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 .
Response to Amendment
This Office Action is responsive to the Amendment filed March 13, 2026. The following rejections are reapplied in light of current amendments:
Claim(s) 1-6 & 8-14 under 35 U.S.C. 103 as being unpatentable over JIN et al. CN 111989805SA.
The rejection claim(s) 1-6 & 8-14 as necessitated by amendment follows:
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.
Claim(s) 1-6 & 8-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over JIN et al. CN 111989805 A.
With respect to claim 1, JIN teaches a positive electrode active material for a lithium secondary battery (positive electrode active material for a lithium secondary battery; See the Abstract), comprising: a first positive electrode active material and a second positive electrode active material, (the first positive electrode active material and the second positive electrode active material is composed of nickel (Ni), cobalt (Co) and manganese (Mn) transition metal of lithium composite transition metal oxide; See the Abstract) wherein the first positive electrode active material comprises at least one monolith (the average particle diameter (D50) of the first positive electrode active material can be 7 to 20 μm; See “Positive electrode material for lithium secondary battery” section, paragraph 20), wherein the second positive electrode active material comprises aExaminer’s note: the primary particle of the second positive active material is the primary macro particle.) , and wherein an average particle size (D50) of the secondary particle is 1 to 10 um (The second positive electrode active material may be a secondary particle formed by agglomeration of primary particles; Section [Formula 2], paragraph 9; Embodiment 1, the average grain diameter (D50) of the primary particles is the form of secondary particles of 1.8 μm). Further concerning clam 1, a ratio of the average particle size (D50) of the primary macro particle (the average particle diameter (D50) of the primary particles of the second positive active material may be from 0.5 to 4 μm; Section [Formula 2], paragraph 9; the primary particle of the agglomeration is D50 of 5 μm, Embodiment 1; Examiner’s note: the primary particle of the second positive active material is the primary macro particle.) to an average crystal size of the primary macro particle is equal to or larger than 2 (the crystal grain size of the second positive electrode active material can be more than 180nm, specifically, is 180 to 450nm Section [Formula 2], paragraph 5; Therefore, 0.5 to 4 μm = 500 – 4000nm (D50) of the primary macro particle/ 180nm – 450nm = 2.77 (500/180)-8.889 (4000/450), both ends of range greater than 2; Embodiment 1, crystal grain size is 200nm and D50 of primary particle of the second positive active material is 5microns= 5000nm. Thud 5000nm/200nm= 5; Examiner’s note: the primary particle of the second positive active material is the primary macro particle.). With respect to claim 2, the average particle size (D50) of the monolith is larger than the average particle size (D50) of the secondary particle (The average particle size (D50) of the first positive electrode active material is greater than the average particle diameter (D50) of the second positive electrode active material; See “Positive electrode material for lithium secondary battery” section, paragraph 3). With respect to claim 4, a weight ratio of the first positive electrode active material and the second positive electrode active material is 90 : 10 to 10 : 90 (The positive electrode material for lithium secondary battery is prepared by mixing the first positive electrode active material and the second positive electrode active material with a weight ratio of 70: 30; Embodiment 1). With respect to claim 5, the limitation regarding a particle strength of the first positive electrode active material being larger than a particle strength of the second positive electrode active material is a characteristic of the prior art set forth. In accordance with MPEP 2112.01, “[p]roducts of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In the instant case, the first positive electrode active material and second positive electrode active material teach the same LiNICoMnO materials set forth by Applicant, and thus the strength relationship is necessarily present. See Formula 1 and Formula 2. With respect to claim 6, the limitation regarding the particle strength of the first positive electrode active material being equal to or larger than 200 MPa, and wherein the particle strength of the second positive electrode active material is equal to or less than 120 MPa, is a characteristic of the prior art set forth. In accordance with MPEP 2112.01, “[p]roducts of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In the instant case, the first positive electrode active material and second positive electrode active material teach the same LiNICoMnO materials set forth by Applicant, and thus the strength relationship is necessarily present. See Formula 1 and Formula 2. With respect to claim 8, an average crystal size of the primary macro particle is equal to or larger than 190 nm (the crystal grain size of the second positive electrode active material can be more than 180nm, specifically, is 180 to 450nm Section [Formula 2], paragraph 5; Embodiment 1, crystal grain size is 200nm; Examiner’s note: the primary particle of the second positive active material is the primary macro particle. With respect to claim 10, each of the first and second positive electrode active materials independently comprises a nickel-based lithium transition metal oxide (first positive active material includes formula 1. See [Formula 1] section; second positive active material includes formula 2. See [Formula 2] section; the first positive electrode active material and the second positive electrode active material is composed of nickel (Ni), cobalt (Co) or manganese (Mn) and other transition metal lithium composite transition metal oxide; See “Positive electrode material for lithium secondary battery” section, paragraph 1). With respect to claim 11, the nickel-based lithium transition metal oxide of each of the first and second positive electrode active materials independently comprises LiaNil-b-c-dCobMneQdO2+σ, wherein -1.0<a<1.5, 0<b<0.2, 0<c<0.2,0<d<0.1, 0<b+c+d<0.2, -0.1< σ <1.0,andQ is at least one metal selected from the group consisting of Al, Mg, V, Ti and Zr) (first positive active material includes formula 1; Li1 + p1 [Ni1 - (x1 + y1 + z1) Cox1Mny1Maz1] 1-p1O2; In the formula 1, Ma is selected from the group consisting of Ba, Ca, Zr, Ti, Mg, Ta, Nb, Al, Cr and Mo is at least one or more elements, and 0 <p1 ≤ 0.2, 0 <x1 ≤ 0.5, 0 <y1 ≤ 0.5, 0 ≤ z1 ≤ 0.1, 0 <x1 + y1 + z1 ≤ 0.7. See [Formula 1] section; second positive active material includes formula 2; Li1 + p2 [Ni1 - (x2 + y2 + z2) Cox2Mny2Mbz2] 1-p2O2 In the formula 2, Mb is selected from the group consisting of Ba, Ca, Zr, Ti, Mg, Ta, Nb, Al, Cr and Mo in the group consisting of at least one or more elements, and -0.05 ≤ p2 ≤ 0, 0 <x2 ≤ 0.5, 0 <y2 ≤ 0.5, 0 ≤ z2 ≤ 0.1, 0 <x2 + y2 + z2 ≤ 0.7. See [Formula 2] section; the first positive electrode active material and the second positive electrode active material is composed of nickel (Ni), cobalt (Co) or manganese (Mn) and other transition metal lithium composite transition metal oxide; See “Positive electrode material for lithium secondary battery” section, paragraph 1). With respect to claim 12, a positive electrode for a lithium secondary battery (positive electrode active material for a lithium secondary battery; See the Abstract), comprising: the primary macro particle is disposed in a space formed by contact of the first positive electrode active material and the second positive electrode active material (the positive electrode active material mixed with large particles and small particles, the blank space between the positive electrode active material of the large particles can be filled with the positive electrode active material of the small particles, so that the more dense accumulation can be performed, and the energy density of the positive electrode can be improved; See “Positive electrode material for lithium secondary battery” section, paragraph 4). With respect to claim 13, the primary macro particle is disposed in a space formed by contact of the first positive electrode active material with additional first positive electrode active materials (the positive electrode active material mixed with large particles and small particles, the blank space between the positive electrode active material of the large particles can be filled with the positive electrode active material of the small particles, so that the more dense accumulation can be performed, and the energy density of the positive electrode can be improved; the method of reducing the pore space between the positive electrode active material particles and increasing the compaction density (or electrode density); See “Positive electrode material for lithium secondary battery” section, paragraph 4).
With respect to claim 14, the positive electrode is in a lithium secondary battery (positive electrode active material for a lithium secondary battery; See the Abstract),
Although JIN teaches that the average particle diameter (D50) of the first positive electrode active material is 7 to 20 μm; See “Positive electrode material for lithium secondary battery” section, paragraph 20, the reference does not teach or suggest: the monolith is a single particle having an average particle size (D50) of 3 to 10 um (claim 1); the average particle size (D50) of the monolith is 1.1 to 2 times larger than the average particle size (D50) of the secondary particle (claim 3); a ratio of the average particle size (D50) of the secondary particle to/the average particle size (D50) of the primary macro particle is 2 to 5 times (claim 9).
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to employ the monolith as a single particle having an average particle size (D50) of 3 to 10 um (claim 1); in the positive electrode active material of JIN , because the large particles mixed with small particles can improve the overall structure stability of the positive electrode active material, and effectively prevent the electrolyte side reaction of large particles. See “Positive electrode material for lithium secondary battery” section, paragraph . Furthermore, JIN teaches that the average particle diameter (D50) of the first positive electrode active material (monolith) is 7 to 20 μm. See “Positive electrode material for lithium secondary battery” section, paragraph 20.
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). Furthermore, "where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.).
With respect to the average particle size (D50) of the monolith being 1.1 to 2 times larger than the average particle size (D50) of the secondary particle (claim 3); it would have been obvious in the positive electrode active material of JIN , because the large particles mixed with small particles can improve the overall structure stability of the positive electrode active material, and effectively prevent the electrolyte side reaction of large particles. See “Positive electrode material for lithium secondary battery” section, paragraph . Furthermore, JIN teaches that the average particle diameter (D50) of the first positive electrode active material (monolith) is 7 to 20 μm. See “Positive electrode material for lithium secondary battery” section, paragraph 20. The average particle size (D50) of the secondary particle is 1.8 μm. See Embodiment 1. 7 to 20 μm monolith/ 1.8 μm = 3.889 to 11.111. However, "where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.).
With respect to a ratio of the average particle size (D50) of the secondary particle to /the average particle size (D50) of the primary macro particle is 2 to 5 times (claim 9); it would have been obvious in the positive electrode active material of JIN , because the large particles mixed with small particles can improve the overall structure stability of the positive electrode active material, and effectively prevent the electrolyte side reaction of large particles. See “Positive electrode material for lithium secondary battery” section, paragraph . Furthermore, JIN teaches the average particle diameter (D50) of the primary particles of the second positive active material may be from 0.5 to 4 μm; Section [Formula 2], paragraph 9; the primary particle of the agglomeration is D50 of 5 μm, Embodiment 1; Examiner’s note: the primary particle of the second positive active material is the primary macro particle. The average particle size (D50) of the secondary particle is 1.8 μm. See Embodiment 1. 0.5 μm ((D50) of the primary particles of the second positive active material)/ 1.8 μm (secondary particle)= 3.6x . 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). Furthermore, "where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.).
Response to Arguments
Applicant asserts that JIN et al. CN 111989805 A fails to teach or suggest:
the claimed average particle size of the primary macro particle to the average crystal size of the primary macro particle ratio, let alone that the claimed ratio ranges from "2 or more," as recited in amended claim 1. Rather, Jin merely independently teaches that the second positive electrode active material (allegedly corresponding to the claimed "second positive electrode active material") includes primary particles (allegedly corresponding to the claimed "primary macro particles") having (a) a D50 (allegedly corresponding to the claimed "average particle size") ranging from 0.3 pm to 8 pm (i.e., 300 nm to 8000 nm) and (b) a crystal size (allegedly corresponding to the claimed "average crystal size") ranging from 180 nm to 450 nm. (See Jin at pp. 7-8). Applicant further asserts hindsight by picking and choosing among isolated disclosures in the prior art, which merely discloses independent and broad coextensive values for the D50 and the crystal sizes of the primary particles, to arrive at the claimed ratio. (See In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992); See also In re Fine, 837 F.2d 1071, 1075 (Fed. Cir. 1988) ("One cannot use hindsight reconstruction to pick and choose among isolated disclosures in the prior art to deprecate the claimed invention.")). The fact that respective values for the D50 and the crystal sizes of the primary particles can be combined to produce the claimed ratio is insufficient by itself when there are innumerable combinations of values. (See Ex parte Kraus, Appeal No. 2021-002347; see also SNF S.A. v. Solenis Technologies, IPR2020-01730, Paper 10 (Apr. 22, 2021)).
This argument is not persuasive as Jin teaches that the crystal grain size of the second positive electrode active material can be more than 180nm, specifically, is 180 to 450nm Section [Formula 2], paragraph 5. Therefore, 0.5 to 4 μm = 500 – 4000nm (D50) of the primary macro particle/ crystal grain size 180nm – 450nm = 2.77 (500/180)-8.889 (4000/450), both ends of range are greater than 2. See Embodiment 1, crystal grain size is 200nm and D50 of primary particle of the second positive active material is 5microns= 5000nm. Thus 5000nm/200nm= 5; the primary particle of the second positive active material is the primary macro particle. The ends of each range are compared to calculate the ratio. The smaller end of the range 500nm of the primary macro particle and crystal grain size = 2.77 (500/180). The larger end of the range 4000nm of the primary macro particle and 450nm crystal grain size = 8.889 (4000/450). It does not appear to be hindsight by picking and choosing random data points because the ends of the range are compared. Furthermore, it is not hindsight by picking and choosing because the reference explicitly teaches an Embodiment 1 with data points that are exemplified and satisfy the instant range. Specifically, crystal grain size is 200nm and D50 of primary particle of the second positive active material is 5microns= 5000nm. Thus 5000nm/200nm= 5. Furthermore, the reference does not have to explicitly teach the ratio, if the comparison of features exist. More specifically, the claim requires a range of particle size and grain size taught by the reference, and the ratio is merely dividing the sizes. The Applicant appears to have made no arguments regarding criticality of the ratio, or unexpected results, only hindsight arguments . Therefore, the claims are satisfied by Jin.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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 extension fee 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 MONIQUE M WILLS whose telephone number is (571)272-1309. The Examiner can normally be reached on Monday-Friday from 8:30am to 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the Examiner's supervisor, Tiffany Legette, may be reached at 571-270-7078. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Monique M Wills/
Examiner, Art Unit 1722
/NICOLE M. BUIE-HATCHER/Supervisory Patent Examiner, Art Unit 1725
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