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 .
Examiner Note
It is noted that all references hereinafter to Applicant’s specification are to the published application US 2024/0097122 A1, unless stated otherwise. Further, it is noted that italicized text in parentheses recited in any rejection under 35 U.S.C. 103 indicates the element of the claimed invention to which the preceding prior art element corresponds. Additionally, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Response to Amendments and Arguments
Applicant’s amendments and Remarks filed on 23 June 2026 in response to the Non-Final Rejection dated 24 March 2026 have been entered and fully considered, respectively. Claims 29-53 and 55 have been amended, and claims 36-37 and 50-54 remain withdrawn. As such, claims 29-35, 38-49, and 55-56 remain pending and under consideration on the merits.
Applicant requests withdrawal of the objection over the Specification previously set forth in the Non-Final Rejection.
The objection over the Specification is withdrawn due to the amendments to the Specification filed on 23 June 2026.
Applicant requests withdrawal of the objection to claims 29-35, 38-49, and 55-56 previously set forth in the Non-Final Rejection.
The amendments to the claims have overcome less than all of the objections previously set forth – the objections that have not been overcome are maintained herein, and those that have been overcome are hereby withdrawn.
Additionally, a new objection is set forth below, as a result of the claim amendments to claim 38.
Applicant’s arguments on Pages 7-10 of the Remarks, directed to Fukuchi, have been fully considered.
Applicant's arguments are not persuasive for the following reasons.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). The grounds of rejection previously set forth establish that Fukuchi’s composition is identical or substantially identical to the claimed positive electrode active material powder composition, where this is sufficient in view of MPEP 2112.01(I) to establish a prima facie case of either anticipation or obviousness.
Although the method of preparing the positive electrode active material powder as disclosed in Applicant’s specification is different from that of Fukuchi, Applicant’s Specification does not show any examples/comparative examples that exemplify the process of Fukuchi, as such, the arguments do not replace evidence where evidence is necessary, see MPEP 2145(I). No objective evidence has been provided that demonstrates Fukuchi’s identical or substantially identical compositions are incapable of exhibiting the claimed ratio of WB/WA > 1.0. Therefore, the inherency-type rejections based on Fukuchi’s are still considered to establish a prima facie case of anticipation or obviousness over the claimed invention with a predictable and reasonable expectation of success.
Additionally, It is noted that “the arguments of counsel cannot take the place of evidence in the record,” see MPEP 2145(I). It is the examiner’s position that the arguments provided by the applicant regarding that the material of Fukuchi would not be expected to exhibit WB/WA > 1.0, must be supported by objective evidence, a declaration, or an affidavit. As set forth in MPEP 716.02(g), “the reason for requiring evidence in a declaration or affidavit form is to obtain the assurances that any statements or representations made are correct, as provided by 35 U.S.C. 24 and 18 U.S.C. 1001.”
Moreover, it has not been established by the inventive examples, especially in Table 4 that is pointed out on Page 8 of the Remarks, that dry mixing of WO3 with the sintered oxide as stated/argued is the only means to achieve and necessarily yields the claimed WB/WA ratio. Only two examples (EX1.4 and EX3) have been provided that yield WB/WA values of 175 and 580, respectively, where these two values are far above the lower limit of the claimed ratio WB/WA > 1.0, do not establish any discernable trend, and fail to demonstrate any criticality of the claimed ratio. Therefore, the very limited examples set forth in Applicant’s Specification are not commensurate in scope with Applicant’s arguments that dry mixing of WO3 is the only means to achieve and necessarily yields a powder exhibiting the claimed ratio WB/WA > 1.0.
For these reasons above, Applicant's arguments identified above have not been found persuasive.
As such, the grounds of rejection below have been updated to reflect the present claim amendments and made in view of alternative interpretations of previously-cited prior art.
Claim Objections
Claims 29, 34-35, 38, and 46-47 are objected to because of the following informalities:
Regarding claims 29, 34-35, and 46-47, “positive electrode active material” constitutes inconsistent claim language relative to the phrase “positive electrode active material powder” recited in claim 29. In order to overcome the objection, the following amendment is respectfully suggested: “positive electrode active material powder” for every instance where “positive electrode active material” is present.
Regarding claim 38, “wherein SA is expressed as molar fractions” and “wherein SB is expressed as molar fractions” each constitutes improper grammar. In order to overcome the objection, the following amendments are respectfully suggested: “wherein SA is expressed as a molar fraction[[s]]” and “wherein SB is expressed as a molar fraction[[s]].”
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 29-33, 38-42, 46-49, and 55-56 are rejected under 35 U.S.C. 103 as being unpatentable over Fukuchi (JP 2011/124086 A, herein English machine translation is utilized for all citations, cited to in previous action, copy provided previously).
Regarding claim 29, Fukuchi discloses a lithium secondary battery (lithium-ion rechargeable batteries) [0086], for use in electronic devices, of which includes, inter alia an electric vehicle [0086]. The lithium secondary battery comprises a positive electrode active material [0012], of which includes a lithium-nickel-cobalt-manganese composite oxide particle (a positive electrode active material powder) [0012, 0023]. The composite oxide particle, in addition to Li, S, and O, includes Ni, Co, and Mn [0022, 0032-0033] in the following molar amounts determined by ICP [0022, 0088] relative to the total amount of Ni, Co, and Mn [0025-0026, 0048], thereby reading on “relative to M’”:
Ni from 0-100 mol% [0022],
Co from 0-50 mol% [0022], and
Mn from 0-50 mol% [0022].
The mol% range of each element overlaps with each claimed range of the corresponding element as defined in claim 29, thereby rendering each range obvious. See MPEP 2144.05(I).
Fukuchi discloses that the composite oxide particle may include one or more additional elements M, wherein M is suitably, inter alia W [0025-0026]. Fukuchi teaches that inclusion of additional element(s) M enhances the initial discharge capacity and cycle characteristics of the battery [0025], and that the total molar amount of additional element(s) M ranges from 0.1-5 mol% relative to the total moles of Ni, Mn, and Co (relative to M’, W in a content a of 0.05 mol% or more) [0026], of which is within the claimed “content a” range. In totality, the contents of Ni, Co, Mn, and M are in a total molar content of 100% (relative to M’, wherein x+y+z+a+b is 100.0 mol%) [0022, 0088].
It is noted that the positive electrode active material powder defined by claim 29 does not require the presence of claimed element D, given the content b range of between 0.0 mol% and 2.0 mol% relative to M’ read in light of the spec [id., 0023].
Additionally, Fukuchi discloses a total amount of sulfate groups/sulfate radicals (the source of soluble sulfur) in the positive electrode active material is 1,000-12,000 ppm [0032].
In view of the disclosure of Fukuchi set forth/cited above, and in light of the molar ranges for each of the elements of the claimed active material, through calculation utilizing 0.2 g of the composite oxide Li1.20Ni0.90Co0.09Mn0.005W0.005O2 of Fukuchi [0033] and 1,000 ppm sulfate radicals [0032], the amount of soluble sulfur is determined to be 0.18 mol%. Further, through additional calculation utilizing 1.0 g of the composite oxide Li0.98Ni0.75Co0.05Mn0.199W0.001O2 of Fukuchi [0033] and 12,000 ppm sulfate radicals [0032], the amount of soluble sulfur is determined to be 2.13 mol%.
An example calculation of the above soluble sulfur content of Fukuchi for the 0.2 g of composite oxide Li1.20Ni0.90Co0.09Mn0.005W0.005O2 of Fukuchi, is as follows, wherein the total molecular weight without Li and O is 59.32 g/mol, and 1,000 ppm sulfate radicals converts to 0.05932 g sulfur (0.001 parts sulfur x 59.32 g/mol total molecular weight without Li, and O = 0.05932 g sulfur), of which converts to 0.00185 mol S (
0.05932
g
S
32.06
g
m
o
l
S
=
0.00198
m
o
l
S
)
, and therefore results in soluble sulfur from the sulfate radical source being present in an amount of 0.18 mol% (
0.00185
m
o
l
S
1
+
0.00185
t
o
t
a
l
m
o
l
o
f
c
o
m
p
o
s
i
t
e
o
x
i
d
e
m
a
t
e
r
i
a
l
), wherein Applicant’s specification states that soluble sulfur can be associated to a SO42- or a sulfate form [0024, 0027].
In view of the calculations above, the soluble sulfur content from the sulfate radical source of the lithium-nickel-cobalt-manganese composite oxide of Fukuchi would have necessarily been between 0.18-2.13 mol%, of which overlaps with the claimed soluble sulfur content range, 0.30 mol% or more, thereby rendering the range obvious (MPEP 2144.05(I)).
Fukuchi further discloses the positive electrode active material having a W content (WA) [0022, 0025-0026], determined by ICP (ICP analysis) [0033], wherein the content of W is expressed as a molar fraction (molar fraction) relative to the total number of moles of nickel (x), manganese (z), and cobalt (y) [0088].
Fukuchi remains silent regarding an average W fraction WB determined by XPS analysis, wherein WB is expressed as a molar fraction compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis, and wherein the ratio WB/WA> 1.0.
However, the positive electrode active material of Fukuchi is substantially identical or identical to the claimed and disclosed positive electrode active material powder in terms of comprising:
(i) the lithium-nickel-cobalt-manganese composite oxide composition represented by the following: Li0.98-1.20Ni0-1Co0-0.5Mn0-0.5W0.001-0.05O2, wherein the element content range for each element overlaps applicant’s claimed and disclosed element content ranges [Applicant’s Specification ¶0029-0047, Claim 29],
(ii) the contents in the lithium-nickel-cobalt-manganese composite oxide composition other than Li, S, and O are relative to each other and in a total molar content of 100 mol%, of which reads on the claimed and disclosed limitations of “relative to M’” [Applicant’s Specification ¶0029-0047, Claim 29] and “wherein x+y+z+a+b is 100.0 mol%” [Applicant’s Specification ¶0036, Claim 29],
(iii) the contents in the lithium-nickel-cobalt-manganese composite oxide composition are measured by ICP, of which reads on the claimed and disclosed limitations, “wherein x, y, z, a, and b are measured by ICP” [Applicant’s Specification ¶0035, Claim 29],
(iv) the soluble sulfur content in the lithium-nickel-cobalt-manganese composite oxide between 0.18-2.13 mol%, as calculated above, of which overlaps with the claimed and disclosed soluble sulfur content range, 0.30 mol% or more [Applicant’s specification 0036, Claim 29], wherein Applicant’s claimed and disclosed average S fraction, SB, and S content, SA, refer to total contents of sulfur and therefore are inclusive of the content of soluble sulfur [Applicant’s Specification ¶0069, Claim 38],
(v) the lithium-nickel-cobalt-manganese composite oxide prepared by the following steps: first by mixing and firing raw lithium, nickel, cobalt, and manganese compounds, or a lithium compound and an aggregated nickel-manganese-cobalt composite hydroxide, thereby corresponding to the disclosed step of first preparing a sintered lithium transition metal-based oxide compound [Applicant’s Specification ¶0086].
(vi) Next, introducing the lithium-nickel-cobalt-manganese composite oxide into an aqueous sulfate solution and stirring, thereby corresponding to the disclosed step of mixing the first sintered lithium transition metal-based oxide compound with a sulfate ion source and water [Applicant’s Specification ¶0087].
(vii) Afterwards, subjecting the composite oxide compound to a calcination step to obtain the positive electrode active material, thereby corresponding to the disclosed heat treatment step which results in the formation of the positive electrode active material powder [Applicant’s Specification ¶0088].
(viii) The soluble sulfur content measured through an ICP method, of which involves dispersing the positive electrode active material into ultrapure water at 25 °C for 5 minutes with a magnetic stirrer, filtering, and measuring the contents and reads on the claimed and disclosed ICP method of dispersing the positive electrode active material powder into deionized water to obtain a solution, then stirring for at least 5 minutes at 25°C, and filtering [Applicant’s Specification ¶0039, Claim 30].
Given that the positive electrode active material particle of Fukuchi is substantially identical or identical to the claimed and disclosed positive electrode active material powder in terms of the foregoing elements (i)-(viii), it stands to reason, and there is a strong expectation, that the positive electrode active material of Fukuchi would have necessarily exhibited the average W fraction WB determined by XPS analysis, wherein WB is expressed as a molar fraction compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis, and wherein the ratio WB/WA> 1.0, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 30, in view of the rejection of claim 29 above, Fukuchi is silent regarding the soluble sulfur content is equal to a decrease of a S content relative to M' as determined by ICP after having dispersed the positive electrode active material powder into deionized water so as to obtain a solution, said solution being stirred for at least 5 minutes at 25°C, filtered said positive electrode active material powder, and dried said positive electrode active material powder.
However, in view of the rejection of claim 29 above, Fukuchi further discloses preparing the lithium-nickel-cobalt-manganese composite oxide material by first mixing and firing raw lithium, nickel, cobalt, and manganese compounds, or a lithium compound and an aggregated nickel-manganese-cobalt composite hydroxide, then calcinating the primary particle compounds to form agglomerated secondary particles of lithium-nickel-cobalt-manganese composite oxide [0019]. The lithium-nickel-cobalt-manganese composite oxide is then introduced into an aqueous sulfate solution and stirred or the lithium-nickel-cobalt-manganese composite oxide is washed with water, separated by filtration, and the resultant is introduced into an aqueous sulfate solution and stirred [0020]. A final calcination step is performed in order to evaporate the water content of the aqueous sulfate solution, thereby obtaining the positive electrode active material which contains sulfate radials on both the surface layer portions of the primary particles and in the gaps between the primary particles [0021]. The amount of sulfate radicals present in the surface layer portion of the primary particles is 500 to 11000 ppm [0022, 0029], and the total amount of sulfate groups/radicals in the positive electrode active material is 1,000-12,000 ppm [0032] with elemental sulfur measured by ICP [0033], of which equates to 0.18-2.13 mol% of soluble sulfur as calculated above. The ICP method entails dispersing the positive electrode active material into ultrapure water (deionized water) at 25 °C for 5 minutes with a magnetic stirrer, filtering, and measuring the contents [0030].
Given that the positive electrode active material particle of Fukuchi is substantially identical or identical to the claimed and disclosed positive electrode active material powder in terms of the foregoing elements (i)-(viii) in ¶25 above, it stands to reason, and there is a strong expectation, that the soluble sulfur content from the sulfate radical source in the positive electrode active material particle of Fukuchi would have necessarily equated to a decrease of a S content relative to M’ as determined by ICP after having dispersed the positive electrode active material powder into deionized water so as to obtain a solution, said solution being stirred for at least 5 minutes at 25°C, filtered said positive electrode active material powder, and dried said positive electrode active material powder, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 31, in view of the rejection of claim 29 above, nickel is in a content 0-100 mol% relative to the other components [0022], that are not Li, S, and O, in the lithium-nickel-cobalt-manganese composite oxide [0048]. The aforesaid nickel content range overlaps with the claimed nickel content range, 75-90 mol%, thereby rendering the range obvious (MPEP2144.05(I)).
Regarding claim 32 and claims 46-47, in view of the rejection of claim 29 and the corresponding calculations above, the soluble sulfur content of the lithium-nickel-cobalt-manganese composite oxide of Fukuchi would have necessarily been between 0.18-2.13 mol% relative to the components other than Li, S and O, of which overlaps with the claimed soluble sulfur content range, 0.50 mol% or more relative to M’ in claim 32, 2.00 mol% or less relative to M’ in claim 46, and 1.00 mol% or less relative to M’ in claim 47, thereby rendering each range obvious (MPEP 2144.05(I)).
Regarding claim 33 and claim 48, in view of the rejection of claim 29 above, W is in a content between 0.1-5 mol %, of which reads on the claimed W content range of claim 33, 0.10 mol% or more, and overlaps with the W content range of claim 48, 0.50 mol% or less, thereby rendering the range in claim 48 obvious (MPEP 2144.05 (I)).
Regarding claim 38, in view of the rejection of claim 29 above, the rejection of claim 30 set forth above is incorporated herein by reference. Fukuchi further discloses the positive electrode active material having both a S content (SA) [0032-0033] and a W content (WA) [0022, 0025-0026], determined by ICP (ICP analysis) [0033], wherein the content of W is expressed as a molar fraction (molar fraction) relative to the total number of moles of nickel (x), manganese (z), and cobalt (y) [0088].
Fukuchi remains silent regarding:
SA is expressed as a molar fraction compared to the sum of x and y and z,
an average S fraction SB, wherein SB is determined by XPS analysis, wherein SB is expressed as a molar fraction compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis,
wherein the ratio SB/SA> 1.0.
However, in view of the foregoing and the calculations above, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the content of S in the positive electrode active material of Fukuchi instead expressed as a molar fraction compared to the sum of x and y and z as claimed, through modified calculations of ¶20-21 above to have the content relative to x, y, and z only.
Furthermore, in view of the totality of the foregoing, the positive electrode active material of Fukuchi is substantially identical or identical to the claimed and disclosed positive electrode active material powder in terms of the foregoing elements (i)-(viii), in ¶25 above. As such it stands to reason, and there is a strong expectation, that the positive electrode active material of Fukuchi would have necessarily exhibited SA expressed as a molar fraction compared to the sum of x and y and z, the average S fraction SB, wherein SB is determined by XPS analysis, wherein SB is expressed as a molar fraction compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis, wherein the ratio SB/SA> 1.0, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claims 39-42, in view of the rejection of claim 38 above, Fukuchi is silent regarding the ratio SB/SA is at least 1.5 (claim 39), the ratio WB/WA is at least 1.5 (claim 40), the ratio SB/SA is at most 600 (claim 41), and the ratio WB/WA is at most 700 (claim 42).
In view of the totality of the foregoing, the positive electrode active material of Fukuchi is substantially identical or identical to the claimed and disclosed positive electrode active material in terms of the foregoing elements (i)-(viii), in ¶25 above. As such it stands to reason, and there is a strong expectation that the positive electrode active material of Fukuchi would have necessarily exhibited the ratio SB/SA of at least 1.5, the ratio WB/WA of at least 1.5, the ratio SB/SA of at most 600, and the ratio WB/WA of at most 700, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I).
Regarding claim 49, in view of the rejection of claim 29 above, Co is in a content between 0-50 mol% relative to the components other than Li, S, and O in the lithium-nickel-cobalt-manganese composite oxide, of which overlaps with the claimed Co content range, 5-10 mol% relative to M’, thereby rendering the range obvious (MPEP 2144.05(I)).
Regarding claim 55, the rejection of claim 29 above reads on the battery defined by claim 55.
Regarding claim 56, in view of the rejection of claim 55 above, the rejection of claim 29 set forth above is incorporated herein by reference and reads on the electric vehicle defined by claim 56.
Claims 29-35, 38-49, and 55-56 are rejected under 35 U.S.C. 103 as being unpatentable over Fukuchi, in view of Nagata (JP 2019/169412 A, herein English machine translation is utilized for all citations, cited to in previous action, copy provided previously).
Regarding claim 29, Fukuchi discloses the lithium secondary battery as set forth/cited above in ¶15-23 and 25-26, of which are incorporated herein by reference (not repeated for sake of brevity).
Fukuchi discloses that the composite oxide particle may include one or more additional elements M, wherein M is suitably, inter alia W [0025-0026], and/or, inter alia Al (D) [0025] (see MPEP 2144.07). Fukuchi teaches that inclusion of additional element(s) M enhances the initial discharge capacity and cycle characteristics of the battery [0025], and that the total molar amount of additional element(s) M ranges from 0.1-5 mol% relative to the total moles of Ni, Mn, and Co (relative to M’, W in a content a of 0.05 mol% or more) [0026]. In totality, the contents of Ni, Co, Mn, and M are in a total molar content of 100% (relative to M’, wherein x+y+z+a+b is 100.0 mol%) [0022, 0088].
Fukuchi does not disclose additional element(s) M being the specific combination of W and Al.
Nagata is directed to a lithium-nickel-manganese-cobalt-aluminum composite oxide particle for a positive electrode active material in a lithium-ion secondary battery [0010]. Nagata teaches that including Al in the composite oxide particle in an amount of 1-15 mol% suppresses excessive electronic conductivity, thereby ensuring safety [0013]; further, Nagata teaches that Al is suitable for inclusion in the composite oxide particle in combination with W [0013].
Fukuchi and Nagata each constitute prior art which is directly analogous to the claimed invention – a positive electrode active material powder for lithium-ion rechargeable batteries. In view of the combined teachings of the foregoing prior art, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the lithium-nickel-cobalt-manganese composite oxide particle of Fukuchi, by utilizing Al in combination with W as additional elements M, wherein Al is in an amount of 1 mol% or greater, and less than 5 mol% as specific by Nagata and within the total additional element(s) M range of 0.1-5 mol% specified by Fukuchi, in order to impart to the oxide the capability to suppress excessive electronic conductivity, thereby resulting in a battery exhibiting an increased degree of safety during operation [Nagata, 0013].
In accordance therewith, the composite oxide particle of Fukuchi as modified by Nagata (hereinafter “Fukuchi/Nagata”) would have included W and Al as additional elements M, in a total of 0.01-5 mol%, with Al defining 1 ≤ Al < 5 mol% and W constituting the remaining molar amount (0 < W ≤ 4 mol%).
Additionally, Fukuchi discloses a total amount of sulfate groups/sulfate radicals (the source of soluble sulfur) in the positive electrode active material is 1,000-12,000 ppm [0032].
In view of the disclosures and teachings of Fukuchi and Nagata set forth/cited above, and in light of the molar ranges for each of the elements of the claimed active material, through calculation utilizing 0.2 g of the composite oxide Li1.20Ni0.90Co0.09Mn0.075W0.005Al0.01O2 of Fukuchi/Nagata [Fukuchi, 0033; Nagata, 0013] and 1,000 ppm sulfate radicals [Fukuchi, 0032], the amount of soluble sulfur is determined to be 0.20 mol%. Further, through additional calculation utilizing 1.0 g of the composite oxide Li0.98Ni0.75Co0.05Mn0.18W0.01Al0.01O2 of Fukuchi/Nagata [Fukuchi, 0033; Nagata, 0013] and 12,000 ppm sulfate radicals [Fukuchi, 0032], the amount of soluble sulfur is determined to be 2.16 mol%.
An example calculation of the above soluble sulfur content of Fukuchi/Nagata for the 0.2 g of composite oxide Li1.20Ni0.90Co0.09Mn0.075W0.005Al0.01O2, is as follows, wherein the total molecular weight without Li, and O is 63.44 g/mol, and 1,000 ppm sulfate radicals converts to 0.06344 g sulfur (0.001 parts sulfur x 63.44 g/mol total molecular weight without Li, and O = 0.06344 g sulfur), of which converts to 0.00198 mol S (
0.06344
g
S
32.06
g
m
o
l
S
=
0.00198
m
o
l
S
), and therefore results in soluble sulfur from the sulfate radical source being present in an amount of 0.20 mol% (
0.00198
m
o
l
S
1
+
0.00198
t
o
t
a
l
m
o
l
o
f
c
o
m
p
o
s
i
t
e
o
x
i
d
e
m
a
t
e
r
i
a
l
), wherein Applicant’s specification states that soluble sulfur can be associated to a SO42- or a sulfate form [0024, 0027].
In view of the calculations above, the soluble sulfur content from the sulfate radical source of the lithium-nickel-cobalt-manganese composite oxide of Fukuchi/Nagata would have necessarily been between 0.20-2.16 mol%, of which overlaps with the claimed soluble sulfur content range, 0.30 mol% or more, thereby rendering the range obvious (MPEP 2144.05(I)).
Regarding claim 30, in view of the rejection of claim 29 above, Fukuchi/Nagata is silent regarding the soluble sulfur content is equal to a decrease of a S content relative to M' as determined by ICP after having dispersed the positive electrode active material powder into deionized water so as to obtain a solution, said solution being stirred for at least 5 minutes at 25°C, filtered said positive electrode active material powder, and dried said positive electrode active material powder.
However, in view of the rejection of claim 29 above, Fukuchi further discloses preparing the lithium-nickel-cobalt-manganese composite oxide material by first mixing and firing raw lithium, nickel, cobalt, and manganese compounds, or a lithium compound and an aggregated nickel-manganese-cobalt composite hydroxide, then calcinating the primary particle compounds to form agglomerated secondary particles of lithium-nickel-cobalt-manganese composite oxide [0019]. The lithium-nickel-cobalt-manganese composite oxide is then introduced into an aqueous sulfate solution and stirred or the lithium-nickel-cobalt-manganese composite oxide is washed with water, separated by filtration, and the resultant is introduced into an aqueous sulfate solution and stirred [0020]. A final calcination step is performed in order to evaporate the water content of the aqueous sulfate solution, thereby obtaining the positive electrode active material which contains sulfate radials on both the surface layer portions of the primary particles and in the gaps between the primary particles [0021]. The amount of sulfate radicals present in the surface layer portion of the primary particles is 500 to 11000 ppm [0022, 0029], and the total amount of sulfate groups/radicals in the positive electrode active material is 1,000-2,000 ppm [0032] with elemental sulfur measured by ICP [0033], of which equates to 0.20-2.16 mol% of soluble sulfur as calculated above. The ICP method entails dispersing the positive electrode active material into ultrapure water (deionized water) at 25 °C for 5 minutes with a magnetic stirrer, filtering, and measuring the contents [0030].
Given that the positive electrode active material particle of Fukuchi is substantially identical or identical to the claimed and disclosed positive electrode active material powder in terms of the foregoing elements (i)-(viii) in ¶25 above, it stands to reason, and there is a strong expectation, that the soluble sulfur content from the sulfate radical source in the positive electrode active material particle of Fukuchi would have necessarily equated to a decrease of a S content relative to M’ as determined by ICP after having dispersed the positive electrode active material powder into deionized water so as to obtain a solution, said solution being stirred for at least 5 minutes at 25°C, filtered said positive electrode active material powder, and dried said positive electrode active material powder, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 31, in view of the rejection of claim 29 above, nickel is in a content 0-100 mol% relative to the other components [0022], that are not Li, S, and O, in the lithium-nickel-cobalt-manganese composite oxide [0048]. The aforesaid nickel content range overlaps with the claimed nickel content range, 75-90 mol%, thereby rendering the range obvious (MPEP2144.05(I)).
Regarding claim 32 and claims 46-47, in view of the rejection of claim 29 and the corresponding calculations above, the soluble sulfur content of the lithium-nickel-cobalt-manganese composite oxide of Fukuchi/Nagata would have necessarily been between 0.20-2.16 mol% relative to the components other than Li, S and O, of which overlaps with the claimed soluble sulfur content range, 0.50 mol% or more relative to M’ in claim 32, 2.00 mol% or less relative to M’ in claim 46, and 1.00 mol% or less relative to M’ in claim 47, thereby rendering each range obvious (MPEP 2144.05(I)).
Regarding claim 33 and claim 48, in view of the rejection of claim 29 above, W is in a content between 0.1-5 mol %, of which reads on the claimed W content range of claim 33, 0.10 mol% or more, and overlaps with the W content range of claim 48, 0.50 mol% or less, thereby rendering the range in claim 48 obvious (MPEP 2144.05 (I)).
Regarding claims 34-35, in view of the rejection of claim 29 above, Al may be in an amount of 1 mol% or greater, and less than 5 mol% based on a total number of moles of Ni, Mn, Co, and the additional element(s) of which reads on the claimed Al content range of claim 34, 0.10 mol% or more relative to M’, and overlaps with the Al content range of claim 35, at most 1.0 mol% relative to M’, thereby rendering the range in claim 35 obvious (MPEP 2144.05(I)).
Regarding claim 38, in view of the rejection of claim 29 above, the rejection of claim 30 set forth above is incorporated herein by reference. Fukuchi further discloses the positive electrode active material having both a S content (SA) [0032-0033] and a W content (WA) [0022, 0025-0026], determined by ICP (ICP analysis) [0033], wherein the content of W is expressed as a molar fraction (molar fraction) relative to the total number of moles of nickel (x), manganese (z), and cobalt (y) [0088].
Fukuchi remains silent regarding:
SA is expressed as a molar fraction compared to the sum of x and y and z,
an average S fraction SB, wherein SB is determined by XPS analysis, wherein SB is expressed as a molar fraction compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis,
wherein the ratio SB/SA> 1.0.
However, in view of the foregoing and the calculations above, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the content of S in the positive electrode active material of Fukuchi instead expressed as a molar fraction compared to the sum of x and y and z as claimed, through modified calculations of ¶20-21 above to have the content relative to x, y, and z only.
Furthermore, in view of the totality of the foregoing, the positive electrode active material of Fukuchi is substantially identical or identical to the claimed and disclosed positive electrode active material powder in terms of the foregoing elements (i)-(viii), in ¶25 above. As such it stands to reason, and there is a strong expectation, that the positive electrode active material of Fukuchi would have necessarily exhibited SA expressed as a molar fraction compared to the sum of x and y and z, the average S fraction SB, wherein SB is determined by XPS analysis, wherein SB is expressed as a molar fraction compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis, wherein the ratio SB/SA> 1.0, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claims 39-42, in view of the rejection of claim 38 above, Fukuchi/Nagata is silent regarding the ratio SB/SA is at least 1.5 (claim 39), the ratio WB/WA is at least 1.5 (claim 40), the ratio SB/SA is at most 600 (claim 41), and the ratio WB/WA is at most 700 (claim 42).
In view of the totality of the foregoing, the positive electrode active material of Fukuchi/Nagata is substantially identical or identical to the claimed and disclosed positive electrode active material in terms of the foregoing elements (i)-(viii), in ¶25 above. As such it stands to reason, and there is a strong expectation, that the positive electrode active material of Fukuchi/Nagata would have necessarily exhibited the ratio SB/SA of at least 1.5, the ratio WB/WA of at least 1.5, the ratio SB/SA of at most 600, and the ratio WB/WA of at most 700, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 43, in view of the rejection of claim 29 above, Nagata further discloses the positive electrode active material having an Al content (AlA) [0013] determined by ICP [0014], wherein the content of Al is expressed as a molar fraction relative to the total number of moles of nickel (x), manganese (z), and cobalt (y) [0013].
Nagata is silent regarding:
An average Al fraction AlB, wherein AlB is determined by XPS analysis, wherein AlB is expressed as molar fractions compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis,
wherein the ratio AlB/AlA> 1.0.
However, in view of the totality of the foregoing, the positive electrode active material of Fukuchi/Nagata is substantially identical or identical to the claimed and disclosed positive electrode active material in terms of the foregoing elements (i)-(viii), in ¶25 above. As such it stands to reason, and there is a strong expectation, that the positive electrode active material of Fukuchi/Nagata would have necessarily exhibited the average Al fraction AlB, wherein AlB is determined by XPS analysis, wherein AlB is expressed as molar fractions compared to the sum of the fractions of Co, Mn and Ni as measured by XPS analysis, and wherein the ratio AlB/AlA> 1.0, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claims 44-45, in view of the rejection of claim 43 above, Nagata is silent regarding the ratio AlB/AlA is at least 3.0 (claim 44), and the ratio AlB/AlA is at most 2400 (claim 45).
In view of the totality of the foregoing, the positive electrode active material of Fukuchi/Nagata is substantially identical or identical to the claimed and disclosed positive electrode active material in terms of the foregoing elements (i)-(viii), in ¶25 above. As such it stands to reason, and there is a strong expectation, that the positive electrode active material of Fukuchi/Nagata would have necessarily exhibited the ratio AlB/AlA of at least 3.0, and the ratio AlB/AlA of at most 2400, as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 49, in view of the rejection of claim 29 above, Co is in a content between 0-50 mol% relative to the components other than Li, S, and O in the lithium-nickel-cobalt-manganese composite oxide, of which overlaps with the claimed Co content range, 5-10 mol% relative to M’, thereby rendering the range obvious (MPEP 2144.05(I)).
Regarding claim 55, the rejection of claim 29 above reads on the battery defined by claim 55.
Regarding claim 56, in view of the rejection of claim 55 above, the rejection of claim 29 set forth above is incorporated herein by reference and reads on the electric vehicle defined by claim 56.
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 l.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 l.17(a)) pursuant to 37 CFR l.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 JENNA X. COLTON whose telephone number is (571)272-2210. The examiner can normally be reached Monday-Friday 8AM-5PM.
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/JENNA X. COLTON/Examiner, Art Unit 1782
/Eli D. Strah/Primary Examiner, Art Unit 1782
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