DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Acknowledgement has been made of applicant’s claim for priority under 35 USC 119 (a-d). The certified copy has been filed on 05/24/2023.
Information Disclosure Statement
The Information Disclosure Statements (IDS) filed 05/24/2023 have been placed in the application file and the information referred to therein has been considered.
Drawings
The drawings received 05/24/2023 are acceptable for examination purposes.
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.
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.
Claims 1, 3, 5 are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0194664 to Saka (Saka) in view of JP2013037955 to Tamaki (Tamaki, machine translation).
Regarding claim 1, Saka discloses a non-aqueous electrolyte secondary battery (Abstract) comprising: an electrode assembly including a positive electrode, a negative electrode, and a separator, the positive electrode and the negative electrode facing each other with the separator interposed between the positive electrode and the negative electrode (para 67) and a battery case that houses the electrode assembly, wherein the positive electrode has a positive electrode mixture layer containing a positive electrode active material, and when the non-aqueous electrolyte secondary battery is used in a fixed state and the electrode assembly in the fixed state (para 67, para 67) is divided into two equal parts in a vertical direction (Fig. 5). Saka also discloses that a positive electrode mixture can be formed from two types active materials having different particle size (6 µm and 1 µm, para 81, Example 11-13. Saka does not expressly disclose wherein a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in an upper half region is higher than a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in a lower half region.
Tamaki teaches a lithium-ion secondary battery comprising an electrode assembly including a positive electrode, a negative electrode, and a separator (para 20) wherein a positive electrode comprising electrode active material mixture (para 6). Tamaki also teaches the DBP (reads on dibutyl phthalate oil) absorption amount becomes greater, as the particle size becomes larger (the surface area becomes larger (para 12-14). Therefore, one skilled in the art would conclude that a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in an upper half region is higher than a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in a lower half region based on disclosure of Tamaki.In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. MPEP 2144.05
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Fig. 5 of Saka
Regarding claim 3, Saka discloses a non-aqueous electrolyte secondary battery (Abstract) comprising: an electrode assembly including a positive electrode, a negative electrode, and a separator, the positive electrode and the negative electrode facing each other with the separator interposed between the positive electrode and the negative electrode (para 67) an exterior can that has a bottomed cylindrical shape and houses the electrode assembly (para 31) and a sealing assembly (lid, para 85) that closes an opening of the exterior can, wherein the positive electrode has a positive electrode mixture layer containing a positive electrode active material, and when the electrode assembly is divided into two equal parts in an insertion direction into the exterior can (See marked Fig. 5). Saka does not expressly disclose wherein a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in a half region on a side of the sealing assembly is higher than a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in a half region on a bottom side of the exterior can.
Tamaki teaches a lithium-ion secondary battery comprising an electrode assembly including a positive electrode, a negative electrode, and a separator (para 20) wherein a positive electrode comprising electrode active material mixture (para 6). Tamaki also teaches the DBP (reads on dibutyl phthalate oil) absorption amount becomes greater, as the particle size becomes larger (the surface area becomes larger (para 12-14). Therefore, one skilled in the art would conclude that a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in an upper half region is higher than a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in a lower half region based on disclosure of Tamaki. Since instant claim 1 does not specified side, the claimed limitation is interpreted as presented below.
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Regarding claim 5, Saka discloses a non-aqueous electrolyte secondary battery (Abstract) comprising: an electrode assembly including a positive electrode, a negative electrode, and a separator, the positive electrode and the negative electrode facing each other with the separator interposed between the positive electrode and the negative electrode (para 67) an exterior can that has a bottomed cylindrical shape and houses the electrode assembly (para 31) and a sealing assembly (lid, para 85) that closes an opening of the exterior can, wherein the positive electrode has a positive electrode mixture layer containing a positive electrode active material, and when the electrode assembly is divided into two equal parts in an insertion direction into the exterior can (See marked Fig. 5). Saka does not expressly disclose wherein a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in disposed in a half region on a bottom side of the exterior can is higher than a dibutyl phthalate oil absorption of the positive electrode active material contained in a half region on a side of the sealing assembly.
Tamaki . teaches a lithium-ion secondary battery comprising an electrode assembly including a positive electrode, a negative electrode, and a separator (para 20) wherein a positive electrode comprising electrode active material mixture (para 6). Tamaki also teaches the DBP (reads on dibutyl phthalate oil) absorption amount becomes greater, as the particle size becomes larger (the surface area becomes larger (para 12-14). Therefore, ne skilled in the art would conclude that a portion of the positive electrode comprising particles of bigger size (diameter ) have higher DBT adsorption. Therefore, Saka in view of Tamaki disclose the positive electrode mixture contains two equal portions one of which has higher DBT adsorption and disposed at bottom side.
Saka in in view of Tamaki does not expressly diose wherein dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in disposed in a half region on a bottom side of the exterior can is higher than a dibutyl phthalate oil absorption of the positive electrode active material contained in a half region on a side of the sealing assembly. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to dispose a part comprising bigger particles at the bottom side of the can in order to adjust a power density, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70 (MPEP 2144.04 (VI-C)).
Alternatively, since only two possible mutual dispassion of the side part and the bottom part exists to would have been obvious to choose disposing of a portion of the electrode mixture comprising a bigger particles at the bottom of the can as., it would have been "obvious to try" in order to optimize power density of the battery. See MPEP 2141 (III) Rationale E, KSR v. Teleflex (Supreme Court 2007).
Alternatively, Since the criticality of positioning the part of the positive electrode mixture having higher DBT absorption at the bottom part of the can - a position claimed by Applicant is not supported by any showing of criticality of such placement in the instant specification, nor did Applicant stated that such placement serves any specific purpose or performs any specific function other that the function disclosed in modified Saka, it would have been obvious top those skilled in the art at the time the invention was filed to place the positioning the part of the positive electrode mixture having higher DBT absorption at the bottom part of the can as an obvious design choice, and as such it does not impact the patentability of claim 5.
Claim 2, 4, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0194664 to Saka (Saka) in view of JP2013037955 to Tamaki and further in view of US 2012/0196185 to Kono (Kono).
Regarding claim 2, modified Ska discloses the invention as discussed above as applied to claim 1 and incorporated therein. Modified Saka does not expressly disclose a dibutyl phthalate oil of the positive electrode active material contained in the positive electrode mixture layer disposed in the upper half region is greater than or equal to 15 mL/100 g and less than or equal to 23 mL/100 g, and a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in the lower half region is greater than or equal to 11 mL/100g and less than or equal to 19 mL/100g.
Kono teaches a positive electrode for a non-aqueous electrolyte secondary battery (para 73), the positive electrode comprising: a positive electrode current collector (para 83); and a positive electrode slurry (mixture layer) containing an active material formed on the current collector (para 37-38), wherein the positive electrode mixture layer has an oil absorption of preferably 10 to 20 ml/100 g (para 51). It would have been obvious to one or ordinary skill in the art before the effective filing date of the claimed invention to tune or modify the oil absorption of the positive electrode mixture layer of modified Saka to form an electrode layer with excellent packing property and dispersibility and provide an electrode sheet in which the positive electrode active substance is filled with a high packing density (paragraph 26). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. MPEP 2144.05
Regarding claim 4, modified Ska discloses the invention as discussed above as applied to claim 3 and incorporated therein. Modified Saka does not expressly disclose a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in the upper half region is greater than or equal to 15 mL/100 g and less than or equal to 23 mL/100 g, and a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in the lower half region is greater than or equal to 11 mL/100g and less than or equal to 19 mL/100g.
Kono teaches a positive electrode for a non-aqueous electrolyte secondary battery (para 73), the positive electrode comprising: a positive electrode current collector (para 83); and a positive electrode slurry (mixture layer) containing an active material formed on the current collector (para 37-38), wherein the positive electrode mixture layer has an oil absorption of preferably 10 to 20 ml/100 g (para 51). It would have been obvious to one or ordinary skill in the art before the effective filing date of the claimed invention to tune or modify the oil absorption of the positive electrode mixture layer of modified Saka to form an electrode layer with excellent packing property and dispersibility and provide an electrode sheet in which the positive electrode active substance is filled with a high packing density (paragraph 26). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. MPEP 2144.05
Regarding claim 4, modified Ska discloses the invention as discussed above as applied to claim 5 and incorporated therein. Modified Saka does not expressly disclose a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in the upper half region is greater than or equal to 15 mL/100 g and less than or equal to 23 mL/100 g, and a dibutyl phthalate oil absorption of the positive electrode active material contained in the positive electrode mixture layer disposed in the lower half region is greater than or equal to 11 mL/100g and less than or equal to 19 mL/100g.
Kono teaches a positive electrode for a non-aqueous electrolyte secondary battery (para 73), the positive electrode comprising: a positive electrode current collector (para 83); and a positive electrode slurry (mixture layer) containing an active material formed on the current collector (para 37-38), wherein the positive electrode mixture layer has an oil absorption of preferably 10 to 20 ml/100 g (para 51). It would have been obvious to one or ordinary skill in the art before the effective filing date of the claimed invention to tune or modify the oil absorption of the positive electrode mixture layer of modified Saka to form an electrode layer with excellent packing property and dispersibility and provide an electrode sheet in which the positive electrode active substance is filled with a high packing density (paragraph 26). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. MPEP 2144.05
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.
Claim 1 is provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 1 of copending Application No. 18/038,161 Although the conflicting claims are not identical, they are not patentably distinct from each other because instant independent claim1 1 is merely broader than copending independent claim 1. It is clear that all of the elements of claim 1 is found in claims 1 of the copending application. The difference lies in the fact that the copending claim include more elements and is thus much more specific. Thus, the invention of the copending claim 1 is in effect a "species" of the "generic" invention of the instant 1. It has been held that the generic invention is "anticipated” by the “species". See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993 This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US 20050221182.
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/Alexander Usyatinsky/ Primary Examiner, Art Unit 1751