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 .
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.
Claims 1-7, 9, and 11-18 are rejected under 35 U.S.C. 103 as being unpatentable over Ogawa et al. (US 2017/0288223), cited in the Information Disclosure Statement dated June 14, 2024.
Regarding independent claim 1 and claim 9, Ogawa et al. disclose a lithium metal composite oxide with a layered structure (abstract; paragraphs [0034]-[0042], [0067]-[0075], and [0078]-[0082]; Examples; Table 1; and claim 1), in which the lithium metal composite oxide comprises the following:
at least Li, Ni, and an element X, wherein the element X includes at least one of Mn and Al (see paragraphs [0039] and [0040]), and represented by a composition formula (I) as follows:
Li[Lix(Ni(1-y-z-w)CoyMnzX1w)1-x]O2 (I), and in the formula (I), X1 represents one or more elements selected from the broadly claimed group of elements, including Al (see paragraphs [0039]-[0042]; and Examples), and
-0.1 ≤ x ≤ 0.2, 0 ≤ y ≤ 0.4, 0 ≤ z ≤ 0.4, 0 ≤ w ≤ 0.1, and 0 < y + z + w are satisfied (see paragraphs [0039]-[0042]; and Examples), wherein x in the composition formula (I) would also satisfy 0 < x ≤ 0.2 (somewhat narrower in scope than -0.1 ≤ x ≤ 0.2 above), and wherein the composition formula (I) would also satisfy 0 < y + z + w ≤ 0.3 (somewhat narrower in scope than 0 < y + z + w).
L/D50 that is a ratio of an average primary particle diameter L to a 50% cumulative volume particle size D50 is at or just below a range of 0.72 to 1.5, wherein L is indicated as DSEM (see abstract; paragraphs [0034] and [0035]; and Table 1 in comparing ratios between columns DSEM and D50), and
in powder X-ray diffraction measurement using a CuKα ray (see paragraph [0082]), a crystalline diameter A calculated from a diffraction peak within a range of 2θ = 44.5 ± 1° would be 700 Å or less.
With regard to the ranges of the ratio of L/D50 and the broad limit of crystalline diameter A to be any value at or below 700 Å, these ranges would be obvious since these ranges would be readily contemplated by one of ordinary skill in the art, provided the combination of ranges/values disclosed by Ogawa et al. addressed above. In this instance, one of ordinary skill in the art would have recognized the obviousness of the ranges in view of Ogawa et al., as set forth in MPEP 2144.05. “In the case where claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists.”. 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). Moreover, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (1980).
Regarding the new limitation of L/D50 being a ratio of an average primary particle diameter L to a 50% cumulative volume particle size D50 is “0.72 to 1.5” (rather than “0.3 to 1.5” as previously claimed), it is noted that the claimed lower endpoint value of “0.72” is at or slightly above the value disclosed in Ogawa et al. Note that the courts have held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In re Scherl, 156 F.2d 72, 74-75 (CCPA 1946). See MPEP 2144.05(I)(¶2).
Regarding claim 2, wherein L/D10 that is a ratio of the average primary particle diameter L to a 10% cumulative volume particle size D10 is within the range of 0.6 to 3 (see abstract; and Table 1 in comparing ratios between columns DSEM and D10).
Regarding claims 3 and 14, wherein the average primary particle diameter L is within the range of 1 to 10 µm (see Table 1 under the column DSEM, wherein L corresponds to DSEM).
Regarding claims 4 and 15, wherein the 50% cumulative volume particle size D50 is within the range of 2 to 25 µm (see abstract; paragraphs [0035] and [0036]; and Table 1 under the column D50).
Regarding claims 5 and 16, although Ogawa et al. do not explicitly disclose a BET specific surface area within the broadly claimed range of 0.3 to 1.9 m2/g, this range would be anticipated and/or obvious since this range would be readily contemplated by one of ordinary skill in the art in view of the above ranges of parameters disclosed by Ogawa et al. (e.g. L, D50, A, and D10, as applied to applicant’s claims 1 and 2 above). In this instance, one of ordinary skill in the art would have recognized the obviousness of the ranges in view of Ogawa et al., as set forth in MPEP 2144.05. “In the case where claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists.”. 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). Moreover, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (1980).
Regarding claims 6, 7, 17, and 18, although Ogawa et al. do not explicitly disclose that, in the powder X-ray diffraction measurement using a CuKα ray, when a crystalline diameter calculated from a diffraction peak within a range of 2θ = 18.5 ± 1° is indicated by B to be a broad limit of any value at or below 1300 Å, B/A that is a ratio of the crystalline diameter B to the crystalline diameter A is 1.3 to 1.78, this range of B/A would be anticipated and/or obvious since this range would be readily contemplated by one of ordinary skill in the art in view of the above ranges of parameters disclosed by Ogawa et al. (e.g. L, D50, A, B, and D10, as also applied to applicant’s claims 1 and 2 above). In this instance, one of ordinary skill in the art would have recognized the obviousness of the ranges in view of Ogawa et al., as set forth in MPEP 2144.05. “In the case where claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists.”. 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). Moreover, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (1980).
Regarding claims 11-13, Ogawa et al. suggest a lithium secondary battery with a positive electrode that includes the positive electrode active material having the lithium metal composite oxide according to claim 1 (abstract; and paragraphs [0073]-[0075]).
Response to Arguments
The examiner acknowledges the applicant’s amendment received by the USPTO on January 16, 2026. The amendments to the specification overcome prior objections to the drawings. Although the applicant’s amendments to independent claim 1 overcome the prior 35 USC 102/103 rejection in view of Ogawa et al., a revised 35 USC 103 rejection in view of Ogawa et al. is provided (see above section 3). The applicant has cancelled claims 8, 10, 19, and 20. Claims 1-7, 9, and 11-18 are currently under consideration in the application.
Applicant's arguments filed January 16, 2026 have been fully considered but they are not persuasive.
With regard to the applicant’s remarks/arguments on pages 9-12 of the amendment, it is first noted that the newly underlined portions in the above 35 USC 103 rejection reflect applicant’s amendments to independent claim 1, including incorporation of subject matter from portions of the cancelled claims. Regarding the applicant’s first argument (presented by applicant in bold type throughout pages 10 and 11 of the REMARKS section) that the ratio “0.72 to 1.5” (replacing the prior ratio “0.30 to 1.5”) is not disclosed nor suggested by Ogawa et al., the examiner respectfully disagrees. In referring to the applicant’s statement in the paragraph bridging pages 10 and 11 of the REMARKS section, Ogawa et al. disclose the compositional aspects of formula (I). Although the applicant correctly states that DSEM corresponds to L in Table 1 of Ogawa et al. and, when taken that the Ni ratio exceeding 0.6 in Examples 7-12 is applied, a reciprocal of the ranges D50/DSEM (or DSEM/D50) would be about 0.43 to 0.67 (upper limit actually being “0.685” (see 3.7/5.4 in Example 7 of Table 1). However, and as newly set forth in the 35 USC 103 rejection, the lower claimed limit of “0.72” (which appears to be taken from paragraph [0273] of applicant’s original specification in Table 2) is very close to “0.685” in Example 7 of Ogawa et al. Note that the courts have held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In re Scherl, 156 F.2d 72, 74-75 (CCPA 1946). See MPEP 2144.05(I)(¶2). In addressing the applicant’s second argument (bridging pages 11 and 12 of the REMARKS section) pertaining to a crystalline diameter A “of 700 Å or less”, it is noted that Example 7 of Ogawa et al. discloses a crystalline diameter of 588 Å (meeting the limitation “700 Å or less”). Since Example 7 (ratio of “0.685”) is closest to applicant’s claimed range of “0.72 to 1.5” and includes a crystalline diameter of 588 Å, it is strongly implied that the limitation of “700 Å or less” would also be met by Ogawa et al. since “0.685” is very close to applicant’s lower limit of “0.72”.
In view of the 35 USC 103 rejection and for these additional reasons, claims 1-7, 9, and 11-18 remain rejected.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN P KERNS whose telephone number is (571)272-1178. The examiner can normally be reached Monday-Friday 8am-430pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Keith Walker can be reached at (571)272-3458. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KEVIN P KERNS/Primary Examiner, Art Unit 1735 February 17, 2026