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 .
Status of Application
Claims 1 and 3-13 are pending and presented for examination. Claims 1, 3 and 8-13 were amended in the instant amendment dated 5 February 2026 which is acknowledged and entered. Claism 10-13 remain allowed for reasons already of record.
Response to Arguments
Applicant’s remarks dated 5 February 2026 (hereinafter, “Remarks at __”) are acknowledged and entered.
The objection to claims 9-13 is WITHDRAWN over the instant amendment resolving the formalities and dependency issues.
The rejection of claims 1 and 4-9 under 35 U.S.C. 102(a)(1)/103 over Xiao is MAINTAINED and updated below to reflect the instant amendment including the Al doping (which was in previously rejected claim 2).
The traversal is that in Xiao “the introduction of aluminum drives conversion of the β-phase to the α-phase. Xiao does not disclose, nor does it imply, that aluminum-doped β-nickel(II) hydroxide can be produced while maintaining β-phase stability. To the contrary, Xiao expressly indicates that aluminum destabilizes the β-phase” (Remarks at 4-5). This is not persuasive as Xiao discloses that doping at 5% results in the beta phase still remaining and that transition to the alpha phase above that amount and continues until 20% when it fully transitions to pure alpha phase (Xiao at “C. Nanostructured Particulate and Fibrous Ni(OH)2 Doped With Aluminum”). In that same section, Xiao discloses that they prepare particles with doping levels ranging from about 5 to about 10%, which does imply full beta to a mixed phase. The instant claim does not, as written, preclude the existence of a mixed phase.
The traversal continues “Xiao contains no disclosure of Nanostructured Particulate and Fibrous Ni(OH)2 Doped With Aluminumphase materials that remain stable despite aluminum incorporation while exhibiting <=100 A primary crystallite sand 2-20 micron spherical secondary particles.” However, Xiao discloses that the particles produced are in those ranges (13:44-47 (~5nmn and ~20 microns)).
Applicants further note that they have an unexpected result that by doping aluminum under controlled conditions that only is observed in the XRD which have a primary crystallite size of ~45 A and secondary particle sizes “within the claimed range”. This is not commensurate in scope with <100 A (<10 nm) as 45-100 nm are not covered in the unexpected result alleged. Furthermore, the rejection is based on both 102 and 103, the 102 portion cannot be obviated by a showing of an unexpected result. Furthermore, the unexpected result does not appear to be present, Xiao produces at 5% and the instant specification regards 5% as being pure beta phase (Instant Specification at [0023] discloses ~3~5%). Stated differently, Xiao recognizes the degree with which Al doping affects the phase, and specifically discusses the same limit (5%) as the instant specification and as such there is no unexpected result involving the amount of doping performed.
The rejection of claim 3 under 35 U.S.C. 103 over Xiao in view of Wang is MAINTAINED as the traversal was made en masse over the independent claim rejection. While Wang addresses alpha phase, the references are still considered analogous as they both involve nickel hydroxide doping.
The non-statutory double patenting rejection of claims 1 and 3-13 over claims 1-12 over US Patent No. 11919783 is WITHDRAWN over the accepted Terminal Disclaimer dated 5 February 2026.
Claim Objections
Claim 8 is objected to because of the following informalities: “l(II)hydroxide” should read --(II) hydroxide--. Appropriate correction is required.
Claim Rejections - 35 USC §§ 102/103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1 and 4-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by or in the alternative, under 35 U.S.C. 103 as being unpatentable over Xiao.
Regarding claim 1, Xiao discloses a beta nickel (II) hydroxide (Xiao at 9:21 & 13:48) which is AL doped (at ~5~20%, 14:22 & generally “C. Nanostructured Particulate and Fibrous Ni(OH)2 Doped With Aluminum”) comprising a secondary particle of spherically agglomerated primary crystallites having a primary crystalline size of ~5 nm (13:44-47) and secondary particle size of ~20 microns which abuts upon that range instantly claimed which is thusly sufficiently specific and anticipatory (See MPEP 2131) and given “about” also lies close enough to overlap that range under MPEP 2144.05 as being obvious and a broad range of 1-100 microns in that same part of the reference and XRD is performed (“Fig. 8”).
With respect claim 4, Co doping can occur (13:40-42).
Turning to claim 5, ~5 microns covers “less than 50 angstroms” and also overlaps to make it prima facie obvious.
Concerning claims 6 and 7, spheres of both particles are formed so a form factor is greater than 0.8 (“Fig. 4, 5A, and 5B”).
Regarding claim 8, doping can be 5 atomic % to maintain beta form (Xiao at 14:27).
As to claim 9, while Xiao does not expressly state a tap density of at least 1.8 g/cc, given usage of the same particle composition and particle sizes, it would follow that the same tap density property would exist absent evidence to the contrary though the Office cannot test for this. See MPEP 2112 V, "[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on inherency' under 35 U.S.C. 102, on prima facie obviousness' under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same." The burden of proof is similar to that required with respect to product-by-process claims. In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980) (quoting In re Best, 562 F.2d 1252, 1255, 195 USPQ 430,433-34 (CCPA 1977))".
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Xiao in view of Wang.
Regarding claim 3, Xiao does not expressly state homogenous Al doping.
Wang in a method of making nickel hydroxide discloses usage of sodium aluminate (Wang at [0013] 7 [0018]).
Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the instantly claimed invention to perform the method of Xiao in view of the aluminate addition fo Wang. The teaching or suggested motivation in doing so being increase in tape density by 0.3-0.5g/cc and better volume for battery storage (Id.).
Conclusion
Claims 1 and 3-9 are finally rejected. Claims 10-13 are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 RICHARD M RUMP whose telephone number is (571)270-5848. The examiner can normally be reached Monday-Thursday 06:45 AM to 04:45 PM.
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RICHARD M. RUMP
Primary Examiner
Art Unit 1759
/RICHARD M RUMP/Primary Examiner, Art Unit 1759
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