneda 0041]. See MPEP 2143 (A) Combining prior art elements according to known methods to yield predictable results; Use of known technique to improve similar devices (methods, or products) in the same way.
Response to Arguments
Applicant's arguments on pgs. 7-10 filed January 29, 2026 have been fully considered but they are not persuasive.
On pgs. 8-9, in summary, the Applicant traverses the Examiner’s rejection regarding the limitation of the ratio of the integrated peak intensities P(A)/P(B). The Examiner respectfully disagrees.
Specifically, on pg. 8, Applicant argues that peak A is derived from lithium in the lithium metal composite oxide whereas peak B is derived from a lithium compound present on particle surfaces of the lithium metal composite oxide powder. Applicant further argues that the exemplary lithium compounds include compounds in which lithium, element M, and oxygen are bound to one another, lithium carbonate, and lithium hydroxide and that P(A)/P(B) quantitatively defines the relationship between the lithium in the layered crystal lattice and lithium compounds on the particle surface. Firstly, In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., peak A is derived from lithium in the lithium metal composite oxide whereas peak B is derived from a lithium compound present on particle surfaces of the lithium metal composite oxide powder) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The argument is not commensurate in scope with the claims and is therefore unpersuasive.
Further on pg. 8, the Applicant summarizes Kaneda’s teachings of a binding energy peak around 53.8 eV associated the layered lithium nickel metal oxide and a peak around 55 eV associated with lithium carbonate, lithium hydroxide, and lithium oxide present on the surface of the lithium composite oxide [Kaneda 0055]. The Examiner relies upon the teachings of Kaneda combined with Han’s teachings as provided in the Office Action dated July 30, 2025 and above as evidence that the ratio P(A)/P(B) is a result effective variable and a workable range is determinable through routine optimization. As disclosed by Han, compounds lithium carbonate, lithium hydroxide, and lithium oxide would be considered impurities which suppress battery capacity [Han 0056] due to rapid differences in composition [Han 0061] destabilizing the structure of the lithium composite oxide [Han 0069] and resulting in battery defects [Han 0070]. Therefore, the skilled artisan would know to limit the level of impurities present. Further, the skilled artisan would know that some level of impurities will remain at the surface and further processing to remove the impurities is too costly or there is no additional battery performance benefit.
In the traversal, in summary, the Applicant argues that Kaneda merely describes the measurement technique and does not disclose the use as a design parameter or optimization of a design parameter and Han does not recognize any ratio between such peaks as affecting battery performance. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The Examiner provided in the recited Office Action, that the teachings of Kaneda and Han, as combined, evidence the technical explanation of the relevance of the claimed peaks around 53.8 eV and 55 eV. It would be within the ambit of the skilled artisan to consider the prior art of Kaneda, which teaches the 53.8 eV peak is associated with the layered rock salt structure and the 55 eV peak is associated with what would be lithium carbonate, lithium hydroxide, and lithium oxide on the surface of the positive electrode active material up to a depth of 10 nm [Kaneda 0055-0056], and combine this information with Han, which teaches suppressing the occurrence of impurities such as lithium hydroxide (LiOH), lithium carbonate (Li2CO3), etc. can increase the capacity of the battery, to understand that monitoring the ratio of the peak intensity of the would indicate the amount of impurity phase present and thus monitoring the ratio of the peak intensity would be a method for controlling the quality of the lithium metal oxide positive active material for a battery with the required performance. In other words, using Kaneda’s taught measurement technique and knowledge of the 53.8 eV peaks and the 55 eV peaks in lithium metal oxides with layered rock salt structures with Han’s teachings about limiting the impurity structures, which are associated with the 55 eV peak as taught by Kaneda, demonstrates that the ratio P(A)/P(B) would be a result effective variable where a workable range can be determined through routine optimization by balancing cost and performance in the composite oxide taught by Ying. Further, Ying, Kaneda, and Han would be considered analogous art as all teach lithium composite oxides throughout. Thus, the Office’s position that the limitation of P(A)/P(B) is a result effective variable is supported evidentially by the prior art and the workable range for P(A)/P(B) can be determined through routine optimization as described above. See MPEP 2144.05II,A. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Applicant’s arguments continue on pgs. 8-9 regarding distinction for the claimed P(A)/P(B) over the prior art of record. As the Examiner has indicated above, the arguments that “the lithium compound present on the surfaces includes not only impurities but also a coating material containing Li and element M” and “the present invention is premised on intentionally forming and controlling a surface lithium compound layer, not merely tolerating residual impurities” are incommensurate with the claimed invention. In fact, no claims reference the surface of the composite oxide or a coating on the surface.
Even further, Ying teaches all of the limitations of the lithium metal composite oxide powder having a layered crystal structure of claim 1, as provided in the recited Office Action and above, except for the requirement 1, which would be considered a property of the lithium metal composite oxide powder having a layered crystal structure. Per MPEP 2112.01 II, "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Thus, the claimed P(A)/P(B) ratio would be considered inherent in Ying’s lithium composite oxide. Even further yet, Ying teaches coating the surface of the lithium composite oxide with Li2O-2B2O3 [Ying p. 163 and throughout, last paragraph in introduction and throughout] and the benefits of such coating [Ying abstract and throughout] and Kaneda teaches a coating of additive M on the surface of the lithium composite oxide, which can be Si [Kaneda 0042-0044]; thus, evidence of obviousness over the prior art outweighs evidence of distinction of the claimed invention.
Regarding Applicant argument on pg. 9, that a parameter may be treated as a result-effective only when the prior art recognizes the parameter itself as affecting the result, the Examiner encourages the Applicant to review MPEP 2144.05II, B. “In order to properly support a rejection on the basis that an invention is the result of "routine optimization", the examiner must make findings of relevant facts, and present the underpinning reasoning in sufficient detail. The articulated rationale must include an explanation of why it would have been routine optimization to arrive at the claimed invention and why a person of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range.” As explained above, the Examiner has provided sufficient detail and evidence that the claimed ratio is a result-effective variable; thus the “routine optimization” rationale is legally and factually supported. For the reasons provided above, instant claim 1 lacks distinction over the prior art.
In an effort toward compact prosecution, the Examiner has referenced the specification for evidence of criticality of the claimed range. No evidence was found demonstrating criticality or unexpected results. If with future amendments, the Applicant provides evidence of criticality of the claimed range or unexpected results, the Examiner would consider such evidence and arguments if appropriate. For the requirements to support criticality of a claimed range or unexpected results, see MPEP 716 and most specifically 716.02.
For the reasons provided above, the previous rejections are maintained and a rejection for new claim 20 is provided over the prior art of record.
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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/M. T. LEONARD/Examiner, Art Unit 1724
/MIRIAM STAGG/Supervisory Patent Examiner, Art Unit 1724