DETAILED ACTION
Application 18/268805, “POSITIVE ELECTRODE ACTIVE MATERIAL, METHOD FOR PRODUCING SAME, AND LITHIUM ION BATTERY INCLUDING SAME”, is the national stage entry of a PCT application filed on 12/20/21 and claims priority from a foreign application filed on 12/21/20.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Office Action on the merits is in response to communication filed on 8/2/23.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-11 and 16, in the reply filed on 4/16/26 is acknowledged.
Claims 12-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-5, 8-11 and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Choi (US 2020/0062613).
Regarding claim 1-4, Choi teaches a positive electrode active material for lithium secondary battery (see title), comprising: a lithium metal oxide particle (paragraph [0034]), which is in the form of a secondary particle including a plurality of primary particles (paragraph [0034]); and a coating layer positioned on at least part of the lithium metal oxide particle surface such as a primary particle surface or portion thereof (paragraphs [0018-0019; 0062]); wherein, the coating layer includes any one or more of group 5 elements such as Nb, group 6 elements such as W, B, LiOH, Li2CO3 and Li2SO4 (paragraphs [0016, 0066]).
Regarding claim 5, Choi remains as applied to claim 1. Choi further teaches wherein: a content of the group 5 element and group 6 element is 10 ppm to 10,000 ppm based on the total amount of the positive electrode active material (paragraph [0118]).
Regarding claim 8, Choi remains as applied to claim 1. Choi further teaches wherein: the Li2CO3 is not separately injected as a lithium raw material, but is caused by an internal reaction (paragraph [0008]).
Regarding claim 9 and 10, Choi remains as applied to claim 1. Choi is silent regarding the results of the XPS and EDS characteristics described in claims 9 and 10.
However, Choi does teach a positive electrode active material having the positively claimed structure as described in the rejection of claim 1.
Since the Choi positive electrode active material possesses the positively claimed structure recited in claim 1, and claims 9 and 10 merely set forth the result obtained if the material is measured using XPS or EDS in the manner described in the claim, then either i) the Choi material has a structure which would yield the same result if measured as claimed since no essential elements are omitted from claim 1, or ii) evidence is required to explain why the claimed positive electrode active material, as presently claimed without any other essential elements, would exhibit the properties recited in claims 9 and 10 if so measured, whereas the prior art positive electrode active material would not. It is noted that a claim omitting essential elements may be rejected under 35 USC 112(a) or 112(b) for omitting essential elements.
Performance of the measurement of the XPS and EDS measurement technique is not required of the prior art, since the claim is drawn to a positive electrode active material, not a method of testing the material for its properties (MPEP 2112 II).
Regarding claim 11, Choi remains as applied to claim 1. Choi further teaches wherein: a content of nickel in the metal in the lithium metal oxide particle is 85 mol % or more (paragraph [0118]).
Regarding claim 16, Choi remains as applied to claim 1. Choi further teaches the positive electrode active material included in the positive electrode of a lithium secondary battery, which further comprises a negative electrode and a non-aqueous electrolyte (paragraphs [0093-0095, 0106]).
Claims 1, 6, 9 and 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Min (WO 2019/132381; citations taken from US 2020/0388839).
Regarding claim 1, Min teaches a positive electrode active material for lithium secondary battery (see abstract), comprising: a lithium metal oxide particle (paragraph [0010]); and a coating layer positioned on at least part of the lithium metal oxide particle surface (paragraphs [0010]); wherein, the coating layer includes any one or more of group 5 elements such as Nb, group 6 elements such as W, B, LiOH, Li2CO3 and Li2SO4 (paragraphs [0010]).
Regarding claim 6, Min remains as applied to claim 1. Min further teaches wherein: a content of the LiOH is 100 ppm to 10,000 ppm based on the total amount of the positive electrode active material (see Table 1; paragraph [0059]).
Regarding claim 8, Min remains as applied to claim 1. Min further teaches wherein: the Li2CO3 is not separately injected as a lithium raw material, but is caused by an internal reaction (paragraph [0007]).
Regarding claim 9 and 10, Min remains as applied to claim 1. Min is silent regarding the results of the XPS and EDS characteristics described in claims 9 and 10.
However, Min does teach a positive electrode active material having the positively claimed structure as described in the rejection of claim 1.
Since the Min positive electrode active material possesses the positively claimed structure recited in claim 1, and claims 9 and 10 merely set forth the result obtained if the material is measured using XPS or EDS in the manner described in the claim, then either i) the Min material has a structure which would yield the same result if measured as claimed since no essential elements are omitted from claim 1, or ii) evidence is required to explain why the claimed positive electrode active material, as presently claimed without any other essential elements, would exhibit the properties recited in claims 9 and 10 if so measured, whereas the prior art positive electrode active material would not. It is noted that a claim may be rejected under 35 USC 112(a) or 112(b) for omitting essential elements, if there are indeed essential unclaimed elements that are critical to applicant’s invention (MPEP 2172).
Performance of the measurement of the XPS and EDS measurement technique is not required of the prior art, since the claim is drawn to a positive electrode active material, not a method of testing the material for its properties (MPEP 2112 II).
Claims 1, 9 and 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Blangero (US 2015/0380722).
Regarding claim 1, Blangero teaches a positive electrode active material for lithium secondary battery (see abstract), comprising: a lithium metal oxide particle (paragraph [0014]); and a coating layer positioned on at least part of the lithium metal oxide particle surface (“surface layer”, abstract; paragraphs [0012]); wherein, the coating layer includes any one or more of group 5 elements such as Nb, group 6 elements such as W, B, LiOH, Li2CO3 and Li2SO4 (paragraphs [0015]).
Regarding claim 9 and 10, Blangero remains as applied to claim 1. Blangero is silent regarding the results of the XPS and EDS characteristics described in claims 9 and 10.
However, Blangero does teach a positive electrode active material having the positively claimed structure as described in the rejection of claim 1.
Since the Blangero positive electrode active material possesses the positively claimed structure recited in claim 1, and claims 9 and 10 merely set forth the result obtained if the material is measured using XPS or EDS in the manner described in the claim, then either i) the Blangero material has a structure which would yield the same result if measured as claimed since no essential elements are omitted from claim 1, or ii) evidence is required to explain why the claimed positive electrode active material, as presently claimed without any other essential elements, would exhibit the properties recited in claims 9 and 10 if so measured, whereas the prior art positive electrode active material would not. It is noted that a claim omitting essential elements may be rejected under 35 USC 112(a) or 112(b) for omitting essential elements.
Performance of the measurement of the XPS and EDS measurement technique is not required of the prior art, since the claim is drawn to a positive electrode active material, not a method of testing the material for its properties (MPEP 2112 II).
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 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 7 is/are rejected under 35 U.S.C. 103 as being obvious over Blangero (US 2015/0380722).
Regarding claim 7, Blangero remains as applied to claim 1. Blangero does not explicitly teach that a content of the Li2SO4 is 10 ppm to 3,000 ppm based on the total amount of the positive electrode active material.
However, Blangero does teach wherein the surface layer further comprises less than 2000 ppm of one or more of LiF, Li3PO4 and Li2SO4. (Blangero claim 42).
The requirement that the content of the Li2SO4 of the surface layer is 10 ppm to 3,000 is found to be obvious over Blangero, as the range suggested by the cited art is considered to overlap the claimed range, also suggesting that Li2SO4 may be included in a low ppm range.
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, 6-8, 11 and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,537,188 (hereinafter Kwon’188).
Claims 2-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,537,188 (hereinafter Kwon’188) in view of Choi (US 2020/0062613).
Although the claims at issue are not identical, they are not patentably distinct from each other because Kwon’188 claim 1 claims an embodiment which is readable on the instant claim 1. More specifically, the only features recited in instant claim 1 which are not claimed by Kwon’188 are the inclusion of group 5 and group 6 elements in the Markush group. However, since Kwon’188 claims other species of the Markush group, the Kwon’188 claim 1 anticipates the instant claim 1.
The subject matter of dependent claims 6-8, 11 and 16, or an obvious variant of the subject matter, is claimed in the dependent claims 2-7 of Kwon’188.
Regarding claims 2-5, Kwon’188 remains as applied to claim 1. Kwon’188 claims a positive electrode active material having the features of the claims, except that Kwon’188 does not claim the coating layer including Nb and/or W in the claimed amount.
In the battery art, Choi teaches a positive electrode material having a coating layer which may include Nb and/or W in the claimed amount (paragraphs [0016, 0066, 0118]). Choi further teaches that materials having surface layers including such constituents may have favorable stability properties (paragraph [0009, 0071]).
It would have been obvious to a person having ordinary skill in the art to include a group V or VI element such as Nb or W in the claimed concentration as such an inclusion is shown to provide embodiments having desirable stability as taught by Choi.
Claims 1-7, 11 and 16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 7-10 and 14 of copending Application No. 18/268022 (hereinafter Kwon’022).
Although the claims at issue are not identical, they are not patentably distinct from each other because Kwon’022 claims an embodiment of a positive electrode active material having all the limitations required by claim 1, and further claims additional limitations. These additional limitations are not excluded from the instant claim 1 because its open-ended claim construction.
The subject matter of dependent claims 2-7, 11 and 16, or an obvious variant of the subject matter, is claimed by Kwon’022 in the independent claim (Ni content) or the dependent claims
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Relevant or Related Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, though not necessarily pertinent to applicant’s invention as claimed.
Adachi (US 2004/0234853) positive electrode active material comprising lithium sulfate as an inevitable impurity
Wu (US 2016/0260965) positive electrode active material with coating layer;
Cho (US 2020/0152978) positive electrode active material comprising nickel containing core and coating layer;
Kumakura (US 2024/0030425) positive electrode active material with XPS characterized surface layer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMIAH R SMITH whose telephone number is (571)270-7005. The examiner can normally be reached Mon-Fri: 9 AM-5 PM (EST).
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/JEREMIAH R SMITH/Primary Examiner, Art Unit 1723
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