DETAILED CORRESPONDENCE
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
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. KR10-2020-0179685, filed on December 21st, 2020.
Information Disclosure Statement
The Information Disclosure Statements (IDS) submitted on June 21st, 2023; September 12th, 2023; September 16th, 2024; and April 4th, 2025 have been received and considered by the Examiner.
Claim Status
Following the communication received on August 18th, 2023:
Claims 1-13 are pending in the current application.
Claim Interpretation
All “wherein” clauses are given patentable weight unless otherwise noted. Please see MPEP 2111.04 regarding optional claim language.
The limitation “comprising,” as seen in at least line 2 of Claim 1, is interpreted to define parts contained within a whole. Such that a product comprising component A could also comprise additional components not defined.
Claim Objections
Claims 1, 3-6, 8, and 10-12 objected to because of the following informalities:
Claim 1, line 1 recites the limitation “active material for lithium secondary battery.” This appears to be a typographical error and should most likely read (with emphasis): “active material for a lithium secondary battery.”
Claims 3-4, lines 2-3 (of each highlighted claim) recite the limitation “based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.” The claim limitation as currently written fails to explicitly disclose that claimed “total” is counting the moles of the listed elements. An example to rectify this would include “based on 1 mole of the total moles of nickel, cobalt, manganese, aluminum and doping elements.”
Claim 5, lines 5-6 recite the limitation “based on 1 mole of the total sum of nickel, cobalt, manganese, aluminum and doping elements.” The claim limitation as currently written fails to explicitly disclose that claimed “total sum” is counting the moles of the listed elements. An example to rectify this would include “based on 1 mole of the total sum of moles of nickel, cobalt, manganese, aluminum and doping elements.”
Claims 5 and 6 are missing a terminal period at the end of the claim limitations.
Claim 6, lines 4-6 recite the limitation (with emphasis) “Lia[NixCoyMnzAlh]1-t(NbiZrj)tO2-pX2p (In the Chemical Formula 1, X is one or more elements selected from the group containing F, N, and P.” It seems this is a typographical error and the X2 in line 4 should read “X.”
Claim 8, line 2 recites the limitation “material ranged from.” This appears to be a typographical error and should most likely read (with emphasis) “material ranges from.”
Claim 10, line 2 recites the limitation “for (110) planes.” This appears to be a typographical error and should most likely read (with emphasis) “for (110) plane.”
Claim 11, lines 2-4 recite the limitation “material has a 1.2300 to 1.2410 of I(003)/I(104), which is the ratio of the peak intensity of the (003) plane to the peak intensity of the (104) plane.” There are several grammatical improvements that can be done to this claim limitation including the lack of a noun following the limitation “a” and the separation between the ratio and its definition. An example to rectify these issues would include “material has a value of I(003)/I(104) from 1.2300 to 1.2410, wherein I(003)/I(104) is the ratio of the peak intensity of an (003) plane to the peak intensity of a (104) plane.”
Claim 12, lines 2-3 recite the limitation “based on 1 mol of the total of nickel, cobalt, manganese, and aluminum.” The claim limitation as currently written fails to explicitly disclose that claimed “total” is counting the moles of the listed elements. An example to rectify this would include “based on 1 mole of the total moles of nickel, cobalt, manganese, and aluminum.”
Appropriate correction is required.
Prior Art
Park KR20200047116A (“Park”)
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.
Claims 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Park KR20200047116 (for purposes of examination, US PG Publication 2022/0037658 is cited throughout and a machine translation of KR20200047116 has been provided).
Regarding Claim 1, Park discloses a positive electrode active material for a secondary battery comprising lithium ([0009]-[0010], entire disclosure dependent upon) comprising: a lithium composite transition metal oxide including nickel, cobalt, and manganese and two or more kinds of first dopants selected from a list including zirconium (Zr) and aluminum (Al) and two or more kinds of second dopants selected from a group including niobium (Nb) ([0009]).
Regarding Claim 2, Park teaches the instantly claimed positive electrode active material according to Claim 1, and Park discloses wherein at least two doping elements are Zr and Nb ([0009]).
Regarding Claim 3, Park teaches the instantly claimed positive electrode active material according to Claim 2, and Park discloses wherein a doping amount of the Nb is at most 0.015 mol (which encompasses the claimed range of 0.0001 mol to 0.01 mol)1 (as represented by w1=0.015 in the instance where Mb is Nb) based on 1 mol of the total moles of nickel, cobalt, manganese, aluminum, and doping elements (as represented by 1= 1-(x1+y1+z1+w1)+x1+y1+z1+w1) ([0020]-[0021]).
1 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, 191 USPQ 90 (CCPA 1976).
Regarding Claim 4, Park teaches the instantly claimed positive electrode active material according to Claim 2, and Park discloses wherein a doping amount of the Zr is at most 0.025 mol (which encompasses the claimed range of 0.001 mol to 0.007 mol)1 (as represented by z1=0.025 in the instance where Ma is Zr) based on 1 mol of the total moles of nickel, cobalt, manganese, aluminum, and doping elements (as represented by 1= 1-(x1+y1+z1+w1)+x1+y1+z1+w1) ([0020]-[0021]).
Regarding Claim 5, Park teaches the instantly claimed positive electrode active material according to Claim 2, and Park discloses wherein a doping amount of the Zr is greater than 0 and at most 0.025 mol (as represented by z1=0.025 in the instance where Ma is Zr) based on 1 mol of the total moles of nickel, cobalt, manganese, aluminum, and doping elements (as represented by 1= 1-(x1+y1+z1+w1)+x1+y1+z1+w1) ([0020]-[0021]) and wherein a doping amount of the Nb is greater than 0 and at most 0.015 mol (as represented by w1=0.015 in the instance where Mb is Nb) based on 1 mol of the total moles of nickel, cobalt, manganese, aluminum, and doping elements (as represented by 1= 1-(x1+y1+z1+w1)+x1+y1+z1+w1) ([0020]-[0021]).
Therefore, the skilled artisan would recognize that the active material of Park would have a doping amount of Nb and Zr that encompasses the claimed range of Equation 1 (0.3<[Zr]/[Nb]<40)1, including the instance where [Zr]/[Nb] = 0.025/0/015 = 1.67.
Regarding Claims 6-7, Park teaches the instantly claimed positive electrode active material according to Claim 1, and Park discloses wherein the positive electrode active material is represented by Formula 1: LipNi1-(x1+y1+z1+w1)Cox1Mny1Max1Mbw1O2+δ and x1 is between 0 and 0.025 (which overlaps the claimed range of 0.008 to 0.029 and encompasses the claimed range of 0.01 to 0.025)1 ([0020]-[0021]). In the instance wherein Ma is both Al and Zr and Mb is Nb, Formula 1 of park satisfies the claimed Chemical Formula 1: Lia[NixCoyMnzAlh]1-t(NbiZrj)tO2-pXp when p=0.
Regarding Claims 8-11, Park teaches the instantly claimed positive electrode active material according to Claim 1. Since the positive electrode active material of Park covers the entirety of the claimed positive electrode active material, a person having ordinary skill in the art would expect the positive electrode active material of Park to have the same properties of the claimed positive electrode active material. Including, but not limited to, initial diffusion coefficient values, grain sizes, FWHM values, and XRD patterns2.
2 Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.).
Regarding Claim 12, Park teaches the instantly claimed positive electrode active material according to Claim 1, and Park discloses wherein the content of nickel in the metal oxide particle is 0.6 mol or more (which encompasses the claimed range of 0.8 mol or more)1, based on 1 mol of the total moles of nickel, cobalt, manganese, and aluminum ([0020]-[0023]).
Regarding Claim 13, Park discloses a lithium secondary battery ([0009]-[0011]), comprising: a positive electrode comprising the positive electrode active material as described in the rejection of Claim 1 ([0009]-[0011]); a negative electrode [0079]); and an electrolyte comprising a solvent selected from a group of materials including non-aqueous solvents ([0079]-[0088]).
Double Patenting
Claims 1-5 and 8-13 of this application is patentably indistinct from Claims 1-2, 5-6, 10, and 12-15 of Application No. 18/268,831 (cited as US PG Publication 2024/0297305 in the attached Notice of References Cited).
Pursuant to 37 CFR 1.78(f), when two or more applications filed by the same applicant or assignee contain patentably indistinct claims, elimination of such claims from all but one application may be required in the absence of good and sufficient reason for their retention during pendency in more than one application. Applicant is required to either cancel the patentably indistinct claims from all but one application or maintain a clear line of demarcation between the applications. See MPEP § 822.
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-2, 4-5, 8, and 12-13 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of Claims 1-2, 5-6, 10, and 14-15 of Application No. 18/268,831. This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
The claims as highlighted above are patentably indistinct from one another because:
Instant Claim 1: A positive electrode active material for a lithium secondary battery, comprising a metal oxide including nickel, cobalt, manganese and aluminum; and two doping elements doped into the metal oxide particle.
Instant Claim 2: The positive electrode active material of claim 1, wherein: the two doping elements are Nb and Zr.
Co-pending Claim 1: A positive electrode active material for a lithium secondary battery, comprising: a metal oxide particle including nickel, cobalt, manganese and aluminum; and three doping elements doped into the metal oxide particle.
Co-pending Claim 2: The positive electrode active material of claim 1, wherein: the three doping elements are Nb, B and Zr.
The term “comprising” in these claim limitations is interpreted such that the positive electrode active material comprises at least nickel, cobalt, manganese, aluminum, and two doping elements of Nb and Zr (in the instant application). And, therefore, any positive electrode active material comprising nickel, cobalt, manganese, aluminum, and three doping elements of Nb, B and Zr (in the co-pending application) must comprise at least nickel, cobalt, manganese, aluminum, and two doping elements of Nb and Zr (such as defined in the instant application) in addition to at least one additional doping element of B.
Instant Claim 4: The positive electrode active material of claim 2, wherein: a doping amount of Zr is 0.001 mol to 0.007 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Co-pending Claim 5: The positive electrode active material of claim 2, wherein: the doping amount of the Zr is 0.001 mol to 0.007 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Instant Claim 5: The positive electrode active material of claim 2, wherein: a doping amount of the Nb and Zr satisfies the relationship of Equation 1 below. [Equation 1] 0.3<[Zr]/[Nb]<40 (In Equation 1, [Nb] and [Zr] mean the doping amount of each element based on 1 mole of the total sum of nickel, cobalt, manganese, aluminum and doping elements)
Co-pending Claim 6: The positive electrode active material of claim 2, wherein: a doping amount of the Nb and Zr satisfies the relationship of Equation 1 below. [Equation 1] 0.5<[Zr]/[Nb]<10 (In Equation 1, [Nb] and [Zr] mean the doping amount of each element based on 1 mole of the total sum of nickel, cobalt, manganese, aluminum and doping elements)
Wherein the skilled artisan would recognize that a value for Equation 1 between 0.5 and 10 (co-pending application) would fall within, and therefore anticipate the instantly claimed range of between 0.3 and 40.
Instant Claim 8: The positive electrode active material of claim 1, wherein: the initial diffusion coefficient of the positive electrode active material ranged from 7.30x10-9 m2/sec to 8.10x10-9 m2/sec.
Co-pending Claim 10: The positive electrode active material of claim 1, wherein: the initial diffusion coefficient of the positive electrode active material ranged from 7.30x10-9 m2/sec to 8.10x10-9 m2/sec.
Instant Claim 10: The positive electrode active material of claim 1, wherein: a full width at half maximum (FWHM) value for (110) planes of the metal oxide particle ranges from 0.1890 to 0.2200.
Co-pending Claim 12: The positive electrode active material of claim 1, wherein: a full width at half maximum (FWHM) value for (110) plane of the metal oxide particle ranges from 0.1901 to 0.2017.
Wherein the skilled artisan would recognize that a value for the FWHM from 0.1901 to 0.2017 (co-pending application) would fall within, and therefore anticipate the instantly claimed range from 0.1890 to 0.2200.
Instant Claim 11: The positive electrode active material of claim 1, wherein: when measuring the X-ray diffraction pattern, the positive electrode active material has a 1.2300 to 1.2410 of I(003)/I(104), which is the ratio of the peak intensity of the (003) plane to the peak intensity of the (104) plane.
Co-pending Claim 13: The positive electrode active material of claim 1, wherein: when measuring the X-ray diffraction pattern, the positive electrode active material has a 1.2350 to 1.2410 of I(003)/I(104), which is the ratio of the peak intensity of the (003) plane to the peak intensity of the (104) plane.
Wherein the skilled artisan would recognize that a value for the ratio of I(003)/I(004) from 1.2350 to 1.2410 (co-pending application) would fall within, and therefore anticipate the instantly claimed range from 1.2300 to 1.2410.
Instant Claim 12: The positive electrode active material of Claim 1, wherein: the content of nickel in the metal oxide particle is 0.8 mol or more, based on 1 mol of the total of the nickel, cobalt, manganese, and aluminum.
Co-pending Claim 14: The positive electrode active material of Claim 1, wherein: the content of nickel in the metal oxide particle is 0.8 mol or more, based on 1 mol of the total of the nickel, cobalt, manganese, and aluminum.
Instant Claim 13: A lithium secondary battery, comprising: a positive electrode comprising the positive electrode active material of claim 1; a negative electrode; and a non-aqueous electrolyte.
Co-pending Claim 15: A lithium secondary battery, comprising: a positive electrode comprising the positive electrode active material of claim 1; a negative electrode; and a non-aqueous electrolyte.
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 3 and 9 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 3 and 11 of copending Application No. 18/268,831 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant Claim 3: The positive electrode active material of claim 2, wherein: a doping amount of the Nb is 0.0001 mol to 0.01 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Co-pending Claim 3: The positive electrode active material of claim 2, wherein: a doping amount of the Nb is 0.00001 mol to 0.03 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Wherein the skilled artisan would recognize that a doping amount of 0.0001 mol to 0.03 mol (co-pending application) would encompass the instantly claimed range of 0.0001 mol to 0.01 mol. 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, 191 USPQ 90 (CCPA 1976).
Instant Claim 9: The positive electrode active material of claim 1, wherein: a grain size of the metal oxide particle is 900 Å to 1,550 Å.
Co-pending Claim 11: The positive electrode active material of claim 1, wherein: a grain size of the metal oxide particle is 1,000 Å to 1,560 Å.
Wherein the skilled artisan would recognize that a grain size of 1,000 Å to 1,560 Å (co-pending application) would overlap the instantly claimed range of 900 Å to 1,550 Å. 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, 191 USPQ 90 (CCPA 1976).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-4, 8-10, and 12-13 of this application is patentably indistinct from Claims 1-2, 4, 6, 11-13, and 15-16 of Application No. 18/268,756 (cited as US PG Publication 2024/0282950 in the attached Notice of References Cited).
Claims 1-4, 9, and 12-13 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of Claims 1-2, 4, 6, 12, and 15-16 of Application No. 18/268,756. This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
The claims as highlighted above are patentably indistinct from one another because:
Instant Claim 1: A positive electrode active material for a lithium secondary battery, comprising a metal oxide including nickel, cobalt, manganese and aluminum; and two doping elements doped into the metal oxide particle.
Instant Claim 2: The positive electrode active material of claim 1, wherein: the two doping elements are Nb and Zr.
Co-pending Claim 1: A positive electrode active material for a lithium secondary battery, comprising: a metal oxide particle including nickel, cobalt, manganese and aluminum; and five doping elements doped into the metal oxide particle.
Co-pending Claim 2: The positive electrode active material of claim 1, wherein: the three doping elements are Al, Nb, B, Zr and Ti.
The term “comprising” in these claim limitations is interpreted such that the positive electrode active material comprises at least nickel, cobalt, manganese, aluminum, and two doping elements of Nb and Zr (in the instant application). And, therefore, any positive electrode active material comprising nickel, cobalt, manganese, aluminum, and five doping elements of Al, Nb, B, Zr and Ti (in the co-pending application) must comprise at least nickel, cobalt, manganese, aluminum, and two doping elements of Nb and Zr (such as defined in the instant application) in addition to at least three additional doping elements of Al, B, and Ti.
Instant Claim 3: The positive electrode active material of claim 2, wherein: a doping amount of Nb is 0.0001 mol to 0.01 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Co-pending Claim 4: The positive electrode active material of claim 2, wherein: the doping amount of the Nb is 0.00025 mol to 0.005 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Wherein the skilled artisan would recognize that a doping amount of 0.00025 mol to 0.005 mol (co-pending application) falls within, and therefore anticipates the instantly claimed range of 0.0001 mol to 0.01 mol.
Instant Claim 4: The positive electrode active material of claim 2, wherein: a doping amount of Zr is 0.001 mol to 0.007 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Co-pending Claim 6: The positive electrode active material of claim 2, wherein: the doping amount of the Zr is 0.001 mol to 0.007 mol, based on 1 mol of the total of nickel, cobalt, manganese, aluminum and doping elements.
Instant Claim 9: The positive electrode active material of claim 1, wherein: a grain size of the metal oxide particle ranges from 900Å to 1,550 Å.
Co-pending Claim 12: The positive electrode active material of claim 1, wherein: a grain size of the metal oxide particle ranges from 1,036Å to 1,440 Å.
Wherein the skilled artisan would recognize that a grain size of 1,036Å to 1,440 Å (co-pending application) falls within, and therefore anticipates the instantly claimed range of 900Å to 1,550 Å.
Instant Claim 12: The positive electrode active material of Claim 1, wherein: the content of nickel in the metal oxide particle is 0.8 mol or more, based on 1 mol of the total of the nickel, cobalt, manganese, and aluminum.
Co-pending Claim 15: The positive electrode active material of Claim 1, wherein: the content of nickel in the metal oxide particle is 0.8 mol or more, based on 1 mol of the total of the nickel, cobalt, manganese, and aluminum.
Instant Claim 13: A lithium secondary battery, comprising: a positive electrode comprising the positive electrode active material of claim 1; a negative electrode; and a non-aqueous electrolyte.
Co-pending Claim 16: A lithium secondary battery, comprising: a positive electrode comprising the positive electrode active material of claim 1; a negative electrode; and a non-aqueous electrolyte.
Claims 8 and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 11 and 13 of copending Application No. 18/268,756 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant Claim 8: The positive electrode active material of claim 1, wherein: an initial diffusion coefficient of the positive electrode active material ranged from 7.30 x 10-9 m2/sec to 8.10 x 10-9 m2/sec.
Co-pending Claim 11: The positive electrode active material of claim 1, wherein: an initial diffusion coefficient of the positive electrode active material ranged from 6.91 x 10-9 m2/sec to 7.58 x 10-9 m2/sec.
Wherein the skilled artisan would recognize that an initial diffusion coefficient value ranging from 6.91 x 10-9 m2/sec to 7.58 x 10-9 m2/sec (co-pending application) would overlap the instantly claimed range of 7.30 x 10-9 m2/sec to 8.10 x 10-9 m2/sec. 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, 191 USPQ 90 (CCPA 1976).
Instant Claim 10: The positive electrode active material of claim 1, wherein: a full width at half maximum (FWHM) value for the (110) plane of the metal oxide particle ranges from 0.1890 to 0.2200.
Co-pending Claim 13: The positive electrode active material of claim 1, wherein: a full width at half maximum (FWHM) value for the (110) plane of the metal oxide particle ranges from 0.126 to 0.204.
Wherein the skilled artisan would recognize that a FWHM value ranging from 0.126 to 0.204 (co-pending application) would overlap the instantly claimed range of 0.1890 to 0.2200. 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, 191 USPQ 90 (CCPA 1976).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OLIVIA MASON RUGGIERO whose telephone number is (703)756-4652. The examiner can normally be reached Monday-Thursday, 7am-6pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ula Ruddock can be reached at (571)272-1481. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/O.M.R./Examiner, Art Unit 1729
/ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729