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
The Amendment filed on 9/11/2025 has been entered. Claim 3 is cancelled. Claims 1, 2, and 4-9 remain pending in the application. Applicant’s amendments to the claims have overcome each and every 112(b) rejection previously set forth in the Non-Final Office Action mailed 6/11/2025.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 2, and 3-9 are rejected under 35 U.S.C. 103 as being unpatentable over Toyama et al. (US 2021,0013505, hereinafter "Toyama").
Regarding claim 1, Toyama teaches a cathode active material for a lithium secondary battery [0029, “A cathode active material used for a lithium ion secondary battery according to an embodiment of the present invention”], comprising a lithium metal oxide that has a layered crystal structure [0030, “The cathode active material according to this embodiment comprises a lithium-transition metal composite oxide having an α-NaFeO.sub.2 type crystal structure having a layer structure”] and contains nickel and aluminum [Table 2, Embodiment Example 11]. Toyama teaches that the lithium metal oxide contains 80 mol% or more of nickel based on a total number of moles of all elements excluding lithium and oxygen [0033, “The lithium-transition metal composite oxide represented by the following formula (1) has a nickel content, relative to metals excluding lithium, of 80% or more”], which satisfies the claimed range. Toyama also teaches a specific example of a lithium metal oxide containing nickel and aluminum with a nickel content relative to a total number of moles of all elements excluding lithium and oxygen within the claimed range [Table 2, Embodiment Example 11, 0137, “a mole ratio of starting materials Li:Ni:Co:Mn:Al was changed to 1.02:0.85:0.04:0.10:0.01”]. The total number of moles of all elements excluding lithium and oxygen is 1, therefore the lithium metal oxide contains 85% of nickel based on the total number of moles of all elements excluding lithium and oxygen.
Toyama also discloses a ratio of lithium sites occupied by nickel instead of lithium among all lithium sites in the lithium metal oxide in a range overlapping the recited range of 1% to 1.5% [0064, “For the lithium-transition metal composite oxide represented by the formula (1), a site occupancy (seat occupancy) of nickel in a 3a site in the crystal structure belonging to the space group R-3m is preferably less than 4%”, 0065, “refinement is performed on the assumption that the 3a site are occupied by Li or Ni”]. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP 2144.05 I).
The formula for the lithium metal oxide taught by Toyama is Li1+aNibCocMndMeO2+α [0032], wherein “M” can be a metal such as aluminum [0049, “M in the compositional formula (1) preferably is at least one kind of metal element selected from a group of Al, Ti, Zn, Ga, Zr, Mo, Nb, V, Sn, Mg, Ta, Ba, W, and Y”]. Toyama teaches that the coefficient “e” for M in the formula could be 0.01 or greater, or 0.04 or smaller [0051, “The coefficient “e” for M may be 0.01 or greater”, “The coefficient “e” for M may be 0.08 or smaller, still may be 0.06 or smaller, and even may be 0.04 or smaller”]. The number of moles of each element in the lithium metal oxide can be converted into weight by multiplying the number of moles by the element’s respective atomic mass. Nickel has an atomic mass of 58.69 g/mol, which for 80% nickel based on the total moles of elements besides lithium and oxygen, results in 47 g of nickel in the lithium metal oxide. Aluminum has an atomic mass of 26.98 g/mol, which, when multiplied by the 0.01 moles of aluminum in the lithium metal oxide, results in 0.27 g of aluminum in the lithium metal oxide, and 1.1 g for 0.04 moles. The weight ratio of aluminum to nickel in the lithium metal oxide therefore could range from 0.27:47, or 0.0057, to 1.1:47, or 0.023, which overlaps the claimed range of claimed range of 1/550 (0.0018) and 1/100 (0.01). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP 2144.05 I). Toyama further teaches a specific example where the weight ratio of aluminum to nickel in the lithium metal oxide is inside the claimed range of 1/550 to 1/100, wherein the lithium metal oxide has 0.85 moles of nickel and 0.01 moles of aluminum [Table 2, Embodiment Example 11]. The weight ratio of aluminum to nickel in said example is 0.27:50, or 0.0054, which lies inside the claimed range of 1/550 (0.0018) and 1/100 (0.01).
Further regarding claim 2, Toyama teaches that the lithium metal oxide contains 80 mol% or more of nickel based on a total number of moles of all elements excluding lithium and oxygen [Table 2, Embodiment Example 11, 0137, “a mole ratio of starting materials Li:Ni:Co:Mn:Al was changed to 1.02:0.85:0.04:0.10:0.01”]. As explained in the rejection for instant claim 1, Toyama also teaches an embodiment example of a lithium metal oxide which contains 85 mol% of nickel based on the total number of moles of all elements excluding lithium and oxygen.
Further regarding claim 4, as described in the rejection of instant claim 1, Toyama teaches that the weight ratio of aluminum to nickel in the lithium metal oxide may range from 0.27:47, or 0.0057, to 1.1:47, or 0.023, which overlaps the claimed range of 1/300 (0.0033) to 1/150 (0.0067). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP 2144.05 I). Toyama further teaches a specific example wherein the weight ratio of aluminum to nickel in the lithium metal oxide is in a range from 1/300 to 1/150 [Table 2, Embodiment Example 11]. As described in the rejection for instant claim 1, the weight ratio of aluminum to nickel in the lithium metal oxide in Embodiment Example 11 is 0.0054, which is within the claimed range of 1/300 (0.0033) to 1/150 (0.0067).
Further regarding claim 5, Toyama teaches a lithium metal oxide represented by the formula Li1.0Ni0.85Al0.01Co0.04Mn0.10O2.0 [Table 2, Embodiment Example 11]. The formula satisfies the limitations of claim 5, wherein the lithium metal oxide is represented by the formula LiaNixAlyM1-x-yOz, and wherein M includes at least one of Co, Mn, Zr, Ti, Cr, B, Mg, Ba, Si, Y, W, La, and Sr. In the formula taught by Toyama a is 1, x is 0.85, and z is 2, all of which are within the claimed range. Furthermore, as described in the rejection for instant claim 1, when y is 0.01, the weight ratio of aluminum to nickel is satisfied. Additionally, Toyama teaches a general formula for the lithium metal oxide, represented by Li1+aNibCocMndMeO2+α, wherein M is at least one other metal element other than Li, Ni, Co, and Mn, and the conditions -0.04≤a≤0.04, 0.80≤b<1.00, 0≤c≤0.04, 0<d<0.20, b+c+d+e=1, and -0.2<α<0.2 are satisfied [0032]. When M is aluminum (a metal element other than Li, Ni, Co, and Mn), the formula disclosed by Toyama overlaps the chemical formula recited in claim 5. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP 2144.05 I).
Further regarding claim 6, Toyama teaches that the formula of the lithium metal oxide includes at Co and Mn. As described in the rejection for instant claim 5, the formula taught by Toyama includes Co and Mn [Table 2, Embodiment Example 11]. The general formula taught by Toyama also includes Co and Mn [0032].
Further regarding claim 7, Toyama teaches that the ratio of lithium sites occupied by nickel instead of lithium among all lithium sites is obtained by an X-ray diffraction and a Rietveld refinement [0065, “The site occupancy of nickel at the 3a site can be determined by analyzing, in terms of the crystal structure, the X-ray diffraction spectrum obtained by powder X-ray diffraction measurement using a CuKα ray, by a Rietveld method”, “refinement is performed on the assumption that the 3a site are occupied by Li or Ni”]. Furthermore, the manner in which the ratio of lithium sites occupied by nickel instead of lithium among all lithium sites is obtained does not lend itself to any actual structure within the product claim, and absent objective evidence that other methods are not equivalent to those recited, other methods could also be relied upon so long as the ratio recited is met.
Further regarding claim 8, Toyama teaches the cathode active material for a lithium secondary battery as described in the rejection for instant claim 1. Toyama also teaches that the lithium metal oxide of the cathode active material is composed of primary particles and secondary particles [0030, “The cathode active material is mainly composed of primary particle and secondary particle of the lithium-transition metal composite oxide”]. Toyama teaches that the secondary particle structure is made of an aggregation of primary particles [0077, “particles are bound to obtain a secondary particle”]. While Toyama does not explicitly state a crystallite size of the (104) plane, Toyama teaches an intensity ratio of I(003)/I(104) for nickel-based oxides, wherein I(003) represents a diffraction peak of the (003) plane and I(104) represents a diffraction peak of the (104) plane [0059, “An intensity ratio of these diffraction peaks I(003)/I(104) not only represents crystallinity in a c-axis direction, but also indirectly represents a degree of a lattice distortion caused by cation mixing or the like”]. The intensity ratio I(003)/I(104) is related to crystallite size, wherein a higher ratio indicates a larger crystallite size [0060, “The intensity ratio of diffraction peaks I(003)/I(104) being 1.2 or greater indicates that their layered structure is grown enough in the c-axis direction”] and a lower ratio indicates a smaller crystallite size. Therefore, it would have been obvious to a person having ordinary skill in the art to optimize the result-effective variable of I(003)/I(104), and thus crystallite size which is dictated by said ratio, to achieve optimum results with respect to a large charge-discharge capacity and excellent output properties such as high open circuit voltage [0060, “The intensity ratio of diffraction peaks I(003)/I(104) being 1.2 or greater indicates that their layered structure is grown enough in the c-axis direction, and a cubic domain which can otherwise appear between the layers due to cation mixing is less, so that a large charge-discharge capacity is obtainable, and a lithium secondary battery having a high open circuit voltage is obtainable”].
Further regarding claim 9, Toyama teaches a lithium secondary battery comprising a cathode comprising the cathode active material for a lithium secondary battery [0018, “A lithium ion secondary battery according to the present invention has a cathode that contains the aforementioned cathode active material used for a lithium ion secondary battery”] as described in the rejection for instant claim 1. Toyama further teaches an anode facing the cathode in the lithium secondary battery [0155, “Next, a lithium ion secondary battery was made using the thus manufactured cathode, an anode”, “The cathode and the anode were positioned to face each other”].
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Toyama (US 2021/0013505) as applied to claim 1 above, and further in view of Oda et al. (US 2016/0172674, hereinafter "Oda").
Regarding claim 8, Toyama teaches the cathode active material for a lithium secondary battery as described in the rejection for instant claim 1. Toyama also teaches that the lithium metal oxide of the cathode active material is composed of primary particles and secondary particles [0030, “The cathode active material is mainly composed of primary particle and secondary particle of the lithium-transition metal composite oxide”]. Toyama teaches that the secondary particle structure is made of an aggregation of primary particles [0077, “particles are bound to obtain a secondary particle”], and an intensity ratio I(003)/I(104) which is related to crystallite size.
Oda teaches analogous art of a cathode active material for a secondary battery which comprises a lithium transition metal oxide, or lithium nickel cobalt manganese composite oxide [0019, “lithium nickel cobalt manganese composite oxide particles, which is a cathode active material for a non-aqueous electrolyte secondary battery”]. Aoki teaches lithium composite oxide particles with a crystallite size in the (104) plane controlled to be 40 nm to 80 nm, which is within the claimed range [0053, “For the lithium composite oxide particles of the cathode active material … preferably the crystallite size at plane (104) is controlled to be 40 nm to 80 nm”].
Oda teaches that when the crystallite size of a (104) of a particle is 40 nm to 80 nm, the cathode active material made up of those particles has good crystallinity, and the secondary battery for which the cathode active material is used has good charging and discharging capacity, and good cycling characteristics [0053, “As a result, it is possible to make a cathode active material with good crystallinity, and excellent charging and discharging capacity and cycling characteristics are achieved for a secondary battery that uses that cathode active material as the cathode material”].
Therefore, it would have been obvious to a person having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the primary particles of the lithium metal oxide in the cathode active material for a lithium secondary battery taught by Toyama to have the crystallite size of a (104) plane taught by Oda, in order to have good crystallinity in the cathode active material, and good charging and discharging capacity and cycling characteristics in the lithium secondary battery.
Response to Arguments
Applicant's arguments filed 9/11/2025 have been fully considered but they are not persuasive.
Applicant alleges that the claimed R (ratio of lithium sites occupied by nickel instead of lithium among all lithium sites) value of 1% to 1.5% recited in claim 1 shows unexpected results over the range disclosed in Toyama (R value less than 4%). Applicant cites paragraphs [0030] to [0032] of the present specification as evidence that “when the R value is less than 1% or exceeds 1.5%, the charging/discharging efficiency and high-temperature stability of the secondary battery are degraded” [Remarks, page 9]. Applicant further cites Table 1 and paragraphs [0149] to [0150] of the present specification as evidence supporting the allegation that “the claimed range of 1% to 1.5% for the ratio of lithium sites occupied by nickel has a critical significance over the range disclosed in Toyama” and that the unexpected results include the significant and unexpected improvement of the initial properties and the high-temperature stability of the secondary battery [Remarks, pages 10-11].
It is respectfully submitted that there are multiple deficiencies with respect to Applicant’s allegation of unexpected results.
The first overarching issue is that whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." (MPEP 7160.02(d)) (Examiner emphasis). In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See also the following case law (MPEP 716.02(d)):
In re Peterson, 315 F.3d 1325, 1329-31, 65 USPQ2d 1379, 1382-85 (Fed. Cir. 2003) (data showing improved alloy strength with the addition of 2% rhenium did not evidence unexpected results for the entire claimed range of about 1-3% rhenium);
In re Grasselli, 713 F.2d 731, 741, 218 USPQ 769, 777 (Fed. Cir. 1983) (Claims were directed to certain catalysts containing an alkali metal. Evidence presented to rebut an obviousness rejection compared catalysts containing sodium with the prior art. The court held this evidence insufficient to rebut the prima facie case because experiments limited to sodium were not commensurate in scope with the claims.); and
In re Lindner, 457 F.2d 506, 509, 173 USPQ 356, 359 (CCPA 1972) (Evidence of nonobviousness consisted of comparing a single composition within the broad scope of the claims with the prior art. The court did not find the evidence sufficient to rebut the prima facie case of obviousness because there was "no adequate basis for reasonably concluding that the great number and variety of compositions included in the claims would behave in the same manner as the tested composition.")
The objective evidence offered to support the allegation of unexpected results includes the Examples and Comparative Examples as summarized in Table 1 and paragraphs [0149] to [0150] of the present specification. Table 1 of the present specification is recreated here below:
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328
594
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The evidence offered to support the allegation of unexpected results is not commensurate in scope with the claims. Claim 1 recites “a ratio of lithium sites occupied by nickel instead of lithium among all lithium sites in the lithium metal oxide”, or R value, “is in a range from 1% to 1.5%”, however, the evidence offered to support only provides two examples within the recited range, at an R value of 1.04% and an R value of 1.25%. As noted by the case law of In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980), the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). Thus, the evidence offered does not support the range of 1% to 1.5% as claimed. For example, do the unexpected results occur at an R value of 1%, 1.35%, or 1.5%? The answer is not clear as there is no data provided for the 1.5% endpoint of the range, nor does the data provided span the entire claimed range.
Additionally, the evidence offered for support of unexpected results is deficient in terms of a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). For example, the data provided in Table 1 has the issue that a true comparison cannot be made between Examples 1 and 2 and Example 3 and Comparative Examples 1-4, as the Al:Ni weight ratio is also changing and is not the same for any two examples. In the case of Comparative Examples 1 and 4, the Al:Ni weight ratio is well outside the preferred range disclosed in the present specification. Thus, it is not clear if any change in result would be based on the basis of the R value changing or the Al:Ni weight ratio changing.
Lastly, Example 3 and Comparative Examples 1 and 4 have R values outside the claimed range. However, Example 3 and Comparative Example 1 have a higher initial charge capacity than Example 1, which has an R value within the claimed range. Comparative Example 4 has the same initial charge capacity as Example 1. Comparative Example 1 has the same efficiency as Example 1. Therefore, not all of the initial properties display degradation when the R value is outside of the claimed range.
As such, the examiner does not find the objective evidence offered to support the allegation of nonobviousness in terms of unexpected results commensurate in scope with the claims which the evidence is offered to support (MPEP 716.02 (d)). Therefore, the rejection of claims 1-9 under 35 U.S.C. 103 as being unpatentable over Toyama, and the rejection of claim 8 under 35 U.S.C. 103 as being unpatentable over Toyama in view of Oda are maintained.
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.
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/M.F.O./Examiner, Art Unit 1729
/ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729