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 .
Claim Status
Claims 1 and 12 have been amended. Claims 1-3 and 5-13 are currently pending.
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, 5-9 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Mizawa et al. (U.S. 20150221933) in view of Yoshida et al. (U.S. 20160322627) and Kang et al. (U.S. 20170317342).
With respect to claims 1-3, 5-9, and 11, Mizawa discloses a positive electrode active material ([0006]) comprising a lithium nickel cobalt manganese oxide (Table 1), wherein in the lithium nickel cobalt manganese oxide, the number of moles of nickel accounts for at least 50% (Table 1), thus falling into the claimed range of 50% to 95% of the total number of moles of nickel, cobalt, and manganese, and
the lithium nickel cobalt manganese oxide comprises a doping element, Mb, where Mb is Molybdenum (Mb) ([abstract], table 1, [0025]), wherein more than one doping element sources with Mb (second compound) are selected ([0059] describes several possible compounds that would have different valance states and explains compound 2 could be a mixture).
Mizawa does not disclose the space group of the positive electrode material is R3m, or anything about the material at a 78% delithiated state as limited by claims 1-3 or 8.
However, applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Claim 11, which has been withdrawn from consideration in this action, details the method for preparing the positive electrode material, including precursor materials and manufacturing parameters. The comparison between the composition and process of the prior art vs. the claimed invention is as follows:
Precursor materials
Instant application:
positive electrode active material - in the form of an oxide, hydroxide, or carbonate that contains Ni, Co, and Mn (claim 1)
lithium source ([00117]) - lithium carbonate (Li2CO3) ([0115])
doping precursor ([0022]) - Nb.sub.2O.sub.5 (claim 11)
Mizawa:
positive electrode active material - transition metal hydroxide or transition metal oxide particles ([0048]), specifically Ni.sub.0.5CO.sub.0.2Mn.sub.0.3(OH).sub.2 ([0073])
lithium source - Li.sub.2CO.sub.3 ([0073])
doping precursor - Nb.sub.2O.sub.5 ([0074]) (claim 5); oxidation state: +5 (claim 4)
Process
Instant application
Sintering @ 600 to 1000 ℃ ([00122])
Sintering in air atmosphere ([00122)
Mizawa:
Sintering (via calcination) at 400 to 1000 ℃ ([0032],[0057])
Sintering in air atmosphere ([0074])
As it is shown above that the material structure and process of forming the positive electrode active material are substantially identical, it follows that the resultant products would inherently possess the same properties. Therefore, it is obvious that R3m space group and any claimed properties at a 78% delithiated state of the active material of Mizawa would be inherently present, thus reading on claims 1-3 and 8.
This is also true for the relative deviation of a local mass concentration of the doping element in a particle of the positive electrode active material mas limited by claim 5, the true doping concentration of the positive electrode active material as limited by claim 6, the deviation of a mass concentration of the doping element in the positive electrode active material relative to an average mass concentration of the doping element in a particle of the positive electrode active material as limited by claim 7, and the true density of the positive electrode active material as limited by claim 9.
It is noted that the claim now limits the doping element to one of Cr, Se Mo, Ru, Rh. Pd, Sb, and Te, thus no longer containing niobium. However, the analysis to show process by which both positive electrode active materials are formed in order to show inherent properties still applies. Additionally, pending claim still cites niobium as a preferred doping element.
Additionally, with respects to the claimed properties at a 78% delithiated state, applicant is reminded that the manner of operating the device does not differentiate apparatus claim from the prior art. "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). As lithiation and delithiation are examples of charging and discharging, these states occur during the operation of the battery and does not structurally differentiate the claims over the prior art.
Mizawa discloses a positive electrode active material comprising a Li, Ni, Nb, O compound ([0026]), and a general formula for a lithium transition metal oxide comprising Ni, Co, and Mn as transitional metals present and then doped with Nb (Table 1), but does not disclose what the resultant lithium transition metal oxide formula would be once it includes the Nb.
Yoshida discloses a positive electrode active material ([0011]) and teaches the formula for the active material is Li.sub.aNi.sub.1-x-yCo.sub.xMn.sub.yM.sub.zO.sub.2 wherein 0.95≦a≦1.2, 0.10≦x≦0.35, 0≦y≦0.35, 0<z≦0.05, M is at least one element selected from a group consisting of Nb ([0018]), thus overlapping the first claimed chemical formula, as well as the chemical formula cited in claim 11 wherein M2 is also Nb. Yoshida further teaches that this active material has good low-temperature output power characteristics and a high discharge capacity ([0011]).
It would have been obvious to one having ordinary skill in the art at the time the application was effectively filed to ensure the Li-Ni-Nb-O compound disclosed by Mizawa was in the formula taught by Yoshida in order to provide an active material that as good low-temperature output power characteristics and a high discharge capacity.
Modified Mizawa does not disclose that the doping element is one or more of Si, V, Cr, Ge, Se, Ru, Rh, Pd, Sb, Te, and Ce, but does disclose the doping element is Niobium, which was part of applicant’s preferred elements until the amendment.
Kang discloses an active material for a positive electrode including a lithium transition metal oxide comprising nickel ([0056]) and teaches that a doping element may be present in the form of vanadium (vanadium oxide as the precursor) or niobium ([0070]). Kang further teaches that the doping element can help improve structural stability of the active material ([0033]).
It would have been obvious to one having ordinary skill in the art at the time that the application was effectively filed that vanadium could substitute for niobium as taught by Kang in the active material disclosed by modified Mizawa in order to improve the structural stability of the active material.
With respect to claim 12, Mizawa discloses a lithium-ion secondary battery ([abstract]) and teaches the battery comprises a positive electrode plate comprising the positive electrode active material according to claim 1 ([0081], see above rejection of claim 1).
With respect to claim 13, Mizawa discloses an apparatus (vehicle) ([0002]) comprising at least one secondary battery (abstract]), wherein the lithium-ion secondary battery comprise the positive electrode active material according to claim 1 (see above rejection of claim 1).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Mizawa in view of Yoshida and Kang as applied to claim 1 above, and further in view of Suhara et al. (U.S. 20050220700).
With respect to claim 10, Mizawa discloses the positive electrode active material (see rejection of claim 1), but does not disclose one of the following: the volume average particle size, the specific surface area, the tap density of the positive electrode active material, or the compacted density of the positive electrode active material.
Suhara discloses a lithium transition metal oxide active material formed by an agglomeration of primary particles for a positive electrode active material ([0028]) and teaches the resultant volume average particle size of the positive electrode active material is 5 to 12 micrometers ([0028]), thus being encompassed by the claimed range of 5 to 20 micrometers. Suhara further teaches that this range ensures a dense electrode layer without comprising large current discharge properties ([0028]).
It would have been obvious to one having ordinary skill in the art at the time the application was effectively filed to ensure the volume average particle diameter of the positive electrode active material disclosed by Mizawa was in the range taught by Suhara in order to produce a positive electrode with a dense electrode layer without comprising large current discharge properties.
Response to Arguments
Applicant's arguments filed 07/02/2026 have been fully considered but they are not persuasive.
Applicant’s arguments are premised on the assertion that with the addition of the limitation that explains that the process of creating the desired active material includes using two sources of the doping element with different valances, it differentiates it from the prior art of Mizawa. However, Mizawa clearly states the source of the doping element, referenced as the “second compound,” can be a mixture of several different compounds, including oxides, lithium/sodium/potassium/barium/calcium/etc. transition metal oxides, fluorides, chlorides, bromides, etc., thus clearly teaching two source materials with different valances for the doping element. As several of the limitation within the application refer more to the method in which the active material is made in which to achieve the valence states at the claimed delithiated state, process claims would likely increase patentability to these limitations.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/J.E.B./Examiner, Art Unit 1727
/BARBARA L GILLIAM/Supervisory Patent Examiner, Art Unit 1727
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