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
Applicant amended claims 1 and 40; with claims 8-28, 31, and 34 previously cancelled claims 1-7, 29-30, 32-33, 35-39, and 41-43 are pending and considered in the present Office action.
The rejections of the claims are withdrawn in view of the amendment. However, upon further consideration a new ground of rejection is necessitated by amendment.
Applicant’s arguments (including the affidavit filed 24 June 2026) are not persuasive. The same art is used to reject the newly amended Ni range.
Response to Arguments
Applicant takes issue with the examiner’s new matter comments, which were based on MPEP 2163(I)(B). The Office has taken a stance and issued guidance/training to examiners in situations where applicant narrows a range and argues unexpected results for the narrower range to overcome a 103 rejection. Specifically, in instances where the unexpected results for the narrower range are persuasive, the examiner is instructed to withdraw the 103 rejection, but further make a 112(a) new matter rejection because with the unexpected results argument applicant is alleging that the newly claimed (narrower) range is a different invention than the originally filed range since the newly claimed (narrower) range has properties unique from the originally filed range.
In this case, the nickel range was originally filed as 0.2 to 0.3 (both inclusive, claim set filed 19 May 2023); now the amended claims (filed 24 June 2026) narrow the nickel range to 0.2 to less than 0.3 (excluding the originally filed Ni value of 0.3). The cobalt range has also been narrowed during prosecution; originally the cobalt range was filed as 0.025 to 0.325 (claim set filed 19 May 2023), but currently stands as 0.025 to 0.15 (claim set filed 02 December 2025). Applicant states in the instant disclosure that compositions comprising a Ni value of 0.2 to 0.3 (both inclusive), which includes the narrower Ni range (0.2 to less than 0.3), as providing “higher levels of the technical benefits”, see e.g., Compositions 2-3, 6-8, 15, etc., under instant published para. [0035]. In other words, as originally filed, applicant submitted the broad range (i.e., 0.2 to 0.3), which includes the narrower range (0.2 to less than 0.3), is one invention with the same result. Now, by narrowing the Ni range (and Co range) and arguing unexpected results, applicant is alleging the narrower Ni range (i.e., 0.2 to less than 0.3, and narrower Co range) demonstrates different properties unique from the “higher levels of technical benefits” observed for the broad Ni range (i.e., 0.2 to 0.3, and broader Co range), which is clearly not supported by the original disclosure since the broad Ni range (0.2 to 0.3) included the narrower range (0.2 to less than 0.3) and was filed as just one invention with the same result. Thus, in situations where unexpected results for the narrower range are persuasive, a 112(a) new matter rejection would be appropriate. No new matter rejection has been made at this time, as arguments of unexpected results are not persuasive (detailed next).
Applicant asserts the claimed composition, with a Ni range from 0.02 to less than 0.3, produces unexpected results which is allegedly evident from a combination of properties (i.e., gas loss, specific capacity, and specific energy). Specifically, applicant asserts the claimed Ni range is critical because specific capacity and specific energy dramatically suffer for samples outside the upper end of the claimed range (i.e., 0.3 or greater, Examples c, d, and e) relative to the claimed range, while samples outside the lower end of the claimed range (i.e., below 0.2) provide dramatically worse gas loss data. Applicant’s arguments of unexpected results are not persuasive because to establish unexpected results over a claimed range, applicants should compare 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). Further, 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." 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). MPEP 716.02(d). In this case, applicant has not provided a sufficient number of tests inside and outside the claimed range to show criticality, or to determine whether the results occur over the entire claimed range.
Data inside the claimed range
The instant disclosure presents sixty-two compositions (1-62) under paragraph [0034] as demonstrating the technical benefits of the claimed invention and eighteen compositions (1-18) under paragraph [0035] as demonstrating higher levels of technical benefits of the claimed invention (NOTE: the Mn column and Ni column labels should be swapped in each set of compositions under paragraphs [0034-0035] based on the claimed composition formula, e.g., the values of Mn and Ni in Composition 62 only satisfy the claimed composition as Li1.1Ni0.175Mn0.375Co0.275Al0.075O2, NOT Li1.1Ni0.375Mn0.175Co0.275Al0.075O2). Out of all the compositions disclosed in paras. [0034-0035] (i.e., 1-62 and 1-18), data (i.e., gas loss, specific capacity, specific energy) is provided for only two compositions to represent the claimed range; Example “a” and Example “b” in the affidavit filed 02 December 2025 had a composition of Li1.133Ni0.2Mn0.466Co0.15Al0.05O2, and Li1.15Ni0.25Mn0.5Co0.05Al0.05O2, respectively. Applicant’s most current remarks, filed 24 June 2026, have changed the composition of Example b to Li1.133Ni0.25Mn0.517Co0.05Al0.05O2. Based on the latest compositions provided in the remarks filed 24 June 2026, Example “a” and Example “b” appear to coincide with Composition 8 and Composition 6, respectively, under instant published paragraph [0035]. First, two samples are not sufficient to observe a trend. Further, the nickel values of these two samples (i.e., 0.2 and 0.25) represent only a portion of the claimed range, thus are not sufficient to show the criticality of the claimed Ni range (0.2 to less than 0.3). Finally, since the data (gas loss, specific capacity, and specific energy) provided represents only a portion of the claimed range, it is not possible to determine whether the alleged unexpected results occur over the entire claimed range since results above 0.25 and below 0.3 have not been presented for evaluation.
The compositions listed under para. [0035] include additional Ni values inside the claimed range that would be helpful in determining both the criticality of the claimed Ni range and whether the results occur over the entire claimed range, e.g., Compositions 2, 7, and 12 have Ni values of 0.225 (which is between 0.2 and 0.25), and Compositions 5, 10, and 16 have a Ni value of 0.275 (which is above 0.25 and less than 0.3). Data (e.g., gas loss, specific capacity, specific energy) for these compositions is necessary to determine whether the alleged unexpected results occur over the entire claimed Ni range (i.e., 0.2 to less than 0.3) and would help in evaluating criticality of the claimed range. For example, without Ni at 0.275 (and/or other values below 0.3, e.g., 0.29 or alike) it is unclear whether the alleged unexpected results (gas loss, specific capacity, specific energy) occur over the claimed range (e.g., 0.2 to less than 0.3) or a shorter range (e.g., 0.2 to 0.25). Moreover, the two in range examples (i.e., Example “a” with a Ni value of 0.2, and Example “b” with a Ni value of 0.25), which only represent a part of the claimed Ni range, are shown to have gas loss values of about 0.5 mL/mAh/g, specific capacities of ~220-227 mAh/g and specific energy of ~780 Wh/kg. However, it is unclear whether these same allegedly unexpected values (with respect to gas loss, specific capacity and specific energy) extend to the entire claimed range (i.e., above 0.25 (e.g., 0.275) and less than 0.3). The two samples (i.e., Example “a” and Example “b”) are also insufficient to evaluate unexpected results for the entire claimed composition since the range of Co and Al have not been addressed, e.g., Co range of 0.025 to 0.15 and Al range of 0.05 to 0.075, when Ni is between 0.2 to less than 0.3. Example “a” (composition 8, para [0035]) and Example “b” (composition 6, para. [0035]) provides data (gas loss, specific capacity, and specific energy) when Co is 0.05 and 0.15 and Al is 0.05; however, it is unclear whether the same alleged unexpected gas loss, specific capacity, and specific energy results/values are seen for the entire claimed range (i.e., at Co values of 0.1 and Al values of 0.25 and 0.075). Compositions 3, 7, 11 and 16 (para. [0035] of the instant disclosure) offer an additional Co value (0.1) inside the claimed range, while Compositions 2, 45, 48, etc. (para. [0034] of the instant disclosure) offer additional values of the claimed Al range (0.025, 0.075) that would enable one to determine whether the alleged unexpected data (gas loss, specific capacity and specific energy) extends over the entire claimed range (i.e., Ni 0.2 to less than 0.3, Co 0.025 to 0.15, and Al 0.05 to 0.075). In view of the foregoing, applicant’s arguments of unexpected results are not persuasive because a sufficient number of tests has not been provided inside the claimed range do determine whether the allegedly unexpected properties occur over the entire claimed range; the lack of data points inside the claimed range is also insufficient to determine criticality of the claimed range.
Data outside the claimed range
The above discussion addressed the importance of a sufficient number of samples inside the claimed range; just as relevant to criticality is a sufficient number of data points outside the claimed range. Applicant has not provided a sufficient number of tests outside the claimed range (e.g., Ni at 0.3) to allow for the evaluation of the criticality of the claimed range. In view of the amendment, several examples previously considered inside the claimed range (e.g., compositions in instant published paras. [0034-0035], e.g., Composition 15 under [0035]) now fall outside the claimed range with respect to either the Ni amount or Co amount and the results (gas loss, specific capacity, specific energy) of which are necessary to determine criticality of the newly recited range (e.g., Ni 0.2 to less than 0.3). The following compositions (outsides the claimed range), under para. [0034], would offer insight into criticality of the claimed range: Composition 4 (Ni 0.175, and Co 0.175), Composition 8 (Co 0.175), Composition 9 (Ni 0.175, Co 0.225), Composition 10 (Ni 0.3), Composition 13 (Co 0.175), Composition 14 (Co 0.225), Composition 15 (Ni 0.175, Co 0.275), Composition 16 (Ni 0.325), Composition 17 (Ni 0.3), Composition 19 (Co 0.175), Composition 20 (Co 0.225), Composition 21 (Co 0.275), Composition 22 (Ni 0.175, Co 0.325), Composition 23 (Co 0), Composition 26 (Ni 0.175), Composition 27 (Co 0), Composition 31 (Ni 0.175, Co 0.2), Composition 32 (Ni 0.3, Co 0), Composition 36 (Co 0.2), Composition 37 (Ni 0.175, Co 0.25), Composition 38 (Ni 0.325, Co 0), Composition 39 (Ni 0.3), Composition 42 (Co 0.2), Composition 43 (Co 0.25), Composition 44 (Ni 0.175, Co 0.3), Composition 47 (Ni 0.175), Composition 51 (Ni 0.175, Co 0.175), Composition 55 (Co 0.175), Composition 56 (Ni 0.175, Co 0.225), Composition 57 (Ni 0.3), Composition 60 (Co 0.175), Composition 61 (Co 0.225), and Composition 62 (Ni 0.175, Co 0.275), where the values in parenthesis represent the element(s) and values outside the claimed range (e.g., Ni 0.2 to less than 0.3). Under paragraph [0035] of the published disclosure, which provides examples with higher levels of technical benefits, several samples which are now outside the claimed range would be helpful in determining criticality of the claimed range: Composition 1 (Co 0), Composition 4 (Ni 0.175), Composition 5 (Co 0), Composition 9 (Ni 0.3, Co 0), Composition 13 (Co 0.2), Composition 14 (Ni 0.325, Co 0), Composition 15 (Ni 0.3), and Composition 18 (Co 0.2), where the values in parenthesis represent the element(s) and the values outside the claimed range (i.e., Ni 0.2 to less than 0.3). Without the additional Ni values (e.g., 0.175, 0.3, 0.325, but especially Ni at 0.3 since this is now outside the claimed range) and Co values (e.g., 0.275, 0.225, 0.2) outside the claimed range, it is impossible to determine whether the allegedly unexpectedly improved performance (gas loss, specific capacity, specific energy) occurs at the newly claimed range (e.g., Ni at 0.2 to less than 0.3), or at a larger range (e.g., Ni at 0.2 to 0.3).
Compositions 1, 4, 5, 9, 13, 14, 15, and 18 under instant published [0035] are considered outside the claimed range (e.g., either Ni or Co are outside the claimed range), but demonstrate “higher levels of the technical benefits”, the same as observed for compositions inside the claimed range (e.g., Compositions 2, 3, 6, 7, 8, 10, 11, 12, 16, and 17. Since the compositions outside the claimed range (e.g., Ni 0.175 (Composition 4), 0.3 (Composition 15)) and inside the claimed range (e.g., Compositions 8, 11, etc.) observe the same result (i.e., “higher levels of the technical benefits”, see instant published para. [0035]), the claimed range does not appear to be critical.
Comparison of values inside and outside the claimed range
In the absence of sufficient numerical data inside and outside the claimed range, examiner interprets the plots (gas loss, specific capacity, specific energy) as best as possible given their black and white nature. In short, the plots do not appear to show the claimed composition (e.g., Ni between 0.2 to less than 0.3, Co between 0.025 to 0.15, Al between 0.05 to 0.075) as providing unexpected values with respect to gas loss, specific capacity and specific energy over the entire claimed range compared to the prior art, and the claimed Ni values (e.g., 0.2 to less than 0.3) do not appear to suggest criticality.
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The gas loss plot provided by applicant in the affidavit (filed 09 December 2024) includes a smaller triangle highlighting the bottom right corner of the plot which represents the claimed composition (reproduced here). Applicant provided only two data points inside this smaller triangle representing the claimed range (e.g., the solid triangle is Example “b” and the solid diamond is Example “a”; note that the composition of the solid triangle has been changed in the most recent remarks (filed 24 June 2026) to Li1.133Ni0.25Co0.05 Mn0.517Al0.05O2). It is clear from the plot that these two data points, which applicant reports has a gas loss value of ~0.5 mL/mAh/g, do NOT represent the gas loss values of the entire claimed range. The smaller triangle that highlights the claimed composition includes gas loss values ranging from 0.5 to about 2 mL/mAh/g, see e.g., the gas loss plot marked up by the examiner in which the dashed circles highlight other parts of the smaller triangle not addressed by applicant with examples.
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Nayak, marked as a solid white circle in the gas loss plot annotated by applicant and whose location is marked by dashed lines in examiner’s marked-up gas loss plot, appears to have a gas loss value of ~1 mL/mAh/g, thus has similar gas loss values compared to the claimed composition which ranges from 0.5 to ~2 mL/mAh/g (highlighted by a dashed circle in examiner’s marked up gas loss plot below).
Similar observations can be made with the specific capacity and the specific energy plots of instant Fig. 4. A smaller triangle highlighting the bottom right corner of each plot can be used to observe the specific capacity and specific energy of the entire claimed range (as was done with the gas loss plot) and annotated below.
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First, it is noted that Applicant has not provided examples representing various parts of the triangle highlighting the claimed composition (e.g., the upper corner as highlighted by the dashed circles in examiner marked up gas loss plot); however, the claimed composition appears to have a specific capacity ranging from ~180-250 mAh/g, and a specific energy ranging from ~625 Wh/kg to ~850 Wh/kg (as far as the examiner can tell from the black and white plots provided). The prior art (Nayak, whose location on examiner’s marked up specific capacity and specific energy plots is highlighted by dashed lines) appears to have a specific capacity of ~215 mAh/g and a specific energy of ~750 Wh/kg. In comparing the specific capacity and specific energy of the claimed composition with the prior art, the prior art values appear to sit firmly within the values observed for the claimed composition. Thus, compared to the prior art (Nayak), the claimed composition does not appear to provide unexpected properties over the entire claimed range.
Applicant provides other examples outside the claimed range represented by a cross and a star in the gas loss plot provided by applicant (reproduced above) and listed as Examples c-g (see affidavit file 24 June 2026). The claimed composition, whose gas loss values ranges from 0.5 to ~2 mL/mAh/g, specific capacity values range from 180-250 mAh/g, and specific energy values ranges from ~625 to 850 Wh/g, appear to be similar to and/or overlap with the gas loss values (which range from ~0.5 to 2 mL/mAh/g), specific capacity values (which is about 160-200 mAh/g), and specific energy values (which ranges from ~500-725 Wh/kg) for the compositions outside the claimed range. Thus, compared to the examples outside the claimed range, the claimed composition does not appear to provide unexpected results over the entire claimed range.
Claim Rejections - 35 USC § 103
Claim(s) 1-7, 29, and 35-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nayak (Adv. Energy Mater. 2016, 6, 1502398), hereinafter Nayak.
Regarding Claims 1-7, 29, and 35-39, Nayak discloses an electrochemical cell comprising an electrolyte (e.g., EC-DMC/LiPF6), a negative electrode (e.g., Li metal) and a positive electrode (e.g., Al doped Li and Mn rich, see abstract and 4. Experimental Section) comprising a lithium rich manganese based layered cathode material (see abstract) wherein the material is a compound of the general formula:
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(see e.g., Introduction, pages 1-2)
The positive electrode further includes electroactive additives of carbon (i.e., super P) and binder (e.g., pvdf), see 4. Experimental Section. The amount of Mn is about 0.51, the amount of Ni is 0.16, the amount of Co is 0.08, and the amount of Al is about 0.05 (se e.g., page 2), thereby making the total amount of Mn, Ni, Co, and Al equal to or less than 0.9 (i.e., about 0.51 + 0.16 + 0.08 + about 0.05 = about 0.8), as claimed. The amount of Ni is not between 0.2 and less than 0.3, but 0.16, which rounds to 0.2, is close to 0.2; the amount of Co is between 0.025 and 0.15 (i.e., 0.08), and the amount Al is between 0.025 and 0.075 (i.e., 0.05), thereby satisfying the claimed x, y, and z values, or the values of Nayak are close to those claimed. 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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties." See MPEP 2144.05, I.
Further regarding claims 2-7, Nayak discloses Al is 0.05, thereby satisfying z in claims 4-7; Nayak’s disclosure of x + y + z of 0.29 (0.16 + 0.08 + 0.05) or 0.32 (0.16 + 0.08 + 0.08) either overlaps with that claimed or is close (i.e., 0.29 or 0.32 is close to 0.3, 0.35, and/or 0.4). Similarly, the value for x + y in Nayak is close to that claimed, i.e., 0.24 is close to 0.3 and 0.35 (relevant to claims 4-7) in claims 4. In view of the foregoing, claims 2-7 are obvious over Nayak as set forth in MPEP 2144.05, I., detailed above. Generally, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical, see MPEP 2144.05, II., A.
Claim(s) 2-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nayak (cited above) in view of Kim. (Solid State Ionics, Volume 164, Issues 1–2, October 2003, Pages 43-49, of record in 17 Aug IDS (22 pages)), hereinafter Kim.
Regarding claims 2-7, Nayak discloses Al is 0.05, thereby satisfying claim 4-7; Nayak’s disclosure of x + y + z of 0.29 (0.16 + 0.08 + 0.05) or 0.32 (0.16 + 0.08 + 0.08) either overlaps with that claimed, or is close (i.e., an x + y + z value of 0.29 and/or 0.32 is close to 0.3, 0.35, and/or 0.4, while a Ni value of 0.16 (which rounds to 0.2) is close to 0.2, and a Co value 0.08 is close to 0.1 and 0.15), hence obvious, see MPEP 2144.05, I. and or II. A., detailed above.
Further, Kim suggests adjusting the amount of Co and Ni (e.g., Ni is 0.3, Co is 0.1), thereby resulting in higher discharge capacities compared to no cobalt (i.e., Co is 0) or higher levels of cobalt (i.e., Co of 0.3 lead to capacity fading), and decreased resistance during cycling (see e.g., pages 46 and 48). It would be obvious to one having ordinary skill in the art the values of Ni and Co modified with the expectation of increased discharge capacity and decreasing resistance, as suggested by Kim. Moreover, considering the amount of Co and Ni are result effective variables with respect to capacity and resistance, it would be obvious to one having ordinary skill in the art to experiment to reach another workable product, see MPEP 2144.05, II., B.
Claim(s) 30, and 32-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nayak and Kim (cited above) in view of Zhang et al. (Materials Letters 58 (2004) 3197– 3200; doi:10.1016/j.matlet.2004.05.069, of record on IDS dated 17 August 2023), Endo et al. (US 2010/0233542, of record on IDS dated 17 August 2023), and Jang et al. (Electrochemical and Solid-State Letters, 1 (1) 13-16 (1998), of record on IDS dated 17 August 2023), hereinafter Zhang, Endo and Jang.
Nayak does not disclose the general formula of claim 1 in the notation recited by claim 30. However, as evidenced by Zhang (see 1. Introduction), claim 30 appears to describe the general formula of claim 1 in solid solution notation having four components (i.e., Li2MnO3, LiCoO2, LiNi0.5Mn0.5O2 and LiAlO2). Further, as evidenced by Endo, lithium transition metal composite oxides (such as those disclosed by Nayak) are known to be formed from solid solutions combining more than one component; for example, LiNiMnCoO2 type electrodes are formed from three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 (see e.g., paras. [0002]-[0073], [0121], Fig.13), see also Kim page 45. In view of the foregoing, it would be obvious to one having ordinary skill in the art the composition of Nayak (as modified by Kim) includes at least three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 because combining the elements by known methods with no change in their respective functions would yield nothing more than predictable results. Further, Jang teaches LiAlO2 is a low cost and low-density constituent for intercalation electrodes; specifically, a solid solution of LiAlO2 with lithiated transition metal oxides increases the intercalation voltage and cathode energy density, see page 13. Considering Nayak teaches the inclusion of aluminum in the lithium transition metal composite oxide, it would be obvious to one having ordinary skill in the art to include LiAlO2 as a constituent with the other three lithiated transition metal oxide components (i.e., LiCoO2, LiNi0.5Mn0.5O2, Li2MnO3) with the expectation of increased intercalation voltage and energy density.
Regarding Claims 32-33, as stated in the rejection of claim 1 (see also claims 2-7, 29, and 30) Nayak suggests the claimed structure and values of Ni, Co, Mn and Al, or the values thereof are close, thereby necessarily suggesting the component nomenclature and concentrations recited in claims 32 and 33, or a component nomenclature and concentrations that is close, hence obvious, see MPEP 2144.05, I. and II.
Claim(s) 1-7, 29, and 35-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gao Min et al. (CN 106910887) in view of Zheng et al. (Journal of The Electrochemical Society, 159 (2) A116-A120, 2011) and Kim et al. (Solid State Ionics, Volume 164, Issues 1–2, October 2003, Pages 43-49, of record), hereinafter Min, Zheng and Kim.
Regarding Claims 1-7, 29, and 35-39, Min discloses an electrochemical cell comprising an electrolyte, a negative electrode and a positive electrode ([0023]) comprising a lithium rich manganese based cathode material having a layered structure (see e.g., claim 3) wherein the material is a compound of the general formula:
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The positive electrode further includes electroactive additives (i.e., conductive agent) of carbon (i.e., acetylene black) and binder (e.g., pvdf), see [0042]. The amount of Mn (y in Min) is greater than 0 and less than 1 (e.g., 0.54, [0038]), while the total amount of Ni, Co and Al (z in Min) is also greater than 0 and less than 1 (e.g., 0.26, [0038]). Thus, the total amount of Ni, Co, Al, and Mn is equal to or less than 0.9 (i.e., 0.54 + 0.26 = 0.8), as claimed. While the values of Ni (e.g., 0.13 is close to 0.2), Co (0.11 is close to 0.1 and 0.15), and Al (0.02) are not exactly as claimed, they are close hence obvious (see MPEP 2144.05, I., detailed above). Moreover, Zheng suggests higher values of Al (e.g., up to 0.08, where 0.024, 0.048, and 0.08 were used in the examples) result in higher reversible capacity by 37% (pages A118-A119) and higher energy density (at low discharge rates), and increased thermal stability (pages A119-A120) at Al values of 0.05 (see also Conclusions). It would be obvious to one having ordinary skill in the art the value of Al (z) is 0.05 with the expectation of higher reversible capacity, higher energy density, and increased thermal stability, as suggested by Zheng.
Further, Kim suggests adjusting the amount of Co and Ni (e.g., Ni is 0.3, Co is 0.1), thereby resulting in higher discharge capacities compared to no cobalt (i.e., Co is 0) or higher levels of cobalt (i.e., Co of 0.3 lead to capacity fading), and decreased resistance during cycling (see e.g., pages 46 and 48). It would be obvious to one having ordinary skill in the art the values of Ni and Co modified with the expectation of increased discharge capacity and decreasing resistance, as suggested by Kim. Moreover, considering the amount of Co and Ni are result effective variables with respect to capacity and resistance, it would be obvious to one having ordinary skill in the art to experiment to reach another workable product, see MPEP 2144.05, II.
The values suggested in the prior art (Min in view of Zheng and Kim, detailed above) either overlap with that claimed or are close, hence obvious for the same reasons detailed under the rejection over Nayaka above (see e.g., MPEP 2144.05, I. and/or II.
Claim(s) 30, and 32-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Min, Zheng, and Kim (cited above) in view of Zhang et al. (Materials Letters 58 (2004) 3197– 3200; doi:10.1016/j.matlet.2004.05.069, of record on IDS dated 17 August 2023), Endo et al. (US 2010/0233542, of record on IDS dated 17 August 2023), and Jang et al. (Electrochemical and Solid-State Letters, 1 (1) 13-16 (1998), of record on IDS dated 17 August 2023), hereinafter Zhang, Endo and Jang.
Regarding Claim 30, Min does not disclose the general formula of claim 1 in the notation recited by claim 30. However, as evidenced by Zhang (see 1. Introduction), claim 30 appears to describe the general formula of claim 1 in solid solution notation having four components (i.e., Li2MnO3, LiCoO2, LiNi0.5Mn0.5O2 and LiAlO2). As evidenced by Zheng, one of ordinary skill in the art would expect the formula of Min to form a solid solution, see e.g., Conclusions. Further, as evidenced by Endo, lithium transition metal composite oxides are known to be formed from solid solutions combining more than one component; for example, LiNiMnCoO2 type electrodes are formed from three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 (see e.g., paras. [0002]-[0073], [0121], Fig.13), see also Kim page 45. In view of the foregoing, it would be obvious to one having ordinary skill in the art the composition of Min includes at least three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 because combining the elements by known methods with no change in their respective functions would yield nothing more than predictable results. Further, Jang teaches LiAlO2 is a low cost and low-density constituent for intercalation electrodes; specifically, a solid solution of LiAlO2 with lithiated transition metal oxides increases the intercalation voltage and cathode energy density, see page 13. Considering Min teaches the inclusion of aluminum in the lithium transition metal composite oxide, it would be obvious to one having ordinary skill in the art to include LiAlO2 as a constituent with the other three lithiated transition metal oxide components (i.e., LiCoO2, LiNi0.5Mn0.5O2, Li2MnO3) with the expectation of increased intercalation voltage and energy density.
Regarding Claims 30, and 32-33, as set forth above, Min as modified by Zheng and Kim discloses a layered lithium rich layered cathode compound having a general formula of claim 1, where the values of Li, Ni, Co, Mn, and Al overlap with that claimed or are lose, thereby necessarily suggesting the component nomenclature and concentrations recited in claims 32 and 33, or a component nomenclature and concentrations that is close, hence obvious, see MPEP 2144.05, I. and II.
Claim(s) 40-43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nayak (Adv. Energy Mater. 2016, 6, 1502398), Kim. (Solid State Ionics, Volume 164, Issues 1–2, October 2003, Pages 43-49), Zhang et al. (Materials Letters 58 (2004) 3197– 3200; doi:10.1016/j.matlet.2004.05.069), Endo et al. (US 2010/0233542), and Jang et al. (Electrochemical and Solid-State Letters, 1 (1) 13-16 (1998)), hereinafter Nayak, Kim, Zhang, Endo and Jang (all of record).
Regarding Claim 40, Nayak discloses an electrochemical cell comprising an electrolyte (e.g., EC-DMC/LiPF6), a negative electrode (e.g., Li metal) and a positive electrode (e.g., Al doped Li and Mn rich, see abstract and 4. Experimental Section) comprising a lithium rich manganese based layered cathode material (see abstract) wherein the material is a compound of the general formula:
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(see e.g., Introduction, pages 1-2)
The positive electrode further includes electroactive additives of carbon (i.e., super P) and binder (e.g., pvdf), see 4. Experimental Section. The amount of Mn is about 0.51, the amount of Ni is 0.16, the amount of Co is 0.08, and the amount of Al is about 0.05 (se e.g., page 2), thereby making the total amount of Mn, Ni, Co, and Al equal to or less than 0.9 (i.e., about 0.51 + 0.16 + 0.08 + about 0.05 = about 0.8), as claimed. The amount of Ni is not between 0.2 and less than 0.3, but 0.16 is close to 0.2; the amount of Co is between 0.025 and 0.15 (i.e., 0.08), and the amount Al is between 0.025 and 0.075 (i.e., 0.05), thereby satisfying the claimed x, y, and z values, or the values of Nayak are close to those claimed. 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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties." See MPEP 2144.05, I.
Nayak does not disclose the general formula in the notation recited in claim 40. However, as evidenced by Zhang (see 1. Introduction), claim 40 appears to describe the general formula in solid solution notation having four components (i.e., Li2MnO3, LiCoO2, LiNi0.5Mn0.5O2 and LiAlO2). Further, as evidenced by Endo, lithium transition metal composite oxides (such as those disclosed by Nayak) are known to be formed from solid solutions combining more than one component; for example, LiNiMnCoO2 type electrodes are formed from three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 (see e.g., paras. [0002]-[0073], [0121], Fig.13), see also Kim page 45. In view of the foregoing, it would be obvious to one having ordinary skill in the art the composition of Nayak includes at least three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 because combining the elements by known methods with no change in their respective functions would yield nothing more than predictable results. Further, Jang teaches LiAlO2 is a low cost and low-density constituent for intercalation electrodes; specifically, a solid solution of LiAlO2 with lithiated transition metal oxides increases the intercalation voltage and cathode energy density, see page 13. Considering Nayak teaches the inclusion of aluminum in the lithium transition metal composite oxide, it would be obvious to one having ordinary skill in the art to include LiAlO2 as a constituent with the other three lithiated transition metal oxide components (i.e., LiCoO2, LiNi0.5Mn0.5O2, Li2MnO3) with the expectation of increased intercalation voltage and energy density.
Regarding Claims 41-43, Nayak discloses Al is 0.05, thereby satisfying z in claims 42-43; Nayak’s disclosure of x + y + z of 0.29 (0.16 + 0.08 + 0.05) or 0.32 (0.16 + 0.08 + 0.08) is close to that claimed (i.e., 0.29 or 0.32 are close to 0.4 (relevant to claims 41 and 43)). Similarly, the values for x + y in Nayak are close to that claimed, i.e., 0.24 is close to 0.3 (relevant to claim 42). In view of the foregoing, claims 41-43 are obvious over Nayak as set forth in MPEP 2144.05, I., detailed above. Generally, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical, see MPEP 2144.05, II., A. Further, Kim suggests adjusting the amount of Co and Ni (e.g., Ni is 0.3, Co is 0.1), thereby resulting in higher discharge capacities compared to no cobalt (i.e., Co is 0) or higher levels of cobalt (i.e., Co of 0.3 lead to capacity fading), and decreased resistance during cycling (see e.g., pages 46 and 48). It would be obvious to one having ordinary skill in the art the values of Ni and Co are modified with the expectation of increased discharge capacity and decreasing resistance, as suggested by Kim. Moreover, considering the amount of Co and Ni are result effective variables with respect to capacity and resistance, it would be obvious to one having ordinary skill in the art to experiment to reach another workable product, see MPEP 2144.05, II., B.
Claim(s) 40-43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gao Min et al. (CN 106910887) in view of Zheng et al. (Journal of The Electrochemical Society, 159 (2) A116-A120, 2011), Kim et al. (Solid State Ionics, Volume 164, Issues 1–2, October 2003, Pages 43-49), Zhang et al. (Materials Letters 58 (2004) 3197– 3200; doi:10.1016/j.matlet.2004.05.069), Endo et al. (US 2010/0233542), and Jang et al. (Electrochemical and Solid-State Letters, 1 (1) 13-16 (1998)), hereinafter Min, Zheng, Kim, Zhang, Endo, and Jang (all of record).
Regarding Claim 40-43, Min discloses an electrochemical cell comprising an electrolyte, a negative electrode and a positive electrode ([0023]) comprising a lithium rich manganese based cathode material having a layered structure (see e.g., claim 3) wherein the material is a compound of the general formula:
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The positive electrode further includes electroactive additives (i.e., conductive agent) of carbon (i.e., acetylene black) and binder (e.g., pvdf), see [0042]. The amount of Mn (y in Min) is greater than 0 and less than 1 (e.g., 0.54, [0038]), while the total amount of Ni, Co and Al (z in Min) is also greater than 0 and less than 1 (e.g., 0.26, [0038]). Thus, the total amount of Ni, Co, Al, and Mn is equal to or less than 0.9 (i.e., 0.54 + 0.26 = 0.8), as claimed. While the values of Ni (e.g., 0.13 is close to 0.2), Co (0.11 is close to 0.1 and 0.15), and Al (0.02) are not exactly as claimed, they are close, hence obvious (see MPEP 2144.05, I., detailed above). Moreover, Zheng suggests higher values of Al (e.g., up to 0.08, where 0.024, 0.048, and 0.08 were used in the examples) result in higher reversible capacity by 37% (pages A118-A119) and higher energy density (at low discharge rates), and increased thermal stability (pages A119-A120) at Al values of 0.05 (see also Conclusions). It would be obvious to one having ordinary skill in the art the value of Al (z) is 0.05 with the expectation of higher reversible capacity, higher energy density, and increased thermal stability, as suggested by Zheng.
Further, Kim suggests adjusting the amount of Co and Ni (e.g., Ni is 0.3, Co is 0.1), thereby resulting in higher discharge capacities compared to no cobalt (i.e., Co is 0) or higher levels of cobalt (i.e., Co of 0.3 lead to capacity fading), and decreased resistance during cycling (see e.g., pages 46 and 48). It would be obvious to one having ordinary skill in the art the values of Ni and Co modified with the expectation of increased discharge capacity and decreasing resistance, as suggested by Kim. Moreover, considering the amount of Co and Ni are result effective variables with respect to capacity and resistance, it would be obvious to one having ordinary skill in the art to experiment to reach another workable product, see MPEP 2144.05, II.
The values suggested in the prior art either overlap with that claimed or are close (i.e., values suggests in the prior art overlap with, or are close to, limitations of claims 41-43), hence obvious for the same reasons detailed under the rejection over Nayaka above (see e.g., MPEP 2144.05, I. and/or II.)
Min does not disclose the general formula in the notation recited by claim 40. However, as evidenced by Zhang (see 1. Introduction), claim 40 appears to describe the general formula in solid solution notation having four components (i.e., Li2MnO3, LiCoO2, LiNi0.5Mn0.5O2 and LiAlO2). As evidenced by Zheng, one of ordinary skill in the art would expect the formula of Min to form a solid solution, see e.g., Conclusions. Further, as evidenced by Endo, lithium transition metal composite oxides are known to be formed from solid solutions combining more than one component; for example, LiNiMnCoO2 type electrodes are formed from three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 (see e.g., paras. [0002]-[0073], [0121], Fig.13), see also Kim page 45. In view of the foregoing, it would be obvious to one having ordinary skill in the art the composition of Min includes at least three components including LiCoO2-LiNi0.5Mn0.5O2-Li2MnO3 because combining the elements by known methods with no change in their respective functions would yield nothing more than predictable results. Further, Jang teaches LiAlO2 is a low cost and low-density constituent for intercalation electrodes; specifically, a solid solution of LiAlO2 with lithiated transition metal oxides increases the intercalation voltage and cathode energy density, see page 13. Considering Min teaches the inclusion of aluminum in the lithium transition metal composite oxide, it would be obvious to one having ordinary skill in the art to include LiAlO2 as a constituent with the other three lithiated transition metal oxide components (i.e., LiCoO2, LiNi0.5Mn0.5O2, Li2MnO3) with the expectation of increased intercalation voltage and energy density.
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.
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/ANNA KOROVINA/Examiner, Art Unit 1729
/ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729
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