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 .
Information Disclosure Statement
The information disclosure statements filed 3/8/23 and 1/6/26 have been considered by the examiner.
Election/Restrictions
Applicant's election with traverse of claims 1-3, 7-8, 12-13, 15, 22, 28-29, 32-33, 35, 38, 40, 43, 48, 49-55, and 57-60 in the reply filed on 11/19/25 is acknowledged. The traversal is on the ground(s) that coextrusion and lamination are not mutually exclusive. This is not found persuasive because the claims as filed include mutually exclusive limitations. While the examiner agrees with the theoretical explanation in the traversal of 11/19/25, i.e. that two layers may be coextruded and a third may be laminated, this argument is not commensurate in scope with the claim as filed. Specifically, claims 10 and 59 both include limitations to all three layers being coextruded, and claim 59 does not include any limitations to only two of the layers being coextruded. Additionally, since the claim 10 includes optional language, a rejection in which the three layer coextrusion option is found to be anticipated or obvious would be mutually exclusive from the coextrusion/lamination species, and the third layer of claim 10 could be made by any number of methods besides lamination, thereby creating a burdensome search (which the examiner notes is not a requirement for a species restriction under Unity of Invention practice).
Regarding claim 60, since the coextrusion species is elected, the lamination species of the Markush group of the claim is considered withdrawn.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3,7-8,12-13,15,22-28,32-33,35-36,38,48,50-55 and 57-60 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1, from which claims 2-3,7-8,12-13,15,22-28,32-33,35-36,38,48,50-55 and 57-60 depend, recites the broad recitations “layer(s) comprising”, and the claim also recites “layer(s) … consisting of, or consisting essentially of” which are the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Claim 12 also includes a broad limitation together with a narrow limitation that falls within the broad limitation in the same claim.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 3 and 50 recite the broad recitation “1.3 or more”, and the claim also recites “1.4 or more, 1.5 or more, or 1.6 or more” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
The term “low molecular weight” in claims 12 and 48 is a relative term which renders the claim indefinite. The term “low molecular weight” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The limitation “low molecular weight” will not be given patentable weight.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 22 and 50 recite the broad recitation “5% or more”, and the claim also recites “10% or more, 20% or more, 30% or more, 40% more, or 50% or more” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claims 32, 53, and 60 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. The claims are directed to an “MFR” but to not define MFR. In light of the specification, the limitation is interpreted as melt flow rate, but appropriate correction to the claims is required.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 33 and 54 recite the broad recitation “5 to 25 microns”, and the claim also recites “5 to 15 microns” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim Interpretation
Claims 1, 48, 50-55, and 57-60 include product-by-process limitations, specifically to a “dry-process” and “coextruding” layers. The examiner finds that process of making the membrane does not appear, nor would the person having ordinary skill in the art expect the process, to impart any particular structural characteristics that are not found in other processes of making the membrane. MPEP 2113 I
Claims 15, 40, 43, and 58-60 contain optional limitations, specifically: “a styrenic elastomer that may be one or more …” “a coating may be provided …”; “an electrode of the battery may comprise …”; and “the coating may be…” These limitations are considered to be optional and the examiner will interpret the claims as not limiting the claim to the particular structure described by the optional limitations. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. MPEP 2144.03
Claim Rejections - 35 USC § 102
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 following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 8, 12-13, 33, 35, 40, 43, 48, 54-55, and 58-59 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Takita et al. (US 2009/0253032).
Regarding claim 1, Takita teaches a multi-layer porous membrane (abstract) comprising:
two exterior layers, or first microporous layers constituting both surface layers, comprising polypropylene (options (i) and (ii)); and
one interior layer, or second microporous layer, comprising polypropylene (option (iii)) ([0031]);
wherein the average pore size of the interior layer is larger than the average pore size of the exterior layers ([0014]).
It is noted that the membrane of Takita is made by a dry-process in that dry blending is used to form the first and second polyolefins (see, e.g. [0165], [0184]).
Regarding claims 8, 48, 54-55, and 58-59, it is noted that Takita teaches co-extruding the layers ([0017]); however, the examiner maintains that the process does not appear to impact the implied structure as discussed above.
As for claims 12, 48, 58, and 59, Takita teaches that the second microporous layer is a blend of polypropylene and an ultra-high-molecular-weight polyethylene such as an ethylene-α-olefin ([0013], [0036]).
Regarding claim 13, Takita teaches that the ultra-high-molecular-weight polyethylene such as an ethylene-α-olefin is 7% or less by mass ([0048]).
Regarding claims 33 and 54, Takita teaches that the membrane has a thickness of 20.2µm (Table 1 Example 4).
As for claims 35 and 55, Takita teaches wherein the membrane comprises only one interior layer (Table 1 Example 4).
As for claims 40, 43, and 59, the examiner finds that the membrane is used as a separator in a battery ([0001]), which may have the elements of the claims. See claim interpretation section, above.
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.
Claims 2-3, 7, 22, 28-29, 32, 38, 50-53, 57, and 60 are rejected under 35 U.S.C. 103 as being unpatentable over Takita as applied to claims 1, .
The teachings of Takita as discussed above are incorporated herein.
As for claims 2-3, 7, 22, and 50, Takita teaches that the ratio of the average pore sizes of the internal to external layer is result effective for improving electrolyte solution absorption and retention ([0014], [0138], [0221]). It has been held that it is within the ordinary level of skill in the art to discover optimum or workable ranges by routine experimentation. MPEP 2144.05 I
With regard to claims 28-29 and 51-52, Takita teaches that the exterior layer has an average pore size of 0.005-0.1µm and the interior layer has an average pore size of 0.02-0.5µm ([0014]). The examiner takes note of the fact that the prior art ranges overlap the claimed range. Absent any additional and more specific information, a prima facie case of obviousness exists. MPEP 2144.05
As for claims 32, 53, and 60, Takita teaches different melt-blending temperatures for the first and second solutions ([0066], [0071]). The examiner finds that melt-blending temperature is an analogous measure of melt flow rate.
Regarding claims 38 and 57, Takita teaches that the puncture strength of the membrane is result effective to prevent short circuit ([0149]). It has been held that it is within the ordinary level of skill in the art to discover optimum or workable ranges by routine experimentation. MPEP 2144.05 I
Further regarding claim 60, Takita teaches a coating provided on the membrane ([0103]).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Takita as applied to claim 12 above, and further in view of Hamasaki et al. (US 2021/0637309).
The teachings of Takita as discussed above are incorporated herein.
Takita teaches the membrane of claim 12 including the another component that is ethylene-α-olefin but fails to teach a styrenic elastomer.
Hamasaki teaches that styrenic elastomers are substitutable for ethylene-α-olefin in battery membranes ([0158]).
It would have been obvious to substitute a styrenic elastomer for the ethylene-α-olefin of Takita such as suggested by Hamasaki and the results of the substitution, i.e. a suitable polyolefin for a membrane, would have been predictable. MPEP 2143 I B
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALIX ECHELMEYER EGGERDING whose telephone number is (571)272-1101. The examiner can normally be reached 8:30am - 4:30pm.
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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.
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/ALIX E EGGERDING/Primary Examiner, Art Unit 1729