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 .
Status of Claims
Claims 1-5 are pending.
Response to Amendment
No amendments made to previously filed claims.
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, 4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10,854,870 B2. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 1 of Patent ‘870 provides a method of preparing a positive electrode active material for a secondary battery comprising: preparing a first transition metal-containing solution including a nickel raw material, a cobalt raw material, and a manganese raw material and a second transition metal-containing solution including a nickel raw material, a cobalt raw material, and a manganese raw material in a concentration different from that of the first transition metal-containing solution; preparing a reaction solution, in which nickel manganese cobalt-based composite metal hydroxide particles are formed, by adding an ammonium cation-containing complexing agent and a basic compound as well as the second transition metal-containing solution to the first transition metal-containing solution to allow a mixing ratio of the first transition metal-containing solution to the second transition metal-containing solution to be gradually changed from 100 vol %:0 vol % to 0 vol %:100 vol % and performing a co-precipitation reaction in a pH range of 11 to 13; growing the nickel manganese cobalt-based composite metal hydroxide particles by adding an ammonium cation-containing complexing agent and a basic compound to the reaction solution until a pH of the reaction solution reaches 8 or more to less than 11; and mixing the grown nickel manganese cobalt-based composite metal hydroxide particles with a lithium-containing raw material and performing a heat treatment.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Sun et al (US 20150340686 A1).
Regarding Claim 1,
Sun teaches a cathode active material for a lithium secondary battery and method of making the same. Sun teaches a preparation example 1 wherein an aqueous metal salt solution for forming a core portion was prepared to contain nickel sulfate, cobalt sulfate, and manganese sulfate mixed in a mole ratio of 90:5:5 (Paragraph 0041; first transition metal-containing solution including a nickel raw material), aqueous metal salt solution for forming a surface portion was prepared to contain nickel sulfate, cobalt sulfate, and manganese sulfate mixed in a mole ratio of 54:15:31 (Paragraph 0041; a second transition metal- containing solution having a transition metal concentration different from that of the first transition metal-containing solution and including the nickel raw material, a cobalt raw material, and a manganese raw material). The aqueous metal salt solution for the core portion was supplied in the reactor, and then, the aqueous metal salt solution for the surface portion and the aqueous metal salt solution for the core portion were supplied at a rate of 0.3 liter/hour in the reactor and were mixed in such a way that a mixing ratio therebetween was gradually changed (Paragraph 0041; preparing a positive electrode active material precursor by mixing). Ammonia solution was continuously supplied into the reactor, and aqueous sodium hydroxide solution was supplied to adjust a pH value to 10 (Paragraph 0041; adjusting pH). When mixing the metal salt solution for core portion and for surface portion, the nickel content in the mixed solution is reduced. Sun teaches that in the core portion the concentrations of M1 and M2 are continuously increasing, and the concentration of M3 is continuously decreasing (Paragraph 0026). M1, M2, M3 are selected from a group consisting of Ni, Co, Mn (Paragraph 0007). If M3 is Ni then it is obvious that the concentration of Ni is continuously decreasing from core to surface which is possible when the nickel content in the mixed solution is reduced. The instant specification states that in the preparing of the positive electrode active material precursor, it may be controlled such that a pH is gradually decreased as the nickel content in the mixed solution is reduced. Hence, Sun teaches the concentration of Ni being continuously reduced to result in the pH being continuously reduced.
Sun teaches using the mixed precursor and further mixing with lithium hydroxide. This mixture is then heat treated by baking at 280 C and then followed by a temperature of 900 C for 10 hours (Paragraph 0043). This is akin to the mixture being sintered to form the positive electrode active material.
Regarding Claim 2,
Sun teaches an aqueous metal salt solution for forming a core portion was prepared to contain nickel sulfate, cobalt sulfate, and manganese sulfate mixed in a mole ratio of 90:5:5 (Paragraph 0041). This ratio lies within the claimed range of 80 to 100:0 to 10:0 to 20.
Regarding Claim 3,
Sun teaches an aqueous metal salt solution for forming a surface portion was prepared to contain nickel sulfate, cobalt sulfate, and manganese sulfate mixed in a mole ratio of 54:15:31 (Paragraph 0041). This ratio is around the claimed range of 50 to 80:10 to 30:10 to 35.
Regarding Claim 4,
Sun teaches adding ammonia solution into the reactor, and aqueous sodium hydroxide solution to adjust a pH value to 10 (Paragraph 0041). This value is within the claimed range of 13 to 9, and the process of adjusting the pH is achieved by adding basic solution to gradually decrease the pH to that value.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Sun et al in view of Kang et al (US 20170222225 A1).
Sun teaches that in the chemical composition of the cathode active material there is component M4 which is selected from the group consisting of Fe, Mg, Ti, Zr, Al which are some of the elements in the claim (i.e. Al, Zr, Mg, Zn, Y, Fe, and Ti). Sun does not teach about adding a doping element during the mixing of the positive electrode active material precursor with the lithium-containing raw material.
However, Kang teaches a positive active material and its method of making (Paragraph 0039, 0053-0060) wherein the raw material of the metal element (M) for doping may particularly be at least one metal selected from the group consisting of W, Mo, Zr, Ti, Mg, Ta, Al, Fe, V, Cr, Ba, Ca, and Nb, and it is selectively added during mixing with the lithium raw material (Paragraph 0058, 0059). Kang and Sun are within analogous field of art because Kang teaches about a positive electrode active material that is capable of overcoming limitations related to discharge capacity and rate characteristics (Paragraph 0007). The instant specification also states that the doping element is added to the active material in order to improve the structural stability and improve the output characteristics. One of ordinary skill in the art would be motivated to do so in order to have good voltage property without deterioration of rate characteristics and initial capacity property (Paragraph 0073). Hence, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to use the doping elements in Kang during the lithium containing raw material mixing step of Sun.
References of Interest
Kwak et al (US 20140342229 A1)
Choi et al (US 20170288262 A1)
Noh et al (US 20160218350 A1)
Response to Arguments
Applicant's arguments filed 6/15/2026 have been fully considered but they are not persuasive.
Applicant argues that for the double patenting rejection, US Patent 10,854,870 B2 is silent to the control and gradual decrease of pH in the mixed solution. Examiner disagrees with this argument because Patent ‘870 cites allowing a mixing ratio of the first transition metal-containing solution to the second transition metal-containing solution to be gradually changed from 100 vol %:0 vol % to 0 vol %:100 vol %. By specifying the concentration of the first and second transition metal containing solution in certain ranges, and then changing the mixing ratio as stated above, the nickel content in the mixed solution can be reduced, in turn gradually reducing pH of the precursor as claimed in instant disclosure. Furthermore, the instant specification states in the method of making Example 1 that the first transition metal-containing solution and the second transition metal-containing solution were respectively added to the reactor at a rate of 63 mL/min while changing a ratio of the first transition metal-containing solution to the second transition metal-containing solution from 100 vol%:0 vol% to 0 vol%:100 vol%. This also supports the similarity in claim 1 of Patent ‘870 and instant claim 1.
Applicant argues that for the 35 USC 103 rejection of Claim 1, Sun does not teach the claimed limitation “wherein the preparing of the positive electrode active material precursor is controlled such that a pH is gradually decreased as a nickel content in the mixed solution is reduced”. Examiner disagrees with this argument. The instant invention provides method steps for making a positive electrode material that has particles wherein the amounts of nickel, cobalt, and manganese can gradually change from the center to the surface. Nickel is relatively high in the particle core and decreases toward the surface. Similarly, Sun teaches that that concentrations of M1 and M2 may have continuously increasing concentration gradients in the direction from the core portion to the surface portion and the concentration of M3 may have continuously decreasing concentration gradient in the direction from the core portion to the surface portion (Paragraph 0025). Sun states that in example embodiments, the M1 may be Co, the M2 may be Mn, and the M3 may be Ni (Paragraph 0031). Furthermore, the method steps of Sun are seen in the production of Example 1 wherein aqueous metal salt solution (2.0 M concentration) for forming a core portion was prepared to contain nickel sulfate, cobalt sulfate, and manganese sulfate mixed in a mole ratio of 90:5:5, aqueous metal salt solution (2.0 M concentration) for forming a surface portion was prepared to contain nickel sulfate, cobalt sulfate, and manganese sulfate mixed in a mole ratio of 54:15:31, the aqueous metal salt solution for the core portion was supplied in the reactor, and then, the aqueous metal salt solution for the surface portion and the aqueous metal salt solution for the core portion were supplied at a rate of 0.3 liter/hour in the reactor and were mixed in such a way that a mixing ratio therebetween was gradually changed. Furthermore, ammonia solution (4.0 M concentration) was continuously supplied at a rate of 0.03 liter/hour into the reactor. Aqueous sodium hydroxide solution (4.0 M concentration) was supplied to adjust a pH value to, for example, 10. A speed of an impeller was controlled to 1000 rpm. A flow rate was controlled in such a way that a mean residence time of the solution in the reactor was six hours.
Similarly, the instant specification also provides the method of making example 1 in Paragraphs 0066-0069, 0083, 0130 – 0134. The steps show overlap with the steps of Sun. Examiner further points to rejection of Claim 1 above, and maintains the rejection in view of Sun considering the overlap between the structure of the electrode material and the method steps.
Conclusion
THIS ACTION IS MADE FINAL. 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 SUHANI JITENDRA PATEL whose telephone number is (571)272-6278. The examiner can normally be reached Monday-Friday 8:00 AM - 5:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Maria Veronica D. Ewald can be reached on 571-272-8519. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SUHANI JITENDRA PATEL/Examiner, Art Unit 1783
/MARIA V EWALD/Supervisory Patent Examiner, Art Unit 1783
Prosecution Insights