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 .
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.
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) 1-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over by Kim et al. (US2018/0123130A1).
As to claim 1, Kim discloses a positive electrode active material for lithium secondary battery [Abstract], comprising: a compound represented by Chemical Formula 1, wherein a molar content of lithium present in the structure of the positive electrode active material, measured through neutron diffraction analysis, is 1.01 to 1.15 for 1 mole of the positive electrode active material (at x=1.01, 1.1 of equation (1) [0009] overlaps the claimed molar quantity range):
[Chemical Formula 1]
Li1+a(NibM11-b)1-aO2 in the Chemical Formula 1, 0.01<a<0.15, 0.8<b<1, M1 is at least one element selected from Co, Mn, Al, Mg, Ca, Ti, V, Cr, Zr, Nb, Mo, and where a=0.01, b=0.8 of chemical formula (1) as claimed would yield Li(1.01)Ni (0.79)M(0.198))O2 (Kim discloses where x=1.01, y= 0.2, would yield according to Kim’s formula (1) Li.sub.xNi.sub.1-yM.sub.yO.sub.2 = Li(1.01)Ni(0.8)M(0.2)O2, overlapping the claimed range and it should be noted in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As to claim 2, the rejection of claim 1 is incorporated, Kim discloses the positive electrode active material of claim 1, and having the material as disclosed would provide the positive electrode active material, the content of nickel in the lithium site is less than 5 atomic percent, and the examiner notes when the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention but has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § 2112- 2112.02.
As to claim 3, Kim discloses the positive electrode active material as measured by X-ray diffraction analysis, the content of Li2CO3 present in the positive electrode active material is less than 0.5 wt%. (Li.sub.2CO.sub.3, 0.01 to 10 parts per 100 parts which overlaps the claimed weight percent. [0007]m range and it should be noted in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As to claim 4, Kim discloses as measured by X-ray diffraction analysis, the content of Li20 present in the positive electrode active material is less than 1.0 wt%. (Li.sub.2O, 0.01 to 10 parts per 100 parts which overlaps the claimed weight percent. [0007] range and it should be noted in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As to claim 5, Kim discloses the positive electrode active material b is 0.85<b<1 in the Chemical Formula 1. (where b=1-y of formula (1) [0009], and y= 0, 0.15 would overlap the claimed range, range and it should be noted in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)..)
As to claim 6, Kim discloses the positive electrode active material of claim 1, wherein: b is 0.90<b<1 in the Chemical Formula 1. (where b=1-y of formula (1) [0009], and y= 0, 0.10 would overlap the claimed range , range and it should be noted in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).)
As to claim 7, Kim discloses a manufacturing method of positive electrode active material for lithium secondary battery: mixing a positive electrode active material precursor (formula (1) [0009]) containing a compound represented by Chemical Formula 11 (formula (5) [0010]) and a lithium raw material at a molar ratio of 1: 1.03 to 1: 1.3 (the lithium raw material and the lithium nickel-based metal oxide within a mol range of less than about 1.1 [0027], which overlaps the claimed mole ratio), and it should be noted in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)..)
heating them in the temperature range of 680 °C to 780 °C (600°C - 1000°C [0029] which overlaps the claimed range):
[Chemical Formula 11]
Nib11M11l-b11 (OH)2 in the Chemical Formula 11, 0.8<b11<1 is at least one element selected from Co, Mn, Al, Mg, Ca, Ti, V, Cr, Zr, Nb, Mo, and W. ([0028],
where Kim’s formula (5) Ni.sub.KM.sub.1-K, where 0.5 < K ≤ 1 would overlap the claimed range of chemical formula (11) as claimed.)
As to claim 8, the rejection of claim 7 is incorporated, Kim discloses the precursor containing the compound represented by Chemical Formula 11 and the lithium raw material are mixed at a molar ratio of 1: 1.03 to 1: 1.25. (the lithium raw material and the lithium nickel-based metal oxide within a mol range of less than about 1.1 [0027], which overlaps the claimed mole ratio [0027-0028])
As to claim 9, the rejection of claim 7 is incorporated, Kim discloses heat treatment of a mixture of a precursor containing a compound represented by Chemical Formula 11 and a raw material of lithium in a temperature range of 700 °C to 750 °C. (600°C - 1000°C which overlaps the claimed range [0027-0029])
As to claim 9, the rejection of claim 7 is incorporated, Kim discloses the heat treatment maintains for 5 to 20 hours. (about 10 hours, which overlaps the claimed range [0029])
As to claim 11, Kim discloses a lithium secondary battery, comprising: a positive electrode comprising a positive electrode active material [0012] according to any one of a positive electrode comprising a positive electrode active material according to any one of a negative electrode, a separator positioned between the positive electrode and the negative electrode, and an electrolyte [0047].
Response to Arguments
Applicant's arguments filed 07/08/2026 have been fully considered but they are not persuasive.
Applicant argues, page 7, Kim teaches away from the present invention concept, because the examples of Kim are directed detail a lithium deficient composition and the present claims require a composition with excess lithium. These arguments are unpersuasive because the general formula of Kim includes both lithium deficient and lithium rich oxides. The composition with excess lithium meet the general composition in the claim as set forth above. The office notes "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. MPEP 2123
In response to applicant's argument, page 8, that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., lithium content within crystal structure ) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues, page 10, Kim does not measure the molar content of lithium in the compound by neutron diffraction-measuring, and consequently cannot quantify the lithium site occupancy within a crystal structure. Kim discloses the positive electrode active material general compound amounts overlapping the claimed compound amounts and a prima facie case of obviousness may be made when chemical compounds have very close structural similarities and similar utilities. "An obviousness rejection based on similarity in chemical structure and function entails the motivation of one skilled in the art to make a claimed compound, in the expectation that compounds similar in structure will have similar properties." In re Payne, 606 F.2d 303, 313, 203 USPQ 245, 254 (CCPA 1979). See In re Papesch, 315 F.2d 381, 137 USPQ 43 (CCPA 1963).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's
disclosure.
Watanabe et al. (US2020/0119342A1) Lithium Nickel Co M oxide with impurities
of lithium carbonate.
Ishill et al. (US2006/0134520A1) Positive active material with Li2O and Li2CO3.
Eom et al. (US2022/0190326A1) Method of making positive active material.
Liu et al. (CN111799454A) A high nickel layered electrode material with niobium-
containing nano surface layer,
Wang et al. (CN111834631A) A preparation method of lithium ion battery high
nickel positive electrode material,
Eom et al. (KR2020-0131179) The steps of preparing a lithium composite
transition metal oxide for an active material.
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.
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BART HORNSBY
Examiner
Art Unit 1728
/MATTHEW T MARTIN/Supervisory Patent Examiner, Art Unit 1728
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