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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 21 July 2025 has been entered.
Response to Amendment
Applicant amended claim 1 and cancelled claim 7; claims 1, 3, 4 and 6 are pending and considered in the present Office action.
Applicant’s arguments are not persuasive for the reasons detailed below; the rejections are maintained.
Response to Arguments
In response to applicant's argument that Komori fails to suggest the surface portion consists of a rock-salt structure, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Further, 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In this case, applicant’s arguments are not persuasive because the modification of Komori with Yokoyama suggests the method to form the active material particles of formula 1 is the same as that claimed (including the oxygen concentration feature), thereby necessarily forming the claimed structure, and applicant has not shown the products of the prior art method (Komori as modified by Yokoyama) are different from that claimed. For example, applicant’s Comparative Example 3 is not persuasive in showing the structure of the prior art (Komori as modified by Yokoyama) is different from that claimed because Comparative Example 3 uses an oxygen atmosphere of 20%, while the combination of Komori with Yokoyama suggests an oxygen atmosphere of 100%.
Applicant argues there is no reason to combine Komori and Yokoyama because the oxygen value in Yokoyama was not related to any particular step of Yokoyama’s firing process, and Yokoyama’s temperatures (two step firing 400-600 °C and 700-780 °C) are substantially different from Komori (730-950 °C, 600-900 °C). These arguments are not persuasive.
First, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Further, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). See MPEP 2123.
Applicant’s comments relating to the two-stage firing method and temperature thereof in Yokoyama (i.e., 400-600 °C, 700-780 °C) are moot because this particular embodiment was not relied upon to reject the claims. Further, as will be detailed next, the number of firing stages disclosed in that particular embodiment Yokoyama would not prevent one of ordinary skill in that from appreciating the broader disclosure, which suggests an oxygen concentration of 100% in one or both firing stage of Komori is expected to improve the crystal structure/crystallinity of the lithium transition metal oxide particles of Komori, thereby making the use of an atmosphere of 100% oxygen obvious.
Yokoyama suggests the purpose of an oxidizing high temperature firing is to convert the precursors (i.e., “lithium mixture”, which includes lithium and metal hydroxide precursors) into the final lithium metal composite oxide particles. The firing temperature is selected between 700-900 °C to enable sufficient crystal growth of the lithium metal composite oxide particles, such that undeveloped and structurally unstable crystals, and decomposed or sintered particles are avoided, while appropriate surface area and porosity are obtained, see e.g., [0102-0104]. Moreover, the crystal growth of the particles is further controlled by the oxygen concentration during firing; specifically, Yokoyama suggests firing the lithium mixture in an atmosphere having an oxygen concentration of 100% improves the crystallinity of the lithium metal composite oxide particles in view of the improved reactivity between the lithium compound and metal oxide hydroxide compound, [0107]. In other words, when the firing step occurs between 700-900 °C, growth of the crystal is expected and necessary to form the crystal structure of the final particle; further, when the temperature is between 700-900 °C, the crystals are understood to grow and an oxidizing atmosphere having an oxygen concentration of 100% is expected to improve reactivity of the lithium compound and hydroxide precursor to produce particles of excellent crystallinity. Komori already discloses firing the lithium mixture in an oxygen atmosphere to form the lithium transition metal composite oxide particles having a crystal structure. One of ordinary skill in the art would appreciate the oxidizing atmosphere in the firing stages of Komori (i.e., first stage between 730-950 °C, or second stage between 600-900 °C) includes an oxygen concentration of 100%, with the understanding that the crystal growth which occurs during these firing stages is proceeding in a manner that allows improved reactivity between the lithium with metal hydroxide precursors, thereby producing lithium metal composite particles of excellent crystallinity.
Applicant argues it is unclear why the disclosed benefits of a certain oxygen atmosphere for Yokoyama’s process would be expected if used in Komori’s different process. As detailed above, the firing process in either reference involves the growth of lithium transition metal oxide crystals particles resulting from a reaction between lithium and metal composite hydroxide precursors; both references use an oxygen atmosphere to form the crystal particles. Yokoyama further explains the effect an oxygen atmosphere has on the crystal particle grown; specifically, higher concentrations of oxygen (100%) enable excellent crystallinity owing to the improved reactivity between the lithium and metal hydroxide precursors. Thus, one of ordinary skill in the art would appreciate Komori’s oxygen atmosphere, used during the firing process, has a high concentration of oxygen (i.e., 100 %) because there is an expectation of improved reactivity between the lithium compound and metal composite hydroxide precursors in Komori, leading to excellent crystallinity of the lithium metal composite oxide particles.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 3-4, and 6 is/are rejected under 35 U.S.C. 103 as obvious over Komori et al. (JP 2009-266712) in view of Yokoyama et al. (US 2019/0020023), hereinafter Komori and Yokoyama (both of record).
Regarding Claims 1, and 6, Komori suggests a method of preparing a positive electrode active material, the method comprising: mixing a positive electrode active material precursor (e.g., Ni/Co hydroxide particles, [0087], Ni/Co/(Mg, Mn, Sr, Al, etc.), [0108, 0115, 0025-0026]) with a lithium raw material (i.e., lithium hydroxide, [0088, 0109]) and performing a primary heat treatment (i.e., 850 °C, [0089], 880 °C, [0109]); and performing a secondary heat treatment (i.e., 750 °C, [0090, 0110]) for 2-12 hours (e.g., 5 hours, [0046, 0090, 0096]) at a temperature lower than that of the primary heat treatment to prepare a positive electrode active material, wherein the primary heat treatment and the secondary heat treatment are respectively performed in an oxygen atmosphere ([0042, 0046]). Komori performs the firing steps in an oxygen atmosphere does not explicitly state the concentration of oxygen 50% or more. However, Yokoyama suggests higher oxygen concentrations (i.e., 90% or more to 100%) improve the reactivity of lithium with the active material precursor (e.g., nickel composite hydroxide) and further improves reactivity to produce a lithium composite oxide of excellent crystallinity, see [0107]. It would be obvious to one having ordinary skill in the art the oxygen atmosphere of Komori has an oxygen concentration of 100% with the expectation of improving the reactivity of the lithium raw material with the active material precursor to produce a lithium composite oxide compound with excellent crystallinity, as suggested by Yokoyama.
Komori suggests the active material comprises a lithium transition metal oxide of Formula 1; specifically, Li is such that 0≤a≤0.2, Ni is 0.7≤x<1, Co is 0<y≤0.3 and M is 0<z≤0.3, see e.g., examples and [0022-0027]; the average particle diameter is between 4 to 20 microns (i.e., 2-20 microns, [0063]).
Claim 1 further limits the structure of the lithium transition metal oxide such that the center portion has a layered structure, the surface portion has a secondary phase with a structure different from the center portion, the center portions consists a rock salt, and the thickness of the surface portion is 30 nm or less. Considering Komori suggests the same composition as that claimed (i.e., Formula 1, detailed above), and Komori as modified by Yokoyama suggests the same process to form said composition, the same center portion (and layered structure thereof), the same surface portion (and rock salt structure thereof (hence, a secondary phase different from the center portion), and the same thickness of the surface portions as that claimed is expected. 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01. "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 3, Komori suggests the primary heat treatment is performed in an oxygen atmosphere ([0042]). Komori does not explicitly state the oxygen atmosphere has a concentration of 50% or more. However, Yokoyama suggests higher oxygen concentrations (i.e., 90% or more to 100%) improves the reactivity of lithium with the active material precursor (e.g., nickel composite hydroxide) and further improves reactivity to produce a lithium composite oxide of excellent crystallinity, see [0107]. It would be obvious to one having ordinary skill in the art the oxygen atmosphere of Komori has an oxygen concentration of 100% with the expectation of improving the reactivity of the lithium raw material with the active material precursor to produce a lithium composite oxide compound with excellent crystallinity, as suggested by Yokoyama.
Regarding Claim 4, Komori suggests the primary heat treatment is performed from 0.5 to 96 hours with examples including 0.5 hours, 24 hours and 72 hours, see e.g., [0041, 0089, 0109]; Komori specifically selects the time between 0.5 to 96 hours to accumulate sufficient thermal energy to sufficiently fire the mixture (lithium + active material precursor). It would be obvious to one having ordinary skill in the art the primary heat treatment is performed from 10 hours to 20 hours with the expectation of accumulating sufficient thermal energy to sufficiently fire the mixture, as suggested by Komori.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(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 1.17(a)) pursuant to 37 CFR 1.136(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 ANNA KOROVINA whose telephone number is (571)272-9835. The examiner can normally be reached M-Th 7am - 6 pm.
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/ANNA KOROVINA/Examiner, Art Unit 1729
/ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729