DETAILED OFFICIAL 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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Japan on 07/21/2022. It is noted, however, that applicant has not filed a certified copy of the JP 2022/116510 application as required by 37 CFR 1.55 – an attempt by the Office to electronically retrieve the foreign application under the priority document exchange program was made on 21 December 2023 but failed.
Appropriate action is required.
Examiner Note
It is noted that all references hereinafter to Applicant’s specification are to the published application US 2024/0030432 A1, unless stated otherwise. Further, it is noted that italicized text in parentheses recited in any rejection under 35 U.S.C. 103 indicates the element of the claimed invention to which the preceding prior art element corresponds. Additionally, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Response to Amendments and Arguments
Applicant’s Remarks and amendments filed on 17 April 2026 in response to the Non-Final Rejection dated 18 February 2026 (hereinafter "NFOA") have been fully considered and entered, respectively. Claims 2-3 have been canceled, claim 1 has been amended, and claim 6-7 remain withdrawn. As such, claims 1 and 4-5 remain pending and under consideration on the merits.
Applicant argues on Pages 4-10 of the Remarks, directed to the rejection of claims 1-5 under 35 U.S.C. 102(a)(1) and/or 103 as being anticipated by and/or obvious over Fukui, that (A) Fukui fails to teach, and affirmatively teaches away from a High-Nickel Composition (0.5≤x<1) of newly amended claim 1, (B) Applicant's own experimental data conclusively rebuts the prima facie inherency argument, and that Fukui's cooling rate cannot produce the claimed half-value width range of 54-65, (C) Fukui's inventive concept is fundamentally different and incompatible with the claimed invention, and (D) Fukui does not disclose, suggest, or render obvious the specific TEM measurement conditions recited in newly amended claim 1.
However, Applicant’s arguments are moot, as the 35 U.S.C. 102(a)(1) and/or 103 rejection over Fukui previously set forth in the NFOA is overcome and hereby withdrawn as a result of the amendments to claim 1.
New grounds of rejection are set forth below, necessitated by the amendments to the claims and made in view of newly cited prior art identified as a result of additional search and consideration completed by the undersigned Examiner.
Specification
The disclosure is objected to because of the following informalities: “in the above formula (2), x, y, z, a satisfies…” and “in the above formula (3), x, y, z, a satisfies…” (see Applicant’s specification ¶0051-0052). There is no variable “z” in either formula (2) or formula (3). In order to overcome the objection, the following amendment is respectfully suggested: “in the above formula (2), x, y, [[z,]] and a [[satisfies]] satisfy…” and “in the above formula (3), x, y, [[z,]] and a [[satisfies]] satisfy…”
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informality:
Regarding claim 1, “…captured at a magnification of 50,000, a histogram plots a brightness on a scale…and the pixel frequency on the vertical axis” constitutes a grammatical and/or typographical error, which hinders the readability of the claim. In order to overcome the objection, the following amendment is respectfully suggested: “…captured at a magnification of 50,000, a histogram of luminance plots a brightness on a scale…and [[the]] pixel frequency on the vertical axis.”
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 and 4-5 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.
Regarding claim 1, “wherein x, y, z, a satisfies…” renders the claim indefinite. There is no variable “z” in formula (2) of claim 1. Therefore, it is unclear what element or feature is intended to be limited by the z variable and/or what z denotes. For the purposes of examination, claim 1 is interpreted as instead reciting: “wherein x, y, [[z,]] and a [[satisfies]] satisfy… .”
Regarding claim 1, “…a maximum pixel frequency value appears within the range of 55 to 127 of the gradation” renders the claim indefinite. The term “the gradation” of the phrase “within the range of 55 to 127 of the gradation” lacks sufficient antecedent basis, as there is no introduction/recitation of a gradation in claim 1. Given (i) that the horizontal axis of the histogram is brightness ranging from 0 to 255, and (ii) that the maximum pixel frequency – plotted on the vertical axis of the histogram – appears within a brightness range of 55 to 127, it is unclear which element or aspect of claim 1 is being limited, or is intended to be limited, by the term “the gradation”. For the purposes of examination, claim 1 is interpreted as instead reciting: “…a maximum pixel frequency value appears within the brightness range of 55 to 127 .”
Claims 4-5 are indefinite and rejected under 35 U.S.C. 112(b) as they are directly or ultimately dependent upon claim 1 and therefore include, and do not remedy the aforementioned deficiencies.
Appropriate action is required.
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 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Toma et al. (US 2019/0372119 A1; “Toma”).
Regarding claim 1, Toma discloses a non-aqueous electrolyte secondary battery comprising a positive electrode [0024], of which further comprises positive electrode active material (a positive electrode active material) made of a lithium transition metal-containing composite oxide (lithium-containing layered transition metal oxide) [0017, 0042] in the form of aggregated primary particles (primary particle) to form secondary particles (secondary particle) [0017, 0040, 0042], wherein the secondary particles have an average particle size between 1-15 μm [0044-0046], thereby reducing the positive electrode resistance by shortening the moving distance of the lithium ions between the positive electrode and negative electrode [0006].
The lithium transition metal-containing composite oxide has a composition represented by the following: Li1+uNixMnyCozMtO2, wherein -0.05≤u≤0.50, x+y+z+t=1, 0.3≤x≤0.7, 0.05≤y≤0.55, 0≤z≤0.55, 0≤t≤0.1, and M is one or more of, inter alia Al [0004, 0072], and each and every elemental content range overlaps with their corresponding claimed elemental content range, thereby rendering each range obvious (MPEP 2144.05(I)).
Toma remains silent regarding in a bright field image by transmission electron microscopy captured at a magnification of 50,000, a histogram of luminance plots a brightness on a scale of 0 to 255 on the horizontal axis and pixel frequency on the vertical axis;
the histogram of luminance of the primary particle has a peak; the peak is unimodal and
the peak has a half-value width of 54 or more and 65 or less; and
the transmission electron microscopy imaging conditions and image contrast are adjusted such that a maximum pixel frequency value appears within the brightness range of 55 to 127, and the histogram is normalized such that a maximum pixel frequency value becomes 1 (see claim objection interpretation and 112(b) claim interpretation above).
However, Toma discloses a method of preparing the lithium transition metal-containing composite oxide, wherein the precursors are first mixed [0158, 0165-0169]. Then, optionally, a pre-calcination step may be performed to temporarily calcine the lithium mixture at a lower temperature than the calcination temperature, that is 350-800°C for 1-10 hours [0158, 0170-0172]. Then a calcination step is performed, to obtain the positive electrode active material [0173-0174], at temperature of 650-1,000°C for 2-24 hours [0181-0185].
Afterwards, a cooling step is performed to bring the temperature down to at least 200°C, at a cooling rate of preferably 33°C/minute to 77°C/minute [0186]. By controlling the cooling rate to be within such ranges, it becomes possible to protect facilities such as a sagger from damage caused by quenching while securing productivity [0186].
Lastly, a crushing step is performed to adjust and control the average particle size and particle size distribution of the obtained positive electrode active material [0189-0190], wherein the secondary particles have an average particle size between 1-15 μm [0044-0046].
The lithium transition metal-containing composite oxide of Toma is substantially identical or identical to the claimed and disclosed lithium-containing layered transition metal oxide in Applicant's Specification in terms of comprising:
(i) the composition represented by the following: Li1+uNixMnyCozMtO2, wherein -0.05≤u≤0.50, x+y+z+t=1, 0.3≤x≤0.7, 0.05≤y≤0.55, 0≤z≤0.55, 0≤t≤0.1, and M is one or more of, inter alia Al, wherein each and every elemental content range overlaps with their corresponding claimed and disclosed elemental content range [newly amended claim 1, 0051], wherein
(ii) the composition in the form of aggregated primary particles, thereby forming secondary particles, of which corresponds to the claimed and disclosed primary and secondary particles [newly amended claim 1, 0007] and wherein
(iii) the secondary particles having an average particle size between 1-15 μm, of which is within and corresponds to the disclosed secondary particle D50 range [0044].
(iv) The secondary particles having an average particle size between the above range, allows for reduced positive electrode resistance, as explicitly taught as an objective by Toma, and corresponds to Applicant’s disclosed objective [0005].
(v) A method of preparing the composition, including a mixing step, of the precursors, of which corresponds to Applicant’s disclosed method of preparing the precursors [0055-0058],
(vi) a next step of calcination, performed at temperature of 650-1,000°C for 2-24 hours, of which each of the temperature and duration ranges overlap with their corresponding disclosed ranges [0059],
(vii) a next step of cooling, performed at a cooling rate of preferably 33°C/minute to 77°C/minute, of which overlaps and corresponds with the disclosed cooling rate range [0063], and
(viii) a last step of crushing, in order to adjust and control the average particle size and particle size distribution of the obtained positive electrode active material, of which corresponds to the disclosed step of crushing [0061-0062],
Given that the positive electrode active material of Toma is substantially identical or identical to the claimed and disclosed positive electrode active material in terms of the foregoing elements (i)-(viii), it stands to reason, and there is a strong expectation, that the positive electrode active material of Toma would have necessarily exhibited a peak half-value width of 54 or more and 65 or less, as defined by claim 1, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 4, the rejection of claim 1 above reads on the positive electrode defined by claim 4.
Regarding claim 5, in view of the rejection of claim 4 above, the rejection of claim 1 above reads on the lithium ion battery defined by claim 5.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR l.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR l.17(a)) pursuant to 37 CFR l.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA X. COLTON whose telephone number is (571)272-2210. The examiner can normally be reached Monday-Friday 8AM-5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Aaron Austin can be reached at (571)272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNA X. COLTON/Examiner, Art Unit 1782
/AARON AUSTIN/Supervisory Patent Examiner, Art Unit 1782
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