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 .
Election/Restrictions
Claims 8 and 9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/18/2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The Information Disclosure Statements filed on 09/14/2023 and 07/14/2025 have been considered by the examiner.
Specification
The disclosure is objected to because of the following informalities: the specification provides a definition for the “average particle diameter of the primary particles” [0014] and recites an “average particle diameter D50 (nm)” in Table 1 [0083]. However, the claims are directed to a “median diameter D50” in nanometers, and it is therefore unclear whether this limitation of the invention is directed to an average diameter or a median diameter.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-7 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites inter alia a “median diameter D50” in nanometers. However, the specification provides a definition for the “average particle diameter of the primary particles” [0014] and recites an “average particle diameter D50 (nm)” in Table 1 [0083], and does not clarify the difference or equivalence of the language “average” diameter to a median diameter. It is therefore unclear whether claim 1 is directed to an average diameter or a median diameter, and one of ordinary skill in the art would not reasonably be apprised of a potential infringement on the scope of the claim. Claims 2-7 are dependent upon claim 1 and do not rectify the issue of indefiniteness, and are therefore similarly rejected.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over non-patent literature Ali, S. et al. (2018), Effect of Calcination Temperature on the Structural, Thermodynamic, and Optical Properties of MoO3 Nanoparticles, Journal of the Chinese Chemical Society, 65: 276-288, referred to herein as Ali, in view of Döbelin 2015, XRD And Rietveld Refinement, March 2 2015, Lyon, France, RMS Foundation.
Regarding claim 1, Ali discloses molybdenum trioxide (MoO3) aggregates of primary particles containing a crystal structure of MoO3 (rod-like structures, Figure 4a), the crystal structure containing alpha crystals (Figs. 6 and 7) with an average crystallite size, D, of 50 nm or less (3.05-5.21 nm, Tables 1-3), and a size of the primary particles being roughly 3-6 times larger than the crystallite size (p. 4, column 2, paragraph 1), determined by dynamic light scattering (DLS, Section SLD-PSA). This yields a particle size of 26-74.7 nm (Table 3). Ali teaches the polydispersity index (PDI) of the particles having values of 0.662 to 1.345 (Table 3, polydispersive index (PDI)). Given that the range of particle sizes disclosed by Ali falls within the claimed range of median diameters of particle sizes, and the PDI values indicate high monodispersion and therefore low variability in particle size, the D50 value of the particles obtained from the teaching of Ali must necessarily fall within the claimed range of D50 values.
Ali does not teach that the MoO3 aggregate of primary particles containing a crystal structure of molybdenum trioxide is a powder. However, Ali teaches that the nanoparticles are formed via a calcination method that removes water and other impurities (Figure 2), and further teaches the use of Rietveld refinement for analysis (abstract; p. 5 column 1), which is known in the art to be a technique specific to powder samples, as evidenced by Döbelin (whole document, specifically p. 7). It would therefore be obvious to one skilled in the art that the nanoparticle MoO3 product taught by Ali would be obtained in a powder form. One skilled in the art would therefore arrive at the claimed invention prior to the effective filing date.
Regarding claim 7, Ali and Dobelin teach the product as applied to claim 1. Ali also teaches a plate-like morphology (Figure 4b). This is interpreted to meet the limitation of a sheet shape of the primary particles, in view of the instant specification (“a plate shape (a sheet shape),” 0027).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over non-patent literature Ali in view of Döbelin, as applied to claim 1, and in further view of Brame et al. 2016, Surface Area Analysis Using the Brunauer-Emmett-Teller (BET) Method, U.S. Army Engineer Research and Development Center (ERDC), Scientific Operating Procedure Series: SOP-C, referred to herein as Brame.
Regarding claim 3, Ali and Dobelin teach the product as applied to claim 1. Ali also teaches a specific surface area (SSA) of 30.91 to 86.02 m2/g (Table 3, surface area (SSA)), which falls within the claimed range of 10 m2/g or more. Although Ali does not teach that the SSA is obtained by a BET measurement, as recited in the instant claim, it would be obvious to one skilled in the art that the specific surface area would be obtainable by a BET measurement method, since the use of BET analysis is a known technique to yield the predictable result of a specific surface area measured in m2/g, as evidenced by Brame (whole document, specifically Section 5.2). It has been held that a prima facie case of obviousness exists where an artisan would apply a known technique in the art to yield predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007); see MPEP 2143(I)(D).
Claims 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Ali and Döbelin as applied to claim 1 above, and in further view of non-patent literature Stoyanova et al. 2009, Synthesis and structural characterization of MoO3 phases obtained from molybdic acid by addition of HNO3 and H2O2; JOURNAL OF OPTOELECTRONICS AND ADVANCED MATERIALS, Vol. 11, No. 8, August 2009, p. 1127 – 1131, referred to herein as Stoyanova. Non-patent literature Yao et al. 2012, Electrodeposited α- and β-Phase MoO3 Films and Investigation of Their Gasochromic Properties, Cryst. Growth Des. 2012, 12, 4, 1865–1870, referred to herein as Yao, is cited as evidentiary support for claims 5 and 6.
Regarding claim 4, Ali teaches the powder according to claim 1. Ali does not teach that the crystal structure further contains beta crystals with an average crystallite size of 50 nm or less.
However, Stoyanova teaches a MoO3 powder (p. 1128, Section 2 “Experimental” (iii)) comprising an aggregate of primary particles (p. 1130 Figure 7) containing a crystal structure of molybdenum trioxide wherein the crystal structure contains alpha and beta phases (“72% monoclinic (β) MoO3 and 28% orthorhombic (α) MoO3,” p. 1130 pp. 3).
It would be obvious to one of ordinary skill in the art to modify the invention taught by Ali by additionally having MoO3 with a beta crystal structure, as taught by Stoyanova. One would be motivated to do so because Ali teaches that the smaller sizes of the nanoparticles are advantageous because they lead to observable quantum size effects such as quantum confinement (weak quantum confinement occurs when size is larger than 4r, and strong quantum confinement occurs when size is less than 2r, p. 7); and Stoyanova teaches that the beta phase forms smaller particles on average than the alpha phase, and similarly less tendency for agglomeration (Figures 5-7; p. 1130 column 1 and conclusion). Ali motivates the interest in metal-oxide nanoparticles (introduction, pp. 1) and specifically molybdenum oxides (p. 1 column 2 pp. 2) for their application in optoelectronics and for their optical properties on the nanoscale, respectively. An ordinary artisan would therefore be reasonably motivated to modify the invention of Ali, having alpha phases with an average crystallite size of 50 nm or less, with the teaching of Stoyanova to additionally have beta phases, in order to obtain smaller nanoparticles, and arrive at the claimed invention of beta phases with average crystallite size of 50 nm or less, before the effective filing date.
Regarding claim 5, Ali and Stoyanova teach the product as applied to claim 4. Stoyanova further teaches powder XRD with Cu-K_alpha rays as an X-ray source (powder, p. 1128 column 1). Ali and Stoyanova do not explicitly teach a ratio (011)/(021) of intensity of a peak attributed to the plane (011) of a beta crystal of MoO3 to intensity of a peak attributed to the plane (021) of the alpha crystal of MoO3 is 0.1 or more in a profile.
However, Stoyanova teaches that the product obtained exhibits XRD peaks at around values of 2θ = 23 and 27 (Figure 2, below). These peak positions correspond to the (011) plane of the beta phase and the (021) plane of the alpha phase, as evidenced by Yao (Figure 7, below; p. 1868 column 2). Figure 2 of Stoyanova shows that the relative intensity of the 011 peak (around 2θ = 23) is much larger than a ratio of 0.1 times the intensity of the 021 peak (around 2θ = 27), which falls within the claimed range of 0.1 or more. Although Stoyanova does not explicitly teach what proportion of the magnitude of the peak at 23 can be attributed to the (011) plane of the beta phase, a crystal structure having the same composition and structure of the instant invention must necessarily output the same properties, including the relative intensity/width of peaks in XRD spectra; see MPEP Section 2112.01 (II) regarding the inherency of properties of chemical compositions. The invention of Ali and Stoyanova, as discussed for claim 4 above, must therefore yield a ratio of peak intensities that falls within the claimed range of 0.1 or more.
Figure 2 of Stoyanova:
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Figure 7 of Yao:
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Regarding claim 6, Ali and Stoyanova teach the product as applied to claim 5. Ali and Stoyanova do not explicitly teach a ratio (011)/(021) of intensity of a peak attributed to the plane (011) of a beta crystal of MoO3 to intensity of a peak attributed to the plane (021) of the alpha crystal of MoO3 is 10.0 or less in a profile.
However, Stoyanova teaches that the product obtained exhibits XRD peaks at around values of 2θ = 23 and 27 (Figure 2). These peak positions correspond to the (011) plane of the beta phase and the (021) plane of the alpha phase, as evidenced by Yao (Figure 7; p. 1868 column 2). Figure 2 of Stoyanova shows that the relative intensity of the 011 peak (around 2θ = 23) is much less than a ratio of 10 times the intensity of the 021 peak (around 2θ = 27), which falls within the claimed range of 10.0 or less. Although Stoyanova does not explicitly teach what proportion of the magnitude of the peak at 23 can be attributed to the (011) plane of the beta phase, a crystal structure having the same composition and structure of the instant invention must necessarily output the same properties, including the relative intensity/width of peaks in XRD spectra; see MPEP Section 2112.01 (II) regarding the inherency of properties of chemical compositions. The invention of Ali and Stoyanova, as discussed for claims 4 and 5 above, must therefore yield a ratio of peak intensities that falls within the claimed range of 10.0 or less.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Ali and Döbelin, as applied to claim 1, and in further view of Thielemann et al. (2011), Controlled Synthesis and Characterization of Highly Dispersed Molybdenum Oxide Supported on Silica SBA-15. ChemCatChem, 3: 1814-1821, referred to herein as Thielemann.
Regarding claim 2, Ali teaches the product as applied to claim 1. Ali also teaches that a mass content of MoO3 particles obtained from the sonication method analyzed with X-ray spectroscopy (EDX) is 66.63% Mo (p. 3 column 1; Figure 4b), corresponding to 99.98% of the theoretical Mo content of MoO3. Since Ali teaches that MoO3 is the only molybdenum compound present in the sample (XRD spectra, Figures 6 and 7), this corresponds to a MoO3 content of 99.98% by mass, falling within the claimed range of 99.5% or higher. Ali does not teach that XRF is used to perform the measurement, as required by the instant claim.
However, Thielemann teaches that EDX and XRF are measurement techniques that yield similar information about a MoO3-containing material (methods to determine weight content of elemental composition, such as loading, weight%; Figure 4; p. 1818 column 2). It would be obvious to one skilled in the art before the effective filing date of the invention to modify the method of measurement taught by Ali to use XRF instead of EDX, as Thielemann teaches. One would be motivated to do so in order to obtain the molybdenum content for crystalline alpha- and beta-MoO3, which XRF captures in the crystalline phase as Thielemann teaches (Figure 4 “region of crystalline alpha/beta-MoO3”), and because Thielemann teaches that XRF can be used instead of EDX to determine total Mo content (loading) while EDX is a local technique (p. 1818 column 2). One skilled in the art would therefore arrive at the claimed invention prior to the effective filing date with reasonable prediction of success.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Li et al. 2021, CN-112266021-A, discloses the production of MoO3 containing both the alpha and beta phases (0009, Comparative Example 1), wherein the beta crystals are present with a particle size of 50 nm to 5 microns (0016), and teaches that the product obtained exhibits XRD peaks at around values of 2θ = 23 and 27 from the beta and alpha phases, respectively (Figure 7, below).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Eileen Moudou whose telephone number is (571)272-1768. The examiner can normally be reached M-Th 8 AM - 4 PM EST.
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/Eileen Moudou/Examiner, Art Unit 1738
/MICHAEL FORREST/Primary Examiner, Art Unit 1738
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