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 .
Claim Objections
Claims 1-3 and 5 are objected to because of the following informalities:
In claim 1, lines 8-9 and 10-11, “from which manganese have been removed” is grammatically incorrect. This could be corrected by, for example, changing ‘have’ to ‘has’.
In claim 2, line 5, it is presumed that “case” should be replaced with “cake”.
In claim 3, line 12, “are produced” is redundant.
In claim 5, line 11, “are” should be replaced with “is”.
Appropriate correction is required.
Claim Interpretation
Claim 2 recites “a first solid-liquid separation step in which the washed starting material is separated into a starting material case [sic] and a filtrate” in lines 4-5 and “a leaching step in which sulfuric acid is added to the raw material cake for reaction” in line 6. As the claim clearly establishes antecedent basis for “a starting material cake”, notwithstanding the presumed spelling error, “the raw material cake” is interpreted to be “a starting material cake” which was produced in the preceding step.
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.
Claim 18 is 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.
Claim 18 recites “wherein the starting material is… black powder…”. The term “black powder” is not defined by the claim, the specification does not further explain what is meant by “black powder”, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. “Black powder” could reasonably be construed to mean, for example, “black mass” recovered from an end-of-life battery (Bhar, “A review on spent lithium-ion battery recycling: from collection to black mass recovery, 2023, Fig. 2: a powder recovered from an end-of-life lithium-ion battery which has been separated from its current collector) or any powder which is black in color. For purposes of examination, either of these interpretations will be considered to read on the claim, as individual claims are given their broadest reasonable interpretation in light of the specification. See MPEP § 2111.
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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Li (CN 112375910 A, 2021) (the attached machine translation is referenced below).
Regarding claim 1, Li teaches a solvent extraction method for separation and recovery of nickel, cobalt and manganese (Li, Example 2, [0064]-[0074], referencing Example 1, [0052]-[0062]), the method comprising:
a raw material leachate preparation step in which a starting material containing nickel (Ni), cobalt (Co), and manganese is pre-processed to prepare a raw material leachate from which iron components have been removed (Li, [0055], [0068], “The leaching solution chemically removes iron.”);
a first solvent extraction step in which manganese (Mn) contained in the raw material leachate is separated as a manganese sulfate aqueous solution (Li, [0068]);
a second solvent extraction step in which nickel (Ni) contained in the raw material leachate from which manganese has been removed is separated as a nickel sulfate solution (NiSO4) (Li, [0072]); and
a third solvent extraction step in which cobalt (Co) contained in the raw material leachate from which manganese has been removed is separated as a cobalt sulfate aqueous solution (CoSO4) (Li, [0070]),
wherein the nickel (Ni), the cobalt (Co), and the manganese (Mn) are separately separated and recovered (Li, [0068], manganese sulfate crystals; [0070], cobalt sulfate crystals; [0072], nickel sulfate crystals).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Li (CN 112375910 A, 2021) (the attached machine translation is referenced below), as applied to claim 1 above, and further in view of Zhao (CN 113443664 A, 2021) (the attached machine translation is referenced below).
Regarding claim 2, Li teaches the method of claim 1, as discussed above, wherein the raw material leachate preparation step comprises:
a washing step in which the starting material containing nickel (Ni), cobalt (Co), and manganese (Mn) is washed with washing water (Li, [0028], “In step S2, the solvent used to dissolve the battery powder processed in step S1 is water.”);
a first solid-liquid separation step in which the washed starting material is separated into a starting material cake and a filtrate (Li, [0028], “After filtration, the filtrate is a lithium hydroxide solution, and the filter residue is a slag containing metal elements such as nickel, cobalt, and manganese”);
a leaching step in which sulfuric acid is added to the raw material cake for reaction (Li, [0032], “In step S3, the sulfuric acid is concentrated sulfuric acid (98%), and the concentrated sulfuric acid is slowly added to the pure water slurry of the filter residue in step S2 to extract nickel, cobalt, and manganese.”; [0055]);
an iron precipitation step (Li, [0032], “The leaching solution contains a small amount of impurities such as iron and aluminum. The goethite method is used. Method to purify iron, aluminum will also co-precipitate in the process of iron removal.”; [0068]); and
a second solid-liquid separation step in which reaction products generated through the iron precipitation step are separated into a precipitate containing iron and a raw material leachate containing nickel, cobalt, and manganese (Li, [0032], “Method to purify iron, aluminum will also co-precipitate in the process of iron removal.”; [0033], “According to an embodiment of the present invention, in step S4, when the solution containing nickel, cobalt, and manganese obtained in step S3 is extracted with P204, the pH of the solution is 2.5-3.5”, where ‘the solution containing nickel, cobalt, and manganese obtained in S3’ is a raw material leachate).
Li does not explicitly teach that the iron precipitation step entails adding hydrogen peroxide and nickel hydroxide (Ni(OH)2) to the reaction products formed through the leaching step. However, Zhao teaches an analogous method for precipitating iron from an acidic leaching solution of nickel and cobalt sulfate, where iron is precipitated by adding nickel hydroxide and hydrogen peroxide to the solution (Zhao, [0036], steps a) and b)).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to have selected nickel hydroxide (NiOH)2) and hydrogen peroxide as reagents in Li’s method for precipitating iron, as Li already teaches chemically precipitating iron (Li, [0032]), and Zhao teaches that nickel hydroxide and hydrogen peroxide are suitable for this purpose (Zhao, [0036], steps a) and b)). The selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), and MPEP § 2144.07.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Li (CN 112375910 A, 2021) (see the attached machine translation), as applied to claim 1 above, further in view of Zhao (CN 113443664 A, 2021) (see the attached machine translation), as applied to claim 2 above, and further evidenced by Bhar (“A review on spent lithium-ion battery recycling: from collection to black mass recovery”, 2023).
Regarding claim 18, modified Li renders the method of claim 2 obvious, as discussed above, wherein the starting material is a black powder (Li, [0011], dynamically reducing and roasting the waste power battery powder to obtain reduced-roasting battery powder; Bhar, Fig. 2, “black mass” is a powder recovered from an end-of-life lithium-ion battery which has been separated from its current collector. In accordance with the interpretation set forth in the rejection under 35 U.S.C. 112(b)/2nd Paragraph above, “black mass” is considered to read on “black powder”).
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 1-4, 9-12, and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of copending Application No. 18/011,321 (reference application, “’321”). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-19 of ‘321 together require all of the limitations of instant claims 1-4 and 9-12.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Potential Allowable Subject Matter
Claims 3-17 and 19 would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and if the provisional double patenting rejection discussed above was overcome. Claims 5-8, 13-17, and 19 are objected to as being dependent upon a rejected base claim.
The following is a statement of reasons for the indication of allowable subject matter: Li (CN 112375910 A, 2021) (the attached machine translation is referenced below), Zhao (CN 113443664 A, 2021) (see the attached machine translation), Fraser (U.S. 10,995,014), Sonu (U.S. 2013/0192425), and Xiao (CN 102181665 A, 2011) (the attached machine translation is referenced below) are considered to be the closest prior art to the instant claims.
Regarding claim 3 and its dependent claims 4-17 and 19, Li teaches the method of claim 1, as discussed above, wherein the first solvent extraction step comprises:
a first preloading step in which a nickel sulfate aqueous solution (NiSO4) is added to a first solvent to produce a manganese extracting solvent (Li, [0068], nickel saponification; Xiao, [0015] demonstrates that nickel saponification (adding an organic extractant with nickel sulfate solution pre-dissolved) is the same as “pre-loading”);
a first-first extraction step in which the raw material leachate is added to the manganese extracting solvent so that the raw material leachate is separated into a first organic phase solution containing manganese (Mn) and a first aqueous phase solution containing nickel (Ni) and cobalt (Co) (Li, [0014], “S4: Use P204 to perform nickel soap extraction on the solution containing nickel, cobalt, and manganese obtained in step S3 to obtain a sodium-containing saponified aqueous phase, manganese-extraction solution, zinc-aluminum counter-extraction solution, and cobalt-magnesium-nickel raffinate liquid”; [0068]); and
a first back-extraction step in which back extraction is performed to extract manganese (Mn) remaining in the second organic phase solution and to produce a third organic phase solution not containing manganese (Mn) and a third aqueous phase solution containing manganese (Mn), and a manganese sulfate aqueous solution (MnSO4) is obtained from the third aqueous solution (Li, [0068], “The impurity-removed organic solution is subjected to stepwise back extraction to obtain a solution containing calcium, manganese, and copper, and a small amount of copper is removed by a sulfide chemical method. After the removal of copper, the liquid directly enters cyanexe [sic] 272 to extract manganese, and back-extraction obtains a pure manganese sulfate solution”; the third organic phase after back-extraction of manganese is P204 free of manganese.).
Li does not teach or suggest that, in the first-first extraction step, the first organic phase solution contains nickel and cobalt in addition to the manganese which is present. In fact, Li’s table detailing the purity of the resulting manganese sulfate crystals does not list cobalt and nickel as impurities in the list of impurities present at the ppm level (see table in Li’s original disclosure, [0064]-[0065]). As there is no reason to expect these impurities to be present in appreciable quantities, it would also not be obvious to incorporate a first-second extraction step of separating the first organic phase solution into a second organic phase solution containing manganese and a second aqueous phase solution containing nickel and cobalt (i.e., a scrubbing step to remove impurities from the organic manganese-containing phase). While there is precedent in the prior art for implementing such a step, as in Fraser (Fraser, Col. 25, lines 29-31, “The loaded organic extractant was then scrubbed to remove weakly affiliated impurities before the Co/Mn was stripped from the organic extractant with a sulfuric acid solution.”), there is no indication in Li or the other cited prior art references that such a step would be beneficial in Li’s particular method.
As none of the cited prior art references teach or suggest a “first-second extraction step” as claimed, the claim is neither anticipated nor rendered obvious by the cited prior art.
Conclusion
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/ZACHARY JOHN BAUM/Examiner, Art Unit 1736
/ANTHONY J ZIMMER/Supervisory Patent Examiner, Art Unit 1736