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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10 December 2025 has been entered.
Response to Arguments
Applicant’s arguments 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. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 103
Claims 1-3, 5-13, 20 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Ryu et al. (US Pub 2017/0222211 cited in IDS) in view of Song et al. (US Pub 2015/0340689 newly cited).
In regard to claim 1, 6 and 13, Ryu et al. teach a lithium secondary battery comprising an anode, electrolyte (see coin cells created in Examples – paragraphs [0128-0133], electrolytes in paragraphs [0097-0101] including solid electrolytes) and a composite positive active material for a lithium secondary battery, the composite position active material comprising:
a lithium cobalt-based oxide (paragraph [0031]),
a particle coating part in a form of islands on one surface of the lithium cobalt- based oxide (paragraph [0029] – “surface modifying layer including a lithium compound discontinuously distributed” in the form of islands), the particle coating part comprising a first coating layer containing a lithium titanium-based oxide (paragraphs [0047-0048]), and
a surface coating part (lithium deficient second lithium cobalt oxide A) in an internal region of another surface of the lithium cobalt-based oxide (paragraphs [0039-0042]).
Claim 1 differs from Ryu et al. in calling for a second coating layer comprising lithium zirconium-based oxide, wherein the second coating layer on the first coating layer is in the form of islands. However, Song et al. teach a similar composite cathode material for a lithium ion battery including primary particles of a lithium cobalt oxide core 11 (paragraph [0068]) with island shaped surface modification portions (see figure 3B) in coating layers 12 and 13, and the desirability to further include nanometer size ZrO2 particles (which appear as dots) dispersed in a lithium conductive medium in the coating layer paced apart from a surface of the lithium cobalt-based oxide toward a center of the lithium cobalt-based oxide (see paragraphs [0122-0125], figures 2 and 3 – i.e. the second coating layer on the first coating layer is in the form of islands) because such improves the lifespan and electrochemical properties of the cathode active materials (paragraphs [0036-0041]).
Therefore, it would have been obvious to one of ordinary skill in the art at the before the effective filing date of the claimed invention filed to include a lithium zirconium oxide particle dispersed in the first coating layers in the cathode active material particles of Ryu et al. in order to improve the lifespan and electrochemical properties of the cathode active materials as taught by Song et al. As the layers of Song et al. are formed as a composite under high heat treatments the zirconium oxide of the prior art is reasonably expected to include or be considered lithium zirconium oxide as the zirconium oxide of Song et al. is intended to be encased in a layer which is lithium ion conductive (paragraph [0036]) and is formed in conjunction with excess lithium remaining on the core (paragraph [0039]).
In regard to claim 2 and 8, Ryu et al. teach the composite positive active material of claim 1 and wherein the first lithium cobalt oxide represented by LiCoMxO2 and an amount of M which may be dopant of aluminum and magnesium may be included (Mx where x may be up to 0.02, i.e. 20,000 ppm – paragraphs [0031-0036]) up to 20,000 ppm in the lithium cobalt-based oxide which overlaps the claimed range in a manner which provides a prima facie case of obviousness (see MPEP 2144.05).
In regard to claim 3, Ryu et al. teach the lithium titanium-based oxide is a compound represented by a formula such as Li2TiO3 which may further include Zr or Mg and has reactivity with the lithium deficient structure (paragraphs [0047-0048]) and is therefore presumed to include some amount of Co in a manner which obviates the claimed formula 1 as such overlaps the claimed range in a manner which provides a prima facie case of obviousness (see MPEP 2144.05).
In regard to claim 5 and 10, Song et al. teach the content of the zirconium precursors are provided in an amount such as 0.01 to 2 mol percent based on the core (paragraph [0094]) which is taken to overlap the claimed range for weight parts in a manner which provides a prima facie case of obviousness (see MPEP 2144.05). Song et al. further teaches the first and second lithium zirconium-based oxide comprises zirconium oxide (see paragraphs [0037]) which is formed with excess lithium from the core (paragraph [0039]) and therefore some proportion of lithium zirconium oxide of the claimed formulas is taken to be formed in the layered structure. Ryu et al. also teach the reactivity of the metals with lithium thus forming lithium metal oxides as noted in regard to claim 3 above.
In regard to claim 7, 9 and 21, Ryu et al. teach varying the amount of lithium reactive element (such as Zr or Mg which forms the lithium deficient cobalt oxide A) in an amount between 50 and 50,000ppm (paragraph [0049], i.e. .05 parts by weight) and varying a thickness of the surface coating part from 1 to 100nm (paragraph [0053]) which overlaps the claimed range for the amount of lithium cobalt-based oxide A, amount of the titanium based oxide and/or an amount of zirconium based oxide in a manner which provides a prima facie case of obviousness (see MPEP 2144.05).
In regard to claims 11-13, Ryu et al. teach the lithium cobalt-based oxide is in a form of particles with a D50 of 3-50 micron particles, preferably 10-50 micron (i.e. unimodal large particles and/or mixture of small and large particles – paragraph [0057]) in a manner which obviates the claimed particle distributions i.e. comprising mostly large particles by weight.
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 1-3, 5-13, 20 and 21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of co-pending Application No. 17/981,727 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the co-pending claims have been amended to require a composite positive electrode active material for a lithium secondary battery, the composite positive electrode active material comprising :a lithium cobalt oxide particle; and a particle coating portion in a form of an island and on a first surface of the lithium cobalt oxide particle, the particle coating portion comprising a first coating layer comprising a lithium titanium oxide, wherein the lithium cobalt oxide particle comprises a lithium-deficient cobalt oxide phase positioned between the particle coating portion and a core of the lithium cobalt oxide particle, the lithium-deficient cobalt oxide phase having a molar ratio of lithium to cobalt of about 0.9 or less, and a surface coating portion located between a second surface of the lithium cobalt oxide particle and the core of the lithium cobalt oxide particle-,wherein the particle coating portion further comprises a second coating laver. and the second coating laver is on the first coating laver and comprises a lithium zirconium oxide in a manner which obviates the composite positive electrode claimed in the instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US PG Pub 2014/0045067 and 2018/0248179 teach cathode materials relevant to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nicholas P D'Aniello whose telephone number is (571)270-3635. The examiner can normally be reached Monday to Friday 9am to 5pm EST.
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/NICHOLAS P D'ANIELLO/ Primary Examiner, Art Unit 1723