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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 06/16/2023 and 06/03/2025 have been considered by the examiner.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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.
Claim(s) 1-4, 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (US 20140193714 A1).
Regarding claim 1, Kim teaches the following elements:
A positive electrode active material for a non-aqueous electrolyte secondary battery, including a lithium-metal composite oxide represented by the general formula xLi-yNizM1-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 represents one or more elements selected from the group consisting of transition metals and Al, Si, Sn, Ge, Sb, Bi, Mg, Ca, and Sr, (Kim abstract teaches a composite oxide for a cathode active material that teaches all of the limitations required by claim 1. Specifically, it teaches a layered oxide with a lithium rich domain and a lower lithium containing domain, comprising nickel in both domains and a dopant M2 that is explicitly present in the first domain and can be present in the second as well. Kim also teaches, in comparative examples 1-3 on page 9, three examples in which the first and second lithium domains are both doped by a metal, in this case, aluminum. This creates a case of obviousness where the dopant used to dope the lithium-rich domain would also be obvious to dope the second domain. Additionally, Kim states that Me includes “at least” one metal selected, and therefore it is possible for Me to contain both Ni and Al, thus meeting all of the limitations of claim 1.)
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Claim 1
Kim Formula 1
xLi-yNizM1-zO2-(1-x)LiwNizM1-zO2,
Subscript range
x[Li2-yM11-zM2y+zO3]-(1-x)[LiMeO2]
Subscript range
Li
0.1 < x ≤ 1, 1.5 ≤ y ≤ 2.5
Li
0 < x < 10 ≤ y <10 < y+z < 1
Ni
0.4 < z <0.9, 0.9 ≤ w < 1.5
M1 (any transition metal)
0 ≤ z < 10 < y+z < 1
M1 (Al, Si, Sn, Ge, Sb, Bi, Mg, Ca, and Sr)
0.4 < z <0.9, 0.9 ≤ w < 1.5
M2 (Mg, Al, V, Zn, Mo, Nb, La, Ru)
0 < y+z < 1
O
2
O
3, 2
Me (Ni, Co, Mn, Fe, Cr, Ti, Cu, Al, Mg, Zr, B)
1
wherein the lithium-metal composite oxide has a layered structure, and has a Li element coordinated at a tetrahedral position of oxygen. (By forming a layered structure with the same elemental composition and domains as that taught by Kim, shown above, the coordination of Li within the structure would be an inherent property of the material. See MPEP 2112. II. or Schering Corp. v. Geneva Pharm. Inc., for case law regarding the fact that an inherent feature need not be recognized at the relevant time in order for it to still anticipate the feature, which is later recognized).
As can be seen in the above table, the only part of the compositions of Kim versus the instant claims that don’t overlap is that the lithium-rich domain of Kim has O3 versus, O2 in the instant claims. However, a person skilled in the art prior to the effective filing date of the invention would understand that a Li2M’O3 domain is a lithium-excess derivative of a layered LiMO2 structure, sharing the same oxygen close-packed framework—by reducing lithium content, which would be within the realm of routine experimentation, the composition would transition toward a LiMO2 type stoichiometry. Therefore, it would be an obvious modification to change the Li content in the composition of Kim and come to the composition found in the instant claims.
Regarding claim 2, Kim teaches all of the following elements:
The positive electrode active material for a 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-ml as a stacking fault. (The space group/lattice structure of the lithium-metal composite oxide would be an inherent property of the material. Therefore, by meeting the limitations of claim 1, as shown above, the material of Kim modified to have O2 in the lithium-rich domain rather than O3, would have the same exact crystal structure as that in the instant claims and would therefore contain the same space groups even if it was not explicitly stated in the prior art. See MPEP 2112. II. or Schering Corp. v. Geneva Pharm. Inc., for case law regarding the fact that an inherent feature need not be recognized at the relevant time in order for it to still anticipate the feature, which is later recognized.)
Regarding claim 3, Kim teaches all of the following elements:
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. (As shown above in claim 1, the M in the composition of Kim can comprise every single one of these elements in both domains, as in the lithium rich domain it can be any transition metal, and in the lithium poor domain it can be Ni, Co, Mn, Fe, Cr, Ti, Cu, Al, Mg, Zr, or B.)
Regarding claim 4, Kim teaches all of the following elements:
A non-aqueous electrolyte secondary battery, comprising (“The present disclosure relates to a cathode active material, a cathode including the cathode active material, a lithium battery including the cathode active material,” Kim [0003] and “The material capable of reversibly inserting and deintercalating lithium ions may be a carbonaceous material, i.e., any carbon-based anode active material that is suitable for a lithium ion secondary battery.” Kim [0108])
a positive electrode including the positive electrode active material for a non-aqueous electrolyte secondary battery according to claim 1; (“The present disclosure relates to a cathode active material, a cathode including the cathode active material, a lithium battery including the cathode active material,” Kim [0003]. See claim 1 for comparison of Kim cathode active material to instant claim 1.)
a negative electrode; (“According to another aspect, a lithium battery includes a cathode; an anode; and an electrolyte disposed between the cathode and the anode; wherein the cathode includes the above described cathode active material.” Kim [0026])
and a non-aqueous electrolyte, (“The electrolyte may be an organic electrolyte solution. Alternatively, the electrolyte may be a solid. Examples of the solid electrolyte include boron oxide and lithium oxynitride, but are not limited thereto. The solid electrolyte may be any suitable solid electrolyte used in the art. The solid electrolyte may be formed on the anode by, for example, sputtering.” Kim [0116])
wherein the negative electrode includes a negative electrode active material, (“Next, an anode is manufactured in the same manner as the cathode described above, except that an anode active material is used instead of the cathode active material.” Kim [0103])
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 where 0 < α < 2,LiβSiOy where 1 < β ≤ 4 and 1 < y ≤ 4, Sn, SnO2, Sb, and Ge. (“Examples of the anode active materials include lithium metal, a metal material capable of alloying with lithium, a transition metal oxide, a material capable of doping and de-doping, e.g., alloying and de-alloying, lithium, a material capable of reversibly inserting and deintercalating lithium ions, or the like.” Kim [0105] and “Examples of the transition metal oxide include vanadium oxide, lithium-vanadium oxide, or the like, and examples of the material capable of doping and de-doping lithium include at least one selected from Si, SiO.sub.x (where 0<x<2), Si--Y alloy (where Y is an alkali metal, an alkali earth metal, an element of Groups 13 to 16, a transition metal, a rare earth element, or a combination thereof, except Si), Sn, SnO.sub.2,” Kim [0107] and “Examples of the metal material capable of alloying with lithium include at least one selected from Si, Sn, Al, Ge, Pb, Bi, Sb, Si--Y alloy” Kim [0106]. While not explicitly stated in Kim, it would be obvious to include one or more of the possible anode active materials in a quantity of 3% or more, given the wording states that the possible anode active materials “include” the above listed ones, implying that they could be chosen to be the entirety of the anode active material.)
Regarding claim 6, Kim teaches all of the following elements:
The non-aqueous electrolyte secondary battery according to claim 4, wherein in a discharged state until 1.5 V, the lithium-metal composite oxide has a composition represented by the 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 the above M. (The composition provided in claim 6 is the exact same as that provided in claim 1. Thus, the lithium-metal composite oxide of Kim would meet this limitation as well. See claim 1 above for the comparison between Kim and the instant invention.)
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (US 20140193714 A1) with evidentiary support from Lin et al (Xianke Lin, Kavian Khosravinia, Xiaosong Hu, Ju Li, Wei Lu, Lithium Plating Mechanism, Detection, and Mitigation in Lithium-Ion Batteries, Progress in Energy and Combustion Science, Volume 87, 2021, 100953)
Regarding claim 5, Kim teaches all of the following elements:
The non-aqueous electrolyte secondary battery according to claim 4, wherein in a charged state, lithium metal precipitates on the negative electrode. (Given that Kim teaches a positive and negative electrode that are analogous to those of the instantly claimed invention, if it were formed in the same manner then lithium metal would precipitate. The instant specification specifically states that “To prevent precipitation of lithium, the negative electrode 12 is formed to be one size larger than the positive electrode 11.” Instant spec [0014]. This implies that if the negative electrode is not larger than the positive electrode, yet the positive and negative electrode active materials remain the same, lithium metal would precipitate on the negative electrode. It is known in the art that lithium plating/precipitation can occur when lithium ions cannot intercalate fast enough, (See Lin et al, 2021). In this case, the cathode active material of Kim and the instant invention is very rich in lithium, and therefore if no measures are taken to minimize the precipitation of lithium metal, it would occur at least to some extent.)
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 1-6 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 6-8 of copending Application No. 18/267188 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference application teaches every part taught in the instant application, with a few wording changes and the inclusion of particle size in claim 1.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claim 1, the following elements are all found in the copending application:
A positive electrode active material for a non-aqueous electrolyte secondary battery, including a lithium-metal composite oxide represented by the general formula xLi-yNizM1-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 represents one or more elements selected from the group consisting of transition metals and Al, Si, Sn, Ge, Sb, Bi, Mg, Ca, and Sr, (“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 xLi.sub.yM1O.sub.2-(1-x)Li.sub.zM1O.sub.2 (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), Copending application claim 1)
wherein the lithium-metal composite oxide has a layered structure, and has a Li element coordinated at a tetrahedral position of oxygen. (“wherein the first lithium-metal composite oxide has a layer structure, has a Li element coordinated at a tetrahedral site of oxygen,” Copending application claim 1.)
Regarding claim 2, the following elements are all found in the copending application:
The positive electrode active material for a 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-ml as a stacking fault. (“The positive electrode active material for the non-aqueous electrolyte secondary battery according to claim 1, wherein the first 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 application claim 2.)
Regarding claim 3, the following elements are all found in the copending application:
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. (“The positive electrode active material for the non-aqueous electrolyte secondary battery according to claim 1, wherein the M1 is one or more elements selected from the group consisting of Ni, Co, Mn, Fe, and Al.” Copending application claim 3.)
Regarding claim 4, the following elements are all found in the copending application:
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 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;” Copending application claim 6.)
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 where 0 < α < 2,LiβSiOy where 1 < β ≤ 4 and 1 < y ≤ 4, Sn, SnO2, Sb, and Ge. (“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, SiO.sub.α (wherein 0<α<2), Li.sub.βSiO.sub.γ (wherein 1<β≤4, 1<γ≤4), Sn, SnO.sub.2, Sb, and Ge, in an amount of greater than or equal to 3%.” Copending application claim 6.)
Regarding claim 5, the following elements are all found in the copending application:
The non-aqueous electrolyte secondary battery according to claim 4, wherein in a charged state, lithium metal precipitates on the negative electrode. (“The non-aqueous electrolyte secondary battery according to claim 6, wherein lithium metal precipitates on the negative electrode in a charged state.” Copending application claim 7.)
Regarding claim 6, the following elements are all found in the copending application:
The non-aqueous electrolyte secondary battery according to claim 4, wherein in a discharged state until 1.5 V, the lithium-metal composite oxide has a composition represented by the 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 the above M. (“The non-aqueous electrolyte secondary battery according to claim 6, wherein in a state of being discharged to 1.5 V, the first lithium-metal composite oxide has a composition represented by a general formula xLi.sub.yM1O.sub.2-(1−x)Li.sub.zM1O.sub.2 (wherein 0<x≤1, 1.5≤y≤2.5, 0.9≤z≤1.5, and M1 is the M1).” Copending application claim 8.)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN ELI KASS-MULLET whose telephone number is (571)272-0156. The examiner can normally be reached Monday-Friday 8:30am-6pm except for the first Friday of bi-week.
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/BENJAMIN ELI KASS-MULLET/Examiner, Art Unit 1752
/NICHOLAS A SMITH/Supervisory Primary Examiner, Art Unit 1752