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 .
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.
Drawings
In Fig. 1, the term “Matal layer” in the central box should be “Metal layer”.
Specification
In Par. 50, line 1, “puling” should be “pulling”.
In Par. 121, applicant recites “the chloropolypropylene (CPP) film…” In Par. 125, as elsewhere in the specification and drawings, the acronym CPP is used in reference to cast polypropylene. Applicant is hereby advised of the confusion that may ensue from use of the same acronym in reference to different structures.
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 1-11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-2 and 4-11 of copending Application No. 18/397,945 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because each claim cites identical ranges for identical properties in the corresponding claim of the reference application. The respective similarities and differences in limitations of the claims of the present application (‘396) and the reference application (‘945) are shown in Table 1. Abbreviations for the properties listed therein are provided in the discussion of §112(a) below. Corresponding claims shown in Table 1 differ only in the tear thickness limitation recited in the base claim of the current application, the MATSS range limitation recited in the base claim of the reference application, and in some instances the MHTSS range limitation recited in Claim 2 of the reference application.
All claims of both the current (‘396) application and the reference (‘945) application are drawn to articles of manufacture [pouch films (respective claims 1-8) and secondary batteries (respective claims 9-10)], and manufacturing methods for such batteries (respective claims 11), while each of the above points of distinction is directed to a property of the pouch film. As applicant has in the instant application observed a correlation between the specified tear thickness behavior and the MATSS and MHTSS property ranges identically claimed in the instant and reference applications, the scope of coverage of the respective corresponding claims appears largely if not entirely overlapping and thus patentably indistinct.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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Claim Rejections - 35 USC § 112
35 USC § 112(a) Enablement
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-11 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for:
a secondary electrode pouch film having a composite outer layer of nylon (25µm) and PET (12µm), an aluminum foil (60 µm) metal layer, and a sealant layer of cast (unstretched) polypropylene (50 µm) and extruded polypropylene (30 µm), the sealant layer having a Tg of -13.41°C and yield strength of 19.22 N/mm2 in the machine direction and 17.31 N/mm2 in the transverse direction fitting applicant’s Formula 1 or Formula 2 following a tear test (Claim 1), such a film having maximum ambient temperature sealing strength (“MATSS”, Claim 2), maximum high temperature sealing strength (‘MHTSS”, Claim 3), ambient temperature energy (“ATE”, Claim 4), high temperature energy (“HTE”, Claim 5), difference in ambient and high temperature energy, (“[ATE – HTE]”, Claim 6), ambient temperature maximum stroke (“ATMS”, Claim 7), or high temperature maximum stroke (“HTMS”, Claim 8) falling within respectively claimed ranges, batteries encased in such a film (Claims 9 and 10), or a method of making a battery comprising encasing in such a film (Claim 11), does not reasonably provide enablement for:
a secondary electrode pouch film having an outer layer, a barrier layer, and a sealant layer in that order, said layers each being of any composition and any thickness fitting applicant’s Formula 1 or Formula 2 following a tear test (Claim 1), such a film having MATSS, MHTSS, ATE, HTE, [ATE – HTE], ATMS, or HTMS falling within respectively claimed ranges (Claims 2-8), batteries encased in such a film (Claims 9 and 10), or a method of making a battery comprising encasing in such a film (Claim 11). The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention commensurate in scope with these claims.
“The propriety of a rejection based upon the scope of a claim relative to the scope of the enablement concerns (1) how broad the claim is with respect to the disclosure and (2) whether one skilled in the art could make and use the entire scope of the claimed invention without undue experimentation. A scope of enablement rejection must identify the claimed subject matter for which the specification is not enabling and explain why the specification is not enabling, applying the factors set forth in In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1998). See also MPEP §§2164.01(a) and 2164.04. The explanation should include any questions posed by the examiner which were not satisfactorily resolved and consequently raise doubt as to enablement.” MPEP §2164.08 (4th Paragraph)
The eight factors to properly assess the scope of enablement per the Wands case are:
The breadth of the claims;
The nature of the invention;
The state of the prior art;
The level of ordinary skill;
The level of predictability in the art;
The amount of direction provided by the inventor;
The existence of working examples; and
The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
The breadth of the claims.
Claim 1 is drawn to a secondary (“electrode” construed as “battery”) pouch film with at least an outer layer, a barrier layer, and a sealant layer in that order, wherein the sealant layer is extrusion laminated by an extrusion coating layer, and wherein, when subjected to a tear test, the thicknesses of the two portions will satisfy one of two equations based upon the ranges of their differences or their ratio.
Claims 2-8 recite the following ranges for one of seven properties observed in seal strength tests in the film’s transverse direction (“TD”) following sealing under applicant’s specified conditions at 220°C [(Seal bar width of 200 mm x seal thickness of 10 mm, 2.0 seconds, 0.2 MPa, and temperature of 220°C); See, e.g., specification Par. 17]:
Claim 2 – 150 N/15 mm < MATSS < 205 N/15 mm;
Claim 3 – 115 N/15 mm < MHTSS < 170 N/15 mm;
Claim 4 – 2.0 KN x mm < ATE < 3.0 KN x mm;
Claim 5 – 1.5 KN x mm < HTE < 2.5 KN x mm;
Claim 6 – 0.4 KN x mm < (ATE – HTE) < 0.6 KN x mm;
Claim 7 – 15 mm < ATMS < 25 mm; and
Claim 8 – 18 mm < HTMS < 24 mm
The specification explains these parameters as the maximum force on a plot of sealing strength vs displacement of the film (MATSS or MHTSS), the displacement at that maximum (ATMS or HTMS), and the area under the curve integrated from a displacement of 0 to 20 mm (ATE or HTE), as shown in examiner’s Figures 1 and 2. Ambient temperature measurements (MATSS, ATMS, and ATE) are obtained from observations of pouch film specimens at ambient temperature, while high temperature measurements (MHTSS, HTMS, and HTE) are obtained using specimens left at 60°C for 3 minutes prior to testing.
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Figure 2
Although these measures are for films nominally sealed at 220°C, applicant’s sealing conditions are process limitations in product claims, thus Claims 2-8 are product-by-process claims and the determination of patentability is based solely upon the structure of the product. (MPEP §2113.I.)
Claims 9 and 10 are respectively drawn to a secondary battery encased in the pouch film of Claim 1, and to such a secondary battery for use in an electric vehicle or energy storage device. Claim 11 is drawn to a method for manufacturing a secondary battery comprising encasing the secondary battery in the pouch film of Claim 1.
The examiner notes that none of the claims recite any chemical composition of any element of the pouch film and only Claim 1 contains structural limitations of the film.
The nature of the invention.
The invention is drawn to a component (the internal packaging) of a high technology device (a battery cell), the device itself, and methods of making the device. Batteries are used to power equipment for a wide variety of technological applications, any of which may call for distinct technical specifications from the packaging, the battery, or both. As society becomes more reliant on computing and new uses of powered applications become available, both in terms of breadth of use and the physical environment of application (for example, in high or low temperature environments), the state of the art is adapting to provide for what a given use demands.
A wide variety of plastics can be made from a host of polymers, copolymers, and additives. Layered composite films with different orders and thicknesses are part of ongoing research to meet myriad demands for different applications. At the same time, research in this area was ongoing for some time before the filing date, so the level of complexity in the area generally, while not as simple as well-characterized areas of endeavor, falls short of the lack of familiarity of pioneering and paradigm-shifting discoveries. Thus, the nature of the invention, packaging technology for battery components for an increasingly wide variety of applications, is best characterized as moderately complex.
The state of the prior art.
This factor requires analysis on three distinct fronts. First, the state of pouch film technology for battery applications generally. Second, the state of knowledge of seal strength and seal strength testing respecting plastics generally, as much of applicant’s claims are directed to observations of quantities determined in seal strength testing. Finally, the state of sealant resin technology, as applicant’s claims are silent regarding chemical makeup of the films covered and would thus encompass all materials which can offer the properties as claimed.
1. The state of battery pouch film technology.
As to the first consideration, the examiner notes that the general structure of applicant’s pouch film claims, specifically, a film comprising outer, barrier, and sealant layers, was known as of the effective filing date, as evidenced by a variety of references including those cited as prior art herein. [See Wei et al. (JP 2018076127 A) (“Wei”); Yamashita et al., (US 2008/0241663 A1) (“Yamashita”); Yuki, (JP 2017152092 A)(“Yuki”); and See Yu et al., (JP 2019029221 A)(“Yu”)] The outer layer functions to provide physical and thermal protection, the barrier layer, typically metallic, functions to block moisture from the surroundings, and the inner sealant layer functions to effectively heat seal the contents of the battery and resist reaction with the components of the electrolyte.
Additionally, pouch films including outer, barrier, and sealant layers had been disclosed with ambient seal strengths falling within the range specified for MATSS in Claim 2 [See Yuki, Table 2 and Pars. 70 and 74] as well as high temperature seal strengths (under more extreme temperature conditions of 80°C) falling within the range specified for MHTSS in Claim 3 [See Yu, calculated values of 115, 122, and 122 N/15 mm, for Examples 2B, 3B, and Comparative Example 3B in Tables 2 and 5, respectively; See Par. 90]
Thus, the overall structure and certain properties recited in applicant’s claims were known in the art as of the time of filing.
2. The state of seal strength testing and knowledge of factors affecting seal strength.
As to the second consideration, each claim relies upon observations of applicant from pouch film sealing strength testing. It is informative to review film testing as of the time of applicant’s December 30, 2022 priority date. According to Morris, B.A. (2017). The Science and Technology of Flexible Packaging: Multilayer Films from Resin and Process to End Use. William Andrew., (“Morris”) p. 211, discussing Fracture Mechanics:
“Here …a discussion of the insights the analysis provides for heat seal strength is provided.
The peel force is not simply the bond strength; many other factors are involved. As the peel arms are separated and pulled apart, they may stretch irreversibly depending on the stiffness and yield strength of the materials in the peel arm. The peel arms are bent to an imposed angle, typically 180 degrees for a T-peel test, although the actual local angle may differ depending on the stiffness of the arms. New interfacial area is created as the peel front advances. The measured force is a function of the energy required to bend the peel arms (Eb), the energy to irreversibly stretch the peel arms (Ee), and the energy to create new interfacial area, known as the fracture energy (Ga):
Peel Strength = f (Eb, Ee, Ga) (7.10)
Often Eb and Ea are small compared to Ga for flexible packaging. So far the bond strength has not been explicitly mentioned. This is introduced through Ga. Ga is a function of the work of adhesion (Wa) times the local viscoelastic energy dissipation at the peel front (φ):
Ga = Wa(1 + φ (R,T)) (7.11)
Wa includes bonding due to wetting, diffusion, and chemical interaction. The local viscoelastic energy dissipation, φ, can be significant compared with the bond strength and has a substantial impact on the measured peel strength. φ is a function of the pull
rate (R) and temperature (T).
Insights from fracture mechanics into factors that affect seal strength include the following:
The peel strength is rate dependent. The pull speed can significantly change the measured seal strength. This is a consequence of Eq. (7.11).
The peel strength is temperature dependent through changes in φ and in the bulk properties of the film. For example, an increase in temperature typically decreases the modulus, which affects bending angles and irreversible elongation.
Changing the angle of pull changes seal strength through a number of effects. The imposed peel angle has a direct effect on Eb. Changing the angle will likely change the actual angle at the interface; this may change how stress is concentrated and impact the separation dynamics.
Changing the modulus of the sealant changes the local viscoelastic energy dissipation, the bending energy, and the energy to irreversibly elongate the peel arm, each of which may affect seal strength.
Increasing sealant thickness may increase seal strength. Fracture mechanics predicts that increasing thickness will increase peel strength up to a point and then level off. At the front of the crack tip, there is a region of local deformation. At very small sealant thickness, the size of the deformation zone is constrained by the thickness of the sealant. As the thickness increases, the size of the deformation zone increases; peel strength is raised through an increase in φ. At some critical thickness, the zone of deformation reaches its natural size and is no longer constrained by the thickness of sealant. At thicknesses greater than the critical thickness no further increase in fracture energy occurs.
Other layers in the film structure besides the sealant can influence the measured peel strength. Poor interlayer adhesion can reduce seal strength as described in Section 7.7 for peelable seal technology. Elongation and stretching of the peel arm during testing can lead to higher peel strength values; elongation is impacted by all the layers in the structure. The stiffness of the layers can influence the actual local angle at the interface.”
From the first three points above, it appears that a number of factors tied to conditions of the analysis as opposed to the sample composition per se affect the very properties for which applicant claims film compositions, battery manufactures, and methods by way of ranges in lieu of chemical and physical structure. Additionally, the last three points indicate that sample composition, thickness, and overall structure (including layers other than the sealant) can affect the observed sealing strength.
In addition to considering the state of seal strength testing, assessment of knowledge at the time of filing regarding sealing conditions on seal strength is appropriate. According to How Do You Determine Seal Strength? (2020, August 20). Determining Seal Strength for Packaging | Packaging Compliance Labs. https://pkgcompliance.com/how-do-you-determine-seal-strength/ (“Packaging Compliance Labs”):
“ASTM F88 is a test method in which packaging engineers can define seal strength requirements, like a minimum seal strength.
We define what minimum seal strength is by conducting a DOE [design of experiments] to find out what is the best recipe for seal strength and visual score. Conducting a DOE allows us to figure out which factor has a greater effect on seal strength and visual quality.
The factors that define recipes are temperature, time, and pressure. …
…we are looking for the trend of factors that creates an appropriate amount of energy transfer that yields acceptable seal strength and visual score. In our experience, pressure is the least impactful factor but needs to be considered as important during our DOE when validating a sealing process. That being said, time and temperature are typically the more impactful factors. How much energy (temperature) is being exerted onto the packaging materials? How long (time) should the sealing process be exerting said energy onto the packaging materials? These are the things our packaging engineers have to consider when determining what an acceptable ‘recipe’ is.”
Yamashita et al., US 2008/0241663 A1 (“Yamashita”) includes several plots (Figs. 5, 7, and 8) of sealing strength vs. sealing temperature for 13 samples of electrochemical cell packaging materials. In keeping with the time / temperature observations above, although an overall trend appears to indicate increasing sealing strength with increasing sealing temperature, individual samples vary in the shape of the curve, including the position of any observed maximum. Thus, sealing temperature, noted as a key variable in determining sealing strength, affects different film compositions differently.
3. The state of sealant resin technology.
Regarding the final consideration, the state of sealant resin technology, Morris, B.A. (2017). The Science and Technology of Flexible Packaging: Multilayer Films from Resin and Process to End Use. William Andrew., at p. 248 states:
“Many factors go into selecting a sealant. Some, which have been touched upon in preceding sections, involve sealing performance such as seal initiation temperature, ultimate seal strength, hot tack, sealing temperature range, and seal through contamination. Often times, however, the sealant contributes to other features of the package such as clarity, puncture resistance, abrasion resistance, tear strength, moisture barrier, and oil and grease resistance. The sealant may also need to contribute to the ease of making the structure into a film, such as melt strength for bubble stability in blown film
and drawability for extrusion coating. Thermal resistance may be important during converting as well as in the end use (as in cook-in or pasteurization processes).
At the same time, the sealant needs to be the most cost-effective solution. Cost, however, is not just the price of the resin but involves ease of processing into a film (and its effect on yields), packaging efficiencies (line speed), and package quality (leaker rates). Sometimes a higher priced sealant will yield a lower cost package when total cost is considered. …
Polyethylene and ethylene copolymers are the most common sealant resins used in multilayer flexible packaging. … The performance of individual grades within a polymer family may vary greatly.
For this discussion, PP-based sealants are ignored. It is simply noted that random copolymers of propylene and ethylene are commonly used as the sealant layer in oriented PP films. The rPP provides good adhesion to the homopolymer structural layer of OPP and melts at 10-20°C lower so provides an adequate seal temperature window. It also has
excellent high temperature resistance, making it suitable for retort applications. More recently, propylene-ethylene copolymers and elastomers such as Versify from Dow Chemical and Vistamaxx from ExxonMobil have found use as sealants (or in blends
for sealants) in PP structures. These have even lower seal initiation temperature than traditional propylene random copolymers.”
The author then proceeds to discuss numerous properties of seven classes of common ethylene-based sealant resin families. From the above, it is apparent there are numerous polymers, including variants within broader classes and blends thereof, from which one of ordinary skill can select to optimize properties for a particular application. It is also noted that the choice requires suitability determined by a variety of factors.
The level of ordinary skill.
One of ordinary skill in the art corresponding to the present invention would be a specialized (battery) packaging engineer. According to Morris, B.A. (2017). The Science and Technology of Flexible Packaging: Multilayer Films from Resin and Process to End Use. William Andrew., in discussing the benefits of multilayer packaging at p. 15:
“The simplest packaging structure consists of a single material or layer. There are a number of packaging forms and applications where this works well … But each of these has its limitations…
Adding an additional layer gains some functionality, often in a way that reduces overall cost… Or more often, the multilayer structure allows the package to perform a combination of functions not possible with a single layer.”
A battery packaging engineer must be able to formulate a multilayered pouch structure satisfying the various requirements (moisture barrier, internal pressure resistance, high temperature performance, chemical resistance to electrolyte, etc.) for long term use of a secondary (rechargeable) battery. This requires knowledge of the physical properties of various materials, including how these can be altered by chemical modification, as well as the appropriate organization and feasible manufacturing of those materials in a multicomponent structure. Accordingly, battery packaging engineering is a highly-skilled discipline and it is expected that one of ordinary skill would be well-educated in chemistry, materials science, and engineering.
The level of predictability in the art.
According to MPEP §2164.03:
“The scope of the required enablement varies inversely with the degree of predictability involved, but even in unpredictable arts, a disclosure of every operable species is not required. A single embodiment may provide broad enablement in cases involving predictable factors, such as mechanical or electrical elements. In re Vickers, 141 F.2d 522, 526-27, 61 USPQ 122, 127 (CCPA 1944); In re Cook, 439 F.2d 730, 734, 169 USPQ 298, 301 (CCPA 1971). However, in applications directed to inventions in arts where the results are unpredictable, the disclosure of a single species usually does not provide an adequate basis to support generic claims. In re Soll, 97 F.2d 623, 624, 38 USPQ 189, 191 (CCPA 1938). In cases involving unpredictable factors, such as most chemical reactions and physiological activity, more may be required. In re Fisher, 427 F.2d 833, 839, 166 USPQ 18, 24 (CCPA 1970) (contrasting mechanical and electrical elements with chemical reactions and physiological activity). See also In re Wright, 999 F.2d 1557, 1562, 27 USPQ2d 1510, 1513 (Fed. Cir. 1993); In re Vaeck, 947 F.2d 488, 496, 20 USPQ2d 1438, 1445 (Fed. Cir. 1991). This is because in art areas having a high degree of uncertainty (i.e. the unpredictable arts) it is not reasonably predictable from the disclosure of one species, what other species will work.”
In this case, the present invention involves phenomena based upon the mechanical properties of materials of differing chemical composition. Based upon the foregoing, the level of predictability would appear to be moderate as it implicates both physical and chemical aspects of the materials used to construct the distinct layers of the film as well as their arrangement.
The amount of direction provided by the inventor.
Applicant provides the underpinning of Claim 1 in the specification at Par. 74:
“In a secondary battery pouch film prepared by an extrusion lamination preparation method, the inventors of the present disclosure found that the thickness of the upper side (the part which remains the same or relatively less thick) at the time of the following tear test is different from the thickness of the lower side (the part which remains the same or relatively more thick), and in addition to the different thicknesses, if the film is torn in such a way that the lower side remains thicker than the upper side while the thickness of the upper side (T1) and the thickness of the lower side (T2) satisfy the following formula, it is confirmed that the ambient temperature and high temperature sealing strength is excellent, and in particular, the ambient temperature and high temperature sealing strength maintenance characteristics are excellent.
[Formula 1]
0.6 < T1 / T2 (tearing thickness ratio) < 0.85
[Formula 2]
30µm< T2 - T1 (tearing thickness difference) <85µm”
Applicant later provides, in Pars. 83-86:
“This tear ratio (T1 / T2) or tear thickness difference (T2-T1) can change the layer that cracks when torn if factors such as the thickness ratio of the polypropylene (PP) layer in the sealant layer (or the thickness ratio of the EC layer and the PP layer comprising the sealant layer), the yield strength of the sealant layer, or the glass transition temperature (Tg) are changed during manufacturing of the sealant layer. Using this, if a polypropylene (PP) layer or preferably a cast polypropylene (CPP) film is introduced in the sealant layer, it is possible to adjust it to satisfy the aforementioned [Formula 1] and [Formula 2] by increasing the yield strength or increasing the glass transition temperature (Tg).
More specifically, in the comparative examples described below, the yield strength and Tg value are relatively small, resulting in tearing near the polypropylene (PP) layer and weak sealing strength, whereas in the working examples, the yield strength and Tg value are relatively high, resulting in tearing at the boundary of the EC layer and the polypropylene (PP) layer and increased sealing strength as the strength of the polypropylene (PP) layer is strengthened when sealing.
The thickness ratio of the polypropylene (PP) layer in the sealant layer can be achieved by selecting the thickness of the polypropylene (PP) layer itself and by controlling the thickness of the extrusion layer (EC) during extrusion of the extruded resin.
The yield strength and glass transition temperature can also be easily adjusted by one of ordinary skill in the art. As is known in the art, the type of sealant layer polypropylene (PP) resin, its properties such as softness, and the content of elastomeric additives used in the sealant layer can determine the ultimate strength and glass transition temperature. Therefore, the yield strength and glass transition temperature can be controlled by selecting polypropylene and elastomer additives of appropriate types and properties known in the art to have the desired yield strength and glass transition temperature.”
Thus, applicant states it has found a correlation between the tear test thickness ratio or thickness difference on the one hand and the sealing strength (MATSS and MHTSS) or sealing strength maintenance (ATE, HTE, [ATE-HTE], ATMS, and HTMS) characteristics of the pouch film on the other hand. (Par. 74) Applicant then indicates that applicant’s posited thickness relationships model the layer that cracks when subjected to tearing, a physical phenomenon reflecting: (1) the thickness ratio of the cast polypropylene layer in the sealant layer (alternatively specified as the thickness ratio of the extrusion coated layer and the polypropylene layer within the sealant layer); (2) the yield strength of the sealant layer; and (3) the glass transition temperature (Tg) of the sealant layer. (Par. 83)
Applicant notes that the first of these factors is controllable by selecting the amount of cast polypropylene and controlling the thickness of the extrusion coating layer to affect the relative thicknesses of the two components of the sealant layer. (Par. 85) According to applicant, the second and third factors are a matter of simple selection to one of ordinary skill in the art.
Thus, applicant’s direction is to control sealant layer cast and extruded sublayer thicknesses and apply knowledge within the purview of the prior art regarding yield strength and Tg. Such direction appears to be minimal.
The existence of working examples.
Applicant’s specification includes measurements for ten samples each of a single example (“Ex. 1”) and two comparative examples (“CE 1” and “CE 2”). All three of these have a nominal sealant layer thickness of 80 µm; with Ex. 1 and CE 2 having a 50 µm thick cast polypropylene layer laminated with a 30 µm thick extrusion coating layer and CE1 having the entire sealant layer made of the extruded layer. [See Table 1]
The composition of the pouch films of Ex. 1, CE 1, and CE 2 are recited in the specification at Par. 130:
“In the Examples and Comparative Examples, the outer layer is composed of a composite layer of nylon (25 µm) and PET (12 µm), and the metal layer is aluminum foil (60 µm), but the thickness of the extruded layer of the sealant layer and the polypropylene (CPP, unstretched polypropylene) layer is adjusted as shown in Table 1 below, and those with a yield strength and Tg values shown in the following table are used. … The total thickness is 183 µm.”
The yield strength reported for the sealant layer in Ex. 1 is higher in both the machine direction (“MD”) and transverse direction (“TD”) than that for the sealant layer of CE 1 and lower in both MD and TD than that for CE 2. The sealant layer Tg value in Ex. 1 (-13.41°C) is higher than that of CE 1 (-22.64°C) but less than that of CE 2 (-8.68°C).
Thus, for the three factors identified by applicant in Par. 79, applicant’s single example differs from two comparative examples by the absence of a cast polypropylene layer within the sealant layer, a lower yield strength and sealant layer Tg value in CE 1 and a higher yield strength and sealant layer Tg value with an identical extruded to cast layer thickness ratio in CE 2.
The examiner also notes that the results of CE 2 appear to contradict applicant’s explanation in Par. 84 that the working examples had relatively high yield strength and Tg value which was relatively small in the comparative examples, thus the increased strength of the sealant layer in the examples (Ex. 1) resulted in tearing at the boundary of the cast and extruded polypropylene layers in the sealant layer. On the contrary, the films of Ex. 1 and CE 2 were of identical thicknesses of cast and extruded polypropylene layers, and the yield strength (in both machine and transverse directions) and Tg were actually higher than those of Ex. 1. (See Table 1, reporting a smaller negative [higher] Tg). Moreover, CE 1 had no extruded component in the sealant layer, slightly lower yield strength in both machine and transverse directions, and a larger negative [lower] Tg than Ex. 1. Based upon the data presented, it appears multiple factors must be balanced to ensure optimal performance, and each film composition and structure would require assessment before a beneficial result was known. The examiner invites applicant to clarify these points in its reply.
The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
The invention defined by the claims [see Wands factor (A)] is directed to a pouch film of any composition having three layers with an extrusion laminated sealant layer exhibiting certain seal strength characteristics when sealed under applicant’s 220°C sealing conditions. The disclosure directs (see Wands factor (F)] one of ordinary skill to control the thickness of the sealant layer and select materials for yield strength and Tg. Thus, the quantity of experimentation required to fully practice the invention is substantial when a wide variety of different compositions for each layer in a multilayer article of manufacture, including different base compounds and modifiers, are taken into account.
Overall Determination of Undue Experimentation from Wands Factors
In summary, applicant’s claims [A] to pouch films, secondary batteries, and methods of manufacturing said batteries are extraordinarily broad given the recitation of properties rather than composition.
The nature of the invention [B], packaging technology for battery components, is moderately complex.
The state of the prior art at the time the application was filed [C] indicates the general outer, barrier, and extrusion laminated sealant layer structure was known, that fracture mechanics indicated conditions of the analysis impact applicant’s claimed properties as well as the film composition, thickness, and overall structure per se, that sealing strength generally rises with increasing sealing temperature, although different films exhibit different dependencies and maximums, that sealing strength depends upon sealing temperature and sealing time and to a lesser extent sealing pressure, and that a wide variety of sealants with different properties, polymer bases, and additives exist.
The level of ordinary skill [D] in the battery packaging engineering art is highly-skilled.
The level of predictability in the art [E] is moderate at best given the involvement of phenomena based upon mechanical properties of multiple materials of different chemical composition in the pouch films.
The direction provided by the inventor [F], namely, control the relative thicknesses of the sealant layer portions and select materials for yield strength and Tg, is minimal.
The application included only one working and two comparative examples [G].
Finally, given the lack of recitation of composition in the claims, the quantity of experimentation [H] to make or use the invention is substantial.
Accordingly, all of the Wands factors but [D] tend to indicate the need for one of ordinary skill to engage in undue experimentation to make or use the invention of any of Claims 1-11 based upon applicant’s disclosure as filed. Each claim is therefore properly rejected as lacking enablement pursuant to 35 U.S.C. 112(a). See MPEP §2164.01.
35 USC § 112(b)
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 1 - 11 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.
Claim 1 recites “wherein the sealant layer thickness T1 and T2 measured according to a tear test method…” . The specification recites a tear test method three times (Pars. 13-14, 75-76, and 135-138). Each instance states “A secondary battery pouch film is folded in half, with the sealant layer facing each other…” and later, “After pulling to tear at least about 5 mm from the sealing part of the pouch film…” in the universal testing machine, applicant obtains an upper side with thickness T1 that is thinner than or equal to that of a lower side with thickness T2.
Fig. 2 shows the sealant layer per se before and after tearing, with the latter resulting in an “Upper side (part with thin thickness)” and a “Lower side (part with thick thickness)” and does not show the other layers of the overall pouch film. Together with the language of Claim 1 (“…wherein the sealant layer thickness T1 and T2…) this indicates that T1 and T2 are portions of the sealant layer not including the other (barrier and outer) layers.
On the contrary, applicants Example and Comparative Examples indicate nominal sealant layer thickness of 80 µm and thus a folded layer thickness of 2x or 160 µm; however, applicant’s results all indicate the sum of T1 and T2 to be approximately 330 µm. This indicates that T1 and T2 include the sealant and other (barrier and outer) layers.
It is thus unclear what is meant by “wherein the sealant layer thickness T1 and T2 measured according to a tear test method…” in Claim 1. Claims 2-9 and 11 depend from Claim 1, and Claim 10 depends from Claim 9. For purposes of examination, this limitation is considered to mean the thicknesses of the torn portions of the overall pouch film, including outer, barrier, and sealant layers, in keeping with applicant’s Examples and Comparative Examples. As all claims ultimately depend from Claim 1, all are unclear with respect to this issue.
Claim 1 also states that “T1 and T2…satisfy [Formula 1] or [Formula 2]…wherein [Formula 1] is 0.6 <T1 / T2 < 0.85 and [Formula 2] is 30 µm < T2 – T1 < 85 µm…” The examiner notes that in many instances these equations provide nonoverlapping results within the respective specified ranges (in other words, the same values of T1 and T2 will satisfy the range specified for one formula but not the range of the other). It is thus unclear how satisfying one or the other of applicant’s posited formulas reflects a structural difference in a pouch film advantageous for battery applications.
Claims 2 and 3 recite “as measured by the following method…” and “as measured by the method as follows…”, respectively. No method is further presented in either claim. For purposes of examination, the examiner has interpreted these references as corresponding to those methods cited in the specification (at Pars. 15-19 and 20-24, respectively) from which the claim language appears to have been copied.
Claims 2-8 each recite “when sealed under 220°C sealing conditions…” At multiple locations in the specification (See, e.g., Par. 17), applicant recites “The sealing is carried under a sealing condition of a seal bar width of 200 mm x a seal thickness of 10 mm, 2.0 seconds, 0.2 MPa, and a temperature of 220°C.” The examiner notes applicant’s explanation of the dispersion in its test data for tear properties [See Par. 139] for nominally identical samples as due to the non-uniform application of heat during sealing, apparently using these conditions. Also, as noted above, according to How Do You Determine Seal Strength? (2020, August 20). Determining Seal Strength for Packaging | Packaging Compliance Labs. https://pkgcompliance.com/how-do-you-determine-seal-strength/, sealing time, temperature, and to a lesser extent pressure all affect seal strength. It is this insufficient to recite only “220°C sealing conditions” in the claims. For purposes of examination, the examiner has interpreted this limitation to mean the conditions specified in the specification at Par. 17. The examiner also notes that this is a process limitation in a product claim and thus merits consideration in the determination of patentability only as regards the structure implied by this step. MPEP §2113.I.
Claims 2-11 each recite the limitation "the secondary battery pouch film of claim 1” although Claim 1 recites “A secondary electrode pouch film…”. There is insufficient antecedent basis for the “battery” limitation in each of these dependent claims. Claim 10 depends from Claim 9. Appropriate correction is required. For purposes of examination, Claim 1 is considered to recite “A secondary battery pouch film…”
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.
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 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Yuki, (JP 2017152092 A)(“Yuki”).
Regarding Claim 1, Yuki discloses:
A secondary electrode (read “battery”) pouch film (Corresponding to “exterior material for an electric storage device (1)”) comprising at least an outer layer (corresponding to “base material layer (11)”), a barrier layer (Corresponding to “metal foil layer (13)”), and a sealant layer (Corresponding to “heat seal resin layer (16)”) structured in that order [See Pars. 17-35 and annotated Fig. 1 below],
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wherein the sealant layer (Corresponding to “heat seal resin layer (16)”) is extrusion laminated by an extrusion coating layer (Corresponding to “adhesive resin layer (15)” [See Pars. 34-35 (indicating this layer may be formed by extrusion lamination) and annotated Fig. 1 above]).
Yuki does not explicitly disclose:
and wherein the sealant layer thickness T1 and T2 measured according to a tear test method satisfy [Formula 1] or [Formula 2], respectively wherein, [Formula 1] is 0.6 < T1 / T2 < 0.85 and [Formula 2] is 30pm< T2 - T1 <85pm, wherein T1 is the thickness of the side (upper side) where the thickness of the tear is relatively thin or the same and T2 is the thickness of the side (lower side) where the thickness of the tear is relatively thick or the same when measured using a thickness gauge.
Although the tear thickness limitation is not disclosed, in Examples 1-8 (See Tables 1 and 2 and Pars. 63-74) Yuki discloses a variety of pouch films having an outer layer of 15 µm thick nylon, a metal foil layer 20 µm thick and composed variously of stainless steel, copper, or titanium, a 20 µm thick adhesive resin layer of maleic anhydride-modified polypropylene, and a polypropylene heat sealing layer of various thicknesses from 20 to 80 µm. Yuki determined these films have heat seal strengths of 160 – 220 N/15 mm measured according to Japanese Industrial Standard JIS Z 0238.
According to applicant’s Example 1, the same samples that provided the tear test data embodied in the formula limitation of Claim 1 also exhibited MATSS embodied in the MATSS range limitation (150-205 N/15 mm) of Claim 2. Thus, although Yuki does not disclose the formula limitation of Claim 1, it is expected that given the structural similarity of the films of Yuki to those of applicant’s Claim 1 as well as the overlap in the MATSS data of Yuki’s Examples 1-8, the films disclosed by Yuki would exhibit the tear test properties satisfying the formula limitation of Claim 1.
In seeking to optimize MATSS according to the teachings of Yuki, one of ordinary skill in the art would obtain a pouch film with properties satisfying at least applicant’s difference formula after undergoing a tear test as recited in Claim 1. In addition, given the moderate level of predictability in the battery packaging engineering art, one of ordinary skill would have had a reasonable likelihood of success in arriving at the pouch film of Claim 1 before the effective filing date thereof.
Regarding Claim 2, Yuki discloses the secondary electrode (read “battery”) pouch film of Claim 1. Yuki also discloses:
wherein the maximum ambient temperature sealing strength measured value when sealed under 220°C sealing conditions as measured by the following method is at least 150 N/15 mm and no more than 205 N/15 mm in the TD direction. (See Examples 1-8, Tables 1 and 2 and Par. 74 showing films with similar sealing strength under sealing conditions of 190°C, 0.5 MPa, and 10 seconds [reduced temperature but increased pressure and sealing time relative to applicant’s conditions]).
Regarding Claims 3-8, Yuki discloses the secondary electrode (read “battery”) pouch film of Claim 1. Yuki does not explicitly disclose the pouch film having MHTSS, ATE, HTE, [ATE-HTE], ATMS, or HTMS falling within each of the respective ranges recited in Claims 3-8.
Despite this, according to applicant’s Example 1, the same samples that provided the tear test and MATSS data embodied in the formula limitation of Claim 1 and the MATSS range limitation of Claim 2 likewise provided results within the ranges specified for each of the property limitations of Claims 3-8. Accordingly, it is expected that the films disclosed by Yuki would exhibit measures for each property falling within the ranges specified in Claims 3-8, respectively, given the structural similarity of the films of Yuki to those of applicant’s Claim 1 as well as the overlap in the MATSS data of Yuki’s Examples 1-8 and applicant’s Example 1.
Regarding Claim 9, Yuki discloses the secondary electrode (read “battery”) pouch film of Claim 1. Yuki also discloses:
A secondary battery (Corresponding to “electric storage device element” [See Yuki, Claim 3] or an “electric storage device” [See Yuki, Claims 4-7]), wherein the battery is encased in the secondary battery pouch film of claim 1.
Regarding Claim 10, Yuki discloses the secondary battery of Claim 9. Yuki also discloses:
wherein the secondary battery is for use in an electric vehicle or energy storage device (Corresponding to “electric storage device element” [See Yuki, Claim 3] or an “electric storage device” [See Yuki, Claims 4-7]), wherein the battery is encased in the secondary battery pouch film of claim 1.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER G IZZO whose telephone number is (571)270-0705. The examiner can normally be reached Monday-Friday 8AM-5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael N. Orlando can be reached at 571-270-5038. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER G. IZZO/Examiner, Art Unit 1746
/MICHAEL N ORLANDO/Supervisory Patent Examiner, Art Unit 1746
