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 .
This action is in response to applicant’s amendments and arguments filed 05/26/2026. Claims 1-4 and 8 are currently pending for examination on the merits.
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 8 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 8 recites the limitation “wherein a flow rate of the sulfur dioxide gas is 5-15 L/min” in line 9. However, claim 1, of which claim 8 is dependent, requires that the “flow rate of the sulfur dioxide gas is 6-15 L/min” (see line 10). Thus, the broadening of the scope of the claimed sulfur dioxide flow rate in claim 8 creates uncertainty as to the intended scope of the claimed range. For examination purposes, “wherein a flow rate of the sulfur dioxide gas is 5-15 L/min” in line 9 will be read as “wherein a flow rate of the sulfur dioxide gas is 6-15 L/min.”
Appropriate correction is required in order to overcome the indefiniteness rejection. Suggested corrections are bolded and underlined for emphasis only.
Claim Rejections - 35 USC § 103
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 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 1-2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Cao (CN 111916724 with English Machine Translation) (of record) in view of Ding (CN 108899508 with English Machine Translation) (of record) and Jia (CN 112447948 with English Machine Translation) (of record).
Regarding claim 1, Cao discloses a preparation method of a layered positive electrode material (title; abstract), comprising the steps of: mixing a layered nickel-cobalt-manganese hydroxide (Ni0.8Co0.1Mn0.1(OH)2) with a lithium source (lithium hydroxide) ([0009]; [0080]), performing a primary sintering in an oxygen atmosphere, crushing, and screening (sieving) to obtain a primary sintered product ([0023]; [0080]); performing a secondary sintering on the primary sintered product in a carbon dioxide atmosphere to obtain the layered positive electrode material ([0040]; [0081]); wherein, a chemical formula of the layered nickel-cobalt-manganese hydroxide is Ni0.8Co0.1Mn0.1(OH)2 ([0080]), which suggests the claimed formula NiaCobMnc(OH)2, wherein 0.3
≤
a
≤
0.95, 0.03
≤
b
≤
0.12, 0.01
≤
c
≤
0.10, a+b+c=1. Cao further discloses that a heating rate of the secondary sintering is 3-10oC/min ([0049]), overlapping the claimed range of 2-5oC/min. Cao further discloses that a temperature of the secondary sintering is 300-800oC ([0048]), encompassing the claimed range of 300-600oC. A prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness. See MPEP §2144.05. Modified Cao further discloses that a time of the secondary sintering is 6-24 hours ([0050]), overlapping the claimed range of 5-8 h. In the case where the claimed range overlaps the range disclosed by the prior art, a prima facie case of obviousness exists. See MPEP §2144.05. Therefore, absent any showing of unexpected results or criticality, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention for Cao to have satisfied the claimed ranges based on the encompassing and overlapping ranges disclosed by modified Cao. Cao further discloses that the carbon dioxide atmosphere in the secondary sintering is designed to reduce the surface residual alkali of the layered positive electrode material ([0072]). Cao fails to explicitly disclose, however, that the secondary sintering is performed in an atmosphere of sulfur dioxide.
However, sulfur dioxide is a known alternative to carbon dioxide for the purpose of reducing surface residual alkali, both of the gases being acidic. For instance, Ding teaches a similar preparation method of a layered positive electrode material (title; abstract), wherein a ternary cathode composite material is transferred to a furnace and gas modified with an acidic gas in order to reduce the residual alkali content ([0013]; [0020]; [0049]). Ding further teaches that the acidic gas can be any one of sulfur dioxide, carbon dioxide, and hydrogen sulfide ([0019]), and Ding specifically mentions that sulfur dioxide gas can lead to reduced residual alkali content and improved rate performance and safety performance ([0020]).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the secondary sintering step disclosed by Cao to be performed in a sulfur dioxide atmosphere instead of a carbon dioxide atmosphere, as suggested by Ding, because they would have had a reasonable expectation that doing so would lead to a reduction in residual alkali content and improved rate performance and safety performance.
Modified Cao still fails to explicitly disclose, however, a flow rate of sulfur dioxide in the secondary sintering step.
However, the claimed flow rate is conventional in the art. For instance, Jia teaches a similar preparation method of a layered positive electrode material (title; abstract), wherein the positive electrode material is surface treated with a sulfur source gas in order to reduce the residual alkali amount on the material surface (abstract; [0026]; [0029]; [0033]). Jia further teaches that a flow rate of the sulfur source gas is 1-5 L/min ([0034]), which is substantially close to the claimed range of 6-15 L/min. A prima facie case of obviousness exists where the claimed range does not overlap with the prior art but is merely close. See MPEP §2144.05. Jia further teaches that this flow rate prevents the accumulation of lithium sulfide on the particle surface while also preventing any residual alkali from remaining on the surface ([0034]).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have configured the flow rate of sulfur dioxide in the secondary sintering step disclosed by modified Cao to have the claimed flow rate, as taught by Jia, because they would have had a reasonable expectation that doing so would prevent the accumulation of lithium sulfide on the particle surface while also preventing any residual alkali from remaining on the surface.
Regarding claim 2, modified Cao discloses all of the limitations as set forth above for claim 1. Modified Cao further discloses that a molar ratio of the layered nickel-cobalt manganese hydroxide to lithium in the lithium source is 1:(0.90-1.10) (Cao: [0012]; [0064]; [0080]), encompassing the claimed ratio of 1:(1.02-1.09). A prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness. See MPEP §2144.05. Therefore, absent any showing of unexpected results or criticality, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention for modified Cao to have satisfied the claimed range based on the encompassing range disclosed by modified Cao.
Regarding claim 4, modified Cao discloses all of the limitations as set forth above for claim 1. Modified Cao further discloses that the temperature of the primary sintering is 700-1,000oC (Cao: [0027]), encompassing the claimed range of 850-950oC. Modified Cao further discloses that the time of the primary sintering is 6-30 hours (Cao: [0029]), encompassing the claimed range of 10-18 h. A prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness. See MPEP §2144.05. Therefore, absent any showing of unexpected results or criticality, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention for modified Cao to have satisfied the claimed ranges based on the encompassing ranges disclosed by modified Cao.
Claims 3 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Cao (CN 111916724 with English Machine Translation) (of record) in view of Ding (CN 108899508 with English Machine Translation) (of record) and Jia (CN 112447948 with English Machine Translation) (of record) as applied to claim 1 above, and further in view of Liu (CN 105977466 with English Machine Translation) (of record).
Regarding claim 3, modified Cao discloses all of the limitations as set forth above for claim 1. Modified Cao fails to explicitly disclose, however, a flow rate of oxygen in the primary sintering step.
However, the claimed flow rate is conventional in the art. For instance, Liu teaches a similar preparation method of a layered positive electrode material (title; abstract), comprising the steps of: mixing a layered nickel-cobalt-manganese hydroxide with a lithium source and performing a sintering in an oxygen atmosphere ([0016]-[0018]; [0021]). Liu further teaches that a flow rate of oxygen in the sintering step is preferably 3-10 L/min ([0025]), suggesting the claimed flow rate range. Liu further teaches that such a sintering step is effective in obtaining the active substrate for the positive electrode material ([0018]; [0021]; [0039]).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have configured the primary sintering step disclosed by modified Cao to have the claimed oxygen flow rate, as taught by Liu, because they would have had a reasonable expectation that doing so would be effective in obtaining the primary sintered product.
Regarding claim 8, modified Cao in view of Liu discloses all of the limitations in claim 8 as set forth above for claims 1-4, which include all of the limitations in claim 8.
Response to Arguments
Applicant’s amendments to the abstract have overcome the objections to the abstract previously set forth in the Non-Final Office Action mailed 02/26/2026.
Applicant’s amendments to the claims have overcome the 35 U.S.C. 102(a)(1) rejections over Susai et al. (“Stabilized Behavior of LiNi0.85Co0.10Mn0.05O2 Cathode Materials Induced by Their Treatment with SO2”) previously set forth in the Non-Final Office Action mailed 02/26/2026.
Applicant's arguments filed 05/26/2026 have been fully considered but they are not persuasive.
First, examiner notes that a typo in the citation of the Jia reference in the above rejection has been fixed. Nevertheless, examiner maintains that it was sufficiently clear in the previous rejection that the Jia reference (CN 112447948) drawn to a “positive electrode material coated by sulfide” (title) was the intended refence, not the publication CN 112449748 drawn to a “quantum key distribution system and method.” Indeed, the reference cited in the Notice of Refences Cited (PTO-892) document filed alongside the Non-Final Office Action clearly cites the Jia reference (CN 112447948), and the corresponding Foreign Reference and English Machine Translation documents also correspond to the Jia reference (CN 112447948), not the “quantum key distribution system” reference.
Regarding applicant’s arguments related to the newly claimed sulfur dioxide flow rate, examiner respectfully disagrees. Applicant specifically argues that the newly claimed range of 6-15 L/min overcomes the Jia reference because it excludes the range of 1-5 L/min disclosed by Jia. However, examiner notes that a prima facie case of obviousness exists where the claimed range does not overlap with the prior art but is merely close. See MPEP §2144.05. Furthermore, examiner notes that the range of 1-5 L/min disclosed by Jia is cited as a preferred range only ([0034]). It has been held that disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (see MPEP §2123(II)), and “a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments” (see MPEP 2123(I)). Thus, one of ordinary skill in the art would have recognized that values slightly outside of the preferred range of 1-5 L/min, including values within the claimed range, would still broadly accomplish the goals of the Jia reference. Applicant points to a comparison between Example 1 and Example 5 (applicant mistakenly references this as Comparative Example 5) to show that the newly claimed range has criticality. However, examiner notes that Example 1 has a sulfur dioxide flow rate of 10 L/min and, thus, cannot prove criticality for the endpoint of 6 L/min. Furthermore, the flow rate of 3 L/min in Example 5, while leading to higher residual alkali, does not exclude the whole range of 1-5 L/min disclosed by Jia. Indeed, Example 3 of the instant application includes a sulfur dioxide flow rate of 5 L/min (see [0064] of the PGPub of the instant application), which is within the range taught by Jia, and leads to lower total residual alkali and pH compared to Example 1 (see Table 1 of the instant application). Thus, applicant’s own disclosure seems to suggest that no criticality exists for the newly claimed range and that values outside of this claimed range, including values taught by the Jia reference, still lead to desirable performance. Therefore, since applicant has failed to establish a conclusive showing of unexpected results or criticality for the newly claimed range, applicant’s arguments are not persuasive.
As such, claims 1-4 and 8 stand rejected.
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 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 BRENDON C DARBY whose telephone number is (571)272-1225. The examiner can normally be reached Monday - Friday: 7:30am - 5:00pm.
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, Katelyn Smith can be reached at (571) 270-5545. 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.
/B.C.D./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
Prosecution Insights