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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on June 16, 2023, September 11, 2024, and December 18, 2025 have been considered by the examiner.
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.
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Claims 1-2 and 4-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 and 6-8 of copending Application No. 18/267,188 in view of U.S Pre-Grant Publication 2012/0263998, hereinafter Thackeray.
Regarding claims 1 and 7, Application No. 18/267,188 teaches a positive electrode active material for a non-aqueous electrolyte secondary battery, the positive electrode active material comprising: a first lithium-metal composite oxide represented by a general formula xLiyM1O2-(1-x)LizM1O2 (wherein 0<x≤1, 1.5≤y≤2.5, 0.9≤z≤1.5, and M1 is one or more elements selected from the group consisting of transition metals, Al, Si, Sn, Ge, Sb, Bi, Mg, Ca, and Sr), wherein the first lithium-metal composite oxide has a layer structure, has a Li element coordinated at a tetrahedral site of oxygen (copending claim 1).
However, Application No. 18/267,188 fails to teach a Li element coordinated at an octahedral site of oxygen.
Thackeray teaches positive electrode materials including lithium-metal-oxide electrode materials with layered-type structures (Thackeray, Abstract). When this lithium metal oxide layered type structure that has a cubic close packed oxygen array is treated with an acid solution, H[LiM]O2 is formed that has anion and/or cation defects (Thackeray, [0057]). When Li2MnO3 is treated with acid to form this defect layer, it results in a P3-type layered structure with Mn and Li ions in octahedral sites (Thackeray, [0079]).
Therefore, it would have been obvious to the ordinarily skilled artist before the effective filing date of the claimed invention to combine the positive electrode active material of the copending application with the structure of Thackeray because the structure ‘contributes to enhanced electrochemical performance such as cycling stability, improved capacity and power, and to providing resistance to phase transformations during cycling’ (Thackeray, [0060]). Additionally, one of ordinary skill would appreciate that a lithium metal composite oxide with the same general formula and space groups would result in a lithium metal composite oxide that has the same structure and Li elements coordinated at the same site.
Regarding claim 2, Application No. 18/267,188 teaches the positive electrode active material for the non-aqueous electrolyte secondary battery according to claim 1, wherein the lithium-metal composite oxide has a space group R3-m as a predominant group, and has a region of a space group P3-m1 as a layer defect (copending claim 2).
Regarding claim 4, Application No. 18/267,188 teaches the positive electrode active material for the non-aqueous electrolyte secondary battery according to claim 1, wherein the M is one or more elements selected from the group consisting of Ni, Co, Mn, Fe, and Al (copending claim 3).
Regarding claim 5, Application No. 18/267,188 teaches a non-aqueous electrolyte secondary battery comprising: a positive electrode including the positive electrode active material for the non-aqueous electrolyte secondary battery according to claim 1; a negative electrode; and a non-aqueous electrolyte, wherein the negative electrode comprises a negative electrode active material, and the negative electrode active material includes one material or a mixture of two or more materials selected from the group consisting of Si, SiC, SiOα (wherein 0<α<2), LiβSiOγ (wherein 1<β≤4, 1<γ≤4), Sn, SnO2, Sb, Ge, in an amount of greater than or equal to 3% (copending claim 6).
Regarding claim 6, Application No. 18/267,188 teaches the non-aqueous electrolyte secondary battery according to claim 5, wherein lithium metal precipitates on the negative electrode in a charged state (copending claim 7).
This is a provisional nonstatutory double patenting rejection.
Claims 1-2 and 4-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of copending Application No. 18/267,960 in view of U.S Pre-Grant Publication 2012/0263998, hereinafter Thackeray.
Regarding claims 1 and 7, Application No. 18/267,960 teaches a positive electrode active material for a non-aqueous electrolyte secondary battery, including a lithium-metal composite oxide represented by a general formula xLiyNizM1-zO2-(1-x)LiwNizM1-zO2 (wherein 0.1<x≤1, 1.5≤y≤2.5, 0.4<z≤0.9, 0.9≤w≤1.5, and M is one or more elements selected from the group consisting of transition metals, Al, Si, Sn, Ge, Sb, Bi, Mg, Ca, and Sr), wherein the lithium-metal composite oxide has a layer structure, has a Li element coordinated at a tetrahedral site of oxygen (copending claim 1).
However, Application No. 18/267,960 fails to teach a Li element coordinated at an octahedral site of oxygen.
Thackeray teaches positive electrode materials including lithium-metal-oxide electrode materials with layered-type structures (Thackeray, Abstract). When this lithium metal oxide layered type structure that has a cubic close packed oxygen array is treated with an acid solution, H[LiM]O2 is formed that has anion and/or cation defects (Thackeray, [0057]). When Li2MnO3 is treated with acid to form this defect layer, it results in a P3-type layered structure with Mn and Li ions in octahedral sites (Thackeray, [0079]).
Therefore, it would have been obvious to the ordinarily skilled artist before the effective filing date of the claimed invention to combine the positive electrode active material of the copending application with the structure of Thackeray because the structure ‘contributes to enhanced electrochemical performance such as cycling stability, improved capacity and power, and to providing resistance to phase transformations during cycling’ (Thackeray, [0060]). Additionally, one of ordinary skill would appreciate that a lithium metal composite oxide with the same general formula and space groups would result in a lithium metal composite oxide that has the same structure and Li elements coordinated at the same site.
Regarding claim 2, Application No. 18/267,960 teaches the positive electrode active material for the non-aqueous electrolyte secondary battery according to claim 1, wherein the lithium-metal composite oxide mainly has a space group R3-m, and has a region of a space group P3-m1 as a stacking fault (copending claim 2).
Regarding claim 4, Application No. 18/267,960 teaches the positive electrode active material for a non-aqueous electrolyte secondary battery according to claim 1, wherein the M represents one or more elements selected from the group consisting of Ni, Co, Mn, Fe, and Al. (copending claim 3).
Regarding claim 5, Application No. 18/267,960 teaches a non-aqueous electrolyte secondary battery comprising: a positive electrode including the positive electrode active material for a non-aqueous electrolyte secondary battery according to claim 1; a negative electrode; and a non-aqueous electrolyte, wherein the negative electrode includes a negative electrode active material, and the negative electrode active material contains greater than or equal to 3% of one or a mixture of two or more selected from the group consisting of Si, SiC, SiOα (wherein 0<α<2), LiβSiOγ (wherein 1<β≤4, 1<γ≤4), Sn, SnO2, Sb, Ge (copending claim 4).
Regarding claim 6, Application No. 18/267,960 teaches the non-aqueous electrolyte secondary battery according to claim 4, wherein in a charged state, lithium metal precipitates on the negative electrode (copending claim 5).
This is a provisional nonstatutory double patenting rejection.
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, 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 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over U.S Pre-Grant Publication 2014/0193714, hereinafter Kim, and further in view of U.S. Pre-Grant Publication 2010/0242265, hereinafter Wadley, and further in view of U.S Pre-Grant Publication 2012/0263998, hereinafter Thackeray.
Regarding claims 1-4, Kim teaches a cathode active material that includes a lithium metal composite represented by Formula 1 (pictured below) [0055] that is suitable for a lithium-ion secondary battery (Kim, [0108]) (instant claim 1). The variables in this formula overlap with the claimed variables, wherein 0<x<0.4, the lithium subscript in the first phase being 1.5≤y≤2.5, the lithium subscript in the second phase being 0.9≤z≤1.5 and the subscripts of the metals in each phase adding to one (instant claim 1). The metals for each phase of this lithium metal composite consists of the claimed metals Ni, Co, Mn, Fe, and Al (instant claim 4). While this formula does include a trioxide, Kim explains that when a lithium metal oxide is charged with a high voltage, the Li2MO3 domain decreases due to oxidation and reduction and becomes a LiMO2 phase (Kim, [0075]). This phase can be selectively doped to increase the Li2MO3 domain and increase structural stability (Kim, [0077]). One of ordinary skill in the art would appreciate that Kim’s lithium metal oxide exists in the claimed lithium metal oxide when charged with a high voltage or when initially doped with low amounts of transition metals and therefore reads on the instant claim.
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However, Kim fails to explicitly teach the lithium metal composite oxide having a Li element coordinated at a tetrahedral and octahedral site of oxygen (instant claim 1), a R3-m space group, a space group P3-m1 as a layer defect (instant claim 2), and the XRD measurement corresponding with said lithium metal composite oxide (instant claim 3).
Wadley teaches lithium transition metal oxides for rechargeable Li-ion batteries such as LiCoO2 (same phase present in Kim, see above) have a layered structure R3-m (Wadley, [0017]).
Thackeray teaches positive electrode materials including lithium-metal-oxide electrode materials with layered-type structures (Thackeray, Abstract). Thackeray explains that when this lithium metal oxide layered type structure that has a cubic close packed oxygen array is treated with an acid solution, H[LiM]O2 is formed that has anion and/or cation defects (Thackeray, [0057]). That is, when Li2MnO3 is treated with acid to form this defect layer, it results in a P3-type layered structure with Mn and Li ions in octahedral sites (Thackeray, [0079]).
Therefore, it would be obvious to the ordinarily skilled artist before the effective filing date of the claimed invention to use the layered structure and space groups of Wadley in the lithium metal composite oxide for a positive electrode active material of Kim because the structure of Wadley has a ‘high specific charge storage capacity and excellent rechargeability’ (Wadley, [0017]). Additionally, it would be obvious to add the defect layer of Thackeray to the lithium metal composite oxide of Kim and Wadley because these structural imperfections ‘contribute to enhanced electrochemical performance such as cycling stability, improved capacity and power, and to providing resistance to phase transformations during cycling’ (Thackeray, [0060]). One of ordinary skill in the art would appreciate that a lithium metal composite oxide of these combined elements, the same as the instant claimed material, would necessarily share the same properties as determined in XRD measurements with peaks and intensities that overlap with the claimed ranges of instant claim 3.
Regarding claim 5, Kim, Wadley, and Thackeray teach the positive electrode of claim 1. Additionally, Kim teaches an anode active material composition that may be directly coated on a copper current collector to manufacture an anode plate (Kim, [0104]). The anode active material may be a lithium metal, a metal material (such as Si, Sn, Al, Ge, Pb, Bi, or Sb) capable of alloying with lithium, a transition metal oxide, a material capable of doping and de-doping, or the like (Kim, [0105]). These anode active materials are not limited thereto, and the amounts of anode active material, the conducting agent, the binder, and the solvent may be determined by one of ordinary skill in the art without undue experimentation (Kim, [0108] and [0111]). One of ordinary skill would appreciate that increasing this material increases the amount of material capable of alloying with lithium thereby performing the reaction for the battery to function while balancing this amount with conducting agent and binder ensure improved conductive and adhesion respectively and therefore would have been obvious to optimize as explicitly stated by Kim ([0111]).
Regarding claims 6 and 7, Kim, Wadley, and Thackeray teach the non-aqueous electrolyte secondary battery according to claim 5. Additionally, Kim teaches the charge and discharge profiles of numerous lithium metal oxides (Kim, Figs 5-21). One of ordinary skill in the art would appreciate the claims 6 and 7 are directed to results after the use of the product. The product claimed is not limited to further changes during usage or post processing. The instant disclosure does not distinguish the final product claimed from modified Kim. Moreover, one of ordinary skill would expect modified Kim to behave to the usage limitations of claims 6-7 the same as the instant claimed invention because the products of instant claim 5 and modified Kim are the same, barring evidence to the contrary.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. U.S. Pre-Grant Publication 2012/0164533.
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/M.K.H./Examiner, Art Unit 1724
/MIRIAM STAGG/Supervisory Patent Examiner, Art Unit 1724