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 .
Remarks
All claims are as previously presented. Claims 1 and 3-9 are presently presented.
Status of Objections and Rejection
The rejection is as previously presented.
Claim Interpretation
As stated by the applicant the word “about” can include a standard deviation of up to ±30%, see office action filed 06/10/2025 for additional details and supported by the original filed specification.
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.
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, 3, and 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jo (US 20180241036 A1) and in view of Noh (US 20210359293 A1).
Regarding claim 1, Jo discloses a positive active material for a rechargeable lithium battery [0013, Jo], the positive active material comprising: a first positive active material that comprises a lithium nickel-based composite oxide having a nickel content of greater than or equal to 80 mol% based on a total amount of metals excluding lithium [0013, table 1, Jo’s disclosed range reads on the applicant’s claimed range of about 90%], and wherein the secondary particles have a particle diameter of more than 8 µm and 20 µm or less [0023, Jo’s disclosed range overlaps the applicant’s claimed range of 10-25 µm]; and a second positive active material that comprises a lithium nickel-based composite oxide having a nickel content of greater than or equal to 80 mol% based on a total amount of metals excluding lithium [0013, table 1, Jo’s disclosed range reads on the applicant’s claimed range of about 90%], and wherein the secondary particles have a particle diameter of 8 µm or less [0023, Jo’s disclosed range overlaps the applicant’s claimed range of 1-9 µm].
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim (see MPEP 2144.05).
In the interest of compact prosecution, the examiner notes that example 4 anticipates the applicant’s claimed ranges with a lithium nickel-based oxide with a nickel concentration of 90% and a first active material of 18 µm and a second active material of 7 µm [table 1 example 4, Jo].
Jo additionally discloses that the positive electrode active material may have a core-shell double layer structure where the core and shell are different transition metal oxide compositions [0008, Jo]. However, Jo is explicitly silent to 1) the positive active materials comprising secondary particles in which a plurality of primary particles are aggregated. 2) a cobalt coating layer on the first and second active material.
Noh teaches of a core LNMC positive active material (60) with a nickel content greater than or equal to about 90% [0049-0052, table 1, Noh]. Wherein the active material may be comprised of secondary particles (D50: 3-25 µm) formed by aggregation of primary particles [0048, Noh]. The positive active material may contain a coating shell (70) with a cobalt concentration of 1.4-6 times greater than the concentration of cobalt in the core (60) [0062-0065, 0087, table 1, Noh]. The shell part may also contain a concentration gradient where the concentration of cobalt increase towards the furthest edge of the shell layer [0023, 0075-0076, Noh]. Explicit examples of preferred embodiments disclosed by Noh include cobalt coating material layer where in the cobalt concentration (“atomic %) compared to a total amount of transition metals excluding lithium include: 8%, 13%, 15%, 25%, and 30% [table 1, Noh].
Prior to the effective filing date, one of ordinary skill within the arts would find it obvious to modify Oh such that 1) their first and second active material was secondary particles comprised of aggregation of primary particles. As this is a known method for forming secondary particles [0048, Noh]. 2) the first and second active material layer comprised a cobalt coating layer containing a cobalt concentration (“atomic %) of 30% as disclosed by Noh. Doing so may provide an active material with desirable efficient, charge and discharge rates, and capacity retention [table 1, Noh].
The examiner notes that in the modification above both the first and second active material have a cobalt coating layer with a cobalt concentration of 30% based on the total amount of transition metals. As such this creates a first positive active material with a “ratio (X/Y) of a cobalt atomic content (X) based on a total amount of transition metals excluding lithium on the surface of the secondary particle of the first positive active material to a cobalt atomic content (Y) based on a total amount of transition metals excluding lithium on the surface of the secondary particle of the second positive active material is about 1.01 to about 10. The cobalt atomic content (X) based on the total amount of transition metals excluding lithium on the surface of the secondary particle of the first positive active material is about 25 atomic% to about 60 atomic%, and wherein the cobalt atomic content (Y) based on the total amount of transition metals excluding lithium on the surface of the secondary particle of the second positive active material is about 15 atomic% to about 45 atomic%.”
The examiner notes that the BRI of “about” includes a deviation of ±30%, therefore the applicant’s range includes points between 0.7-13. In the present modification X and Y are both 30% and the ratio of X/Y = 1, which reads on the applicant’s claimed range for X, Y, and X/Y.
Regarding claim 3, Oh as modified above discloses a positive active material, wherein on an entire surface of the positive active material comprising the first positive active material and the second positive active material, a cobalt content based on the total amount of transition metals excluding lithium is about 20 atomic% to about 55 atomic% [0062-0065, 0087, table 1, Noh].
The examiner notes that in the present modification the cobalt content based on the total amount of transition metals excluding lithium is 30%.
Regarding claim 8, Oh as modified above discloses a rechargeable lithium battery, wherein the first positive active material to the second positive active material has a weight ratio of 8:2 is comprised in an amount of about 50 wt% to 90 wt% and the second positive active material is comprised in an amount of about 10 wt% to about 50 wt% based on a total amount of the first positive active material and the second positive active material [0115-0118, Oh’s disclosed weight ratio of the first to second active material anticipates the applicant’s claimed range the first positive active material being 50 wt% to 90 wt% and the second positive active material is comprised in an amount of about 10 wt% to about 50 wt% based on a total amount of the first positive active material and the second positive active material].
Regarding claim 9, Oh as modified above discloses a rechargeable lithium battery comprising a positive electrode comprising the positive active material, a negative electrode [0031, Oh], and an electrolyte [0031, Oh].
Claim(s) 4 -7 is rejected under 35 U.S.C. 103 as being unpatentable over modified Oh as applied to claim 1 above, and further in view of Cho (KR10-1810574B1).
Regarding claim 4, Modified Oh is silent to the ratio of the cobalt coating material in the primary and the secondary particles.
However, Cho discloses a positive active material, wherein in the first positive active material, the cobalt coating layer on the surface of the secondary particle is a first coating portion, wherein the first positive active material further comprises a second coating portion that is a cobalt coating layer on the surface of the primary particles in an inner portion of the secondary particles, and wherein a ratio (C1/(C1+D1)) of a cobalt content (C1) of the first coating portion to a sum of the cobalt content (C1) of the first coating portion and a cobalt content (D1) of the second coating portion is about 0.20 to about 0.49 ([0014-0025], Cho discloses that with respect to 100 wt% of the total positive electrode active material, the secondary particles may be included in an amount of 98 to 99.5 wt%. The first coating film (the film covering the primary particles [0014, Cho]) may be included in an amount of 0.5 to 2 wt% and the second coating (the film covering the surface of the secondary particles [0019, Cho]) may be included as the remainder [0025, Cho]. As such, Cho discloses a coated positive electrode active material in which the ratio of the coating on the surface of the secondary particles (C1) to the sum of the coating on the secondary particles (C1) and primary particles (D1) overlaps with the applicant’s disclosed range of 0.2 ≤ (C1/(C1+D1)) ≤ 0.49, see MPEP 2144.05.
Prior to the effective filing date, one of ordinary skill within the arts would be motivated to further modify Oh, to include the cobalt coating ratios disclosed by Cho as the ratio of the cobalt content on the surface of the primary and secondary particles is a matter of routine optimization, barring any criticality or unexpected results, see MPEP 2144.05.II). Furthermore, the ratios disclosed by the applicant would be “obvious to try” and would yield a finite number of predictable results (see MPEP 2143.I.E). By either having the cobalt coating layer of the two particles be the same, incorporating more cobalt onto the primary particles than the secondary particles, or incorporating more cobalt onto the secondary particles than the primary particles. By incorporating a cobalt coating layer into the nickel based electrode active material, one could improve the conductivity of lithium ions and improve thermal stability of the of the lithium battery [0032, Hong].
Regarding claim 5, Modified Oh discloses the positive active material, wherein the second coating portion has a thickness of about 5 nm to about 20 nm [0079, Cho’s range anticipate the applicant’s claimed range of 5-250 nm].
Regarding claim 6, Modified Oh above is silent to the ratio of the cobalt coating material in the primary and the secondary particles.
However, Cho discloses a positive active material, wherein the cobalt coating layer on the surface of the secondary particle is a first coating portion, wherein the second positive active material further comprises a second coating portion that is a cobalt coating layer on the surface of the primary particles in an inner portion of the secondary particles, and wherein a ratio (C2/(C2+D2)) of a cobalt content (C2) of the first coating portion to a sum of the cobalt content (C2) of the first coating portion and a cobalt content (D2) of the second coating portion is about 0.20 to about 0.49 ([0014-0025], Cho discloses that with respect to 100 wt% of the total positive electrode active material, the secondary particles may be included in an amount of 98 to 99.5 wt%. The first coating film (the film covering the primary particles [0014, Cho]) may be included in an amount of 0.5 to 2 wt% and the second coating (the film covering the surface of the secondary particles [0019, Cho]) may be included as the remainder [0025, Cho]. As such, Cho discloses a coated positive electrode active material in which the ratio of the coating on the surface of the secondary particles (C2) to the sum of the coating on the secondary particles (C2) and primary particles (D2) overlaps with the applicant’s disclosed range of 0.2 ≤ (C2/(C2+D2)) ≤ 0.49, see MPEP 2144.05.
Prior to the effective filing date, one of ordinary skill within the arts would be motivated to further modify Oh to include the cobalt coating ratios disclosed by Cho as the ratio of the cobalt content on the surface of the primary and secondary particles is a matter of routine optimization, barring any criticality or unexpected results, see MPEP 2144.05.II). Furthermore, the ratios disclosed by the applicant would be “obvious to try” and would yield a finite number of predictable results (see MPEP 2143.I.E). By either having the cobalt coating layer of the two particles be the same, incorporating more cobalt onto the primary particles than the secondary particles, or incorporating more cobalt onto the secondary particles than the primary particles. By incorporating a cobalt coating layer into the nickel based electrode active material, one could improve the conductivity of lithium ions and improve thermal stability of the of the lithium battery [0032, Hong].
Regarding claim 7, Oh as modified above teaches wherein the second coating portion has a thickness of about 1 nm to about 250 nm [0079, Cho’s range anticipate the applicant’s claimed range of 1-250 nm].
Response to Arguments
Applicant's arguments filed 30/20/26/08/2025 have been fully considered but they are not persuasive. See below for additional details.
In regards to the use of “about” in the claimed limitation the examiner has reproduced the applicant’s arguments in regards to the use of the limitation “about” as noted in their filed (04/28/25) remarks made in response to the office action filed on 01/29/2025. In response to the claimed rejection under 35. U.S.C. § 112 applicant states the following:
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In response to this the examiner has noted in every sequential office action that the use of the word “about” is to be taken in context with as it is used in the specification. In their remarks and in the specification the applicant repeatedly notes that about can include a standard deviation of up to ±30%. The applicant additionally notes that “about” is used as inclusive of the stated value and means within an acceptable range of deviation. As such, the examiner maintains their use of “about” including a deviation of up to ±30% as this is in line with what the applicant has presented in their instant specificaiton and it is in line with how the applicant has argued the limitation of “about” should be included.
With the use of the word “about” being clarified above the examiner now address each of the applicant’s arguments in turn.
First, applicant argues:
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The examiner does not find this persuasive as what is claimed is a range of about “about 1.01 to about 10” and not the argued range of 1.01 to 10. As such a ratio of exactly 1 falls inside the claimed range of “about 1.01 to about 10”
Secondly, applicant argues:
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Again, the examiner maintains that their interpretation of “about” is inline with the instant specification and prior applicant arguments. Applicant’s argument is not commensurate with the scope of the claim.
Thirdly, applicant argues:
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The examiner respectfully disagrees with this as a person of ordinary skill within the arts would conclude that 1.00 is about 1.01 as they differ by only 0.01.
Next, applicant argues the following
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The examiner finds this to be unpersuasive as one can make a batch of large particles, a batch of small particles, and then mix the two together.
Next applicant argues
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The examiner notes that the uniformity of the coating layer is not claimed.
"Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims.", see MPEP 2145.VI.
"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
Because this feature is not claimed, the examiner does not find arguments pertaining the uniformity of the coating layer to be persuasive.
Applicant then argues:
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As noted above what is claimed is “about 90%” and the 80 mol% argued by the applicant is therefore “about 90%”. Furthermore, uniformity in the coating layer is not claimed. For these reasons the examiner does not find the applicant’s arguments to be persuasive as they do not overcome the motivation presented by the examiner as outlined in the rejection of claim 1.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
Finally, applicant argues
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The examiner respectfully disagrees with this. Applicant continuously argues a threshold of 90 mol% or greater. But they claim “about” 90 mol% or greater. As such, the applicant’s arguments are not inline with the scope of the claim. As the claim includes the inclusive “about” while the applicant’s arguments center around a exclusive end point.
The examiner maintains their rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Choi (US20220006081A1) teaches of a bimodal positive active material with high nickel concentration and a cobalt coating area. Large and small particles are made separate and the mixed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QUINTIN DALE ELLIOTT whose telephone number is (703)756-5423. The examiner can normally be reached M-F 8:30-6pm (MST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Miriam Stagg can be reached on 5712705256. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/QUINTIN D. ELLIOTT/Examiner, Art Unit 1724 /MIRIAM STAGG/Supervisory Patent Examiner, Art Unit 1724
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