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 .
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 5 and 6 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.
Claims 5 and 6 improperly recite the Markush group in the form of “selected from A, B and C”, which renders the claim indefinite because it is unclear which members of the group are part of the claimed invention. A proper Markush groups may be recited as "...selected from the group consisting of A, B and C" or "...selected from A, B or C." See MPEP § 2173.05(h).
Claim Rejections - 35 USC § 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.
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.
Claims 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0115648A1 (Hanazaki).
Regarding claims 1 and 9, Hanazaki teaches a secondary battery includes a positive electrode comprising a positive electrode active material layer, a negative electrode, and an electrolyte ([0009]), wherein the positive electrode active material layer comprises a first particle group consisting of a plurality of first positive electrode active material particles in the form of single particles, and a second particle group consisting of a plurality of second positive electrode active material particles in the form of secondary particles obtained by aggregation of primary particles ([0009], [0011] and Figure 3).
Hanazaki teaches each of the first positive electrode active material particle and the second positive electrode active material particle may independently include a metal oxide represented by the formula Li1-aNixMe1-xO2 ([0070]-[0072]), which meets the claimed lithium nickel based composite, wherein 0.7≤x≤1.0 ([0075]), which encompasses the claimed nickel content of 80 mol% or more.
One of ordinary skill in the art at the time the invention was made would have found it obvious to include nickel at the instantly claimed range since it has been held that in the case where the claimed ranges “overlap or lie inside range disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 f. 2d 257,191 USPQ 90(CCPA 1976). See MPEP 2144.05.I.
Hanazaki teaches “Me” in the formula Li1-aNixMe1-xO2 represents at least one selected from a group consisting of Co, Mn, Al, Zr, B, Mg, Fe, Cu, Zn, Sn, Ba, Sr, Ca, W, etc. ([0076]), which meets the claimed first positive active material and renders the claimed second positive active material obvious when Me comprises a combination of Co, Mn, Al, Zr and Mg.
Regarding claims 2-4, Hanazaki teaches in formula Li1-aNixMe1-xO2, 0.7≤x≤1.0 ([0072]-[0075]), thus 0≤1-x≤0.3, i.e., the content of each of the “Me”, i.e., Al, Zr and Mg is equal or less than 30 mol%, which encompasses each of the claimed content of Al, Zr, and Mg, respectively, and a prima facie case of obviousness exists. In re Wertheim, 541 f. 2d 257,191 USPQ 90(CCPA 1976). See MPEP 2144.05.I.
Regarding claim 5, Hanazaki teaches the first positive electrode active material particle may include a metal oxide represented by the formula Li1-aNixMe1-xO2 ([0070]-[0072]), wherein “Me” represents at least one selected from a group consisting of Co, Mn, Al, Zr, B, Mg, Fe, Cu, Zn, Sn, Ba, Sr, Ca, W, Mo, Nb, Ti, Si, V, Cr, and Ge([0076]), which renders the elements in the claimed formula 4 obvious when Me comprises a combination of Co, Mn, Al, Zr and Mg, and at least one of B, Fe, Cu, Ba, Sr, Ca, W, Mo, Nb, Ti, Si, V and Cr, which meets the claimed M6.
Hanazaki teaches in the formula Li1-aNixMe1-xO2, −0.3≤a≤0.3 ([0074]), thus 0.7≤1-a≤1.3, which encompasses the claimed a4; 0.7≤x≤1.0 ([0075]), which encompasses the claimed x4; thus 0≤1-x≤0.3, i.e., the content of each of the “Me”, i.e., Co, Mn, Al, Zr, Mg and M6 is equal or less than 30 mol%, which encompasses the claimed y4, z4, b4, c4, d4, respectively, and a prima facie case of obviousness exists. In re Wertheim, 541 f. 2d 257,191 USPQ 90(CCPA 1976). See MPEP 2144.05.I.
Regarding claim 6, Hanazaki teaches the second positive electrode active material particle may include a metal oxide represented by the formula Li1-aNixMe1-xO2 ([0070]-[0072]), wherein “Me” represents at least one selected from a group consisting of Co, Mn, Al, Zr, B, Mg, Fe, Cu, Zn, Sn, Ba, Sr, Ca, W, Mo, Nb, Ti, Si, V, Cr, and Ge([0076]), which renders the elements in the claimed formula 1 obvious when Me comprises at least one of Co, Mn, Al, Zr, B, Mg, Fe, Cu, Zn, Sn, Ba, Sr, Ca, W, Mo, Nb, Ti, Si, V and Cr, which meets the claims M1 and M2, respectively.
Hanazaki teaches in the formula Li1-a2NixMe1-xO2, −0.3≤a≤0.3 ([0074]), thus 0.7≤1-a≤1.3, which encompasses the claimed a1; 0.7≤x≤1.0 ([0075]), which encompasses the claimed x1; thus 0≤1-x≤0.3, i.e., the content of each of the “Me” is equal or less than 30 mol%, which encompasses the claimed y1, and a prima facie case of obviousness exists. In re Wertheim, 541 f. 2d 257,191 USPQ 90(CCPA 1976). See MPEP 2144.05.I.
Regarding claim 7, Hanazaki teaches the first positive electrode active material particles may have an average particle size of 1 μm to 5 μm ([0056]), which meets the claimed size of the second positive active material; and the second positive electrode active material particles may have an average particle size of 5 μm to 20 μm ([0064]-[0065]), which meets the claimed size of the first positive active material.
Regarding claim 8, Hanazaki teaches the first positive electrode active material particles may have a mass fraction of 10% to 30% with respect to the total of the first positive electrode active material particles and the second positive electrode active material particles ([0092]), which meets the claimed amount of the second positive active material, thus the second positive electrode active material particles have a mass fraction of 70 to 90 %, which meets the claimed amount of the first positive active material.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AIQUN LI whose telephone number is (571)270-7736. The examiner can normally be reached Monday-Friday 9:00 am -4:00 pm.
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/AIQUN LI/ Ph.D., Primary Examiner, Art Unit 1766