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 .
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 04/03/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
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 1-9, 11, 13, and 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Shin et al. (US 20200259180 A1), hereinafter "Shin" in view of Kim et al. (US 20210005877 A1), hereinafter "Kim" . Shin and Kim are analogous prior art to the claimed invention because they pertain to the same field of endeavor, namely electrode material layers.
In regard to Claims 1-3, 5-9 and 11 Shin et al. discloses a solvent-free dry electrode which is a free-standing film comprising a dry electrode active material, a dry fibrillized binder comprising a fluorine based PTFE and a carbon based conductive additive (Shin, Abstract, [0045, 0051], Table 4). Shin et al. also discloses wherein the dry electrode active material comprises a first electrode active material and a second electrode active material (Shin, [0006]) and wherein the dry electrode film further comprises a sacrificial electrode material as a dry prelithiating layer comprising lithium (Shin, [0005]). While Shin et al. discloses that certain embodiments provide the first and second active materials with some variation in characteristics between them (Shin, [0007]) as well as lithium metal oxides as a preferred choice of active material for a positive electrode (Shin, [0056]), it is silent as to the ratio of the particle diameter between them.
Kim et al. discloses an electrode film comprising a bimodal lithium transition metal oxide based powder mixture comprising first and second dry powder active materials comprising a bimodal particle diameter distribution wherein the particle diameter of one of the active materials is in a preferred range of 10-40μm and the particle diameter of the other active material is between 2 and 4 μm (Kim, Abstract, [0015]), which overlaps the claimed ranges and a specific example which would have a ratio (d1/d2) of 2.75 (Kim, EX2 Type 1), which anticipates the claimed range. Kim et al. further discloses the weight ratio of the second powder is between 20 and 60 wt% (Kim, Abstract), which overlaps the claimed range. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the current invention to have selected the overlapping portion of the ranges disclosed by the reference, as overlapping ranges have been held to be a prima facie case of obvious. 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). See MPEP § 2144.05.
In regard to Claim 4, Shin in view of Kim et al. discloses the dry electrode film of claim 1. While Shin et al. discloses that certain embodiments provide the first and second active materials with some variation in characteristics between them (Shin, [0007]) as well as lithium metal oxides as a preferred choice of active material for a positive electrode (Shin, [0056]), it is silent as to the ratio of the particle diameter between them.
Kim et al. discloses an electrode film comprising a bimodal lithium transition metal oxide based powder mixture comprising first and second dry powder active materials comprising a bimodal particle diameter distribution wherein the particle diameter of one of the active materials is in a preferred range of 10-40μm and the particle diameter of the other active material is between 2 and 4 μm (Kim, Abstract, [0015]), which overlaps the claimed ranges and a specific example which would have a ratio (d1/d2) of 2.75 (Kim, EX2 Type 1).
While Shin in view of Kim does not specifically address the limitations in regard to a full width at half maximum (FWHM) of the first particle diameter peak is about 7 μm or less, a full width at half maximum (FWHM) of the second particle diameter peak is about 3 μm or less, and the full width at half maximum (FWHM) of the first particle diameter peak is greater than the full width at half maximum (FWHM) of the second particle diameter peak, Shin in view of Kim teaches the method steps and structure, which are the same as those instantly claimed in claims 1-3, absent any clear and convincing evidence and/or arguments to the contrary.
The examiner notes no special methods are apparent in the instant disclosure that would make any properties of the underlying components and structures unique. As a prima facia case of obviousness has been set forth on the record, and because the USPTO does not possess the laboratory facilities to test and compare the prior art to the claimed invention, the burden shifts to applicant to demonstrate otherwise. Further, PHOSITA at the time of filing would have readily known of the availability and use of FWHM techniques and would have the ability to optimize these values of necessary.
In regard to Claim 13, Shin in view of Kim et al. discloses the dry electrode film of claim 1. Shin et al. also discloses an electrode comprising: an electrode current collector; and an electrode active material layer on at least one surface of the electrode current collector, wherein the electrode active material layer comprises the dry electrode film according to claim 1 (Shin, ([0009]).
In regard to Claims 15-16, Shin in view of Kim et al. discloses the dry electrode film of claim 13. Shin et al. also discloses wherein the electrode current collector comprises an interlayer on the at least one surface of the electrode current collector wherein the layer comprises a carbon-based conductive material (Shin, [0076] Carbon-coated current collector) and wherein a conductive binder may be used to provide adhesion of the film to the current collector (Shim, [0009, 0065]) and the binder may include PTFE, PVDF or others well known to the skilled artisan (Shin, [0122]).
In regard to Claims 17-18, Shin in view of Kim et al. discloses the dry electrode film of claim 13. In regard to the following limitations:
“the electrode active material layer, when measured by using the surface and interfacial measuring analysis system (SAICAS), a rate of change of vertical relative force (FVR) according to a depth, from a first point to a second point is about 300 % or less, and wherein the first point is separated about 5 % from the surface of the electrode active material layer in the direction of the electrode current collector, and the second point is separated about 5 % from the surface of the electrode current collector, with respect to the total thickness of the electrode active material layer and the electrode active material layer, when measured by using the surface and interfacial measuring analysis system (SAICAS), a ratio of a second horizontal force (FH2) at a second point to a first horizontal force (FH1) at a first point is about 50 % or more, and wherein the first point is separated about 10 % from the surface of the electrode active material layer, in the direction of the electrode current collector, and the second point is separated about 10 % from the surface of the electrode current collector, with respect to the total thickness of the electrode active material layer.”
Shin discloses the use of a fibrilized binder including PTFE [0051], lithium transition metal oxides for active materials (Shin, [0051]) with the particle diameter characteristics disclosed in Kim to form a solvent-free positive electrode film which is substantially similar to the current application (Original Specification, Example 1). While Shin in view of Kim does not specifically address the limitations in regard to the SAICAS measured ratios, Shin in view of Kim teaches the method steps and structure, which are the same as those instantly claimed absent any clear and convincing evidence and/or arguments to the contrary. Examiner notes no special methods are apparent in the instant disclosure that would make any properties of the underlying components and structures unique. As a prima facie case of obviousness has been set forth on the record, and because the USPTO does not possess the laboratory facilities to test and compare the prior art to the claimed invention, the burden shifts to applicant to demonstrate otherwise. Therefore, a PHOSITA at the time of filing would have readily known of and could readily envision the use of a dry electrode film that has the same binding force and uniformity behavior.
In regard to Claims 19-20, Shin in view of Kim et al. discloses the dry electrode film of claim 13. Sin et al. also discloses a lithium battery comprising: a positive electrode; a negative electrode; and an electrolyte arranged between the positive electrode and the negative electrode, and at least one of the positive electrode or the negative electrode is the electrode according to claim 13 wherein the electrolyte is a liquid electrolyte or a solid electrolyte (Shin, [0043, 0060, 0119]).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Shin et al. (US 20200259180 A1), hereinafter "Shin" in view of Kim et al. (US 20210005877 A1), hereinafter "Kim" as applied to claim 1 above and further in view of Mitchell et al. (US 20050266298 A1), hereinafter "Mitchell" . Shin, Kim and Mitchell are analogous prior art to the claimed invention because they pertain to the same field of endeavor, namely electrode material layers.
In regard to Claim 10, Shin in view of Kim et al. discloses the dry electrode film of claim 1. While Shin et al. discloses a “self-supporting” electrode film can have sufficient strength to be rolled, handled, and unrolled within an electrode fabrication process without other supporting elements (Shin, [0044]), it is silent as to the tensile strength of the film.
Mitchell et al. discloses a dry electrode film wherein the tensile strength can be optimized based on both the degree of fibrillization of the fibrillizable binder, and the consistency of the fibril lattice formed by the binder within the material (Mitchell, [0019]) and discloses specific examples where the tensile strength using the data available would be greater than 500 kPa (Mitchell, Tables 2-3, Exp 2-3, 5-8). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide a dry electrode film comprising a tensile strength optimized by the skilled artisan as taught in Mitchell et al. to achieve the desired results for a free standing dry electrode as disclosed in Shin et al. as doing so would give the skilled artisan the reasonable expectation of success and as doing so would amount to nothing more than the use of known technique to improve similar devices (methods, or products) in the same way.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Shin et al. (US 20200259180 A1), hereinafter "Shin" in view of Kim et al. (US 20210005877 A1), hereinafter "Kim" as applied to claim 1 above and further in view of Wang et al.(US 20200227723 A1), hereinafter "Wang" . Shin, Kim and Wang are analogous prior art to the claimed invention because they pertain to the same field of endeavor, namely electrode material layers.
In regard to Claim 12, Shin in view of Kim et al. discloses the dry electrode film of claim 1. While Shin et al. discloses a sacrificial electrode material wherein the dry electrode film further comprises a dry prelithiating layer comprising lithium (Shin, [0005]) it fails to explicitly disclose wherein the sacrificial electrode material comprises Li2O, Li2O2, Li2S, Li3N, LiN3, LiF, Li5FeO4, Li2NiO2, Li6CO4, Li2MoO, or one or more combinations thereof.
Wang et al. discloses a dry electrode film further comprising a sacrificial electrode material selected from a preferred list comprising Li2O, Li2O2, Li2S, Li3N, LiN3, LiF, Li5FeO4, Li2NiO2, Li6CO4, Li2MoO, or one or more combinations thereof wherein these materials may also produce a beneficial byproduct in addition to lithiating an electrode and wherein lithium ions are then able to be solvated by the electrolyte of the device (Wang, [0062-0063]). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide a prelithiating material (sacrificial electrode material) to the dry film as disclosed in Shin et al. while utilizing the preferred compounds of Wang et al. as doing so would give the skilled artisan the reasonable expectation of achieving the benefits taught in Wang et al. and as doing so would amount to nothing more than a simple substitution of one known element for another to yield predictable results.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Shin et al. (US 20200259180 A1), hereinafter "Shin" in view of Kim et al. (US 20210005877 A1), hereinafter "Kim" as applied to claim 1 above and further in view of Tikhonov et al. (US 20120121991 A1), hereinafter "Tikhonov". Shin, Kim and Tikhonov are analogous prior art to the claimed invention because they pertain to the same field of endeavor, namely electrode material layers.
In regard to Claim 14, Shin in view of Kim et al. discloses the dry electrode film of claim 13. Shin et al. also discloses wherein the electrode current collector comprises an interlayer on the at least one surface of the electrode current collector wherein the layer comprises a carbon-based conductive material (Shin, [0076] Carbon-coated current collector), however, Shin is silent as to the thickness of the layer based on the thickness of the current collector. The skilled artisan of Shin et al. must provide the current collector and interlayer in some thickness and would reasonably include a layer whose thickness is 30% or less the thickness of the current collector.
Additionally, Tikhonov et al. discloses specific examples of a carbon coated current collector wherein the thickness of the layer is 4.2-4.7% and 8.3-8.9% the thickness of the current collector (Tikhonov, [0125, 0130])), which anticipates the claimed range. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the current invention to provide an interlayer comprising a carbon coating on a current collector as disclosed in Shin in the thickness taught in Tikhonov as doing so would give the skilled artisan the reasonable expectation of success and as doing so would amount to nothing more than a variation of it for use in the same field based on design incentives or other market forces, as the variations are predictable to one of ordinary skill in the art.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 7, 9 and 14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 8, and 10 of copending Application No. 17/653739 (reference application 1). Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1-3, 8-10 of the reference application comprise all of the limitations of claims 1, 7, 9 and 14 of the current application and would result in an obvious variation to the skilled artisan.
Claims 1, 2, 5, 7-8, 15-16 and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 11-16 and 18 of copending Application No. 18/477451 (reference application 2). Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1, 3, 11-12 of the reference application comprise all of the limitations of claims 1 of the current application, claim 13 of the reference application corresponds to Claims 2 and 5 of the current application, claim 14 to claim 7, claim 15 to claim 8, claim 16 to claim 10 and claim 18 to claim 14 and would result in an obvious variation to the skilled artisan.
Claims 1-3, 5, 7, 10 and 14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 14-15, 17 and 19 of copending Application No. 18/615928 (reference application 3). Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1, and 14 of the reference application comprise all of the limitations of claims 1-3 and 5 of the current application, claim 15 of the reference application corresponds to Claims 7 of the current application, claim 17 to claim 10 and claim 19 to claim 14 and would result in an obvious variation to the skilled artisan.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KENNETH MAX OTERO whose telephone number is (571)272-2559. The examiner can normally be reached M-F Generally 7:30-430.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicole Buie-Hatcher can be reached at (571) 270-3879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/K.M.O./Examiner, Art Unit 1725
/JONATHAN CREPEAU/Primary Examiner, Art Unit 1725