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 Claims 1-9 in the reply filed on 12/03/2025 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)).
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 104409716.
Regarding claim 1, CN ‘716 teaches a process of making a nickel-lithium ion battery cathode material (Abstract). The material may be made from combining a nickel-cobalt-manganese hydroxide ternary precursor with a lithium source (Examples). The precursor is formed by co-precipitation of a nickel, cobalt, and manganese salts and then treated with ammonia to form a hydroxide ternary precursor, the precursor is in the form of a core and shell particle (Specification, Examples, Claim 5). This preparation method is substantially similar to the precipitation method of making described in the instant specification (Paragraph [0018]).
CN ‘716 does not expressly state the ternary precursor has a deformation stacking fault probability <= 2.5% according to the formula recited in instant claim 1. However, “the discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004). See MPEP 2112. The products are substantially similar because they are made by similar methods.
Regarding claim 2 and 5, the diameter of the core may be for example 5 microns (Contents of the Invention) and the thickness of the shell may be 5 microns (Contents of the Invention), which would result is a particle size of about 10 microns which is within the range of median particle size required in instant claim 5.
Regarding claim 3, the mole ratio of Ni:Co:Mn for the core may be 0.8:0.1:0.1 (Contents of Invention). CN ‘716 teaches a shell with a content of nickel lower than the nickel content of the core (Contents of the Invention). It is noted that the scope of claim 3 includes core-shell particles wherein the core and shell have the same composition (See the formulas of instant claim 3). Therefore, the product of CN ‘716 meets claim 3 because the core of CN ‘716 may be considered to have “a shell” in the outer most region of the core having the same composition.
Regarding claims 4, 6, 7, and 8, CN ‘716 does not expressly state the volume distribution span of claim 4, the surface area of claim 6, the tap density of claim 7, nor the cracking rate of claim 8. However, “the discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004). See MPEP 2112. The products are substantially similar because they are made by similar methods.
Regarding claim 9, the precursor material may also include aluminum (Examples).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES A FIORITO whose telephone number is (571)272-9921. The examiner can normally be reached Monday-Friday 9AM-5PM.
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/JAMES A FIORITO/Primary Examiner, Art Unit 1731