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 .
Drawings
The drawings were received on 3/29/2022. These drawings are accepted.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-4 and 10-12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhang et al. (“Structural and electrochemical properties of LiNi0.5Mn0.5-xAlxO2 cathode materials for lithium-ion batteries” Solid State Ionics vol. 180 pg. 398-404, hereafter Zhang).
With regard to claims 1-2, Zhang teaches a cobalt-free cathode material with a formula of LiNi0.5Mn0.5-xAlxO2 where x may be 0.02, 0.05, .0.8, and 0.1 [abstract, pg. 399 col. 1, paragraph 1]. This anticipates the claimed formulas for claims 1 and 2 when x is 0.05.
With regard to claims 3 and 11, Zhang teaches a R3m spatial point group [pg. 399, col. 2 paragraph 2].
With regard to claims 4 and 12, Zhang teaches a I(003) to I(104) ratio of 1.2 or greater (as seen in fig. 1-2) [pg. 399 col. 2 paragraph 2-pg. 400 col. 1 paragraph 1; fig. 1-2].
With regard to claim 10, Zhang teaches a lithium-ion battery [pg. 399 col. 1 paragraph 3].
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) 5-8, and 13-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (“Structural and electrochemical properties of LiNi0.5Mn0.5-xAlxO2 cathode materials for lithium-ion batteries” Solid State Ionics vol. 180 pg. 398-404, hereafter Zhang) as applied to claims 1-4 and 10-12 above, and further in view of Koshika et al. (US 2020/0052295 A1, hereafter Koshika).
With regard to claims 5 and 13, Zhang does not explicitly teach the claimed tap density. However, in the same field of endeavor, Koshika teaches a tap density of at least 2.2 g/cm3 (which overlaps and obviates the claimed range) [0021, 0110]. It would have been obvious to one of ordinary skill in the art at the time the invention was made to use the tap density of Koshika with the cathode material of Zhang for the benefit of high capacity and energy density [Koshika 0021, 0110].
With regard to claims 6-8 and 14, Zhang does not explicitly teach mixing the claimed precursor and lithium hydroxide. However, in the same field of endeavor, Koshika teaches a method of making a cathode material comprising mixing lithium hydroxide with a material of the formula Nix1Mny1Mz1(OH)2+α where M may be Al or W, 0.70≤x1≤0.95, 0.05≤y1≤0.30, x1+y1+z1=1.0, 0≤α≤0.4 (which overlaps and obviates the claimed composition), and firing the mixed material between 800°C and 950°C (which falls within the claimed range, claim 7) for 1 to 24 hours (which encompasses and obviates the claimed range, claim 7) [0016, 0116, 0121-0125]. Koshika further teaches a temperature raising rate of 1°C/min to 10°C/min (which encompasses and obviates the claimed range, claim 8, claim 14) [0126]. It would have been obvious to one of ordinary skill in the art to use the method of Koshika to produce the material of Zhang since it is known to be effective to produce a material with a uniform composition [Koshika 0122].
Claim(s) 9 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhang and Koshika as applied to claims 5-8, and 13-14 above, and further in view of Mori et al. (US 2012/0276454 A1, hereafter Mori).
With regard to claims 9 and 15, modified Zhang teaches the method of claims 6-7 as detailed in the rejection of claims 6-7 above. Modified Zhang does not explicitly teach the oxygen content of the heating atmosphere. However, in the same field of endeavor, Mori teaches the use of an oxygen concentration of 18% to 100% (which encompasses and obviates the claimed range) [0157]. It would have been obvious to one of ordinary skill in the art at the time the invention was made to use the oxygen concentration of Mori with the method of modified Zhang for the benefit of ensuring sufficient crystallinity after heating/calcining [Mori 0157].
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.
Claim 1 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/785,900 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are drawn to cobalt free cathode materials with lithium nickel manganese complex oxides that may contain aluminum or tungsten and may have identical compositions.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRENT C THOMAS whose telephone number is (571)270-7737. The examiner can normally be reached Flexible schedule, typical hours 11-7 M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Miriam Stagg can be reached on (571)270-5256. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRENT C THOMAS/Examiner, Art Unit 1724 /BRIAN R OHARA/Examiner, Art Unit 1724