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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 26th, 2026 has been entered.
Status of Claims
Claims 1-6, 8, and 9 are pending.
Claims 1-4 and 9 are withdrawn.
Claim 7 is cancelled.
Status of Amendment
The amendment filed on August 26th, 2026 has been fully considered but does not place the application in condition for allowance.
Status of Objections and Rejections Pending Since the Office Action of May 28th, 2026
The 102 rejections of claims 5, 6, and 8 are withdrawn in view of the Applicant's arguments.
Response to Arguments
Applicant’s arguments with respect to claim 5, 6, and 8 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.
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 5, 6, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Itou (US 2009/0029253 A1) and further in view of Mori (US 2012/0276454) and Yamauchi (US 2016/0308207 A1).
Regarding claims 5 and 6, Itou teaches a positive electrode active material comprising lithium-nickel composite oxide particles [0033] which have a porosity in a range of 0.2% to 5% [0044][, overlapping with the claimed range of 1% or less (as required by claim 6). In the case where the 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). See MPEP 2144.05 (I).
Although Itou teaches that the active material particles have an average particle size in a range of 0.05 – 20 µm [0047], they fail to teach a range of a D50 average particle size. Mori is analogous art to Itou because both discuss batteries (Itou, title; Mori, title). Mori teaches that the average particle diameter may preferably be between 2 µm –8 µm. This range overlaps with the claimed range of 3 µm – 6 µm. In the case where the 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). See MPEP 2144.05 (I).
Furthermore, “[w]hen the average particle diameter is less than 2 μm, packing density of the battery capacity per volume of the positive electrode is lowered. When the average particle diameter exceeds 8 μm, since the specific surface area of the cathode active material is lowered, the area where the cathode active material is contacted with the electrolytic solution of a battery is decreased, and therefore, the resistance of the positive electrode is increased, and the output characteristics of a battery is lowered.” [0118]. Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the present invention to use an average particle diameter in the range taught by Mori in order to maintain good battery characteristics.
Itou is also silent on a particle size distribution index where the quotient of (D90 – D10) / (volume average particle size) is between 0.4 and 0.5. Yamauchi is analogous art to Itou because both discuss positive active materials used in lithium-ion batteries. Yamauchi teaches that when the value of (D90 – D10) /MV (where MV means “volume average particle diameter) is more than 0.6, the “problem of the deterioration of the cycling property of the non-aqueous electrolyte secondary battery using the positive electrode” or the “problem of short circuit” arises due to the increase of coarse particles [0111]. Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the present invention to ensure that the particle size distribution index of Itou’s particles is less than 0.6 to prevent the possibility of the aforementioned problems arising during normal battery operations. Furthermore, the range of “0.6 or less” [0110] overlaps with the claimed range of 0.4 – 0.5. In the case where the 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). See MPEP 2144.05 (I).
Regarding claim 8, Itou discloses a positive active material with the general formula LiaNibCocMndMeOfNg [0037] where the values of the subscripts overlap with the subscripts of the claimed positive active material that that contains of LiaNi1-x-y-z-MnyMz [0038]. Detailed analysis is given below:
“a”, the subscript of Li, has a range of 0 < a ≤ 1.2 which overlaps with the claimed range of 0.95 ≤ a ≤ 1.10.
“d”, the subscript of Mn, has a range of 0.25 ≤ d ≤ 0.6 which overlaps with the claimed range of 0.1 ≤ x ≤ 0.5.
“c”, the subscript of Co, has a range of 0 ≤ c ≤ 0.6 which overlaps with the claimed range of 0 ≤ y ≤ 1/3.
“e”, the subscript of M, an additional metal which may represent Mg, Ca, Al, Ti, V, or C, has a range of 0 ≤ e ≤ 0.3, which overlaps with the claimed range of 0 ≤ z ≤ 0.1.
“b”, the subscript of Ni, has a range of 0.3 ≤ b ≤ 0.9, which would encompass the value of “1 – x – y – z” as long as “d” ≤ “1 – d – c – e”. One such example of such values would include the following:
“d” = 0.33
“c” = 0.33
“e” = 0
“b” = “1 – d – c – e” = 0.34, which is greater than “d” = 0.33
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Takei (US 2014/0162119 A1) discusses the D50 and D90 average particle diameter for positive active material (abstract).
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 RYAN K BLACKWELL-RUDASILL whose telephone number is (571)270-0563. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m.
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, Niki Bakhtiari can be reached at 571-272-3433. 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.
/R.B.R./Examiner, Art Unit 1722
/NIKI BAKHTIARI/Supervisory Patent Examiner, Art Unit 1722
