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 Arguments
Applicant’s arguments with respect to claim 1 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. Specifically, the desirability to use a niobium peroxo complex in the coating solution is obvious in view of the new combination of prior art references cited below.
Relevant MPEP Sections
MPEP 2144.04 Legal Precedent as Source of Supporting Rationale
VII. PURIFYING AN OLD PRODUCT
Pure materials are novel vis-à-vis less pure or impure materials because there is a difference between pure and impure materials. Therefore, the issue is whether claims to a pure material are nonobvious over the prior art. In reBergstrom, 427 F.2d 1394, 166 USPQ 256 (CCPA 1970). Purer forms of known products may be patentable, but the mere purity of a product, by itself, does not render the product nonobvious.
Factors to be considered in determining whether a purified form of an old product is obvious over the prior art include whether the claimed chemical compound or composition has the same utility as closely related materials in the prior art, and whether the prior art suggests the particular form or structure of the claimed material or suitable methods of obtaining that form or structure. In reCofer, 354 F.2d 664, 148 USPQ 268 (CCPA 1966) (Claims to the free-flowing crystalline form of a compound were held nonobvious over references disclosing the viscous liquid form of the same compound because the prior art of record did not suggest the claimed compound in crystalline form or how to obtain such crystals.). However, in the case of product-by-process claims, if a first prior art process is improved to enhance the purity of the product produced by the process, and if the purified product has no structural or functional difference from the products produced by other prior art processes, then the improvement in the first process that improves the purity of the product does not give rise to patentability. See Purdue Pharma v. Epic Pharma, 811 F.3d 1345, 117 USPQ2d 1733 (Fed. Cir. 2016). See also MPEP § 2113.
Claim Rejections - 35 USC § 103
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 1-10 are rejected under 35 U.S.C. 103 as unpatentable over Campbell et al. (US Pub 2020/0373560 cited in IDS) in view of Uchiyama (US Pub 2017/0077489 of record).
In regard to claims 1-7, Campbell et al. teach a method for producing a coated NMC 811 (i.e. 80mol% nickel as metal element – paragraph [0130]) active material in which a coating layer containing niobium is made on at least a part of a surface of an active material (lithium niobate coating – paragraph [0039, 0131]), the method comprising:
transforming a slurry containing the active material and a coating solution containing niobium into droplets to obtain slurry droplets; drying and baking the slurry droplets in a heated gas stream to obtain a precursor (spray drying slurry mixture to form precursor particles – paragraphs [0085-0092]); wherein the drying (i.e. baking) the precursor is at a temperature preferably 200 to 325°C (paragraph [0085]) and the slurry has a pH up to 12 (paragraph [0054]).
The prior art does not disclose sulfur present in the active material and therefore none (i.e. 0wt%) is presumed present in a manner which anticipates the claimed range (MPEP 2131.03) of sulfur as an impurity in the active material. In the alternative, while no sulfur content is explicitly disclosed it would have been obvious to one of ordinary skill in the art at the before the effective filing date of the claimed invention filed that the active material used to obtain the slurry droplets should contain less than 0.68 or 0.57 wt% of sulfur as an impurity as purifying a product to obtain better electrochemical properties in the prior art is an obvious modification (see MPEP 2144.05 Part VII above).
In regard to the amendment, the claims now differ from Campbell et al. in calling for a niobium peroxo complex in the slurry for spray drying. However, Uchiyama teach a similar method of producing niobium coated NMC active materials and the desirability to use peroxo complex of niobium in the slurry which is spray dried onto the active material which may be heat treated at temperatures less than 300°C because such reduces the number of gaps (i.e. pores) in the lithium niobate to prevent crystallization and maintain good contact with the active material and reduces the number of impurities (see paragraphs [0024-0036]).
Therefore, it would have been obvious to one of ordinary skill in the art at the before the effective filing date of the claimed invention filed to use a niobium peroxo complex in the slurry of Campbell et al. as such makes for a niobium coating on the active material with enhanced electrochemical properties as taught by Uchiyama.
In regard to claim 8, Campbell et al. teach measuring the ion content of the active material by inductively coupled plasma (ICP) (paragraph [0072]). While the prior art does not specifically disclose measuring sulfur content, detection and removal of impurities to obtain better electrochemical properties in the prior art is an obvious modification (see MPEP 2144.05 Part VII above).
In regard to claim 9 and 10, Uchiyama appreciates that the coating layer includes a plurality of pores (i.e. gaps) present at the interface between the active material and the coating layer (paragraph [0035]) which should be controlled.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Pub 2015/0287985 newly cited, teaches a similar method of forming niobium coated active materials with particular porosity.
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 Nicholas P D'Aniello whose telephone number is (571)270-3635. The examiner can normally be reached Monday to Friday 9am to 5pm EST.
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/NICHOLAS P D'ANIELLO/Primary Examiner, Art Unit 1723