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 .
Response to Amendment
The Amendment filed on 1/2/2026 has been entered. Claims 1-6 and 9-14 remain pending in the application. Claims 6 and 9-14 are withdrawn. Applicant’s amendments to the claims have overcome each and every objection and 112(b) rejection previously set forth in the Non-Final Office Action mailed 10/01/2025.
Information Disclosure Statement
The IDS filed 1/15/2026 has been considered by examiner.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Asano et al. (US 2019/0296359, hereinafter "Asano") in view of Yamamoto et al. (US 2019/0123380, hereinafter "Yamamoto").
Regarding claim 1, Asano teaches a binder consisting of a fluorine-containing polymer comprising vinylidene fluoride and tetrafluoroethylene [0029, “The fluorine-containing polymer contains a polymerized unit based on vinylidene fluoride, a polymerized unit based on tetrafluoroethylene”, 0268, “The binder (fluorine-containing polymer)”]. Asano further teaches that the composition of the fluoropolymer comprises a fluoropolymer comprising as least one functional monomer [0031, “The fluorine-containing polymer contains a polymerized unit based on the monomer (2-2). The monomer (2-2) contains a specific functional group”]. Asano also teaches that the solution viscosity of the binder, in NMP with 5 wt% solid content, was measured at room temperature [0267, “A 5 mass % N-methyl-2-pyrrolidone (NMP) solution of the fluorine-containing polymer was prepared, and the viscosity was measured at 25° C”]. The solution viscosity of the binder taught by Asano ranged from 393 mPa.s to 1393 mPa.s, or 0.393 Pa.s to 1.393 Pa.s, which overlaps the claimed range [Table 1]. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP 2144.05 I). While Asano does not specifically teach that the solution viscosity is tested with a Brookfield viscometer, the method in which the solution viscosity is tested does not lend itself to any actual structure within the claim, and absent objective evidence that other methods are not equivalent to those recited, they could also be relied upon as long as the recited viscosity is met. Asano is silent with respect to the binder being used for a “nano-sized lithium phospho-olivine based cathode” as recited by the preamble of claim 1. However, Asano discloses all of the positively recited structure, and is therefore fully capable of being used as a binder for a nano-sized lithium phospho-olivine based cathode, and accordingly meets this intended use claim language. According to the guidance issued by Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020), “[i]f the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction” (see MPEP 2111.02 II). Asano does not specifically teach the fluoropolymer being a thermoplastic fluoropolymer.
Yamamoto teaches analogous art of a binder containing a fluoropolymer composition, including thermoplastic resins (“thermoplastic fluoropolymer”) such as a vinylidene fluoride-tetrafluoroethylene copolymer [0108, “Examples of the binding agent encompass: thermoplastic resins such as polyvinylidene fluoride, a copolymer of vinylidene fluoride, polytetrafluoroethylene, a vinylidene fluoride-hexafluoropropylene copolymer, a tetrafluoroethylene-hexafluoropropylene copolymer”].
The binders of Asano and Yamamoto are both fluoropolymers comprising vinylidene fluoride and tetrafluoroethylene. Furthermore, both the binder of Asano and the binder of Yamamoto function to bind together materials in a battery electrode [Asano 0008, “an electrode mixture for a secondary battery, comprising a mixture containing at least: the binder for a secondary battery”, Yamamoto 0104, “ an active material layer including a positive electrode active material and a binder resin”].
Therefore, it would have been obvious to a person having ordinary skill in the art prior to the effective filing date of the claimed invention to expect the fluoropolymer comprising vinylidene fluoride and tetrafluoroethylene of Asano to be thermoplastic as taught by Yamamoto.
Further regarding claim 2, Asano teaches that the fluorine-containing polymer comprises vinylidene fluoride, which is a fluorinated vinylic monomer, as described above [0029]. Asano further teaches that the fluorine-containing polymer may comprise another monomer such as 3-butenoic acid, which has a carboxyl functional group [0037, “Particularly preferred examples of the monomer (2-2) include vinylacetic acid (3-butenoic acid)”].
Further regarding claim 3, Asano teaches that the fluorine-containing polymer comprises vinylidene fluoride and tetrafluoroethylene, as described above [0029].
Further regarding claim 4, Asano teaches that the fluorine-containing polymer comprises vinylidene fluoride in an amount of 50 to 95 mol%, which overlaps the recited range of at least 50 mol% [0020, “The fluorine-containing polymer preferably contains the polymerized unit based on vinylidene fluoride in an amount of 50 to 95 mol %”]. Further, as described above, Asano teaches that the fluorine-containing polymer comprises tetrafluoroethylene [0029].
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Asano (US 2019/0296359) in view of Yamamoto (US 2019/0123380) as applied to claim 1 above, and further in view of Takahashi et al. (US 5,415,958, hereinafter "Takahashi").
Regarding claim 5, Asano, as modified by Yamamoto, does not specifically teach the weight % of functional groups in the fluorine-containing polymer.
Takahashi teaches analogous art of a vinylidene fluoride copolymer that may be used for a binder [Abstract, “The copolymer is particularly effectively used as a binder for constituting an electrode for a non-aqueous solvent-type secondary battery”]. Takahashi teaches that the copolymer may comprise a functional group such as a carbonyl group [col. 2, lines 47-50]. Takahashi teaches that the content of the carbonyl group in the copolymer may be 1×10-5 to 5×10-4 mol/g [col. 2, lines 56-57]. For 1 g of copolymer that would be 1×10-5 to 5×10-4 mol, which could be multiplied by the molar mass of the carbonyl group, 28 g/mol, to get 2.8×10-4 to 0.014 g of carbonyl group in 1 g of the copolymer, or 0.028 weight % to 1.4 weight % of the carbonyl group content based on the weight of the copolymer, which overlaps the recited range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP 2144.05 I).
Takahashi teaches that if the amount of the carbonyl group in the copolymer is too low, the copolymer has insufficient adhesion to a metal substrate, but if the amount is too high, the copolymer will have a lower chemical resistance [col. 4 line 65 – col. 5 line 6, “Below 0.1 wt. part, it is impossible to obtain a copolymer showing a sufficient effect of polar group introduction, such as the adhesion to a metal substrate … the addition in excess of 3 wt. parts is liable to provide a copolymer showing a lower chemical resistance. For similar reasons, the resultant vinylidene fluoride copolymer may preferably have a carbonyl group content of 1×10-5 - 5×10-4 mol/g”].
Therefore, it would have been obvious to a person having ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the binder taught by modified Asano to include a functional group in an amount within the range taught by Takahashi, in order for the binder to show sufficient adhesion to a metal substrate and prevent a decrease in chemical resistance.
Response to Arguments
Applicant's arguments filed 1/2/2026 have been fully considered but they are not persuasive. Applicant alleges that since the prior art Asano is silent on the shear rate used to measure the solution viscosity of the fluorine-containing polymer (“thermoplastic fluoropoloymer”), Asano fails to provide a piece of information needed to determine if a product would infringe, leaving a person of skill in the art to consult unpredictable vagaries of any one person’s opinion as to the shear rate to use [Remarks, pg. 2]. To support this argument, Applicant cites Dow Chem Co. v. NOVA Chems. Corp. (Canada), 803 F.3d 620, 631 (Fed. Cir. 2015), in which the court held that the term “slope of strain hardening coefficient” was indefinite because the methods do not always produce the same results, the method chosen for calculating the slope of strain hardening could affect whether or not a given product infringes the claims and that a claim term is indefinite if it “leave[s] the skilled artisan to consult the ‘unpredictable vagaries of any one person’s opinion.’” Id. At 631 (quoting Interval Licensing LLC, 766 F.3d at 1374).
However, it is unclear how this case law is commensurate within the scope of the instant claims. The case law discusses “strain hardening” which relates to a material’s increase in strength due to deformation, while a “shear rate” is how fast a material deforms in a velocity gradient. Strain hardening and shear rate are two different properties, and the case law cited above thus does not apply to the instant claim and the prior art of record. An explanation of how the above cited case law applies to the instant application, especially the instant claim, would need to be provided. This argument is not considered persuasive, and the rejection of instant claim 1 is maintained.
Furthermore, viscosity is an intrinsic property. Asano, as modified by Yamamoto, teaches a binder comprising a chemical composition identical to the claimed binder. Therefore, the binder taught by modified Asano must have the same solution viscosity in NMP with 5 wt% solid content, between 0.3 Pa.s and 1 Pa.s at 10 s-1 as the claimed binder. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable [see MPEP 2112.01(II)].
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 MARIA F OROZCO whose telephone number is (571)272-0172. The examiner can normally be reached M-F 9-6.
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, Ula Ruddock can be reached at (571)272-1481. 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.
/M.F.O./Examiner, Art Unit 1729
/ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729