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
Applicant’s election of Group I, claims 1-6 and 9-10, in the reply filed on 5 June 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Information Disclosure Statement
The information disclosure statement filed 26 December 2024 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered. NPL citation #1 was not provided with a translation.
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.
Claim 2 is 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.
In regard to claim 2, the limitation of “wherein a pore diameter of the microporous polyacrylonitrile is 0.2-2 nm and excludes 2 nm” is indefinite as the term “pore diameter” can have multiple different interpretations. Does the term mean that all pores in the microporous polyacrylonitrile is within the recited range, that the average diameter is within the recited range or that at least one single pore is within the recited range? For the purpose of examination, the limitation will be given the broadest reasonable interpretation.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-6 and 9-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Archer et al. (CN 109070049; IDS 9/22/23 and in view of English-language machine translation; hereinafter “Archer”).
In regard to claim 1, Archer discloses a sulfur-containing positive electrode material for a secondary battery comprising sulfur and microporous polyacrylonitrile ( “cathode material […] porous body- sulphur composition material […] microporous and/or mesoporous polymer” such as “polyacrylonitrile”). See page 9 of the machine translation.
It is held that the limitation of “wherein the microporous polyacrylonitrile is obtained through a polymerization reaction of an acrylonitrile monomer and a crosslinking agent” is merely a product-by-process limitation which does not further limit the recited product claim. The determination of patentability is based upon the apparatus structure itself. The patentability of a product or apparatus does not depend on its method of production or formation. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (see MPEP § 2113). Therefore, it is held that the disclosed product of Archer is the same as the recited product of claim 1 even though the product of Archer was made by a different process.
In regard to claim 2, Archer discloses wherein the pore structure of the porous cathode main body material (i.e. the microporous polyacrylonitrile) can be structured such that the “pores have a diameter […] 0.1 nm to 2 nm” which encapsulates the recited range of “0.2-2 nm and excludes 2 nm.” Thus, using the broadest reasonable interpretation of the claim, the material of Archer has at least one pore within the recited pore diameter range or an average pore diameter in the recited range.
In regard to claims 3-6, the claims are considered product-by-process claims. The cited prior art teaches all of the positively recited structure of the claimed apparatus or product. The determination of patentability is based upon the apparatus structure itself. The patentability of a product or apparatus does not depend on its method of production or formation. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (see MPEP § 2113).
In regard to claim 9, Archer discloses a secondary battery (“rechargeable battery”) having a negative electrode (“an anode”) and a positive electrode (“a cathode”), wherein the positive electrode comprises the material of claim 1 (see above rejection of claim 1). See page 3 of the machine translation.
In regard to claim 10, Archer discloses wherein the negative electrode is a sodium metal anode. See page 10 of the machine translation.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY C CLEVELAND whose telephone number is (571)270-5041. The examiner can normally be reached M-F 9:00-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Claire Wang can be reached at (571) 270-1051. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TIMOTHY C CLEVELAND/Primary Examiner, Art Unit 1774
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