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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-5, 7-11, 13-15, and 17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-8, 10-15, and 17-20 of copending Application No. 18/121,909 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, copending Application No. 18/121,909 claims a positive electrode material, comprising: a first lithium manganese iron phosphate material, a second lithium manganese iron phosphate material, a third lithium manganese iron phosphate material, a fourth lithium manganese iron phosphate material and a fifth lithium manganese iron phosphate material (copending claim 1), wherein a particle quantity ratio between the first lithium manganese iron phosphate material, the second lithium manganese iron phosphate material, the third lithium manganese iron phosphate material, the fourth lithium manganese iron phosphate material, and the fifth lithium manganese iron phosphate material is (0.8 to 1.2):(0.8 to 1.2):(1.6 to 2.4):(6.4 to 9.6):(6.4 to 9.6) (copending claim 5), the first lithium manganese iron phosphate material is an aggregate, the fourth lithium manganese iron phosphate material and the fifth lithium manganese iron phosphate material are single-crystal-like, the second lithium manganese iron phosphate material and the third lithium manganese iron phosphate material are aggregates and/or single-crystal-like, and particle size relationships thereof satisfy:
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Wherein, D501 to D505 represent particle sizes D50 of the first lithium manganese iron phosphate material to the fifth lithium manganese iron phosphate material, a is in a range of 0.35 to 0.5 inclusive, b is in a range of 0.2 to 0.27 inclusive, c is in a range of 0.17 to 0.18 inclusive, and d is in a range of 0.15 to 0.16 inclusive (copending claim 1).
Regarding claim 2, copending Application No. 18/121,909 claims wherein a is in a range of 0.41 to 0.45 inclusive; and b is in a range of 0.21 to 0.23 inclusive (copending claim 3).
Regarding claim 3, copending Application No. 18/121,909 claims wherein a is 0.41, b is 0.23, c is 0.18, and dis 0.16 (copending claim 4).
Regarding claim 4, copending Application No. 18/121,909 claims wherein the particle quantity ratio between the first lithium manganese iron phosphate material, the second lithium manganese iron phosphate material, the third lithium manganese iron phosphate material, the fourth lithium manganese iron phosphate material, and the fifth lithium manganese iron phosphate material is 1:1:2:8:8 (copending claim 6).
Regarding claim 5, copending Application No. 18/121,909 claims wherein a median particle size of primary particles of the aggregate is in a range of 100 nm to 500 nm inclusive (copending claim 7).
Regarding claim 7, copending Application No. 18/121,909 claims a positive electrode plate, comprising a current collector and a positive electrode material layer disposed on the current collector, wherein the positive electrode material layer comprises a positive electrode material, and the positive electrode material comprises: a first lithium manganese iron phosphate material, a second lithium manganese iron phosphate material, a third lithium manganese iron phosphate material, a fourth lithium manganese iron phosphate material and a fifth lithium manganese iron phosphate material (copending claim 8), a particle quantity ratio between the first lithium manganese iron phosphate material, the second lithium manganese iron phosphate material, the third lithium manganese iron phosphate material, the fourth lithium manganese iron phosphate material, and the fifth lithium manganese iron phosphate material is (0.8 to 1.2):(0.8 to 1.2):(1.6 to 2.4):(6.4 to 9.6):(6.4 to 9.6) (copending claim 12), the first lithium manganese iron phosphate material is an aggregate, the fourth lithium manganese iron phosphate material and the fifth lithium manganese iron phosphate material are single-crystal-like, the second lithium manganese iron phosphate material and the third lithium manganese iron phosphate material are aggregates and/or single-crystal-like, and particle size relationships thereof satisfy:
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Wherein, D501 to D505 represent particle sizes D50 of the first lithium manganese iron phosphate material to the fifth lithium manganese iron phosphate material, a is in a range of 0.35 to 0.5 inclusive, b is in a range of 0.2 to 0.27 inclusive, c is in a range of 0.17 to 0.18 inclusive, and d is in a range of 0.15 to 0.16 inclusive (copending claim 8).
Regarding instant claim 8, copending Application No. 18/121,909 claims wherein a is in a range of 0.41 to 0.45 inclusive; and b is in a range of 0.21 to 0.23 inclusive (copending claim 10).
Regarding claim 9, copending Application No. 18/121,909 claims wherein a is 0.41, b is 0.23, c is 0.18, and d is 0.16 (copending claim 11).
Regarding claim 10, copending Application No. 18/121,909 claims wherein the particle quantity ratio between the first lithium manganese iron phosphate material, the second lithium manganese iron phosphate material, the third lithium manganese iron phosphate material, the fourth lithium manganese iron phosphate material, and the fifth lithium manganese iron phosphate material is 1:1:2:8:8 (copending claim 13).
Regarding claim 11, copending Application No. 18/121,909 claims wherein a median particle size of primary particles of the aggregate is in a range of 100 nm to 500 nm inclusive (copending claim 14).
Regarding claim 13, copending Application No. 18/121,909 claims a battery, comprising a positive electrode plate comprising a current collector and a positive electrode material layer disposed on the current collector, wherein the positive electrode material layer comprises a positive electrode material, and the positive electrode material comprises: a first lithium manganese iron phosphate material, a second lithium manganese iron phosphate material, a third lithium manganese iron phosphate material, a fourth lithium manganese iron phosphate material and a fifth lithium manganese iron phosphate material (copending claim 15), wherein a particle quantity ratio between the first lithium manganese iron phosphate material, the second lithium manganese iron phosphate material, the third lithium manganese iron phosphate material, the fourth lithium manganese iron phosphate material, and the fifth lithium manganese iron phosphate material is (0.8 to 1.2):(0.8 to 1.2):(1.6 to 2.4):(6.4 to 9.6):(6.4 to 9.6) (copending claim 19), the first lithium manganese iron phosphate material is an aggregate, the fourth lithium manganese iron phosphate material and the fifth lithium manganese iron phosphate material are single-crystal-like, the second lithium manganese iron phosphate material and the third lithium manganese iron phosphate material are aggregates and/or single-crystal-like, and particle size relationships thereof satisfy:
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81
684
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Wherein, D501 to D505 represent particle sizes D50 of the first lithium manganese iron phosphate material to the fifth lithium manganese iron phosphate material, a is in a range of 0.35 to 0.5 inclusive, b is in a range of 0.2 to 0.27 inclusive, c is in a range of 0.17 to 0.18 inclusive, and d is in a range of 0.15 to 0.16 inclusive (copending claim 15).
Regarding claim 14, copending Application No. 18/121,909 claims wherein a is in a range of 0.41 to 0.45 inclusive; and b is in a range of 0.21 to 0.23 inclusive (copending claim 17).
Regarding claim 15, copending Application No. 18/121,909 claims wherein a is 0.41, b is 0.23, c is 0.18, and d is 0.16 (copending claim 18).
Regarding claim 16, copending Application No. 18/121,909 claims wherein the particle quantity ratio between the first lithium manganese iron phosphate material, the second lithium manganese iron phosphate material, the third lithium manganese iron phosphate material, the fourth lithium manganese iron phosphate material, and the fifth lithium manganese iron phosphate material is 1:1:2:8:8 (copending claim 20).
Regarding claim 17, copending Application No. 18/121,909 claims wherein a median particle size of primary particles of the aggregate is in a range of 100 nm to 500 nm inclusive (copending claim 14).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have been allowed but not issued into a patent yet.
Claims 6,12, and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 8, 12, 15, and 19 of copending Application No. 18/121,909 in view of US 20190305307 A1.
Regarding claim 6, copending application No. 18/121,909 claims all of the limitations of claim 1 (copending application claims 1 and 5). Copending application No. 18/121,909 does not claim wherein a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive.
US 20190305307 A1 is considered analogous to the claimed invention because they are in the same field of electrode active materials ([0005]). US 20190305307 A1 teaches wherein a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive ([0084] crystallite diameter is equal to the primary particle diameter; [0051] average primary particle diameter of 0.05 μm to 10 μm, more preferably 0.06 μm to 3 μm). 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).
Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have further defined the claimed invention of copending Application No. 18/121,909 such that a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive as it is a known particle size of single-crystal-like particles in the art and would yield the expected results with a reasonable expectation of success.
Regarding claim 12, copending application No. 18/121,909 claims all of the limitations of claim 7 (copending application claims 8 and 12). Copending application No. 18/121,909 does not claim wherein a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive.
US 20190305307 A1 is considered analogous to the claimed invention because they are in the same field of electrode active materials ([0005]). US 20190305307 A1 teaches wherein a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive ([0084] crystallite diameter is equal to the primary particle diameter; [0051] average primary particle diameter of 0.05 μm to 10 μm, more preferably 0.06 μm to 3 μm). 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).
Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have further defined the claimed invention of copending Application No. 18/121,909 such that a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive as it is a known particle size of single-crystal-like particles in the art and would yield the expected results with a reasonable expectation of success.
Regarding claim 18, copending application No. 18/121,909 claims all of the limitations of claim 13 (copending application claims 15 and 19). Copending application No. 18/121,909 does not claim wherein a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive.
US 20190305307 A1 is considered analogous to the claimed invention because they are in the same field of electrode active materials ([0005]). US 20190305307 A1 teaches wherein a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive ([0084] crystallite diameter is equal to the primary particle diameter; [0051] average primary particle diameter of 0.05 μm to 10 μm, more preferably 0.06 μm to 3 μm). 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).
Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have further defined the claimed invention of copending Application No. 18/121,909 such that a particle size of the single- crystal-like primary particle is in a range of 0.5 μm to 2.5 μm inclusive as it is a known particle size of single-crystal-like particles in the art and would yield the expected results with a reasonable expectation of success.
This is a provisional nonstatutory double patenting rejection.
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.
Claims 6, 12, and 18 are 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 6 recites the limitation "the single-crystal-like primary particle" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "the single-crystal-like primary particle" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 18 recites the limitation "the single-crystal-like primary particle" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US-20120237822-A1 teaches a positive electrode material including a plurality of positive electrode active materials of lithium-containing composite oxides ([0024]), [0026]). The lithium containing composite oxide can be a lithium manganese iron phosphate ([0029]).
US-20140138591-A1 teaches a positive electrode active material of a mixture of lithium iron manganese phosphate compound and lithium metal oxide ([0052]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MADISON L KYLE whose telephone number is (571)272-0164. The examiner can normally be reached Monday - Friday 9 AM - 5 PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Niki Bakhtiari can be reached at (571) 272-3433. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M.L.K./Examiner, Art Unit 1722
/ANCA EOFF/Primary Examiner, Art Unit 1722