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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 8, 2026 has been entered.
Claims 1-27 are pending. Claims 1-25 are withdrawn.
Claim 26 stands rejected under 35 U.S.C. 103 as being unpatentable over Yun et al in view of Albrecht et al.
Claim 27 stands rejected under 35 U.S.C. 103 as being unpatentable over Yun et al in view of Albrecht et al.
Claim Rejections - 35 USC § 103
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 26 is rejected under 35 U.S.C. 103 as being unpatentable over Yun et al (WO Patent 2018/101806) in view of Albrecht et al (US Patent Application 2017/0033358).
To further advance the prosecution of this invention, Yun et al (US Patent Application 2020/0083530) which is an English equivalent of (WO Patent 2018/101806) will be used in this rejection.
Regarding claim 26, Yun et al discloses the invention substantially as claimed. Yun et al nickel based active material precursor for a lithium battery comprising a core and shell (Abstract). Yun et al further teaches Yun et al further teaches the average particle diameter of the secondary particles of the nickel based active material is 2-18µm (Paragraph 68). Yun et al further teaches core particles may have an irregular arrangement (Paragraph 24). Yun et al further teaches the shell particles have a radial arrangement (Paragraph 27, Claim 1). Yun et al further teaches the nickel based active material precursor having the formula: Ni1-x-y-zCoxMnyMz(OH)2, wherein M can be B, Mg, Ca, Sr, Ba, Ti, V, Cr, Fe, Cu, Zr (Paragraphs 30-31. Yun et al further teaches the core occupies an area of 65-85% from the center based on a total length from the center to the surface (which satisfies a ratio of secondary particle diameter to core diameter ranging from 1.17-1.53 and overlaps the instantly claimed range) (Paragraph 22). However, Yun et al fails to specifically disclose the span and form factor of the secondary particles.
In the same field of endeavor, Albrecht et al teaches metal hydroxide particles as a precursor for the preparation of a cathode material for lithium batteries (Abstract). Albrecht et al further teaches mixed metal hydroxides can be prepared in both spherical or nonspherical particle shape (Paragraph 94). Albrecht et al further teaches the shape factor (form factor) of a spherical shape are greater than 0.7 (Paragraph 95). Albrecht et al further teaches the shape factor of the particles is a measure of the sphericity of the particles (Paragraph 96). Albrecht et al further teaches the mixed metal hydroxide powders have a standardized width of particle size distribution D90-D10/D50 (span) of less than 1.2 (Paragraph 101).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided a span of less than 1.2 and form factor greater from 0.3-0.6 to produce a product of span and form factor between 0.3-0.6 in Yun et al in view of Albrecht et al because it is known from Albrecht et al that adjusting and controlling the process conditions of producing the hydroxide particles controls the shape and particle size distribution of the hydroxide particles. Furthermore, Albrecht et al teaches less than 1.2 as a standardized width of particle size distribution D90-D10/D50 (span). Furthermore, although Albrecht et al teaches spherical (shape factor closest to 1 as the preferred shape), Albrecht et al also teaches nonspherical shapes which would include shape factors outside of less than 0.7 or greater than 1. Likewise, Yun et al teaches plate shaped, disc shaped and parallelepiped shaped (Paragraph 24). In addition, changing the shape is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular shape of the claimed subject matter is significant, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). See MPEP 2144.04 IV. B. For example, a form factor of 0.7 and a span of 0.7, provides a product of 0.49, which is within the claimed range and within the overlapping values and teachings in Yun et al in view of Albrecht et al.
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Yun et al (WO Patent 2018/101806) in view of Albrecht et al (US Patent Application 2017/0033358).
To further advance the prosecution of this invention, Yun et al (US Patent Application 2020/0083530) which is an English equivalent of (WO Patent 2018/101806) will be used in this rejection.
Regarding claim 27, Yun et al discloses the invention substantially as claimed. Yun et al nickel based active material precursor for a lithium battery comprising a core and shell (Abstract). Yun et al further teaches Yun et al further teaches the average particle diameter of the secondary particles of the nickel based active material is 2-18µm (Paragraph 68). Yun et al further teaches core particles may have an irregular arrangement (Paragraph 24). Yun et al further teaches the shell particles have a radial arrangement (Paragraph 27, Claim 1). Yun et al further teaches the nickel based active material precursor having the formula: Ni1-x-y-zCoxMnyMz(OH)2, wherein M can be B, Mg, Ca, Sr, Ba, Ti, V, Cr, Fe, Cu, Zr (Paragraphs 30-31. Yun et al further teaches the core occupies an area of 65-85% from the center based on a total length from the center to the surface (which satisfies a ratio of secondary particle diameter to core diameter ranging from 1.17-1.53 and overlaps the instantly claimed range) (Paragraph 22). However, Yun et al fails to specifically disclose the span and form factor of the secondary particles.
In the same field of endeavor, Albrecht et al teaches metal hydroxide particles as a precursor for the preparation of a cathode material for lithium batteries (Abstract). Albrecht et al further teaches mixed metal hydroxides can be prepared in both spherical or nonspherical particle shape (Paragraph 94). Albrecht et al further teaches the shape factor (form factor) of a spherical shape are greater than 0.7 (Paragraph 95). Albrecht et al further teaches the shape factor of the particles is a measure of the sphericity of the particles (Paragraph 96). Albrecht et al further teaches the mixed metal hydroxide powders have a standardized width of particle size distribution D90-D10/D50 (span) of less than 1.2 (Paragraph 101).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided a span of less than 1.2 and form factor greater than 0.7 to produce a product of span and form factor between 0.8-1.4, which overlaps the instantly claimed ranges, in Yun et al in view of Albrecht et al because it is known from Albrecht et al that adjusting and controlling the process conditions of producing the hydroxide particles controls the shape and particle size distribution of the hydroxide particles. Furthermore, Albrecht et al teaches less than 1.2 as a standardized width of particle size distribution D90-D10/D50 (span) and shape factor (form factor) of a spherical shape are greater than 0.7 (Paragraph 95). A prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I). For example, a form factor of 0.71 and a span of 1.19, provides a product of 0.84, which is within the claimed range and within the overlapping values and teachings in Yin et al in view of Albrecht et al.
Response to Arguments
Applicant's arguments filed June 8, 2026 have been fully considered but they are not persuasive.
With respect to Applicant arguments over Yun et al in view of Albrecht et al, Applicant argues that the product of the span and form factor is not inherent. Applicant further argues that the prior art fails to teach the product of the span and form factor and is not a result-effective variable. The Examiner respectfully disagrees with the above argument as the rejection based upon Yun et al in view of Albrecht et al is not based upon inherency; the rejection is based upon obviousness and overlapping ranges. Furthermore, after KSR, the presence of a known result-effective variable would be one, but not necessarily the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process. See MPEP § 2144.05, subsection II.B. See also In re Papesch, 315 F.2d 381, 391, 137 USPQ 43, 51 (CCPA 1963). Likewise, as recited in the previous office action, the teachings in Yun et al and Albrecht et al overlap the instantly claimed ranges. With regard to claim 26, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided a span of less than 1.2 and form factor greater from 0.3-0.6 to produce a product of span and form factor between 0.3-0.6 in Yun et al in view of Albrecht et al because it is known from Albrecht et al that adjusting and controlling the process conditions of producing the hydroxide particles controls the shape and particle size distribution of the hydroxide particles. Furthermore, Albrecht et al teaches less than 1.2 as a standardized width of particle size distribution D90-D10/D50 (span). Furthermore, although Albrecht et al teaches spherical (shape factor closest to 1 as the preferred shape), Albrecht et al also teaches nonspherical shapes which would include shape factors outside of less than 0.7 or greater than 1. Likewise, Yun et al teaches plate shaped, disc shaped and parallelepiped shaped (Paragraph 24). In addition, changing the shape is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular shape of the claimed subject matter is significant, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). See MPEP 2144.04 IV. B. For example, a form factor of 0.7 and a span of 0.7, provides a product of 0.49, which is within the claimed range and within the overlapping values and teachings in Yun et al in view of Albrecht et al. With regard to claim 27, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided a span of less than 1.2 and form factor greater than 0.7 to produce a product of span and form factor between 0.8-1.4, which overlaps the instantly claimed ranges, in Yun et al in view of Albrecht et al because it is known from Albrecht et al that adjusting and controlling the process conditions of producing the hydroxide particles controls the shape and particle size distribution of the hydroxide particles. Furthermore, Albrecht et al teaches less than 1.2 as a standardized width of particle size distribution D90-D10/D50 (span) and shape factor (form factor) of a spherical shape are greater than 0.7 (Paragraph 95). A prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I). For example, a form factor of 0.71 and a span of 1.19, provides a product of 0.84, which is within the claimed range and within the overlapping values and teachings in Yin et al in view of Albrecht et al.
Applicant further argues that the Office has selectively picked and combined broad values for span and form factor to rejection the claims. Applicant further argues an example of 1.7 and form factor of 1.0 yields a product of 1.7, which is outside of the claimed range. The Examiner respectfully disagrees with the above argument because, as recited above and in the previous office action, the teachings overlap. A prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005). Furthermore, “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed….” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). A reference is not limited to the working examples, see In re Fracalossi, 215 USPQ 569 (CCPA 1982). The rejection is maintained absent a showing of unexpected results that is commensurate in scope with the claims.
Applicant further argues unexpected results. The Examiner respectfully disagrees with the above argument because Applicant failed to explain any showing of unexpected results; conclusory statements not supported by factual evidence, see In re Lindner, 457 F.2d 506, 173 USPQ 356 (CCPA 1972). The examples in the specification are of no probative value in determining patentability of claims since they do not involve a comparison of applicant’s invention with the closest applied prior art. See In re De Blawe, 222 USPQ 191 (Fed. Cir. 1984) and In re Fenn, 208 USPQ 470) CCPA 1981). Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). See MPEP 716.02(b) III and 716.02(e).
Applicant further argues hindsight. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
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/TANISHA DIGGS/Primary Examiner, Art Unit 1761 June 26, 2026
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