POSITIVE ELECTRODE NCM-BASED ACTIVE MATERIAL, POSITIVE ELECTRODE, AND BATTERY
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
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 1/18/2024, 8/27/2024, 6/5/2025, and 11/4/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
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.
Claims 1-7 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 discloses the phrase “NCM-based” active material (it is noted that Claims 2-6 also include said phrase). Accordingly, claim 1 is rendered particularly indefinite as it is unclear what “NCM” means because no definition is provided. For purposes of examination, “NCM” will be in reference to lithium nickel cobalt manganese oxide.
Claim 4 discloses the claimed weight decrease amount in context of “thermal mass spectrometry.” Claim 4 is rendered particularly indefinite as a thermogravimetric analysis, as opposed to thermal mass spectrometry, is understood to provide a material characterization in the claimed manner (wherein it is also noted that Applicant’s Specification also refers to thermogravimetric analysis in terms of the claimed material characterization).
Claim 5 recites the claimed weight decrease ratio per minute in context of “thermal mass spectrometry.” Claim 5 is rendered particularly indefinite as a thermogravimetric analysis, as opposed to thermal mass spectrometry, is understood to provide a material characterization in the claimed manner (wherein it is also noted that Applicant’s Specification also refers to thermogravimetric analysis in terms of the claimed material characterization).
Claims 2, 3, 6, and 7 are also rejected under 35 USC 112(b) for their dependence on claim 1.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 6, and 7 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Nam et al. (US 2022/0093920 A1).
Regarding claims 1,2, 6, and 7, Nam et al. teach a positive electrode NCM-based active material for lithium secondary battery (Abstract; paragraphs 0001, 0025), wherein a ratio c/a of a length of an a-axis to a length of a c-axis in a crystal structure as obtained from an X-ray diffraction pattern analysis result is 4.9631 or less (Paragraph 0068 discloses the positive active material for the lithium secondary battery, when measuring the X-ray diffraction pattern, may have the a-axis length (La) of 2.8500 Å to 2.8800 Å, the c-axis length (Lc) of 14.1800 Å to 14.2900 Å, and a distance ratio (c/a) between the crystal axes of the c-axis length to the axis length may be 4.93 to 5.0.).
Regarding claim 3, Nam et al. teach the positive electrode NCM-based active material according to claim 1, comprising an aggregated particle in which an average particle size D50 of a secondary particle is 14 μm or more and 18 μm or less (Paragraph 0075 discloses the positive active material has an average particle diameter D50 of 7-20 µm.).
Claims 1-3, 6, and 7 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Zheng et al. (US 2022/0336805).
Regarding claims 1,2, 6, and 7, Zheng et al. teach a positive electrode NCM-based active material (Paragraph 0034 discloses “NMC” materials are produced.) for lithium secondary battery (Abstract; paragraphs 0001, 0028, 0033, 0039), wherein a ratio c/a of a length of an a-axis to a length of a c-axis in a crystal structure as obtained from an X-ray diffraction pattern analysis result is 4.9631 or less (Paragraph 0125 discloses the lithium transition metal oxide may have a c/a ratio of the crystal structure (as obtained via XRD) of 4.96.).
Regarding claim 3, Zheng et al. teach the positive electrode NCM-based active material according to claim 1, comprising an aggregated particle in which an average particle size D50 of a secondary particle is 14 μm or more and 18 μm or less (Paragraph 0125 discloses the lithium transition metal oxide has an average particle size of 1-40 µm.).
Claims 1-3, 6, and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kaneda et al. (JP 2018/060759 A).
Regarding claims 1,2, 6, and 7, Kaneda et al. teach a positive electrode NCM-based active material (Abstract; Paragraphs 0013, 0024) for lithium secondary battery (Abstract), wherein a ratio c/a of a length of an a-axis to a length of a c-axis in a crystal structure as obtained from an X-ray diffraction pattern analysis result is 4.9631 or less (Paragraph 0013 discloses wherein the a-axis value of the lattice constants representing the crystal structure is in the range of 0.287 nm to 0.288 nm, and the c-axis value is in the range of 1.424 nm to 1.427 nm. This yields a c/a ratio of 4.944-4.972.).
Regarding claim 3, Kaneda et al. teach the positive electrode NCM-based active material according to claim 1, comprising an aggregated particle in which an average particle size D50 of a secondary particle is 14 μm or more and 18 μm or less (Paragraph 0048 discloses an average particle size of 5-18 µm.).
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 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Nam et al. (US 2022/0093920 A1).
Regarding claim 4, Nam et al. teach the positive electrode NCM-based active material according to claim 1. However, they do not teach wherein a weight decrease amount in thermal mass spectrometry at a temperature of 120 to 600°C and a temperature increase rate of 5°C/min is 12 mass% or less.
However, the instantly claimed weight decrease amount, under the claimed conditions, is an inherent structural characteristic of the active material itself.
Furthermore, (1) Nam already teaches that the positive active material exhibits all of the recited structural characteristics of Claim 1, and (2) Nam’s specific active material(s) may be structured the same, or substantially the same, as the Applicant’s “NCM” materials as disclosed in Applicant’s Specification (See at least [0032]-[0039] of Nam versus at least [0018]-[0023] of Applicant’s PG Pub.).
Therefore, it is considered that the positive active material of Nam would possess the same properties, including the same weight decrease amount as claimed. It is noted that 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, wherein 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 (See MPEP 2112.01).
Regarding claim 5, Nam et al. teach the positive electrode NCM-based active material according to claim 1. However, they do not teach wherein a weight decrease ratio per minute in thermal mass spectrometry at a temperature of 120 to 600°C and a temperature increase rate of 5°C/min is 0.40 mass%/min or less.
However, the instantly claimed weight decrease ratio per minute, under the claimed conditions, is an inherent structural characteristic of the active material itself.
Furthermore, (1) Nam already teaches that the positive active material exhibits all of the recited structural characteristics of Claim 1, and (2) Nam’s specific active material(s) may be structured the same, or substantially the same, as the Applicant’s “NCM” materials as disclosed in Applicant’s Specification (See at least paragraphs 0032-0039 of Nam versus at least paragraphs 0018-0023 of Applicant’s PG Pub.).
Therefore, it is considered that the positive active material of Nam would possess the same properties, including the same weight decrease ratio per minute as claimed. It is noted that 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, wherein 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 (See MPEP 2112.01).
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Zheng et al. (US 2022/0336805).
Regarding claim 4, Zheng et al. teach the positive electrode NCM-based active material according to claim 1. However, they do not teach wherein a weight decrease amount in thermal mass spectrometry at a temperature of 120 to 600°C and a temperature increase rate of 5°C/min is 12 mass% or less.
However, the instantly claimed weight decrease amount, under the claimed conditions, is an inherent structural characteristic of the active material itself.
Furthermore, (1) Zheng already teaches that the positive active material exhibits all of the recited structural characteristics of Claim 1, and (2) Nam’s specific active material(s) may be structured the same, or substantially the same, as the Applicant’s “NCM” materials as disclosed in Applicant’s Specification (See at least paragraphs 0028, 0033 of Zheng versus at least paragraphs 0018-0023 of Applicant’s PG Pub.).
Therefore, it is considered that the positive active material of Nam would possess the same properties, including the same weight decrease amount as claimed. It is noted that 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, wherein 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 (See MPEP 2112.01).
Regarding claim 5, Zheng et al. teach the positive electrode NCM-based active material according to claim 1. However, they do not teach wherein a weight decrease ratio per minute in thermal mass spectrometry at a temperature of 120 to 600°C and a temperature increase rate of 5°C/min is 0.40 mass%/min or less.
However, the instantly claimed weight decrease ratio per minute, under the claimed conditions, is an inherent structural characteristic of the active material itself.
Furthermore, (1) Zheng already teaches that the positive active material exhibits all of the recited structural characteristics of Claim 1, and (2) Zheng’s specific active material(s) may be structured the same, or substantially the same, as the Applicant’s “NCM” materials as disclosed in Applicant’s Specification (See at least paragraphs 0028, 0033 of Zheng versus at least paragraphs 0018-0023 of Applicant’s PG Pub.).
Therefore, it is considered that the positive active material of Zheng would possess the same properties, including the same weight decrease ratio per minute as claimed. It is noted that 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, wherein 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 (See MPEP 2112.01).
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Kaneda et al. (JP 2018/060759 A)
Regarding claim 4, Kaneda et al. teach the positive electrode NCM-based active material according to claim 1. However, they do not teach wherein a weight decrease amount in thermal mass spectrometry at a temperature of 120 to 600°C and a temperature increase rate of 5°C/min is 12 mass% or less.
However, the instantly claimed weight decrease amount, under the claimed conditions, is an inherent structural characteristic of the active material itself.
Furthermore, (1) Kaneda already teaches that the positive active material exhibits all of the recited structural characteristics of Claim 1, and (2) Kaneda’s specific active material(s) may be structured the same, or substantially the same, as the Applicant’s “NCM” materials as disclosed in Applicant’s Specification (See at least paragraph 0013 of Kaneda versus at least paragraphs 0018-0023 of Applicant’s PG Pub.).
Therefore, it is considered that the positive active material of Kaneda would possess the same properties, including the same weight decrease amount as claimed. It is noted that 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, wherein 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 (See MPEP 2112.01).
Regarding claim 5, Kaneda et al. teach the positive electrode NCM-based active material according to claim 1. However, they do not teach wherein a weight decrease ratio per minute in thermal mass spectrometry at a temperature of 120 to 600°C and a temperature increase rate of 5°C/min is 0.40 mass%/min or less.
However, the instantly claimed weight decrease ratio per minute, under the claimed conditions, is an inherent structural characteristic of the active material itself.
Furthermore, (1) Kaneda already teaches that the positive active material exhibits all of the recited structural characteristics of Claim 1, and (2) Kaneda’s specific active material(s) may be structured the same, or substantially the same, as the Applicant’s “NCM” materials as disclosed in Applicant’s Specification (See at least paragraph 0013 of Kaneda versus at least paragraphs 0018-0023 of Applicant’s PG Pub.).
Therefore, it is considered that the positive active material of Kaneda would possess the same properties, including the same weight decrease ratio per minute as claimed. It is noted that 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, wherein 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 (See MPEP 2112.01).
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 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of copending Application No. 18/416,391. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1-7 of the reference application, when considered in accordance with their recited claim dependencies an in specific context of the overlapping portion(s) of the c/a ratio, recite a positive electrode NCM-based active material, positive electrode, and battery which comprise, at least, all of the recited limitations of instant Claims 1-7.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 3-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-6 of U.S. Patent No. 12,362,360 B2 in view of Zheng et al. (US 2022/0336805 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. Claim 1 of ‘360 discloses the same claimed positive NCM-based active material as claimed in Claims 1 and 2 of the present application except for the c/a ratio limitation. However, this limitation would be obvious in view of Zheng being that Zheng discloses lithium nickel manganese cobalt oxides (such as LiNi0.6Mn0.2Co0.2O2) (See Examples), wherein a ratio c/a of a length of an a-axis to a length of a c-axis in a crystal structure as obtained from an X-ray diffraction pattern analysis result is 4.9631 or less (Paragraph 0125 discloses the lithium transition metal oxide may have a c/a ratio of the crystal structure (as obtained via XRD) of 4.96.). Remaining claims 3-6 of ‘360 are identical to claims 4-7 of the present application.
Claims 1, 3-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-8 of copending Application No. 18/416,538. Although the claims at issue are not identical, they are not patentably distinct from each other because Claim 1 of ‘538 discloses the same claimed positive NCM-based active material as claimed in Claim 1 of the present application except for the c/a ratio limitation. However, this limitation would be obvious in view of Zheng being that Zheng discloses lithium nickel manganese cobalt oxides (such as LiNi0.6Mn0.2Co0.2O2) (See Examples), wherein a ratio c/a of a length of an a-axis to a length of a c-axis in a crystal structure as obtained from an X-ray diffraction pattern analysis result is 4.9631 or less (Paragraph 0125 discloses the lithium transition metal oxide may have a c/a ratio of the crystal structure (as obtained via XRD) of 4.96.). Remaining claims 4-8 of ‘538 are identical to claims 4-7 of the present application.
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 DANIEL S GATEWOOD whose telephone number is (571)270-7958. The examiner can normally be reached M-F 8:00-5:30.
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Daniel S. Gatewood, Ph.D.
Primary Examiner
Art Unit 1729
/DANIEL S GATEWOOD, Ph. D/Primary Examiner, Art Unit 1729 June 11th, 2026
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