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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/21/2026 has been entered.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 8 of U.S. Patent No. 11196092 B2 (herein referred to as ‘092). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, both the instant application and claim 1 of ‘092 claim a battery, comprising at least: a first electrode; a second electrode; an electrolyte interposed between the first electrode and the second electrode; and at least one acoustic device configured to generate acoustic streaming during a charging and/or a discharging of the battery, the charging of the battery triggering cations from the first electrode to travel through the electrolyte and deposit on the second electrode, the acoustic streaming driving a mixing and/or a turbulent flow of the electrolyte, and the mixing and/or the turbulent flow further preventing a formation of dendrites on the second electrode by at least homogenizing a distribution of the cations in the electrolyte.
Minor differences, ‘092 includes claim language on the frequency corresponding to a viscosity of the electrolyte and the instant specification has mentions of a second electrode and an increase in charging rate.
‘092 claim limitations are explicitly silent to the battery management system (“electrical driving unit”) configured to control an amplitude and/or frequency of an electrical input signal for driving the at least one acoustic device. A case enclosing the electrodes and electrolyte. The acoustic device positioned outside the case
However, as discussed in the rejection of claim 1 below, Hirayama (US4939402A) teaches the deficiency of the “electrical driving unit” is obvious. See the rejection of claim 1 for additional details.
However, ’092 discloses the use of a casing (232) to enclose the electrodes and electrolyte [0053-0054, fig. 2A]. One of ordinary skill in the art would find it obvious to include a case in order to enclose the electrodes and electrolyte [0053-0054, fig. 2A]
As discussed in the rejection of claim 1 below, Deveau (US20130302655A1) teaches the deficiencies of the acoustic device on the outside of the case is obvious. See the rejection of claim 1 for additional details.
Regarding claim 23, both the instant application and claim 8 of ‘092 both claim the battery wherein the at least one acoustic device is configured to generate a plurality of acoustic waves having a frequency corresponding to an attenuation length of the plurality of acoustic waves, and wherein the attenuation length corresponds to a first length of the first electrode, a second length of the second electrode, and/or a distance between the first electrode and the second electrode.
Minor differences, the instant specification uses additional words compared to ‘092, however, both cover the same material
Claims 1-3, 6, 18, 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 8 of U.S. Patent No. 11705586 B2 (herein referred to as ‘586). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1 and 18, ‘586 (claim 1) claims a battery with a first and second electrode with an electrolyte interposed between the electrodes along with an acoustic wave device to generate a plurality of acoustic waves during a charging of the battery and the least one acoustic wave device comprising a transducer deposited on a substrate, the transducer responding to an electrical input signal by at least applying tension and compression within and/or upon the substrate, the substrate responding to the tension and the compression by at least oscillating to generate the plurality of acoustic waves, the charging of the battery triggering cations from the first electrode to travel through the electrolyte and deposit on the second electrode, the plurality of acoustic waves agitating the electrolyte to at least homogenize a distribution of cations in the electrolyte, and the homogenization preventing a formation of dendrites on the second electrode by at least increasing a uniformity of the deposit of cations on the second electrode.
Minor difference include: the deposition of ions on the electrodes
‘092 is explicitly silent to the battery management system (“electrical driving unit”) configured to control an amplitude and/or frequency of an electrical input signal for driving the at least one acoustic device. A case enclosing the electrodes and electrolyte. The acoustic device positioned outside the case
However, as discussed in the rejection of claim 1 below, Hirayama (US4939402A) teaches the deficiency of the “electrical driving unit” is obvious. See the rejection of claim 1 for additional details.
However, ’092 discloses the use of a casing (232) to enclose the electrodes and electrolyte [0053-0054, fig. 2A]. One of ordinary skill within the arts would find it obvious to include a case in order to enclose the electrodes and electrolyte [0053-0054, fig. 2A]
As discussed in the rejection of claim 1 below, Deveau (US20130302655A1) teaches the deficiencies of the acoustic device on the outside of the case is obvious. See the rejection of claim 1 for additional details.
Regarding claim 2, ‘586 (claim 2) claims an acoustic streaming with the electrolyte wherein the device agitates the electrolyte to homogenize the distribution of cations
Minor differences include the formation of dendrites
Regarding claim 3, ‘586 (claim 3) claims an acoustic device where the homogenization decreases a concentration gradient of the cations in the electrolyte and increases uniformity
Minor differences include the formation of dendrites
Regarding claim 6, ‘586 (claim 10) both disclose an electrolyte claiming a gas or liquid
Minor differences, the instant application expands on the liquid electrolytes
Regarding claim 23, ‘586 (claim 15) claims the frequency of acoustic waves corresponding to an attenuation length of the plurality of acoustic waves, and wherein the attenuation length corresponds to one or more dimensions of the battery, the first electrode, and/or the second electrode.
Minor difference include a difference in language used to describe dimensions of the battery and electrodes
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 18 and 19 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 7 and 2 of prior U.S. Patent No. 11196092 B2. This is a statutory double patenting rejection.
Regarding claim 18, ‘092 claims the same acoustic wave device comprising a transducer responding to an input signal.
Regarding claim 19, ‘092 claims the same waves
Claims 19, 21 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 13, 4, and 14 of prior U.S. Patent No. 11705586 B2. This is a statutory double patenting rejection.
Regarding claim 19, ‘586 discloses the plurality of acoustic waves comprises surface acoustic waves, Lamb waves, flexural waves, thickness mode vibrations, mixed-mode waves, longitudinal waves, shear mode vibrations, and/or bulk wave vibrations.
Regarding claim 21, ‘586 discloses the substrate is formed from at least a piezoelectric material.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-4, 6, 8, 13, 18-21, 23, 25, 31-32 and 34-35 is/are rejected under 35 U.S.C. 103(a)(1) as being unpatentable over Friend (WO2018049178A1) and in view of Hirayama (US4939402A) and Deveau (US20130302655A1).
Regarding claim 1, Friend discloses a battery, comprising at least [abstract, Friend]: a first electrode [abstract, Friend]; a second electrode [abstract, Friend]; an electrolyte interposed between the first electrode and the second electrode [abstract, Friend]; a case, enclosing the first electrode, the second electrode, and the electrolyte [0053-0054, fig. 2A, Friend], and at least one acoustic device [abstract, Friend], wherein the at least one acoustic device is operably coupled to an electrical driving unit [0042-0045, Friend discloses a battery management system (equivalent to “electrical driving unit”) which may control the state of the battery and may control the operations of the acoustic wave device], to generate acoustic streaming during a charging and/or a discharging of the battery[abstract, 0017 Friend], the charging of the battery triggering cations from the first electrode to travel through the electrolyte and deposit on the second electrode [abstracta, 0018, 0073 Friend], the discharging of the battery triggering cations from the second electrode to travel through the electrolyte and deposit on the first electrode [0073, Friend], the acoustic streaming driving a mixing and/or a turbulent flow of the electrolyte [0004-0005, 0018, 0037, 0049 , Friend], the mixing and/or the turbulent flow of the electrolyte (i) increasing a charge rate and/or a discharge rate of the battery by at least increasing a diffusion rate of cations and/or anions [0058-0062, fig. 3b, 3c, Friend], and (ii) preventing a formation of dendrites on the first electrode and/or the second electrode by at least homogenizing a distribution of the cations and/or anions in the electrolyte [0004, 0015, 0030, 0037, 0065, fig. 4, 6a].
Friend is explicitly silent to 1) the battery management system (“electrical driving unit”) configured to control an amplitude and/or frequency of an electrical input signal for driving the at least one acoustic device. 2) the acoustic device positioned outside the case.
In regards to 1), Hirayama discloses a single transistor type driving circuit (equivalent to driving unit) for a piezoelectric vibrator (equivalent to “acoustic device”) [abstract, Hirayama]. The driving circuit includes a transistor driving means for applying a driving current so that a switching transistor may alternately be turned on and off to drive the vibrating means [col 3 line 48-60, Hirayama]. The frequency of the driving current is controlled such that the vibrating frequency is identical with the resonating frequency of the piezoelectric vibrating means [col 4 line 1-21, Hirayama]. The examiner also notes in the background section Hirayama discloses that a single transistor type piezoelectric vibrator may include an A-class amplifier, an oscillator, and a switching circuit [col 1 line 32-37, Hirayama].
Hirayama’s description of a single transistor type driving circuit for a piezoelectric vibrator reads on the applicants claim limitation of an electrical driving unit being configured to control an amplitude and/or frequency of an electrical input signal for driving at least one acoustic device.
The works of Friend and Hirayama are analogous as both teach of an “acoustic device”. The examiner notes that a piezoelectric device, such as a piezoelectric vibrator, are devices that can transform electrical energy into mechanical vibrations, a common example of which is a speaker (“acoustic device”). One of ordinary skill within the arts would appreciate that the “acoustic device” of Friend can be improved upon by the teachings of Hirayama's piezoelectric device.
Prior to the effective filing date, one ordinary skill within the arts would find it obvious to modify Friend such that they utilized the driving circuit for a piezoelectric vibrator disclosed by Hirayama. Doing so would allow for one to have a driving circuit (“driving unit”) that may be precisely and accurately controlled to achieve high efficiency and stability [col 3 line 37-44, Hirayama].
In regards to 2) Deveau teaches of an ultrasonic electrolyte sensor (10, “acoustic device”) used to transmit an ultrasonic signal into an interior are of the battery cell [0010, 0021, Deveau]. The ultrasonic device (10) may be mounted to the outer case of the battery cell [0024, fig. 2, Deveau].
Prior to the effective filing date, one of ordinary skill within the arts would appreciate that “acoustic waves” (Friend) and “ultrasonic signal” or “ultrasonic wave” (Deveau) are analogous types of waves as each is a mechanical sound waves.
Prior to the effective filing date, one of ordinary skill within the arts would find it obvious to modify Friend such that the acoustic device was mounted to the outer surface of the battery case as this is a known place for an acoustic device to be mounted to a battery case [0024, fig. 2, Deveau].
Regarding claim 2, modified Friend discloses the battery, wherein the homogenization prevents the formation of dendrites by at least decreasing a concentration gradient of the cations and/or anions in the electrolyte [0004-0005, 0018, 0037, 0046, Friend].
Regarding claim 3, modified Friend discloses the battery, wherein the homogenization prevents the formation of dendrites by at least increasing a uniformity of the distribution of the cations and anions in the electrolyte [0004-0005, 0018, 0037, 0046, Friend].
Regarding claim 4, modified Friend discloses the battery, wherein the homogenization prevents the formation of dendrites by at least increasing a uniformity of the deposit of cations on the first electrode and/or the second electrode [0004-0005, 0018, 0037, 0046, Friend].
Regarding claim 6, modified Friend discloses the battery, wherein the electrolyte comprises one or more of a liquid electrolyte, a polymer-based electrolyte, an organic electrolyte, a solid electrolyte, a non-aqueous organic solvent electrolyte, and a gas electrolyte [0010, 0014, Friend].
Regarding claim 8, modified Friend discloses the battery, wherein the first electrode comprises an anode of the battery [0037-0038, Friend], wherein the anode of the battery is formed from (i) an intercalated material comprising at least one of a graphite, or graphene [0010, 0038, Friend] and (ii) an alloy comprising at least one of a silicon (Si), [0010, 0038, Friend].
Regarding claim 13, modified Friend discloses the battery, wherein the second electrode comprises a cathode of the battery [0038, Friend], wherein the cathode of the battery comprises one or more of a metal electrode [0038, Friend], a metal-ion electrode [0038, Friend], an intercalation type electrode [0038, Friend], an alloy type electrode [0038, Friend], or an air electrode [0038, Friend].
Regarding claim 18, modified Friend discloses the battery, wherein the at least one acoustic device comprises a transducer deposited on a substrate [0011, Friend], wherein the transducer is configured to respond to the electrical input signal by at least applying tension and compression within and/or upon the substrate [0011, Friend], and wherein the substrate responds to the tension and the compression by at least oscillating to generate a plurality of acoustic waves [0011, Friend].
Regarding claim 19, modified Friend discloses the battery, wherein the plurality of acoustic waves include surface acoustic waves, Lamb waves, flexural waves, thickness mode vibrations, mixed-mode waves, longitudinal waves, shear mode vibrations, and/or bulk wave vibrations [0047, Friend].
Regarding claim 20, modified Friend discloses the battery, wherein the transducer comprises one or more pairs of interdigital transducers, a layer of conductive material, and/or one or more contact pins [0011, Friend].
Regarding claim 21, modified Friend discloses the battery, wherein the substrate is formed from at least a piezoelectric material [0011, Friend].
Regarding claim 23, modified Friend discloses the battery, wherein the at least one acoustic device is configured to generate a plurality of acoustic waves having a frequency corresponding to an attenuation length of the plurality of acoustic waves [0012, 0050-0051, Friend], and wherein the attenuation length corresponds to a first length of the first electrode [0012, 0050-0051, Friend], a second length of the second electrode [0012, 0050-0051, Friend], and/or a distance between the first electrode and the second electrode [0012, 0050-0051, Friend].
Regarding claim 25, modified Friend discloses the battery, wherein the battery comprises a coin cell, a pouch cell, or a cylindrical cell [0005, 0052, Friend].
Regarding claim 31, modified Friend discloses the battery, wherein the electrical driving unit comprises a phase-locked loop (PLL) configured to control the frequency of the electrical input signal [col 5 line 55 – col 6 line 25, fig. 4, Hirayama].
Regarding claim 32, modified Friend discloses the battery, wherein the electrical driving unit comprises an amplification block configured to control the amplitude of the electrical input signal [col 1 line 35-37, Hirayama].
The examiner notes that Hirayama discloses a single transistor type driving circuit [abstract, Hirayama] with an oscillator [col 4 lines 47-col 5 line 5, Hirayama] and a switching transistor [col 3 line 48 – col 4 line 21, Hirayama]. In their background section, Hirayama discloses that known piezoelectric vibrators includes single transistor types such as A-class amplifier, an oscillator, and a switching circuit [col 1 line 32-37, Hirayama].
While Hirayama does not explicitly disclose the use of an amplifier in their preferred embodiment their disclosure of it in the background section reads on the applicants claimed limitation of “an amplification block configured to control the amplitude of the electrical input signal”.
Regarding claim 34, modified Friend discloses the battery, wherein the electrical driving unit comprises a phase comparator (8, equivalent to “current sensor”) configured to detect an optimal resonance frequency [col 4, line 67 – col 6 line 25, fig. 1-4 Hirayama discloses the use of a phase comparator which reads a time P and P’ (fig 2 and 3) and does a phase comparison. If P and P’ are in coincidence the driving frequency is maintained. Otherwise, if they are not then either one is altered. “The timings P and P' coincide each other when the driving frequency coincides with the resonating frequency of the piezoelectric vibrator”, col 5 line 37-40. The examiner is interpreting this to mean that they are running at an “optimal resonance frequency”].
Regarding claim 35, modified Friend discloses the battery, wherein the least one acoustic device is connected to the case using one or more coupling agents configured to couple surface acoustic waves into the case [0024, fig. 2, Deveau], and configured to transmit acoustic energy via an acoustic streaming through the battery casing into the electrolyte [0010-0012, Deveau].
Claim 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Friend as applied to claim 1 above, and further in view of Hammerschmied (US 20190237817 A1).
Regarding claim 33, Modified Friend is silent to the use of a thermistor in the electrical driving unit.
However, Hammerschmied discloses a protector circuit module (130) connected to a battery cell and a temperature sensing element (150) [0029, Hammerschmied]. Wherein the temperature sensing elements either a negative or positive characteristic thermistor configured to monitor a temperature of the battery [0039, Hammerschmied].
Prior to the effective filing date, one of ordinary skill within the arts would find it obvious to modify Friend such that the electrical driving unit contained a thermistor as this can be used to control the resistance of the battery during charging and discharging as temperatures either increase or decrease [0039, Hammerschmied].
Claim 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Friend as applied to claim 1 above, and further in view of Ahuja (US5932991A) and as evidenced by Ultrasound Gel.
Regarding claim 36, Ahuja is silent to the coupling agent comprising an ultrasound gel or a polymer layer configured to impedance-match the acoustic device to the case.
However, Ahuja teaches of a system for enhancing the charging of a battery by exposing the battery to acoustic excitation [abstract, Ahuja]. Wherein the “acoustic device” (21-28, fig. 8; 32, fig. 9) may be located outside of the battery [fig. 8-9, Ahuja]. Ahuja notes that the contacting surfaces may be coupled together with a commercially available coupling gel (34) of a type of commonly used in medical ultrasound imaging (“ultrasound gel”) [col. 5 line 50-60, Ahuja].
Prior to the effective filing date, one of ordinary skill within the arts would find it obvious to modify Friend such that an ultrasound gel was used as a coupling gel to help could the acoustic device to the battery case. Doing so would all for an increase in electrical and acoustical conductivity [col. 5 line 55-60, Ahuja].
The examiner notes that the coupling gel used in medical ultrasound imaging to increase electrical and acoustical conductivity reads on an “ultrasound gel or polymer layer configured to impedance-match the acoustic device to the case”. It is well known that coupling gel used in medical ultrasound imaging “ultrasound gel” is a material used to improve the imaging of ultrasound imaging by eliminating air that would otherwise reflect the sound waves. See attached Ultrasound Gel for a quick summation of how it works to reduce impedance (reflection) of sound (acoustic) waves.
Response to Arguments
Applicant's arguments filed 01/21/2026 have been fully considered but they are not persuasive. See below for more details.
The examiner respectfully disagrees with the applicant’s argument that the double patenting rejection is premature. In an effort to expedite prosecution the examiner has presented the double patenting rejection so that applicant may be aware of it as soon as possible. This provides applicant with the opportunity to address the double patenting prior to any possible allowance being issued. The rejection is maintained.
Applicant may overcome the double patenting rejection by A) filing a terminal disclaimer or B) amend the claims such that they are patentably distinct and non-obvious variants of the earlier claims.
Next applicant argues allowability based off of the amendment to claim 1 in which the acoustic device is located on the outside of the battery case. Applicant alleges this amendment overcomes Friend. However, the examiner notes that Friend teaches that the orientation, location, number, and/or operation frequency of the acoustic wave device may be adjusted in order to effectively agitate the electrolyte over the battery [0056, Friend]. Furthermore, the examiner has introduced Deveau which teaches of an acoustic device on the outer surface of a battery case.
Next applicant argues the benefits/criticality of placing the acoustic device outside of the case. But the examiner does not find this to be persuasive for allowability for the following two reasons:
Applicant is arguing the specification and these limitations do not appear in the claimed limitations.
"Though understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.", see MPEP 2111.01.II
"Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims.", see MPEP 2145.VI.
The data presented by the applicant to show the superiority of the acoustic device being placed externally vs internally is (presently) not persuasive.
Applicant points to figures 13A and 13B of the instant application to show the differences between an acoustic device being placed externally vs internally. Applicant argues that fig. 13A shows the capacity drop (17%) for the acoustic device being placed externally on the battery case while 13B shows the capacity drop (20%) for the acoustic device being placed internally on the battery case.
The examiner does not find this to be persuasive for the following reasons:
Applicant argues that when the acoustic device is externally placed on the battery cell, “it appear” that the capacity drop is from 140-116 Wh/kg (fig. 13A) and that the capacity drop for the acoustic device being internally placed is 0.9-0.7Ah. The examiner notes that the highest point in fig. 13A is ~145 Wh/kg not 140 Wh/kg as noted by the applicant. See below for reproduced figure 13A. As such, the capacity drop ranges from a maximum of 145 Wh/kg to an alleged 116 Wh/kg (the examiner agrees that this “appears” to be accurate) over 100 cycles. The examiner notes that this is a drop of 20% which is the same as the alleged 20% capacity drop for the internal acoustic device. Next the examiner is not (presently) persuaded that the capacity drop for the internal acoustic device is from 0.9 Ah to 0.7 Ah. When reviewing fig. 13b of the instant application the examiner noted that it appears the capacity drop of the internal acoustic device is ~0.86 Ah to ~0.74 Ah. Which is capacity drop of less than 20%, see below for reproduced fig. 13B.
For both the analysis of both graphs the examiner is considering the center of the data point when noting the capacity.
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584
838
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Annotated figure 13A, instant application
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612
431
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Annotated figure 13B, instant application
Finally the applicant argues the following:
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398
720
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The examiner notes that the applicant is arguing the specification and importing limitations from the specification.
"Though understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.", see MPEP 2111.01.II
"Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims.", see MPEP 2145.VI.
The examiner maintains their rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. CN109037629A Wu discloses the use of an electrode a conversion material including a copper peroxide (CuO2).
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/QUINTIN D. ELLIOTT/Examiner, Art Unit 1724 /MIRIAM STAGG/Supervisory Patent Examiner, Art Unit 1724