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 Arguments
Applicant’s arguments have been considered but are not persuasive. In regard to the amendment now positively requiring magnesium and aluminum in the lithium cobalt-based oxide - Applicant’s arguments regarding the large number of possible elements in the prior art are appreciated and the Examiner acknowledges that the cited reference broadly discloses numerous possible elemental combinations. However, the instant claims are likewise directed to a broad genus encompassing a similarly extensive number of possible elemental combinations (by using the open language comprising, and failing to require any particular amount of elements required). Therefore, the breadth of the cited disclosure does not detract from its applicability to the claimed subject matter. Because the claimed combinations fall within the scope of the genus disclosed by the prior art and represent no more than predictable selections from that disclosed genus, one of ordinary skill in the art would have found the claimed subject matter obvious at the time of the invention. The prior art provides sufficient guidance to encompass the claimed subject matter, and no criticality or unexpected results have been demonstrated that would distinguish the claimed genus from the disclosed prior art genus. For example, the prior art could include a dopant amount of all of the elements listed and still fall within the scope of the instant claims which do not preclude any additional dopants.
In any event, the Examiner notes that prior art (not relied upon in the rejection) such Paulsen et al. (US Pub 2016/0099469 newly cited) specifically teaches the desirability to dope lithium cobalt oxide with the claimed amounts of magnesium and aluminum in paragraph [0132] –
“1 mol % magnesium and 1 mol % aluminum doped cobalt tetroxide (Co3O4) powder as precursor for LiCoO2 is used (commercially available product from Umicore, Korea). Magnesium and aluminum doped LiCoO2 (noted LCO-6) is obtained by means of a standard high temperature solid state synthesis by mixing the precursor with Li2CO3 to achieve an average particle size of 20 Ex7 is prepared on a pilot production line by sintering LCO-6 and MOOH (M=Ni0.55Mn0.30Co0.15) in a 95:5 molar ratio and appropriate lithium carbonate addition to achieve a conductivity of less than 5*10−8 S/cm. The average particle size of Ex7 is 20 In this case, the electrical conductivity under an applied pressure of 63 MPa is measured to be 4.40*10−8 S/cm. Coin cell performances of Ex7 are listed in Table 9 and show outstanding electrochemical performances.”
Applicant argues a criticality to the claimed composition citing the Examples in the instant specification, the Examiner notes that the claims are not reasonably commensurate in scope with the results for the inventive examples the instant specification in a manner which could give the claims the secondary consideration of unexpected results (see MPEP 716.02(d) - there is no data that the full scope of the claimed genus would reasonably be expected to have the enhanced properties).
Applicant argues that the prior art does not specify the claimed contents such as cobalt content in the lithium titanate layer – a person of ordinary skill in the art would appreciate there would be diffusion between the different layers and transition regions between the core and shell layers such that the claimed compositions, which include widely varying range, to be present in a manner which obviates the claimed ranges. Additionally, lithium diffuses through the structure during through the core and shell layers during cycling.
Therefore, applicant’s arguments and amendments are insufficient to overcome the prima facie case of obviousness. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. The double patenting rejection has been maintained and the Examiner notes the co-pending case has been allowed and therefore the rejection will no longer be provisional and should be addressed in applicant’s next response.
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 of record).
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 positive active material comprising:
a lithium cobalt-based oxide comprising aluminum and magnesium (paragraph [0031-0032]),
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 – which has been allowed and issue fee paid). 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 (but have been allowed and this rejection will no longer be provisional once that patent issues).
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.
Paulsen et al. (US Pub 2016/0099469 newly cited) specifically teaches doping Mg and Al in the claimed amounts in paragraph [0132] noted above.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 Nicholas P D'Aniello whose telephone number is (571)270-3635. The examiner can normally be reached Monday to Friday 9am to 5pm EST.
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, Tong Guo can be reached at 571-272-3066. 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.
/NICHOLAS P D'ANIELLO/ Primary Examiner, Art Unit 1723
Prosecution Insights