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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 8, 2025 has been entered.
Summary
The Applicant’s arguments and claim amendments received on December 8, 2025 have been entered into the file. Currently, claims 1 and 11 are amended; claims 4-8 and 10 are cancelled; claims 13-19 are withdrawn; and claim 21 is new; resulting in claims 1-3, 9, 11-12, and 20-21 pending for examination.
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.
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Claims 1 and 11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 9-10 of copending Application No. 17/781,110. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following:
Regarding claim 1 of the instant invention, claim 9 of copending Application no. 17/781,110 is dependent on claim 1, which recites a positive electrode active material comprising a lithium transition metal oxide particle having a portion of Li substituted by Na and comprising Ni and Co, wherein the lithium transition metal oxide particle comprises a concentration gradient region, in which a concentration of Co decreases in a direction from the surface to the center of the particle, and claim 9 further recites that the lithium transition metal oxide is represented by one of Formulae 2-4, wherein Formulae 2-4 of the copending application are identical to Formulae 2-4 of the instant invention. A lithium transition metal oxide meeting the limitations of claim 9 of copending Application no. 17/781,110 would meet the limitations of claim 1 of the instant application.
Regarding claim 11 of the instant invention, claim 10 of copending Application no. 17/781,110 recites all of the limitations of claim 9 above and further recites the identical limited ranges for β’, β’’, β’’’, γ’, γ’’, γ’’’, α’+ β’+ γ’, α’’+ β’’+ γ’’, and α’’’+ β’’’+ γ’’’.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1 and 11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 10-11 of copending Application No. 17/781,123. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following:
Regarding claim 1 of the instant invention, claim 10 of copending Application no. 17/781,123 is dependent on claim 1, which recites a positive electrode active material comprising a lithium transition metal oxide particle wherein the lithium transition metal oxide particle comprises a concentration gradient region, in which a concentration of Co decreases in a direction from the surface to the center of the particle, and claim 10 further recites that the lithium transition metal oxide is represented by one of Formulae 2-4, wherein Formulae 2-4 of the copending application are identical to Formulae 2-4 of the instant invention. A lithium transition metal oxide meeting the limitations of claim 10 of copending Application no. 17/781,123 would meet the limitations of claim 1 of the instant application.
Regarding claim 11 of the instant invention, claim 11 of copending Application no. 17/781,123 recites all of the limitations of claim 10 above and further recites the identical limited ranges for β’, β’’, β’’’, γ’, γ’’, γ’’’, α’+ β’+ γ’, α’’+ β’’+ γ’’, and α’’’+ β’’’+ γ’’’.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 1-3, 11-12, and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Park, et al. (US 2018/0233739 A1) in view of Rolff, et al. (US 2018/0138497 A1) and further in view of Zheng, et al. (US 2016/0049645 A1).
Regarding claims 1 and 11, Park teaches a positive electrode active material for a secondary battery including a lithium composite metal oxide particle (¶ [0021], Ln. 1-3). Park teaches that in the lithium composite metal oxide, a concentration of cobalt may increase with a continuous concentration gradient in a direction from the center of the lithium composite metal oxide particle toward the surface of the particle (concentration of Co atoms decreases from a surface toward a center of the lithium transition metal oxide particle; ¶ [0054], Ln. 1-5). Park teaches that the lithium composite metal oxide particle is represented by the formula LiaNi1-x-yCoxM1yM2zM3wO2, wherein 1.0≤a≤1.5, 0<x≤0.5, 0<y≤0.5, 0<z≤0.05, 0.002≤w≤0.1, 0<x+y≤0.7 (¶ [0021], Ln. 1-5). Park teaches that M1 may include any one or two or more selected from the group consisting of Al, Mg, Y, Zn, In, and Mn (¶ [0032], Ln. 1-6); M2 may include any one or two or more selected from the group consisting of Zr, Ti, Ta, Hf, Sn, Cr, Sb, Ru, Gd, and Os, and more specifically, may be Ti or Zr (¶ [0035], Ln. 8-12); and that M3 may be any one or two or more elements selected from the group consisting of W, V, Nb, Nd, and Mo, and more specifically, may be at least one element of W and Nb (¶ [0038], Ln. 16-22). Park teaches that the M1 element improves crystal stability of the active material and improves lifespan and high-temperature characteristics of a battery (¶ [0032], Ln. 4-6). Park teaches that M1 is included in an amount between 0 and 0.5, overlapping the claimed range of 0 to 0.3; M2 is included in an amount between 0 and 0.05, overlapping the claimed range of 0 to 0.003; and M3 is included in an amount between 0.002 and 0.1, overlapping the claimed range of 0 to 0.01. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP 2144.05 (I)). As an example, in Example 1-1, the positive electrode active material is Li1.05(Ni0.6Mn0.2Co0.2)0.935W0.005Ti0.01O2 (¶ [0140], Ln. 6-7). Park does not expressly teach an embodiment wherein the positive electrode active material meets the limitations of claimed Formulae 2-4, including Mg, Na, and S.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the positive electrode active material of Park to include Mg based on the teachings of Park. In Example 1, the positive electrode active material can be represented by the general formula LiaNi1-x-yCoxM1yM2zM3wO2, wherein M1 is Mn, M2 is Ti, and M3 is W. As Park teaches that M1 may include any one or two or more selected from the group consisting of Al, Mg, Y, Zn, In, and Mn (¶ [0032], Ln. 1-6), it would be obvious to one of ordinary skill in the art to include Mg in the positive electrode active material as well as Mn. One of ordinary skill in the art would find it obvious to include Mg as it is taught by Park that one or more elements may be included for M1, and because including M1 improves crystal stability of the active material and improves lifespan and high-temperature characteristics of a battery. One of ordinary skill in the art would find it obvious to include Mg in the amount taught by Park, overlapping the claimed range of 0 to 0.003. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP 2144.05 (I)). Park does not expressly teach an embodiment wherein the positive electrode active material also includes Na.
Rolff teaches a transition metal oxide-based active material for a positive electrode in a lithium cell (¶ [0009], Ln. 1-4). The transition metal oxide-based active material is represented by the formula x(LiMO2):1-x(Li2-yNayMn1-zM’zO3), wherein M stands for Ni and/or Co and/or Mn, M’ stands for Nb and/or W and/or Mo, and 0<x<1, 0<y<0.5, and 0<z<1 (¶ [0009], Ln. 8-13). Rolff teaches that by doping the transition metal oxide-based active material with sodium, the sodium may partially replace lithium and, due to the larger ion radius of sodium, the lithium position may be expanded. Rolff teaches that this results in a reduction in the intrinsic material resistance and a significant improvement in rate capability (¶ [0019], Ln. 1-5).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the positive electrode active material of Park to include Na based on the teachings of Rolff. It would be obvious to one of ordinary skill in the art to dope the positive electrode active material with Na such that the Na partially replaces the lithium ions. One of ordinary skill in the art would be motivated to dope the positive electrode active material with Na in order to reduce the intrinsic material resistance and a improve rate capability. One of ordinary skill in the art would find it obvious to dope the positive electrode active material with Na in the amount taught by Rolff, overlapping the claimed range of 0-0.01. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP 2144.05 (I)). In doping the positive electrode active material with Na such that the Na partially replaces the lithium ions, the molar amount of Li included in the formula of the positive electrode active material of Park is expected to be within the claimed range of 0.99-1. Park in view of Rolff does not expressly teach an embodiment wherein the positive electrode active material also includes S.
Zheng teaches a cathode material for a lithium ion secondary battery (¶ [0010], Ln. 1-3). The cathode active material has the general formula Li1+δ[Ni1-x-yCoxMy]O2-αPα, wherein M is at least one metal element selected from Mn, Na, K, Mg, Ca, Sr, Ba, Al, Ga, In, Ge, Sn, Ti, V, Cr, Fe, Cu, Zn Y, Zr, Nb, Mo, Cd, W, La, Ce, Nd, and Sm; P represents F or S; and 0≤α≤0.2 (¶ [0020], Ln. 1-7). Zheng teaches that doping with elements such as F or S can improve the thermal stability and cycling stability of the cathode material (¶ [0026], Ln. 1-3).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the cathode active material of Park in view of Rolff to dope the positive electrode active material with S as taught by Zheng. One would have been motivated to modify the positive electrode active material in order to improve the thermal stability and cycling stability. One of ordinary skill in the art would find it obvious to dope the positive electrode active material with S in the amount taught by Zheng, overlapping the claimed range of 0-0.01. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP 2144.05 (I)). Thus, the combination of references teaches a positive electrode active material including Li, Ni, Mn, Co, W, Ti, O, Mg, Na, and S, meeting the limitations of claimed Formula 2.
Regarding claim 2, Park in view of Rolff and Zheng teaches all of the limitations of claim 1 above and Park further teaches that the concentration of nickel included in the lithium composite metal oxide decreases with a continuous concentration gradient in a direction from a center of the lithium composite metal oxide particle toward a surface of the particle (concentration of Ni atoms increasing from the surface toward the center of the lithium transition metal oxide particle; ¶ [0053], Ln. 1-6).
Regarding claim 3, Park in view of Rolff and Zheng teaches all of the limitations of claim 1 above and Park further teaches that the concentration gradient of cobalt is a continuous concentration gradient that is constant from the center of the lithium composite metal oxide particle toward the surface (¶ [0054], Ln. 1-8). Park additionally teaches that the average particle size of the lithium composite metal oxide particle is 4 to 20 µm (¶ [0062], Ln. 1-4). Thus, Park teaches a concentration gradient region comprising a region up to a distance of 500 nm from the surface toward the center of the particle.
Regarding claim 12, Park in view of Rolff and Zheng teaches all of the limitations of claim 1 above and Park further teaches that the average particle size of the lithium composite metal oxide particle is 4 to 20 µm, within the claimed range of 0.1 to 20 µm (¶ [0062], Ln. 1-4).
Regarding claim 20, Park teaches a lithium secondary battery including a positive electrode including the positive electrode active material described above, a negative electrode, a separator disposed between the positive electrode and negative electrode, and an electrolyte (¶ [0112], Ln. 1-5). Park in view of Rolff and Zheng teaches a positive electrode meeting all of the limitations of claim 1 above.
Regarding claim 21, Park in view of Rolff and Zheng teaches all of the limitations of claim 1 above and Park further teaches that the positive electrode active material includes a lithium composite metal oxide particle represented by the formula LiaNi1-x-yCoxM1yM2zM3wO2, wherein 1.0≤a≤1.5, 0<x≤0.5, 0<y≤0.5, 0<z≤0.05, 0.002≤w≤0.1, 0<x+y≤0.7 (single particle; ¶ [0021], Ln. 1-5).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Park, et al. (US 2018/0233739 A1) in view of Rolff, et al. (US 2018/0138497 A1) and Zheng, et al. (US 2016/0049645 A1) as applied to claim 1 above, and further in view of Matsumoto (JP 2006054159 A).
Regarding claim 9, Park in view of Rolff and Zheng teaches all of the limitations of claim 1 above. The combination of references does not expressly teach that the cathode active material particle is a single crystal.
Matsumoto teaches a positive electrode active material for a non-aqueous secondary battery (¶ [0020], Ln. 172-174) represented by the formula LixNi1-p-q-rCopAlqArO2-y, wherein A is at least one element selected from the group consisting of Ti, V, In, Cr, Fe, Sn, Cu, Zn, Mn, Mg, Ga, Ni, Co, Zr, Bi, Ge, Nb, Ta, Be, Ca, Sr, Ba, and Sc (¶ [0039], Ln. 340-344). The positive electrode active material is made of primary particles which are single crystals (¶ [0020], Ln. 172-176). Matsumoto teaches that by making primary particles single crystals, the crystal grain boundaries within the primary particles disappear, and the electrical resistance can be reduced (¶ [0035], Ln. 304-306).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the cathode active material particles of Park in view of Rolff and Zheng to be single crystals as taught by Matsumoto. One would be motivated to make the particles single crystals in order to reduce the electrical resistance.
Response to Arguments
Response-Claim Rejections – 35 U.S.C. 112
The previous rejection of claim 6 under 35 U.S.C. 112(b) 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 is overcome by the Applicant’s cancellation of the claim in the response filed December 8, 2025.
Response-Claim Rejections – Double Patenting
The previous rejection of claim 10 on the ground of nonstatutory double patenting over copending Application No. 17/781,110 is overcome by the Applicant’s amendments to claim 1 and cancellation of claim 10, however, claims 1 and 11 remain provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 9-10 of copending Application No. 17/781,110 above. The previous rejection of claim 10 on the ground of nonstatutory double patenting over copending Application No. 17/781,123 is overcome by the Applicant’s amendments to claim 1 and cancellation of claim 10, however, claims 1 and 11 remain provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 10-11 of copending Application No. 17/781,123 above.
Response-Claim Rejections – 35 U.S.C. 103
Applicant’s arguments filed December 8, 2025 with respect to claim 1 regarding Sun, et al. (US 10,930,922 B2) and Matsuda (US 2016/0315320 A1) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s arguments filed December 8, 2025 with respect to claim 1 regarding Zheng, et al. (US 2016/0049645 A1) have been fully considered but are not persuasive. The Applicant argues, see page 10 of the remarks, that Zheng merely describes a technique in which a second cathode material is coated on the surface of a first cathode material, however, the secondary reference is used to teach doping the positive electrode active material with S. Zheng teaches that doping with non-metal elements such as F or S can improve the thermal stability and cycling stability of the cathode material. Specifically, Zheng teaches doping the bulk portion of the first cathode material with S (¶ [0026], Ln. 1-9).
Conclusion
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/SARAH J JACOBSON/Examiner, Art Unit 1785
/MARK RUTHKOSKY/Supervisory Patent Examiner, Art Unit 1785