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 .
DETAILED ACTION
Response to Amendment
The amendments filed on 11/18/2025 does not put the application in condition for allowance.
Examiner withdraws all rejections in the prior office action due to the amendments.
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.
Claim(s) 1-3 and 5-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (KR1020170026909, Machine Translation)
Regarding Claim 1, Kim et al. teaches a secondary battery including a cathode active material, a cathode containing a cathode active material, and a separator [page 3, bottom of page, The electrode assembly consists of an anode containing a cathode active material, a cathode containing a cathode active material, and a separator]. Kim et al. teaches an evaluation method in which the battery is charged and discharged, and gas inside the battery is tested, to evaluate the battery [page 2 middle of page].
Kim et al. does not explicitly teach wherein the positive electrode active material is selected according to a criterion that a pressure of gas produced by a reaction with an electrolyte solution is in a range of 0.4 to 0.6 atm/mAh when measured using a gas analysis apparatus comprising:
a lower plate including a retention portion in which the positive electrode active material
and the electrolyte solution are placed at a weight ratio of 1:1 to 3:1;
an upper plate including a first flow path in which gas produced by a reaction of the
electrolyte solution and the positive electrode active material at a temperature of 70 to 75°C
moves and a pressure measuring sensor;
an internal pressure control port which controls opening and closing of a second flow
path communicating with the first flow path of the upper plate and controls pressure inside the
apparatus: and a sealing member sealing a space between the upper plate and the lower plate.
Kim et al. teaches all the structural limitations of the positive electrode active material; therefore, it is the view of the examiner, based on the teaching of Kim et al., has a reasonable basis to believe that the claimed limitations of “wherein the positive electrode active material is selected according to a criterion that a pressure of gas produced by a reaction with an electrolyte solution is in a range of 0.4 to 0.6 atm/mAh,” which are directed to a property of the positive electrode, are inherently possessed by the product of Kim et al. since the claims are directed to the final product.
Furthermore, the claim is directed to a positive electrode active material, and Kim et al. teaches all the structural limitations of the positive electrode active material; and the gas apparatus in claim 1 is used to measure the gas produced in order to obtain the range of 0.4 to 0.6 atm/mAh. Although there are structural limitations directed to the gas apparatus for measuring a pressure of gas, claim 1 is directed to a positive electrode active material. Therefore, the limitation of “a gas analysis apparatus comprising: a lower plate including a retention portion in which the positive electrode active material and the electrolyte solution are placed at a weight ratio of 1:1 to 3:1; an upper plate including a first flow path in which gas produced by a reaction of the electrolyte solution and the positive electrode active material at a temperature of 70 to 75°C moves and a pressure measuring sensor; an internal pressure control port which controls opening and closing of a second flow path communicating with the first flow path of the upper plate and controls pressure inside the apparatus: and a sealing member sealing a space between the upper plate and the lower plate.” is met since the cited prior art teaches all of the positively recited structure of the claimed positive electrode active material. The determination of patentability is based upon the positive electrode active material structure itself. The patentability of a product or apparatus does not depend on its method of production or formation. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (see MPEP § 2113).
Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.).
Since the PTO does not have proper means to conduct experiments, the burden of proof is now shifted to applicants to show otherwise. In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977); In re Fitzgerald, 205 USPQ 594 (CCPA 1980).
Regarding Claim 2, Kim et al. is relied upon for the reasons given above, Kim et al. is silent on wherein the reaction is performed at a temperature of 70 to 75 degrees Celsius.
Kim et al. teaches all the structural limitations of the claim. Therefore, it is the view of the examiner, based on the teaching of Kim et al., has a reasonable basis to believe that the claimed limitations of “wherein the reaction is performed at a temperature of 70 to 75 degrees Celsius,” which are directed to a property of the positive electrode, are inherently possessed by the product of Kim et al. since the claims are directed to the final product.
Since the PTO does not have proper means to conduct experiments, the burden of proof is now shifted to applicants to show otherwise. In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977); In re Fitzgerald, 205 USPQ 594 (CCPA 1980).
The cited prior art teaches all of the positively recited structure of the claimed apparatus or product. The determination of patentability is based upon the apparatus structure itself. The patentability of a product or apparatus does not depend on its method of production or formation. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (see MPEP § 2113).
Regarding Claim 3, Kim et al. is relied upon for the reasons given above, Kim et al. is silent on wherein the positive electrode active material is collected from a half-cell charged with predetermined SOC.
Kim et al. teaches all the structural limitations of the claim. Therefore, it is the view of the examiner, based on the teaching of Kim et al., has a reasonable basis to believe that the claimed limitations of “wherein the positive electrode active material is collected from a half-cell charged with predetermined SOC.” which are directed to a property of the positive electrode, are inherently possessed by the product of Kim et al. since the claims are directed to the final product.
Since the PTO does not have proper means to conduct experiments, the burden of proof is now shifted to applicants to show otherwise. In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977); In re Fitzgerald, 205 USPQ 594 (CCPA 1980).
The cited prior art teaches all of the positively recited structure of the claimed apparatus or product. The determination of patentability is based upon the apparatus structure itself. The patentability of a product or apparatus does not depend on its method of production or formation. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (see MPEP § 2113).
Regarding Claim 5, Kim et al. is relied upon for the reasons given above, Kim et al. teaches wherein a weight ratio between the positive electrode active material and the electrolyte solution is 1:1 to 3:1 [positive electrode is 80 to 95% by weight, and electrolyte is 0 to 30% weight, 0098]. Kim et al. teaches a range for the ratio of the positive electrode and electrolyte with is overlapping the ratio of 1:1 and 3:1.
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). MPEP §2144.05.
Regarding Claim 6, Kim et al. is relied upon for the reasons given above, Kim et al. teaches a positive electrode comprising the positive electrode active material of claim 1 [page 3 bottom of the page].
Regarding Claim 7, Kim et al. is relied upon for the reasons given above, Kim et al. teaches a secondary battery comprising: the positive electrode of claim 6; a negative electrode; and a separator interposed between the positive electrode and the negative electrode [middle of page 2].
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (KR1020170026909, Machine Translation) in view of Goto (US Pub No. 2021/0135213)
Regarding Claim 4, Kim et al. is relied upon for the reasons given above, Kim et al. is silent on wherein the positive electrode active material incudes 80 mol% or more of nickel.
Goto et al. teaches a positive electrode with a nickel content of 80 mol% or more [0010] resulting in the improvement of high temperature cycle while maintaining superior rate characteristics [0008-0009].
Since Kim et al. teaches a positive electrode material comprising nickel [0092], it would have been obvious to one of ordinary skill in the art before the filing of the invention to modify the positive electrode of Kim et al. with the nickel of Goto et al. in order to provide the improvement of high temperature cycle while maintaining superior rate characteristics [0008-0009].
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-7 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 MICHAEL Y SUN whose telephone number is (571)270-0557. The examiner can normally be reached 9AM-7PM.
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/MICHAEL Y SUN/Primary Examiner, Art Unit 1728