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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/26/2026 has been entered.
Response to Amendment
The amendment filed on 01/23/2026 has been entered. Claims 1, 3 and 11 are amended and Claims 1-6, 14-17, and 21-22 are 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.
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 1-6, and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Shin et al. (US 20210126256 A1), hereinafter “Shin” in view of Zheng et al. (US 20170338471 A1), hereinafter “Zheng”. Shin and Zheng et al. are analogous prior art to the claimed invention because they pertain to the same field of endeavor, namely cathode materials and coatings.
In regard to Claim 1, Shin et al. discloses a cathode material, wherein the cathode material comprises: a secondary particle, comprising a plurality of primary particles (Shin, Abstract). Shin et al. also discloses wherein the primary particles contain an active substance having a chemical general formula of LibNixCoyMzNwO2, where 0.95<b<1.05,0.8<x<1,0<y+z<0.2, x+y+z=1, and0.0001<w<0.003; M is selected from at least one of Mn and Al; and N is a metal by disclosing Formula 1 and Formula 2 (Shin, Paragraphs [0014-0016]) and a specific example where all of the conditions of the claimed general formula are met (Shin, Example 1). Further, Shin et al. discloses a secondary particle which may be spherical (Shin, Paragraph [0056]) and has a particle size range of 1-20µm (Shin, Paragraph [0069]) which overlaps the claimed range of 9-15 µm. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
In addition, Shin et al. discloses a coating layer, which comprises a first coating layer and a second coating layer, wherein the first coating layer is formed on a surface of the primary particles, the second coating layer is formed on a surface of the secondary particle (Shin, Claims 1 and 7).
Shin et al. discloses the first coating layer and the second coating layer having different compositions where the first coating layer includes a NiO-like crystalline phase belonging to a Fm3-m space group (Shin, Abstract) but also discloses that it is well known in the art to use a phosphorus oxide to coat the surface of the cathode active material to achieve the benefit of reducing residual lithium (Shin, Paragraph [0045]). Shin et al. also discloses a second coating layer may specifically include a metal phosphide (M(PO4) x) (Shin, Paragraphs [0072-0073]). While Shin et al. describes phosphate compounds used in the secondary particles coating layer and the beneficial role of phosphorus oxide coatings on primary particles (Shin, [0045]), it fails to explicitly disclose both the first coating layer and the second coating layer contain a phosphate compound.
Zheng et al. discloses an NMC811 cathode material with optional doping of Al, Mg, Ti, V, Cr, Fe. Y, Li, F where a first coating layer is formed on the grain boundaries of the primary particles (surface of the primary particles) and a second coating layer is formed on a surface of the secondary particles where both the first coating layer and the second coating layer contain a phosphate compound (Zheng, Abstract, Paragraphs [0006, 0054-0055]).
Zheng et al. also discloses wherein a coating layer of phosphate compound is uniformly distributed at grain boundaries between primary particles (Zheng, [0007]) and further, the methods of Zheng form lithium-phosphate infused grain boundaries among the primary particles and form an integrated surface layer (coating) that prevents electrolyte diffusion into the inside of secondary particles of the NMC (Zheng, [0009, 0032]). Zheng teaches where both layers contain a phosphate compound, the benefit of suppressing intergranular cracking in Ni rich materials, blocking electrolyte penetration into secondary particles and improving interfacial stability is achieved (Zheng, Paragraphs [0054, 0075]). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide the first and second coating layers containing a phosphate compound as taught in Zheng to the cathode material disclosed in Shin et al. as doing so would give the skilled artisan the reasonable expectation of achieving the benefits taught in Zheng and as doing so would be nothing more than applying a known technique to a known device (method, or product) ready for improvement to yield predictable results.
In regard to Claim 2, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 1. Shin et al discloses possible variations in Formula 2 where N=M2 and M2 is at least one element selected from B, Mg, Ti, Ca, Na, K, Sr, Cr, V, Fe, Cu, Zr, Zn, Si, Y, Nb, Ga, Sn, Mo, W, Ba, and rare-earth elements. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide a cathode material disclosed in Shin with at least one of the claimed elements as doing so would be nothing more than a simple substitution of one known element for another to obtain predictable results.
In regard to Claim 3, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 1. Shin et al discloses a primary particle which has a particle size range of 50 nm to about 2 μm (Shin, Claim 6), which overlaps the claimed range. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
In regard to Claim 4, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 1. While Shin et al. discloses a second coating layer may specifically include a metal phosphide (M(PO4)x) (Shin, Paragraphs [0072-0073]) Shin et al. fails to explicitly disclose, wherein the cathode material meets at least one of following conditions a to g: a: the phosphate compound comprises at least one of Li3PO4 and LiNk(PO4)r, where 0<k<2, 0<r<2, and N comprises at least one of Co, Mn, Al, Ti, Zr, Sr, Mg, Y, Ba, Cu, W,Nb, La, Ce, Mo, and Sn. Zheng et al. discloses a specific use of Li3PO4 in the second coating layer that significantly enhances structural integrity of NMC secondary particles (Zheng, Paragraph [0032]). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide a second coating layer containing a phosphate compound further comprising Li3PO4 as taught in Zheng to the cathode material secondary particles disclosed in Shin as doing so would give the skilled artisan the reasonable expectation of achieving the benefit taught in Zheng and as doing so would be nothing more than the use of known technique to improve similar devices (methods, or products) in the same way.
In regard to Claim 5, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 1. Sin et al. also discloses wherein the cathode material meets at least one of following conditions a to g, e: the second coating layer has a thickness ranging from 0.02 µm to 0.2 µm by disclosing the second layer coating the secondary particles which may be a metal phosphide (M(PO4)x) (Shin, Paragraphs [0072-0073]) is within a range of 1-50nm = 0.001-0.05µm which overlaps the claimed range. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
In regard to Claim 6, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 1. Shin et al. discloses the wt% of the compound in the second coating layer is 0.1 wt% based on the total weight of the cathode material (Shin, Example 7) and also discloses that the compound in the second layer may be a metal phosphide (M(PO4)x) (Shin, Paragraphs [0072-0073]) and further, there’s no disclosed reason to vary the wt% of the compound in the coating layer based on which material is selected, however, Shin fails to explicitly disclose taking a mass of the cathode material as 100%, a phosphate radical content in the second coating layer ranges from 0.3 wt% to 0.5 wt%. Zheng et al. discloses Li3PO4 in the second coating layer with a wt% in the range of 0.01-5 wt% more preferably from 0.1-0.5 wt% which significantly overlaps the claimed range. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
In regard to Claim 14, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 2. Shin et al discloses a secondary particle which may be spherical (Shin, Paragraph [0056]) and has a particle size range of 1-50µm (Shin, Paragraph [0069]) which overlaps the claimed range of 9-15 µm. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
In regard to Claim 15, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 2. While Shin et al. discloses a second coating layer may specifically include a metal phosphide (M(PO4)x) (Shin, Paragraphs [0072-0073]) Shin et al. fails to explicitly disclose, wherein the cathode material meets at least one of following conditions a to g: a: the phosphate compound comprises at least one of Li3PO4 and LiNk(PO4)r, where 0<k<2, 0<r<2, and N comprises at least one of Co, Mn, Al, Ti, Zr, Sr, Mg, Y, Ba, Cu, W, Nb, La, Ce, Mo, and Sn. Zheng et al. discloses a specific use of Li3PO4 in the second coating layer that significantly enhances structural integrity of NMC secondary particles (Zheng, Paragraph [0032]). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide a second coating layer containing a phosphate compound further comprising Li3PO4 as taught in Zheng to the cathode material secondary particles disclosed in Shin as doing so would give the skilled artisan the reasonable expectation of achieving the benefit taught in Zheng and as doing so would be nothing more than the use of known technique to improve similar devices (methods, or products) in the same way.
In regard to Claim 16, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 2. Sin et al. also discloses wherein the cathode material meets at least one of following conditions a to g, e: the second coating layer has a thickness ranging from 0.02 µm to 0.2 µm by disclosing the second layer coating the secondary particles which may be a metal phosphide (M(PO4)x) (Shin, Paragraphs [0072-0073]) is within a range of 1-50nm = 0.001-0.05µm which overlaps the claimed range. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
In regard to Claim 17, Shin et al. in view of Zheng et al. discloses the cathode material according to claim 2. Shin et al. discloses the wt% of the compound in the second coating layer is 0.1 wt% based on the total weight of the cathode material (Shin, Example 7) and also discloses that the compound in the second layer may be a metal phosphide (M(PO4)x) (Shin, Paragraphs [0072-0073]) and further, there’s no disclosed reason to vary the wt% of the compound in the coating layer based on which material is selected, however, Shin fails to explicitly disclose taking a mass of the cathode material as 100%, a phosphate radical content in the second coating layer ranges from 0.3 wt% to 0.5 wt%. Zheng et al. discloses Li3PO4 in the second coating layer with a wt% in the range of 0.01-5 wt% more preferably from 0.1-0.5 wt% which significantly overlaps the claimed range. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Shin et al. (US 20210126256 A1), hereinafter “Shin” in view of Zheng et al. (US 20170338471 A1), hereinafter “Zheng” as applied to claim 1 above and further in view of Gauthier et al. (CN 104380506 A – Machine translation), hereinafter “Gauthier”. Shin, Zheng and Gauthier et al. are analogous prior art to the claimed invention because they pertain to the same field of endeavor, namely cathode materials and coatings.
In regard to Claim 21, Shin in view of Zheng et al. discloses the cathode material according to claim 1. While Shin and Zheng are silent as to a content of crystallized phosphate radicals in the phosphate compound in the coating layer is in a range of 19%-46%, Gauthier et al. discloses a crystallized cathode electrode structure wherein the PO4 content (phosphate radical) of the surface (coating) is less than 20 atomic wt% (Gauthier, [0008, 0304]), which overlaps the claimed range. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Shin et al. (US 20210126256 A1), hereinafter “Shin” in view of Zheng et al. (US 20170338471 A1), hereinafter “Zheng” as applied to claim 1 above and further in view of Mitsumoto et al. (US 20190058191 A1), hereinafter “Mitsumoto”. Shin, Zheng and Mitsumoto et al. are analogous prior art to the claimed invention because they pertain to the same field of endeavor, namely cathode materials and coatings.
In regard to Claim 22, Shin in view of Zheng et al. discloses the cathode material according to claim 1. While Shin and Zheng are silent as to a content of surface residual alkali of the cathode material in a range of 0.05%-0.12%, Mitsumoto et al. discloses a positive electrode comprising Li.sub.1+xNi.sub.1−x-α-β-γMn.sub.αCo.sub.βM.sub.γO.sub.2 (wherein 0≤x≤0.1, 0.01≤α≤0.35, 0.01≤β≤0.35, 0≤γ≤0.05, and M comprises at least one or more elements selected from the group consisting of Al, Mg, Ti, Fe, Zr, W, Y, and Nb wherein an amount of residual alkali of the cathode material is 0.05 to 0.4 wt % (Mitsumoto, [0016]), which overlaps the claimed range. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05.
Response to Arguments
Applicant's arguments filed 01/23/2026 have been fully considered but they are not persuasive. In response to applicant's arguments regarding Claim 1 and that Shin does not show a motivation to provide a phosphate coating on the primary particles, it is noted that while Shin et al. discloses coating the primary particles with a coating layer including NiO-like crystalline phase belonging to a Fm3-m space group, Shin et al. also discloses the known advantages of coating the primary particles of the cathode active material with phosphate compounds, specifically phosphorus oxide (Shin, [0045]) and since Zheng et al. discloses coating both primary and secondary particles with phosphorus compounds to achieve the benefits of suppressing intergranular cracking in Ni rich materials, blocking electrolyte penetration into secondary particles and improving interfacial stability (Zheng, Paragraphs [0054, 0075]), it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide the first and second coating layers containing a phosphate compound as taught in Zheng to the cathode material disclosed in Shin et al. as doing so would give the skilled artisan the reasonable expectation of achieving the benefits taught in Zheng and as doing so would be nothing more than applying a known technique to a known device (method, or product) ready for improvement to yield predictable results.
In regard to applicants’ arguments that Zheng fails to show any motivation for forming a coating layer on the primary particles, it is noted that Zheng et al. discloses wherein a coating layer of phosphate compound is uniformly distributed at grain boundaries between primary particles (Zheng, [0007]) and that the methods of Zheng form lithium-phosphate coated on the NMC particles where only an additional step of annealing the coated particles would infuse the phosphate, which ultimately still results in phosphate coated particles (Zheng, [0009]). In addition, the primary reference Shin already discloses coating primary and secondary particles and looks to Zheng as an example of using phosphate compounds as the coating material for both the primary and secondary particles and thus, this amounts to nothing more than an argument against the references individually, and one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references (i.e. Shin et al. in view of Zheng et al.). See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Lastly, Shin et al. discloses a preferred range for the secondary particle size of amended claim 1 as discussed in the 35 U.S.C. 103 rejection above, which more closely overlaps the claimed range and providing particles in that size range would amount to nothing more than a result effective variable to be optimized by the skilled artisan with a reasonable expectation of success.
In regard to applicants’ arguments that there are unexpected results, these arguments have been considered but are deficient as no comparative examples from the closest relevant prior art are given for comparison and do not demonstrate the prior art is not capable of achieving the same result. Therefore, Shin in view of Zheng et al. discloses all of the limitations of amended claim 1.
In regard to the argument that amended claim 1 overcomes the nonstatutory double patenting rejection based on the amendment see the Double Patenting section below.
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 1-6, and 14-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, and 5-10 of copending Application No. 18/548868 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending reference application are obvious variants of the claims in this application.
Amended Claim 1 is substantially identical to claim 1 of the reference application which comprises a coating layer on a surface of the primary particle where the single point phosphorus content is measured to evaluate the formation of a coating layer of phosphate and in fact disclose an overlapping range of secondary particle size which necessarily includes at least an embodiment with the same particle sizes as the current application.
Claim 2 is substantially identical to claim 2 of the reference application.
Claims 3-6, and 14-16 are disclosed in claim 3 of the reference application.
Claim 15 f-g are disclosed in claim 6 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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/K.M.O./Examiner, Art Unit 1725
/JONATHAN CREPEAU/Primary Examiner, Art Unit 1725
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