DETAILED ACTION
Claim Analysis
The present application contains one active independent claim(s) (claim 1) and fourteen active dependent claims (claims 2 - 15). Claims 16 - 20 are currently withdrawn.
Examiner’s Comments
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 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.
Regarding the limitation(s) “O2 scavenger material” in the claims, the Examiner has given the term(s) the broadest reasonable interpretation(s) consistent with the written description in Applicants’ specification as it would be interpreted by one of ordinary skill in the art. In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Donaldson Co., Inc., 16 F.3d 1190, 1192-95, 29 USPQ2d 1845, 1848-50 (Fed. Cir. 1994). See MPEP 2111. Specifically, any material that absorbs or removes oxygen via reaction, etc., whether known as an “O2 absorber”, “O2 scavenger”, “O2 getter”, etc. are taken to read on “O2 scavenger material”.
Column and line (or Paragraph Number) citations have been provided as a convenience for Applicants, but the entirety of each reference should be duly considered. Any recitation of a Figure element, e.g. “Figure 1, element 1” should be construed as inherently also reciting “and relevant disclosure thereto”.
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 claims at issue 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); and 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 a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form 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 http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1 – 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 - 9 of copending Application No. 18/179,414 (U.S. Patent App. No. 2024/0304880 A1). This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claim 1, App. ‘414 claims a battery cell (claim 1), comprising: an external container (claim 1: frame): an electrode stack disposed within the external container and including at least one pair of an anode and a cathode; an electrolyte disposed within the external container (claim 1); and an O₂ scavenger material disposed within the external container and configured for absorbing oxygen gas generated within the electrode stack (claim 1: functional material).
Regarding claim 2, since the functional material is disclosed inside the frame and not in contact with the electrode stack, it must necessarily be ‘inert’ with respect to the anode, cathode and electrolyte.
Regarding claim 3, this structure is met by the claimed invention (claim 3 of App. ‘414).
Regarding claim 4 - 6, while not explicitly claimed, the Examiner takes Official Notice that the use of O2 scavengers through-out the entire body structure of a battery are well established in the arts. For support of the Examiner’s position of Official Notice, see art cited below in the 102/103 rejections.
Regarding claim 7, while not explicitly claimed, the Examiner takes Official Notice that the use of these classes of materials as O2 scavengers in a lithium-ion-type battery are well established in the arts. For support of the Examiner’s position of Official Notice, see art cited below in the 102/103 rejections.
Regarding claim 8, while not explicitly claimed, the Examiner takes Official Notice that the use of an O2 scavenger layer within a coiled electrode stack; e.g. at the center of or within the layers, are well established in the arts. For support of the Examiner’s position of Official Notice, see art cited below in the 102/103 rejections. Similarly, and as already claimed in App. ‘414, the use of ‘permeable packets’ (i.e. the O2 scavenger contained within 1 or more permeable layers serving as barriers between the O2 scavenger and the electrode/electrolyte) is also well established in the art as ‘conventional’. See the provided art cited below in the 102/103 rejections for support of this position of Official Notice of ‘conventional structure’.
Regarding claim 9, the App. ‘414 discloses the claimed structure. The requirement of ‘reactive with’ or ‘interferes with’ is necessarily met regardless of the choice of materials as this is an intended use limitation and any material would ‘interfere with’ the active material of an anode or cathode by taking up space in the battery, thereby reducing the amount of active material (i.e. “interfering with”) that could be contained within said battery.
Regarding claim 10, while not explicitly claimed, the Examiner takes Official Notice that the use of these classes of materials as O2 scavengers in a lithium-ion-type battery are well established in the arts. For support of the Examiner’s position of Official Notice, see art cited below in the 102/103 rejections.
Regarding claims 11 and 12, App ‘414 discloses the claimed frame (claims 1 and 6 – 8).
Regarding claim 13, gas permeable packets are within the scope of the claims for the reasons set forth above regarding claim 8.
Regarding claims 14 and 15, the Examiner takes Official Notice that these classes of batteries are ubiquitous in the arts and, as such, are clearly rendered obvious by the claimed invention of App. ‘414. For support of the Examiner’s position of Official Notice, see art cited below in the 102/103 rejections.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) The claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) The claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
(g)(1) During the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
A rejection on this statutory basis (35 U.S.C. 102(g) as in force on March 15, 2013) is appropriate in an application or patent that is examined under the first to file provisions of the AIA if it also contains or contained at any time (1) a claim to an invention having an effective filing date as defined in 35 U.S.C. 100(i) that is before March 16, 2013 or (2) a specific reference under 35 U.S.C. 120, 121, or 365(c) to any patent or application that contains or contained at any time such a claim.
Claims 1, 2 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Takatani et al. (JP 07-220698 A1). See provided Machine Translation and Abstract Translation of JP ‘698 A1.
Regarding claim 1, Takatani et al. discloses a battery cell (Title; Abstract; Figures), comprising: an external container (Figure 1): an electrode stack disposed within the external container and including at least one pair of an anode and a cathode; an electrolyte disposed within the external container (Figures 2 – 3 and Abstract); and an O₂ scavenger material disposed within the external container and configured for absorbing oxygen gas generated within the electrode stack (Figure 1, element 8 and at least Paragraph 0005).
Regarding claim 2, since the functional material is disclosed inside the frame and not in contact with the electrode stack, it must necessarily be ‘inert’ to (i.e. it does not react with) the anode, cathode and electrolyte.
Regarding claim 14, Takatani et al. disclose battery shapes meeting the claimed limitations (at least Paragraph 0002).
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 of this title, 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 pre-AIA 35 U.S.C. 103(a) 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.
Regarding numbers (1), (2) and (4), see the rejection(s) provided below. Regarding the level of ordinary skill in the art, the general level of skill is taken as a highly skilled technician having at least a BS, MS, or PhD in the relevant field and 3-5 years experience.
Claims 2, 3, 8 – 13 and 15 are rejected under 35 U.S.C. 103(a) as being unpatentable over Takatani et al. as applied above, and further in view of Toia et al. (WO 2008/148778 A1).
Takatani et al. is relied upon as described above.
With regard to claim 2, while the Examiner maintains that the O2 scavenger of Takatani et al. is ‘inert’ within the claimed scope for the reasons set forth above, the Examiner acknowledges that Takatani et al. fails to explicitly state the word ‘inert’ in their description of the O2 scavenger material itself.
However, Toia et al. teach when applying these O2 scavenger (getter) materials, one wants to make sure that they are inert to at least the electrolyte (Page 3, lines 4 – 13). The Examiner notes that a skilled artisan would readily appreciate that it should not only be inert to the electrolyte, but also all the active materials within the battery itself (i.e. anode, cathode, separator, etc.). This is obvious since one would not want to degrade the activation of the active materials in the anode or cathode, nor the functioning of the electrolyte, separator, etc.
It would therefore have been obvious to one of ordinary skill in the art at the time of the Applicants’ invention to modify the device of Takatani et al. to ensure that the O2 scavenger material itself is ‘inert’ to the anode, cathode and electrolyte as taught by Toia et al., as such a material insures that the behavior of the battery is not adversely affected by the O2 scavenger material.
Regarding claim 3, alternative to the inclusion of the material within a ‘void’ in the wall of the container with a ‘vent’ providing access to the O2 scavenger material, as taught by Takatani et al. above, Toia et al. provides a structure wherein the O2 scavenger material is a coating layer on the outer surface of the container and a gas permeable barrier (protective layer) separates it from the internal battery electrode roll (page 3, lines 14 – 24; page 5, lines 8 -11; and Figures).
Regarding claim 8, Toia et al. disclose an embodiment wherein the O2 scavenger ‘packet’ (O2 scavenger material enclosed within 2 permeable barriers per the teachings above) is located within the center of the battery (Figure 4 and page 9, lines 2 – 4) meeting the claimed limitations.
Regarding claims 9 and 11, Toia et al. discloses the claimed limitations for the reasons set forth above. The requirement of ‘reactive with’ or ‘interferes with’ is necessarily met regardless of the choice of materials as this is an intended use limitation and any material would ‘interfere with’ the active material of an anode or cathode by taking up space in the battery, thereby reducing the amount of active material (i.e. “interfering with”) that could be contained within said battery.
Regarding claim 10, Toia et al. disclose the claimed materials as O2 getter (scavenger) materials (page 7, lines 23 – 29).
Regarding claim 12, Toia et al. disclose the claimed materials as the ‘frame’/permeable layer (at least page 6, lines 10 – 14). The Examiner also takes Official Notice that these materials are conventional battery casing/container/frame materials and a skilled artisan would be well advised upon which to select depending on desired strength, permeability, etc. properties. For support of the Examiner’s position of Official Notice on known frame materials, see the various art cited and/or applied herewith, including teachings in Toia et al. regarding metal internal ‘frame’ layers, etc.
Regarding claim 13, Toia et al. disclose ‘packets’ meeting the claimed limitations (O2 scavenger material enclosed within 2 gas permeable layers).
Regarding claims 14 and 15, Takatani et al. teaches the claimed cylindrical batteries, as does Toia et al. (Figure 4). While not explicit with regard to a ‘flexible pouch’ battery, Toia et al. clearly teach that any known shapes can be used (page 8, lines 27 – 30), as well as teaching that the container/casing material is polymeric (the O2 scavenger in a binder and two polymeric permeable protective layers), which is deemed to read on ‘flexible pouch’. Finally, the Examiner also takes Official Notice that these battery shapes are conventional battery shapes in the art and a skilled artisan would be well advised upon which to select depending on desired end use.
Claims 4 – 7 are rejected under 35 U.S.C. 103(a) as being unpatentable over Takatani et al. as applied above in Paragraph No. 8, as evidenced by Gunji et al. (U.S. Patent App. No. 2011/0217592 A1), Noie (JP 2013-089284 A1) and Kim et al. (KR 2013-024595 A).
Claims 4 – 7 are rejected under 35 U.S.C. 103(a) as being unpatentable over Takatani et al. in view of Toia et al. as applied above in Paragraph No. 11, as evidenced by Gunji et al. (U.S. Patent App. No. 2011/0217592 A1), Noie (JP 2013-089284 A1) and Kim et al. (KR 2013-024595 A).
Takatani et al. (and Toia et al.) are relied upon as described above.
Regarding claims 4 – 6, neither of the above disclose using O2 scavenger/getter layers in a location other than as part of the container/casing of the battery. Regarding claim 7, neither of the above disclose the claimed materials as known O2 scavenger/getter materials.
However, the Examiner notes that a skilled artisan in the battery arts would have been well appraised that O2 scavenger layers can be located in a wide variety of locations, either alternative to the getter material in the container/casing or in addition thereto. This would provide improved and localized O2 absorption and would have been well known to a skilled artisan. For support of the Examiner’s position that such structural variations are within the knowledge of a person of ordinary skill in the art, the Examiner points to evidentiary art to Gunji et al. (Abstract; Figure 1 and at least Paragraph 0036 – 0048 for a teaching of O2 scavenger materials mixed with the material of the cathode electrode); Noie (Title; Abstract for a teaching of O2 scavenger materials as a layer applied to the separator); and Kim et al. (Title; Abstract for a teaching of O2 scavenger materials mixed with the material of the anode electrode).
Regarding claim 7, substitution of functional equivalents requires no express motivation as long as the prior art recognizes the functional equivalency. In the instant case, the various O2 scavenger/getter materials disclosed in Takatani et al. (or Takatani et al. in view of Toia et al.) are functional equivalents in the field of known O2 scavenger/getter materials, as evidenced by Kim et al. (Title; Abstract – “Preferred Composition” section). In re Fount 213 USPQ 532 (CCPA 1982); In re Siebentritt 152 USPQ 618 (CCPA 1967); Graver Tank & Mfg. Co. Inc. v. Linde Air Products Co. 85 USPQ 328 (USSC 1950).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The Examiner notes that many of the cited, but not applied art, teach various materials for O2 scavengers and/or various locations within a battery container (or battery electrode stack itself) where it is known in the art to include O2 scavengers. Some of these pertinent prior art likely would be applicable as 102(a)(1) or 102(a)(2) references on claims 1 – 6 given the breadth of the structure and the generic nature of “O2 scavenger” in these claims. However, the Examiner deemed that any argument or amendment to overcome the art applied above would likely also overcome these additional references and, as such, maintains that the art applied above is the closest prior art for the purpose of examination.
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/KEVIN M BERNATZ/Primary Examiner, Art Unit 1785
February 17, 2026