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
Applicants’ election of Group I (claims 1-5, 9, and 10) in the reply filed on May 21, 2026 is acknowledged. Because the applicants 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)).
Drawings
Figure 2 should be designated by a legend such as --Prior Art-- because only that which is old is illustrated (in this instance, paragraph [35] of applicants’ specification describes Figure 2 as being from “Comparative Example 1”). See MPEP § 608.02(g). Corrected drawings in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per 37 CFR 1.84(c)) so as not to obstruct any portion of the drawing figures. If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to because both Figures 1 and 2 appear to be photocopies that do not show distinguishing features in the transmission electron microscope-energy dispersive X-ray spectroscopy (TEM-EDS) mapping images (in referring to paragraphs [34] and [35] of applicants’ specification). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
In this instance, the amended abstract (on page 6 of the preliminary amendment of September 25, 2023) recites the phrase that can be implied “of the present invention” in the 4th line.
The use of the term “Ketjen black”, which is a trade name or a mark used in commerce, has been noted in this application (see paragraphs [128] and [143] of the specification). The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term. Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Rejections - 35 USC § 102/103
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.
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.
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.
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.
Claims 1-5, 9, and 10 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Kwon et al. (US 2018/0108940), cited in the Information Disclosure Statement dated September 25, 2023.
Regarding independent claim 1, as well as claims 9 and 10, Kwon et al. disclose a positive electrode active material of a positive electrode for use in a lithium secondary battery (see abstract; paragraphs [0048]-[0058], [0061], [0062], [0066]-[0072], and [0075]; TABLE 1; Examples 1-3; Experimental Example 1; and Figure 1), in which the positive electrode active material (10) comprises the following structural features:
a core portion (1) including a lithium transition metal oxide, wherein a mole ratio of nickel (Ni) in total transition metals is 80 mol% or more (see TABLE 1 and Example 1, including 90 mol% nickel sulfate mixed with 5 mol% each of cobalt sulfate and manganese sulfate); and
a layer-structured shell portion formed on the core portion and including a lithium transition metal oxide, wherein a molar ratio of manganese (Mn) in the total transition metals is 30 mol% or more (see TABLE 1 and Example 1, including 50 mol% nickel sulfate mixed with 20 mol% cobalt sulfate and 30 mol% manganese sulfate).
Since Kwon et al. disclose that the thickness of the shell portion is in a range of 0.1 µm (100 nm) to 1 µm (1,000nm), which is entirely within the claimed range of 100 nm to 600 nm (see paragraph [0058] – as also applied to applicants’ claim 2), as well as that the average particle diameter (D50) of the positive electrode active material is in a range of 3 µm to 50 µm, which is entirely within the claimed range of 1 µm to 100 µm (see paragraph [0075] – as also applied to applicants’ claim 3), the positive electrode active material (10) of Kwon et al. would satisfy equation 1 below (among a portion of the claimed ranges of shell portion thickness (in µm) and positive electrode active material average particle diameter (D50)):
0.005 ≤ thickness of the shell portion (µm) / average particle diameter (D50) of the positive active electrode active material (µm) ≤ 0.15
For example, Kwon et al. disclose an average particle diameter (D50) of 11.5 µm and a shell portion thickness of 0.1 µm (see Experimental Example 1 of Kwon et al.), which results in a value of 0.0086, thus falling within the claimed range of 0.005 to 0.15.
With regard to the ranges of shell portion thickness (in µm) and positive electrode active material average particle diameter (D50), these ranges would be anticipated and/or obvious since these ranges would be readily contemplated by one of ordinary skill in the art. In this instance, one of ordinary skill in the art would have recognized the obviousness of the ranges in view of Kwon et al., as set forth in MPEP 2144.05. “In the case where 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Moreover, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (1980).
Regarding claim 2, Kwon et al. disclose that the thickness of the shell portion is in a range of 0.1 µm (100 nm) to 1 µm (1,000nm), which is entirely within the claimed range of 100 nm to 600 nm (see paragraph [0058]).
Regarding claim 3, Kwon et al. disclose that the average particle diameter (D50) of the positive electrode active material is in a range of 3 µm to 50 µm, which is entirely within the claimed range of 1 µm to 100 µm (see paragraph [0075]).
Regarding claim 4, Kwon et al. disclose the features of independent claim 1, including that the lithium transition metal oxide of the core portion (1) includes a lithium transition metal oxide, wherein a mole ratio of nickel (Ni) in total transition metals is 80 mol% or more (see TABLE 1 and Example 1, including 90 mol% nickel sulfate mixed with 5 mol% each of cobalt sulfate and manganese sulfate). Although Kwon et al. disclose a combination of the elements lithium, oxygen (oxide), nickel, cobalt, and manganese, Kwon et al. do not explicitly disclose Formula 1 as follows:
Lix1[NiaCobM1c]O2
In this instance, M1 would represent Mn, as also disclosed by Kwon et al., and thus the formula of 90:5:5 above (see TABLE 1 and Example 1) is to be represented as Li[Ni0.9Co0.05Mn0.05]O2
As a result, the claimed ranges of 0.9≤x1≤1.1, 0.8≤a≤1, 0≤b≤0.2, 0≤c≤0.2, and a+b+c=1 would be met and/or would have significant overlap in a portion of the embodiments.
With regard to the ranges of the elements lithium, oxygen (oxide), nickel, cobalt, and manganese in Formula 1 above, these ranges would be anticipated and/or obvious since these ranges would be readily contemplated by one of ordinary skill in the art. In this instance, one of ordinary skill in the art would have recognized the obviousness of the ranges in view of Kwon et al., as set forth in MPEP 2144.05. “In the case where 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Moreover, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (1980).
Regarding claim 5, Kwon et al. disclose the features of independent claim 1, including that the layer-structured shell portion includes a lithium transition metal oxide, wherein a molar ratio of manganese (Mn) in the total transition metals is 30 mol% or more (see TABLE 1 and Example 1, including 50 mol% nickel sulfate mixed with 20 mol% cobalt sulfate and 30 mol% manganese sulfate). Although Kwon et al. disclose a combination of the elements lithium, oxygen (oxide), nickel, cobalt, and manganese, Kwon et al. do not explicitly disclose Formula 2 as follows:
Lix2[MndM2e]O2
In this instance, M2 would represent Ni, as also disclosed by Kwon et al., and thus the formula of 50:30:20 above (see TABLE 1 and Example 1) is represented as
Li[Ni0.5Co0.2Mn0.3]O2
Moreover, the disclosure of cobalt (Co) in Kwon et al. in the above formula does not preclude that it cannot be present in combination, since not only is open-ended “comprising” language present in applicants’ claim 5, but M2 could also be represented by a combination of both Ni and Co.
As a result, the claimed ranges of 0.9≤x2≤1.1, 0.3≤d≤1, 0≤e≤0.7, and d+e=1 would be met and/or would have significant overlap in a portion of the embodiments.
With regard to the ranges of the elements lithium, oxygen (oxide), nickel, cobalt, and manganese in Formula 2 above, these ranges would be anticipated and/or obvious since these ranges would be readily contemplated by one of ordinary skill in the art. In this instance, one of ordinary skill in the art would have recognized the obviousness of the ranges in view of Kwon et al., as set forth in MPEP 2144.05. “In the case where 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Moreover, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (1980).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN P KERNS whose telephone number is (571)272-1178. The examiner can normally be reached Monday-Friday 8am-430pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Keith Walker can be reached at (571)272-3458. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KEVIN P KERNS/Primary Examiner, Art Unit 1735 June 23, 2026
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