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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/21/2026 has been entered.
Examiner Note
The examiner would like to note that the formula taught by the applicant may be present in the prior art but taught in a different mathematical or algebraic style. The examiner notes that these differences do not equate to the art “not teaching” the limitations of the present invention rather they are just taught using different mathematical methods.
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) 1,4, 6-7, and 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xie (CN 110931846 A) in view of Aihara (KR 20190054924 A).
Regarding claim 1, Xie discloses an argyrodite structure solid electrolyte with the formula Li6-nxMxPS5Br where n is the valence of M, and M is preferably Al (n = 3), and 0.05≤x ≤0.3 [0008-0011, 0046, 0056, Xie discloses an embodiment with the formula Li5.4Al0.2PS5Br].
For constancy with the formula of the instant claim the examiner will be using the variables used in the instant application. Therefore, the formula disclosed by Xie would be the following:
Li6-myMyPS5Br; M = Al, m = 3, 0.05 ≤ y ≤0.3.
The embodiment disclosed by Xie reads on the claimed general formula (I) Li(6+2*n-x-m*y)MyPS(5+n-x)X(1+x)(I) wherein M is Al; X is Br; x=0; y=0.2; n=0; m = 3 (trivalent metal).
Xie is silent to where at least one of x and n, as used in the instant claim, is greater than 0.
However, Aihara discloses a solid material with the general formula Li7-xPS6-xBrx wherein 1.2< x <1.75 or 1.5< x <1.75 [0032, Aihara]. That is to say equivalent to claimed x by removing 1 from the above subscript of Br i.e 0.2< x <0.75 and subscript of S claimed would be 6-(0-1-x) = 5-x.
As such, prior to the effective filing date, one of ordinary skill within the art would find it obvious to optimize Xie such that some of the sulfur element was replaced with a halogen (i.e. Br) because when the halide is in the disclosed range higher ionic conductivity and lower activation energy may be realized [0054, Table 1, Aihara].
For the sake of clarity, the modified formula is the following Li6-my-xMyPS6-xBrx wherein m = 3, 0.05 ≤ y ≤0.3, 1.2< x <1.75.
This satisfies the applicant’s general formula (I) Li(6+2*n-x-m*y)MyPS(5+n-x)X(1+x)(I) wherein M is Al; X is Br; 0.2< x <0.75 ; 0.05 ≤ y ≤0.3 ; n=0; m = 3 (trivalent metal).
Regarding claim 4, modified Xie discloses the solid material, wherein in general formula (I) M is Al [0013, Xie]; 0.05 ≤ x (equivalent to y) ≤ 0.3 [0013, table 2 Xie range overlaps with the applicant’s claimed range of 0.01-0.15].
Because aluminum is trivalent m is 3 and n may equal 0.
Regarding claim 6, modified Xie discloses the solid material, wherein for the molar ratio M/P = c, the following condition is satisfied: 0.05 ≤c≤ 0.3 [0013, table 2 For instance, example 3 discloses the a ratio where M = 0.1, P = 1, M/P = c = 0.1 which anticipates the claimed range].
Regarding claim 7, modified Xie discloses the solid material, wherein for the molar ratio X/M = a/c, overlaps with the following condition 15.30 ≤a/c≤ 15.55.
As discussed above in the rejection of claim 1, Xie provides an M with a range of 0.05-0.3 and Aihara provides an X with a range of 1.2-1.75. For instance, 1.2/0.05 = 24 and 1.2/0.3 = 4; 1.75/0.05 = 35 and 1.75/0.3 = 6.
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).
Prior to the effective filing date, one of ordinary skill within the arts would appreciate that the prior art teaches that the concentration of metal and halide has been shown to influence ionic conductivity and/or activation energy and is therefore a result-effective variable as having too low or too high of a concentration of metal and halide in the crystal structure can result in decreases in ionic conductivity and an increase in activation energy, see MPEP 2144.05.II.
Regarding claims 12-13, Xie discloses a solid structure for an electrochemical cell, wherein the solid structure consists of a cathode and anode and is a component of a solid structure as defined in claim 1 [0077, Xie].
Claim(s) 2-3, and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over modified Xie as applied to claim 1 and 4 above, and further in view of Yamada (WO 2019098245 as cited in IDS 10/6/2022).
Regarding claims 2 and 3, Xie discloses that the equivalence of the metal element may be between 0.05≤x≤0.3 [0008, Xie’s disclosed range overlaps with the applicant’s claimed range of 0.01 <y<0.2]. 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).
Xie teaches aluminum but is silent to the metal (M) being a divalent ion (instant claim 2) and teaches Br but is silent to Cl (instant claim 3).
However, Yamada discloses a sulfide solid electrolyte containing sulfur, lithium, phosphorous, a halogen element and a metal element [0013, example 5, Yamada discloses that calcium may be used; calcium is divalent therefore m=2]. Wherein the ratio Li/P is preferably 3.4-6.5 [0014, Yamada], the ratio of S/P is preferably 3.8-5 [0015, Yamada], and the ratio of M/P is more preferably 0.01-1.0 [0016, Yamada]. Yamada discloses that the halide preferably is one of chlorine (reads on claim 3), bromine, or iodine with a ratio of X/P is preferably 1.0-2.0 [0018, 0051 Yamada].
Xie and Yamada are analogous as both are teaching of a sulfide solid electrolyte containing lithium, sulfur, phosphorous, a metal, and a halide.
Prior to the effective filing date, one of ordinary skill within the arts would find it obvious to modify Xie such that calcium was used instead of aluminum (instant claim 2) and chlorine was used in place of bromine (instant claim 3) as a matter of art recognized equivalence with an expectation of similar results, see MPEP 2144.06 and 2144.07.
Yamada discloses a plurality of embodiments where different metal elements (including calcium, example 5) are used to successfully construct a sulfide solid electrolyte and chlorine is a halogen known to be interchangeable with bromine for sulfide solid electrolytes [0026, Yamada].
Regarding claim 5, Xie discloses the solid material wherein M is Al, but is silent to X is Cl.
However, Yamada discloses that one may interchange chlorine and bromine while constructing sulfide solid electrolytes [0018, 0026, Yamada].
Yamada and Xie are analogous as outlined above in the rejection of claims 2 and 3.
Prior to the effective filing date, one of ordinary skill within the arts would find it obvious to modify Xie such that chlorine was used in place of bromine as a matter of art recognized equivalence, see MPEP 2144.06 and 2144.07.
Claim(s) 1-3, 6, 12-13, and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nakayama (US20220359910A1 with foreign priority extending to 12/11/2019).
Regarding claim 1, Nakayama discloses a solid material having a lithium, metal, phosphorous, sulfur, and halogen elements [0007-0012, Nakayama]. Nakayama further discloses a general formula LiaMbPScXd: wherein 3.0≤a≤6.5 (most preferably 4.0≤a≤6.0), 0.001≤b≤3.0 (most preferably 0.08≤b≤0.80), 3.5≤c≤5.5 (most preferably 4.2≤c≤5.0), 0.7≤d≤2.8 (most preferably 1.1≤a≤1.8) [0043-0049, Nakayama]. Where M is a metal with 1, 2, or 3 valence electrons and X is a halogen that is F, Cl, Br, and/or I [0025, 0027, Nakayama].
Nakayama provides teachings further narrowing down the scope of the molar ratios of the individual elements. Specifically, Phosphorous is most preferably 7.9-8.2 mol% based on the total molar amount of constituent elements of sulfide solid electrolytes [0031, Nakayama]. The ratio of lithium to phosphorous is most preferably 4.6-5.5 [0032, Nakayama]. The ratio of sulfur to phosphorous is 4.3-4.6 [0033, Nakayama]. The ratio of halogen to phosphorous is 1.4-1.8 [0034, Nakayama].
Nakayama discloses that the metal element may be a divalent metal such as magnesium (Mg) and calcium (Ca) [0028, Nakayama].
Nakayama continues to disclose an explicit example such as Li5.6Mg0.1PS4.8Cl1.2 [example 10, Nakayama].
The applicant’s disclosed formula is as follows: Li(6+2*n-x-m*y)MyPS(5+n-x)X(1+x) and Nakayama’s explicit embodiment follows this equation when M = Mg then m = 2, y = 0.1, x = 0.2, and n = 0.
Li(6+2*0-0.2-2*0.1)M0.1PS(5+0-0.2)X(1+0.2) = Li(5.6)M0.1PS(4.8)X(1.2)
"[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.", see MPEP 2131.03.
In regards to claim 2, Nakayama teaches where M is Mg or Ca and y = 0.1 [example 4 and 5, Nakayama].
"[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.", see MPEP 2131.03.
In regards to claim 3, Nakayama discloses that M may be Ca and X may be Cl [0025, 0028, Nakayama].
In regards to claim 6, Nakayama discloses a molar ratio of X/P being 1.4-1.8 which overlaps with the applicant’s claimed range of 1.45-1.6 [0034, Nakayama]. Furthermore Nakayama discloses the molar ratio of M/P = 0.08-0.65 which overlaps with the applicant’s claimed range of 0.01-0.15[0035, Nakayama]
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 regards to claim 12 and 13, Nakayama discloses an electrochemical cell comprising a solid material wherein the solid material is a solid electrolyte (“separator”) between the positive and negative electrode [0014-0017, Nakayama].
In regards to claim 15, Nakayama discloses an example where n is greater than 0 [examples 4 and 5, Nakayama].
Nakayama discloses explicit examples such as Li5.3M0.1PS4.4X1.7, M = Mg or Ca and X = Br and Cl [example 4 and 5, Nakayama]. This satisfies the applicant’s general formula when M = Mg or Ca then m = 2, y = 0.1, x = 0.7, and n = 0.1
Li(6+2*0.1-0.7-2*0.1)M0.1PS(5+0.1-0.7)X(1+0.7) = Li(5.3)M0.1PS(4.4)X(1.7)
The examiner notes however, that while the explicit examples disclosed have n > 0 it does not satisfy claim 1’s limitation of n≤0.05.
However, prior to the effective filing date, one of ordinary skill within the arts would find it obvious to modify examples 4 and/or 5 such that it was as follows Li5.2M0.1PS4.35X1.7, M = Mg or Ca and X = Br and Cl.
Li(6+2*0.05-0.7-2*0.1)M0.1PS(5+0.05-0.7)X(1+0.7) = Li(5.2)M0.1PS(4.35)X(1.7)
The above equation satisfies all of Nakayama’s teachings for constructing a solid electrolyte material. Such as the molar ratio of phosphorous to total molar amount of the constituent elements of the electrolytes was 7.9-8.2 mol% (8.1 mol%) [0031, Nakayama], the ratio of lithium to phosphorous being between 4.6-5.5 (Li/P = 5.2) [0032, Nakayama], the ratio of sulfur to phosphorous being 4.3-4.6 (S/P = 4.35)[0033, Nakayama], the ratio of halogen to phosphorous being 1.4-1.8 (X/P = 1.7) [0034, Nakayama], the content of metal element to phosphorous being 0.08-0.65 (M/P = 0.1) [0035, Nakayama]. Satisfying these ratios are known to A) improve lithium ion conductivity and B) suppress the generation of sulfide gas [0031-0035, Nakayama].
Response to Arguments
Applicant's arguments filed 01/21/2026 have been fully considered but they are not persuasive. See below for details.
Applicants arguments for the advisory action are not persuasive as they are not an accurate representation of the rejection of claim 1. The examiner first notes that because applicant’s may be their own lexicographer there are times when molecular formals are presented and the same variable is representing different elements across different prior arts. In the present office action both Xie and Aihara use the variable “x” where Xie uses it for their metal element and Aihara uses it for their halogen element. As such in the rejection of claim 1 the examiner clearly noted that they were changing the formula of Xie to be constant wit that of the instant application. Doing so the “x” variable of Xie is changed to the “y” variable of the instant applicant (reproduced below)
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Because of this the examiner notes that the applicant’s arguments in which changes to the variable “x” of Aihara also impact the M elements of Xie are incorrect as the examiner noted that these should be treated as two separate variable and that the “x” variable of Aihara only impacts the concentration of the halogen. See below for a reproduction of the rejection of claim 1 which shows the modified rejection of claim 1 in which the variable associated with the metal element and the halogen element are two different elements.
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Applicant then argues the following:
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This is also unpersuasive as Aihara is clearly analogous to the “conventional” solid electrolyte (as also noted by the applicant at the top of page 3 in their present remarks) argued above and in previous applicant responses. Both contain the elements Li, P, S, and Br and are balanced equations with a net charge of zero.
Applicant then argues the following:
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This argument is not persuasive and the examiner notes that Aihara is not required to teach the improvements of Xie and that this argument is attacking the references individually.
One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. 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).
Applicant then moves to argue the 103 rejection of the prior office action. Again applicant attacks the references individually by arguing that Aihara does not recognize the teachings of Xie.
One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. 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).
Applicant then argues that any modification to Xie modifies their critical crystal structure. The examiner notes that any change to any crystal structure will modify the crystal structure in question. Furthermore, the examiner does not find this to be persuasive as one may have a “critical” structure and yet still modify it resulting in further improvements. Xie does not explore altering the concentration of the halide in their structure. Aihara notes that increasing the concentration of halide in these types of sulfide solid electrolytes results in improvements to lithium ion conductivity. As such the examiner noted that it would be obvious to modify the structure of Xie such that it had a higher concentration of halogens as this has been shown to improve lithium ion conductivity. Applicant then argues this exact point by noting that having both a metal (as taught by Xie) in addition to a higher concentration of halogen (as taught by Aihara) results in high lithium ion conductivity. As such, it appears that applicant has shown that if one were to take the teachings of Xie (which show that the presence of metals improves ion conductivity) and modify them with the teachings of Aihara (which shows that increasing the concentration of halogen improves ion conductivity) then they will produce a material with increased ion conductivity.
Next applicant argues the following:
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The examiner finds this to be unpersuasive for the following reasons:
The examiner does not argue the presence of Ca or Cl in the rejection of claim 1, as such the arguments around these elements are moot.
Applicant is arguing limitations from the specification.
"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
The final three sentences of this argument do not make sense. In an attempt to answer all the applicant’s arguments the examiner is assuming this is in reference to claim 3 which requires the presence of Ca and Cl. To which the examiner notes that it is the examiner’s responsibility to show an invention is merely obvious based off the prior art. To which they did in the rejection of claim 3.
Next applicant argues that their results are surprising (or critical). The examiner notes that the applicant has not met this criteria. In order to show surprising/critical results the applicant most provide multiple examples within and outside of their disclosed ranges to show that the results are surprising/critical.
The court held that unexpected results for a claimed range as compared with the range disclosed in the prior art had been shown by a demonstration of "a marked improvement, over the results achieved under other ratios, as to be classified as a difference in kind, rather than one of degree." Compare In re Wagner, 371 F.2d 877, 884, 152 USPQ 552, 560 (CCPA 1967), see MPEP 716.02.
The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.", see MPEP 716.02(b)
The examiner notes that the burden of a surprising result is place upon the applicant. Presently Xie teaches tat the presence of a metal element increases ionic conductivity. Aihara teaches that the increase in concentration of a halide increases ionic conductivity. The applicant argues that their results in which they have both a metal and higher halogen is surprising because it results in increased ionic conductivity. Given the above points the examiner does not find the applicants findings to be persuasive as they simply combine the teachings of both Xie and Aihara. As such the applicant has not met the burden to show that unexpected results or advantages have been met.
Finally, the examiner notes that the final two sentences again argue the references individually and do not consider their combined teachings.
Furthermore, the examiner has introduced Nakayama which discloses the teachings of the instant applicant and supersedes the applicants filing date.
No other arguments were presented, the examiner maintains the rejections.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Miyashita (US20170222257A1) and Miyashita (US20170352916A1) each teach of a “n value” for sulfur. Or rather they teach that a variation in the halide concentration may be different than the variation in sulfur and lithium concentration. In the present invention this is seen as a increase in an “x” value for the halide while sulfur and lithium are changed by “n-x”.
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).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Miriam Stagg can be reached at 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
/STEWART A FRASER/Primary Examiner, Art Unit 1724