DETAILED ACTION
Claims 1-19 are pending and under consideration in this 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 9/18/25 has been entered.
Response to Arguments
Applicant’s arguments have been fully considered. Applicant argues on pages 8-9 that the newly added limitations to the independent claims to recite that the lithium precursor is a solid is not taught by Smith. Examiner agrees that Smith teaches a lithium solution as the precursor, and as such the prior 103 rejections have been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Li, as shown below, in addition to new rejections under 35 U.S.C. §112(a).
On page 10, Applicant notes that the instant application has an earlier filing date as compared to the applications used for the provisional double patenting rejections, and the double patenting rejections should therefore be withdrawn. Examiner notes that the portion of the MPEP regarding withdrawing of provisional double patenting rejections only applies when the provisional nonstatutory double patenting rejection is the only rejection remaining. See MPEP §804(I)(B)(1)(b). As the nonstatutory double patenting rejections are not the only remaining rejection, the double patenting rejections are maintained. Further, as at least one of the reference applications has since issued as a patent, the double patenting rejections are no longer provisional with respect to this patent.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Independent claims 1, 12, and 13 have been amended to recite that the lithium precursor is a solid lithium precursor. Neither the claims nor the specification as filed support this new limitation. Applicant pointed to page 16, line 1 of the Specification as allegedly supporting this new limitation. However, page 16, line 1 of the Specification merely states that the lithium precursor can be LiOH, Li2CO3, LiNO3, or Li2O. However, nothing in this passage or any other portion of the originally filed specification explain that the precursor can be in solid form. Although, as pointed out by the Applicant, each of these substances are solid at room temperature, Examiner notes that each of the substances can also be dissolved in a solvent. Notably, Smith teaches the use of a LiOH solution as the lithium precursor. As argued by the Applicant on pages 8-9 of the 9/18/25 response, this solution of Smith does not meet the limitation of “solid” as currently recited in the claims. Further, Applicant argues that the use of a solid lithium precursor is not an obvious variant of a lithium precursor in solution. As such, one of ordinary skill in the art would not be able to unambiguously determine that the listing of possible precursor materials in the Specification is limited to solid materials rather than solutions. Accordingly, the mere fact that the listed precursors are solid at room temperature does not support a limitation to recite that the lithium precursor is in solid form.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 19 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 19, the claim recites that “the washing is performed by immersion and stirring the active material together.” But it is unclear what the active material is stirred together with. Examiner believes the word “together” may be included in error. As such, for the purposes of examination, claim 19 is interpreted as only requiring the active material to be immersed and stirred in the washing liquid.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-14 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over CN 105895854 (“Cao”, cited in IDS of 3/19/24, attached machine translation used for citations) in view of US 8616475 (“Smith”) and Li, et al. "Direct regeneration of recycled cathode material mixture from scrapped LiFePO4 batteries." Journal of Power Sources 345 (2017): 78-84 (“Li”).
Regarding claim 1, Cao teaches a method for reusing positive electrode scraps (see e.g. paragraph [0002]). The positive electrode scrap can be from a lithium cobalt battery (see e.g. paragraph [0020]). Cao teaches thermal treatment of the positive electrode scrap to decompose the binder (see e.g. paragraph [0038]). Although Cao does not specifically state that the heat treatment is conducted in air, Cao does not describe any other type of atmosphere to use during the heat treatment. Accordingly, it would have been obvious to conduct the heat treatment in air because this is the simplest way to carry out the method of Cao. Cao teaches that the heat treatment allows for separation of essentially all aluminum, which is the current collector, from the active material (see e.g. paragraph [0016]). Cao teaches that the active material collected after heat treatment and removal of the aluminum is then washed with an alkaline material that can be lithium hydroxide (see e.g. paragraphs [0017] and [0022]). Cao then teaches drying the active material thus obtained (see e.g. paragraph [0018]).
Cao does not teach annealing the washed active material with an addition of a lithium precursor to obtain a reusable active material. However, Smith teaches a similar method for reusing lithium material from a battery (see e.g. col. 1, lines 5-8). Smith teaches that, after heat treatment and separation of the aluminum, the recovered active material is mixed with an additional lithium precursor, namely LiOH, and annealed to obtain a reusable material (see e.g. col. 4, lines 51-57). Smith teaches that the addition of lithium hydroxide and annealing is necessary to return the amount of lithium in the material back to the theoretical lithium level based on the amount of cobalt present (see e.g. col. 4, lines 48-55). Accordingly, prior to the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to add a lithium precursor followed by annealing to the method of Cao. Doing so would be expected to fully return the lithium level back to the theoretical level in order to fully restore the active material for reuse, as taught by Smith.
Smith uses a lithium hydroxide solution rather than a solid lithium precursor. However, Li teaches a similar method for relithiation of a lithium active material followed by annealing (see e.g. page 79, first column, third full paragraph, starting “To overcome these…”). Li teaches that the relithiation can be accomplished with lithium carbonate (Id.). Li teaches that the cathode active material is “regenerated directly” with lithium carbonate, which would imply that solid lithium carbonate is being used rather than a solution (Id.). Per MPEP 2143.I.B, simple substitution of one known element for another to achieve predictable results is prima facie obvious. Here, the method of Cao in view of Smith differs from claim 1 only in the state of the lithium precursor used for relithiation. Per Li, it is known in the art that a solid lithium precursor can be used instead of the solution of Smith. As such, it would have been obvious for one of ordinary skill in the art to substitute the lithium solution of Smith with a solid lithium precursor as taught by Li, and the results would have been predictable.
Regarding claim 2, Cao teaches that the thermal treatment is done at a temperature of 400-650°C, which is within the claimed range (see e.g. paragraph [0015]).
Regarding claim 3, Cao teaches that the washing step uses an alkaline solution of 1.0-8.0 M, which for lithium hydroxide is 4-25%, and overlaps with the claimed range (see e.g. paragraph [0036]).
Regarding claim 4, Cao does not specifically state that the washing step is performed while stirring. However, Cao does teach that the material is washed for 30 minutes, and then left to stand (see e.g. paragraph [0049]). This implies that during the 30 minutes of washing, the material is agitated or stirred.
Regarding claim 5, Smith teaches that the lithium precursor can be lithium hydroxide (see e.g. col. 4, lines 3-7).
Regarding claim 6, Smith teaches that the lithium precursor is added in amount necessary for adding lithium to return the lithium to the theoretical level, accounting for the amount of lost lithium compared to the amount of lithium remaining and the other metal present (see e.g. col. 4, lines 48-55).
Regarding claim 7, Smith teaches that the amount of lithium necessary to return the lithium level to the proper amount is 2% compared to 50% cobalt, which is a molar ratio of 0.04, and within the claimed range (see e.g. col. 4, lines 48-55).
Regarding claim 8, Smith teaches that the annealing is done at a temperature of 735°C, which is within the claimed range (see e.g. col. 4, lines 55-56).
Regarding claim 9, Smith teaches that the annealing is done at a temperature of 735°C (see e.g. col. 4, lines 55-56), and that the lithium precursor is lithium hydroxide (see e.g. col. 4, lines 3-7). As noted in the instant application, the melting point of lithium hydroxide is 462 °C (see Specification at page 16, line 22 to page 17, line 1), meaning that Smith teaches that the annealing is above the melting point of the lithium hydroxide.
Regarding claim 10, Cao teaches that the active material is collected in the form of a powder (see e.g. paragraph [0016]). Cao also teaches that carbon is removed after the heat treatment, meaning that carbon does not remain on the surface of the powder (see e.g. paragraph [0017]).
Regarding claim 11, Smith teaches that after annealing, the active material can be mulled and screened to restore the active material (see e.g. col. 2, lines 51-54). One of ordinary skill in the art would understand that mulling and screening the material to restore the material would be done to obtain material with the same particle size and distribution as the original material.
Regarding claim 12, Cao teaches a method of reusing a positive electrode scrap material (see e.g. paragraph [0020]). Cao teaches thermal treatment of the material at a temperature of 400-650°C, which is within the claimed range (see e.g. paragraph [0015]). Cao teaches thermal treatment of the positive electrode scrap to decompose the binder (see e.g. paragraph [0038]). Although Cao does not specifically state that the heat treatment is conducted in air, Cao does not describe any other type of atmosphere to use during the heat treatment. Accordingly, it would have been obvious to conduct the heat treatment in air because this is the simplest way to carry out the method of Cao. Cao teaches that the heat treatment allows for separation of aluminum, which is the current collector, from the active material (see e.g. paragraph [0016]). Cao teaches that the active material collected after heat treatment and removal of the aluminum is then washed with an alkaline material that can be lithium hydroxide (see e.g. paragraphs [0016] and [0022]). Cao teaches that the washing step uses an alkaline solution of 1.0-8.0 M, which for lithium hydroxide is 4-25%, and overlaps with the claimed range (see e.g. paragraph [0036]).
Cao does not teach annealing the washed active material with an addition of a lithium precursor to obtain a reusable active material. However, Smith teaches a similar method for reusing lithium material from a battery (see e.g. col. 1, lines 5-8). Smith teaches that, after heat treatment and separation of the aluminum, the recovered active material is mixed with an additional lithium precursor, namely LiOH, and annealed to obtain a reusable material (see e.g. col. 4, lines 51-57). Smith teaches that the addition of lithium hydroxide and annealing is necessary to return the amount of lithium in the material back to the theoretical lithium level based on the amount of cobalt present (see e.g. col. 4, lines 48-55). Smith teaches that the temperature for annealing is 735°C, which is within the claimed range (see e.g. col. 4, lines 55-56). Accordingly, prior to the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to add a lithium precursor followed by annealing to the method of Cao. Doing so would be expected to fully return the lithium level back to the theoretical level in order to fully restore the active material for reuse, as taught by Smith.
Smith uses a lithium hydroxide solution rather than a solid lithium precursor. However, Li teaches a similar method for relithiation of a lithium active material followed by annealing (see e.g. page 79, first column, third full paragraph, starting “To overcome these…”). Li teaches that the relithiation can be accomplished with lithium carbonate (Id.). Li teaches that the cathode active material is “regenerated directly” with lithium carbonate, which would imply that solid lithium carbonate is being used rather than a solution (Id.). Per MPEP 2143.I.B, simple substitution of one known element for another to achieve predictable results is prima facie obvious. Here, the method of Cao in view of Smith differs from claim 12 only in the physical state of the lithium precursor used for relithiation. Per Li, it is known in the art that a solid lithium precursor can be used instead of the solution of Smith. As such, it would have been obvious for one of ordinary skill in the art to substitute the lithium solution of Smith with a solid lithium precursor as taught by Li, and the results would have been predictable.
Regarding claim 13, Cao teaches a method for reusing positive electrode scraps (see e.g. paragraph [0002]). The positive electrode scrap can be from a lithium cobalt battery (see e.g. paragraph [0020]). Cao teaches thermal treatment of the positive electrode scrap to decompose the binder (see e.g. paragraph [0038]). Although Cao does not specifically state that the heat treatment is conducted in air, Cao does not describe any other type of atmosphere to use during the heat treatment. Accordingly, it would have been obvious to conduct the heat treatment in air because this is the simplest way to carry out the method of Cao. Cao teaches that the heat treatment allows for separation of essentially all aluminum, which is the current collector, from the active material (see e.g. paragraph [0016]). Cao teaches that the active material collected after heat treatment and removal of the aluminum is then washed with an alkaline material that can be lithium hydroxide (see e.g. paragraphs [0016] and [0022]). Cao then teaches drying the active material thus obtained (see e.g. paragraph [0018]).
Cao does not teach annealing the washed active material with an addition of a lithium precursor to obtain a reusable active material. However, Smith teaches a similar method for reusing lithium material from a battery (see e.g. col. 1, lines 5-8). Smith teaches that, after heat treatment and separation of the aluminum, the recovered active material is mixed with an additional lithium precursor, namely LiOH, and annealed to obtain a reusable material (see e.g. col. 4, lines 51-57). Smith teaches that the addition of lithium hydroxide and annealing is necessary to return the amount of lithium in the material back to the theoretical lithium level based on the amount of cobalt present (see e.g. col. 4, lines 48-55). Accordingly, prior to the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to add a lithium precursor followed by annealing to the method of Cao. Doing so would be expected to fully return the lithium level back to the theoretical level in order to fully restore the active material for reuse, as taught by Smith.
Smith uses a lithium hydroxide solution rather than a solid lithium carbonate, lithium nitrate, or lithium oxide. However, Li teaches a similar method for relithiation of a lithium active material followed by annealing (see e.g. page 79, first column, third full paragraph, starting “To overcome these…”). Li teaches that the relithiation can be accomplished with lithium carbonate (Id.). Li teaches that the cathode active material is “regenerated directly” with lithium carbonate, which would imply that solid lithium carbonate is being used rather than a solution (Id.). Per MPEP 2143.I.B, simple substitution of one known element for another to achieve predictable results is prima facie obvious. Here, the method of Cao in view of Smith differs from claim 12 only in the lithium precursor used for relithiation. Per Li, it is known in the art that a solid lithium carbonate precursor can be used instead of the lithium hydroxide solution of Smith. As such, it would have been obvious for one of ordinary skill in the art to substitute the lithium solution of Smith with a solid lithium carbonate precursor as taught by Li, and the results would have been predictable.
Regarding claim 14, Li teaches that the lithium precursor can include lithium carbonate (see e.g. page 79, first column, third full paragraph, starting “To overcome these…”).
Regarding claim 17, Smith teaches that the annealing is done at a temperature of 735°C, which is within the claimed range (see e.g. col. 4, lines 55-56).
Regarding claim 18, Cao teaches that the active material collected after heat treatment and removal of the aluminum is washed with lithium compound solution that can be lithium hydroxide (see e.g. paragraph [0022]). The use of the lithium hydroxide solution for washing would compensate an amount of lithium dissolved during the process.
Regarding claim 19, Cao does not specifically state that the washing step is performed while stirring. However, Cao does teach that the material is washed for 30 minutes, and then left to stand (see e.g. paragraph [0049]). This implies that during the 30 minutes of washing, the material is agitated or stirred.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Cao in view of Smith and Li applied to claim 13 above, and further in view of Shi, et al. "Ambient‐pressure relithiation of degraded LixNi0. 5Co0. 2Mn0. 3O2 (0< x< 1) via eutectic solutions for direct regeneration of lithium‐ion battery cathodes." Advanced Energy Materials 9.20 (2019): 1900454 (“Shi”).
Regarding claim 15, Cao in view of Smith and Li teach the limitations of claim 13 as described above. Smith teaches that the lithium precursor material is lithium hydroxide rather than lithium nitrate as recited in claim 15. However, Shi teaches a similar method for relithiation of a lithium active material followed by annealing (see e.g. page 2, first column, second full paragraph, starting “In this study…”). Shi teaches that the relithiation can be accomplished with a mixture of lithium hydroxide and lithium nitrate (see e.g. page 2, second column, second full paragraph, starting “Our approach aimed…”). Per MPEP 2143.I.B, simple substitution of one known element for another to achieve predictable results is prima facie obvious. Here, the method of Cao in view of Smith and Li differs from claim 15 only in the lithium precursor used for relithiation. Per Shi, it is known in the art that lithium nitrate mixed with lithium hydroxide can be used instead of the lithium hydroxide of Smith. As such, it would have been obvious for one of ordinary skill in the art to substitute the lithium hydroxide of Smith with the lithium nitrate/lithium hydroxide mixture of Shi, and the results would have been predictable.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Cao in view of Smith and Li applied to claim 13 above, and further in view of (“Sloop”).
Regarding claim 16, Cao in view of Smith and Li teach the limitations of claim 13 as described above. Smith teaches that the lithium precursor material is lithium hydroxide rather than lithium oxide as recited in claim 16. However, Sloop teaches a similar method for relithiation of a lithium active material followed by annealing (see e.g. col. 10, lines 43-59). Sloop teaches that the relithiation can be accomplished with lithium hydroxide as taught by Smith, or alternatively with other lithium sources, such as lithium oxide (see e.g. col. 11, lines 17-20). Per MPEP 2143.I.B, simple substitution of one known element for another to achieve predictable results is prima facie obvious. Here, the method of Cao in view of Smith and Li differs from claim 16 only in the lithium precursor used for relithiation. Per Sloop, it is known in the art that lithium oxide can be used instead of the lithium hydroxide of Smith. As such, it would have been obvious for one of ordinary skill in the art to substitute the lithium hydroxide of Smith with the lithium oxide of Sloop, and the results would have been predictable.
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 1-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-9, and 11-13 of U.S. Patent No. 12,494,522 in view of Li.
Regarding claim 1, claim 1 of the reference patent recites a method for reusing a positive electrode active material comprising thermal treatment, washing with a lithium compound solution that is basic in water, and annealing the material with addition of a lithium precursor. Claim 1 of the instant application recites the same steps. Although claim 1 of the reference patent does not recite that the lithium precursor is solid, use of a solid lithium precursor is obvious in view of Li, as described above.
Regarding claim 2, claim 4 of the reference application recites a temperature range that includes the entirety of the recited temperature range.
Regarding claims 3-11, claims 5-9 and 11-13 of the reference application appear to recite identical limitations.
Regarding claim 12, claim 1 of the reference application recites a method for reusing a positive electrode active material comprising thermal treatment, washing with a lithium compound solution that is basic in water, and annealing the material with addition of a lithium precursor. The specific ranges recited in claim 12 regarding temperature and concentration are recited in the dependent claims of the reference application, as described above.
Claims 1-10 and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-7,11-13, and 15-17 of copending Application No. 17/792,865 (reference application) in view of Li. Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 1, claim 1 of the reference application recites the same steps of thermally treating positive electrode scrap, washing with a lithium compound solution that is basic in water, adding a lithium precursor and annealing. Although the reference application does not recite that the lithium precursor is solid, this limitation is obvious in view of Li, as described above.
The limitations recited in claims 2-10 appear to be the same limitations as those recited in claims 5-7, 11-13 and 15-17 of the reference application. The additional limitations in claim 12, such as the temperature and concentration ranges, all appear to be recited in claims 5-7, 11-13 and 15-17 of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-10 and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-10, 12-13 and 16 of copending Application No. 17/919,718 (reference application) in view of Li. Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 1, claim 1 of the reference application recites a method of reusing positive electrode scrap, comprising the steps of thermally treatment, washing with a lithium compound solution that is basic, and annealing with a lithium precursor. Although the reference application does not recite that the lithium precursor is solid, this limitation is obvious in view of Li as described above.
The limitations recited in claims 2-9 appear to be the same as the limitations recited in claims 5-10, 12-13, and 16 of the reference application. The additional limitations in claim 12, such as the temperature and concentration ranges, all appear to be recited in claims 5-10, 12-13 and 16 of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/E.S.S./Examiner, Art Unit 1736
/ANTHONY J ZIMMER/Supervisory Patent Examiner, Art Unit 1736