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 .
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.
Information Disclosure Statements
The three Information Disclosure Statements filed on 2 January 2024 have been received and considered by the Examiner.
Claim Objections
Claim 1 is objected to for the following minor informalities:
The preamble to the claim is repetitive and the claim construction confusing. The following amendment is suggested:
“A method for producing a nickel-containing composite hydroxide by a crystallization reaction, wherein the nickel-containing composite hydroxide has the general formula:
…
[[
Line 18 of claim 1 recites a composite oxide when it should reference the composite hydroxide: “stirring the mixed solution to obtain a nickel-containing composite hydroxide [[oxide]]”.
Appropriate correction is required.
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.
Claim 2 is 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 2 recites the limitation “covering the nickel-containing composite hydroxide that is obtained by the crystallization reaction with Al or Mn, or with Al or Mn and added elements M.” However, the specification only provides Examples where the nickel-containing composite hydroxide is coated with metal hydroxides or oxides (E.g., [0118], [0148], [0150]). It is therefore unclear if this limitations requires coating with metallic Al, Mn and/or added elements M, or if it requires coating with hydroxide or oxide compounds of those elements. For the purposes of further examination, either interpretation may be used.
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 and 2 are rejected under 35 U.S.C. 103 as being unpatentable over Kuzuo et al. (JP 2011201764 A). The provided English machine translation of Kuzuo (JP 2011201764 A) is referenced in the analysis below.
Regarding claim 1, Kuzuo teaches a production method for a nickel-containing composite hydroxide is a method for producing a nickel-containing composite hydroxide that is expressed by the general formula Ni1-x-yCoxMy(OH)2, where 0.05≤x≤0.95, 0≤y≤0.15, x+y≤0.95, and where M may be Al or Mn ([0010]). The range of compositions taught by Kuzuo overlap with and include compositions that meet the instant limitations on the general formulas: 1
Ni1-x-yCoxAlyMt(OH)2+α, where 0<x≤0.20, 0<y≤0.15, t=α=0; and,
Ni1-x-zCoxMnzMt(OH)2+α, where 0<x≤0.50, 0<y≤0.50, x+z≤0.70, and t=α=0.
It is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” a prima facie case of obviousness exists (see 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); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985) (see MPEP 2144.05.01). Therefore, the claimed range of compositions merely represents an obvious variant and/or routine optimization of the compositions recited in the cited prior art.
Additionally, Kuzuo teaches a specific example where the ratio of elements Ni:Co:Al in the slurry of particles is 0.82:0.15:0.03 (Example 7; [0067]); particles with the same ratio would have the formula Ni0.82Co0.15Al0.03(OH)2+a, which falls within the limitations of the general formula for the instant claim.
Kuzuo further teaches the method for producing these particles being a crystallization reaction comprising:
adding an alkaline aqueous solution to a mixed aqueous solution that includes at least nickel and cobalt to make the pH value of that mixed aqueous solution that is measured at a reference liquid temperature of 25°C 11.0 to 13.0 ([0055]);
adding a complexing agent to the mixed aqueous solution to make the ammonium ion concentration of that mixed aqueous solution 5 g/L to 15 g/L ([0055]); and,
using stirring blades that have an inclination angle with respect to a horizontal plane of 30°, stirring the mixed solution to obtain a nickel-containing composite hydroxide ([0056]).
Kuzuo additionally teaches that the stirring is performed at 800 rpm using a three bladed propeller with a diameter of 10 cm, which are the same stirring conditions used in Example 1 of the instant specification ([0117]), and generate a nickel-containing composite hydroxide which when roasted in air for 2 hours at 800 is converted to a nickel-containing composite oxide with a BET value of 15.5 m2/g. Kuzuo’s use of these stirring condition can therefore be considered as meeting the limitations requiring regulating the stirring conditions so that when the obtained nickel-containing composite hydroxide is roasted in air for 2 hours at 800°C and is converted to a nickel-containing composite oxide, the BET value of the nickel-containing composite oxide becomes 12 m2/g to 50 m2/g.
Kuzuo further teaches that stirring rate, blade diameter, and blade inclination are all parameters that affect the particle growth, aggregation, and disaggregation ([0021]-[0026]). Particle size and aggregation will have an effect on BET surface area, with smaller sizes and less aggregation resulting in higher surface area per gram. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to regulate the stirring conditions in order to control agglomeration and particle growth/size, as taught by Kuzuo, thereby also controlling the BET surface area value of the product obtained after roasting. It is again noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” a prima facie case of obviousness exists. Therefore, the claimed ranges of BET surface area merely represent an obvious variant and/or routine optimization of the values of the cited prior art.
Regarding the temperature of the solution, while Example 1 of Kuzuo uses a temperature of 50° ([0055]), which lies just outside the claimed range of 20 °C to 45 °C, Kuzuo also teaches that, generally, temperatures in the range of 20 °C to 70 °C are preferable ([0032]). Therefore, the claimed ranges of temperature merely represents an obvious variant and/or routine optimization of the values of the cited prior art.
Regarding claim 2, Kuzuo teaches the method of claim 1, and Kuzuo further teaches a process of covering the nickel-containing composite hydroxide that is obtained by the crystallization reaction with aluminum hydroxide [0067], which is interpreted as meeting the limitations of the instant claim (see Claim Rejections – 35 USC 112).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nicholas A Piro whose telephone number is (571)272-6344. The examiner can normally be reached Mon-Fri, 8:00 am-5:00 pm.
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/NICHOLAS A. PIRO/Assistant Examiner, Art Unit 1738
/PAUL A WARTALOWICZ/Primary Examiner, Art Unit 1735
1 The Kuzuo reference recites formulas where α is zero, but one of ordinary skill in the art would recognize that a slight excess of hydroxide may be present in these compounds to account for charge balance needed when trivalent ions are present in the formula.
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