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 .
Claims 1-6 are pending in the application.
REJECTIONS
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.
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Claims 1, 2, and 4-6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of copending application No. 18/313,375 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because application '375 claims similar positive electrode active material.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claims 1 and 5, application '375 claims a nonaqueous electrolyte secondary battery comprising a positive electrode, a negative electrode, and a nonaqueous electrolyte, wherein the positive electrode includes (positive electrode upper layer) an active material including a Ni content lithium complex oxide containing 70 mol% or more of nickel relative to a total of metal elements other than lithium, and a boron element attached to the Ni content lithium complex oxide, wherein the Ni content lithium complex oxide is a secondary particle in which primary particles are aggregated and has a porosity of 2% or more and 10% or less, in the Ni content lithium complex oxide, a larger space than an average cross- sectional area of the primary particles does not exist inside the secondary particle in a cross- sectional observation image observed with an electron microscope, and the boron element is contained by 0.5 mol% or more and 3 mol% or less when a total of metal elements of the Ni content lithium complex oxide is 100 mol% (claims 1 and 2).
Regarding claim 2, application '375 claims wherein the boron element exists on a surface of the primary particle inside the secondary particle (claims 2 and 3).
Regarding claim 4, application '375 claims wherein the Ni content lithium complex oxide is a lithium-nickel-cobalt-manganese complex oxide (claim 5).
Regarding claim 6, application '375 claims a manufacturing method for a positive electrode (positive electrode upper layer) active material including a Ni content lithium complex oxide containing 70 mol% or more of nickel relative to a total of metal elements other than lithium, and a boron element attached to the Ni content lithium complex oxide, the manufacturing method comprising: a base material preparing step of preparing the Ni content lithium complex oxide as a base material, the Ni content lithium complex oxide being a secondary particle in which primary particles are aggregated, having a porosity of 2% or more and 10% or less, and excluding a larger space than an average cross-sectional area of the primary particles inside the secondary particle in a cross-sectional observation image observed with an electron microscope; and a boron introducing step of introducing the boron element into the space inside the secondary particle of the base material so that the boron element is contained by 0.5 mol% or more and 3 mol% or less when a total of metal elements of the Ni content lithium complex oxide is 100 mol% (claims 1, 2 and 3).
Claim 3 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of copending Application No. 18/313,375 in view of Takahashi et al. (U.S. PG Pub 2022/0367852 A1). It is an obvious type double patenting as the Ni content lithium complex oxide is the same material as the second Ni content lithium complex oxide as claimed in the application ’375 (claims 1 and 2).
This is a provisional nonstatutory double patenting rejection.
Application ’375 is relied upon above.
Application ’375 fails to claim the positive electrode active material has a compressive strength of 200 MPa or more.
Takahashi discloses a nonaqueous electrolyte secondary battery (Ref. #10, figure 1) comprising a positive electrode, a negative electrode, and a nonaqueous electrolyte (para. 0009). The positive electrode includes an active material comprising a Ni content lithium complex oxide (lithium-transition metal composite oxide A).
Takahashi discloses the lithium-transition metal composite oxide (A) which is a secondary particle formed by aggregated primary particles and contains 65 mol% or more of nickel relative to a total of metal elements other than lithium (para. 0009). The compressive strength of the composite oxide (A) is 250 MPa or higher, which inhibits particle cracking due to charge and discharge. Resulting in contribution to improvement in the cycle characteristics at high temperature (para. [0034]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have the positive electrode active material of application ‘375 have a compressive strength of 250 MPa or higher as shown by composite oxide (A) Takahashi. One of ordinary skill in the art would have been motivated to have the positive electrode active material of application ‘375 have a compressive strength of 250 MPa or higher in order to inhibit particle cracking due to charge and discharge.
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.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Takahashi et al. (U.S. PG Pub 2022/0367852 A1) in view of Kim et al. (U.S. PG Pub 2018/0151876).
Regarding claim 1, 2, 5 and 6, Takahashi et al. discloses a nonaqueous electrolyte secondary battery (ref. #10, figure 1) comprising a positive electrode, a negative electrode, and a nonaqueous electrolyte (para. 0009). The positive electrode includes an active material comprising a Ni content lithium complex oxide (lithium-transition metal composite oxide B) and a boron element on the surface (para. 0009).
The positive electrode is made by preparing the Ni content lithium complex oxide as a base material, such that the Ni content lithium complex oxide is a secondary particle formed by aggregated primary particles and contains 70 mol% or more of nickel relative to a total of metal elements other than lithium (para. 0009).
The method of making the positive electrode further includes a step of introducing the boron element into the space inside the secondary particle of the base material, since Takahashi et al. discloses that part of the boron may also be present on the surface of the primary particles (para. 0039) which are inside the secondary particle.
In example 1, Takahashi et al. teaches that the molar ratio between Li and the total amount of Ni, Co, and Mn is 1.08:1, and the molar ratio between the total amount of Ni, Co, and Mn and B is 100:1.5 (para. 0067, 0071 and 0072). Thus, the positive electrode contains 0.7 mol% of the boron element when the total of metal elements of the Ni content lithium complex oxide is 100 mol%.
Takahashi et al. fails to disclose the Ni content lithium complex oxide secondary particle has a porosity of 2% or more and 10% or less or that a larger space than an average cross- sectional area of the primary particles does not exist inside the secondary particle.
Kim et al. discloses a nonaqueous electrolyte secondary battery (lithium secondary battery, ref. #20, figure 2) comprising a positive electrode, a negative electrode, and a nonaqueous electrolyte (para. 0087). The positive electrode includes an active material comprising a Ni content lithium complex oxide. The Ni content lithium complex oxide is a secondary particle formed by aggregated primary particles (para. 0005) and contains about 33-95 mol% of nickel relative to a total of metal elements other than lithium (para. 0054).
Kim et al. discloses that the porosity in the interior of the secondary particle is 10% or less and the pore size is less than 200 nm, which increases particle density (para. 0033-0035) and suppresses cracking (para. 0058).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have a porosity of 10% or less and a pore size of 200 nm or less in the secondary particle of Takahashi et al. as taught by Kim et al. One of ordinary skill in the art would have been motivated to modify porosity of Takahashi et al. in order to increase particle density, particle strength, and make it more resistant to cracking.
Takahashi et al. further discloses that the primary particles of composite oxide (B) have a diameter of 0.3 µm or smaller (para. 0009). Therefore, since the combination of Takahashi et al. and Kim et al. teach that the pore sizes are smaller than the diameter of the primary particles, a larger space than an average cross- sectional area of the primary particles will not exist inside the secondary particle.
Regarding claim 3, Takahashi et al. fails to disclose that the lithium-transition metal composite oxide (B) has a compressive strength is 200 MPa or more.
Takahashi et al. further discloses a lithium-transition metal composite oxide (A) which is also a secondary particle formed by aggregated primary particles and contains 65 mol% or more of nickel relative to a total of metal elements other than lithium (para. 0009). The compressive strength of the composite oxide (A) is 250 MPa or higher, which inhibits particle cracking due to charge and discharge. Resulting in contribution to improvement in the cycle characteristics at high temperature (para. 0034).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have the composite oxide (B) of Takahashi et al have a compressive strength of 250 MPa or higher as shown by composite oxide (A) Takahashi et al. One of ordinary skill in the art would have been motivated to have composite oxide (B) of Takahashi et al. have a compressive strength of 250 MPa or higher in order to inhibit particle cracking due to charge and discharge.
Regarding claim 4, Takahashi et al. discloses the Ni content lithium complex oxide is a lithium-nickel-cobalt-manganese complex oxide (para. 0067).
Conclusion
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/I.M./
Iswarya MathewExaminer, Art Unit 1788
01/30/2026
/Alicia Chevalier/Supervisory Patent Examiner, Art Unit 1788