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 statement (IDS) submitted on 9/3/2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment
In response to communication filed on 9/17/2026:
Claims 1, 3, 5, and 6 have been amended; claims 2 and 4 have been canceled. No new matter has been entered.
Previous rejections under 35 USC 112(b) and 102(a)(1) have been withdrawn.
Response to Arguments
Applicant's arguments filed 9/17/2026 have been fully considered but they are not persuasive.
The Applicant discloses: “[the prior art of record] does not render Applicant's claim 1 obvious at least because Applicant has demonstrated that the claimed positive electrode nickel-cobalt-manganese-based active material having a ratio c/a ranging from 4.9622 to 4.9631 achieves a surprising and desirable technical achievement that is absent in [the prior art of record]. Indeed, Applicant has shown that the claimed ratio c/a ranging from 4.9622 to 4.9631 provides a positive electrode nickel-cobalt-manganese-based active material having improved low-temperature low state-of-charge (SOC) as well as high thermal stability. Table 1 in Applicant's published application demonstrates that both high thermal stability and improved low temperature low SOC are attained for a positive electrode nickel-cobalt-manganese-based active material having the claimed c/a ratio range. See Table 1 and paragraph [0049] of Applicant's published application. Specifically, a larger weight decrease and a larger weight decrease ratio per minute indicates reduced thermal stability and a greater amount of degradation. In contrast, [the prior art of record] fails to disclose or suggest a positive electrode nickel- cobalt-manganese-based active material having the claimed c/a ratio ranging from 4.9622 to 4.9631. Rather, [the prior art of record] discloses a much broader c/a ratio range and specifically teaches electrode active materials having larger c/a ratios than Applicant's claims. See, e.g., Table 1 of Nam. But Applicant has shown that c/a ratios larger than the claimed range currently recited degrade the thermal stability and low temperature low SOC.”
The Examiner respectfully traverses. Applicant’s Table 1 illustrates unexpected results (e.g. high thermal stability, improved cycling performance) based on a comparison of Examples 1-4 to Comparative Examples 1-4. Notably, Examples 1-4 and Comparative Examples 1-4 all evaluate substantially the same material, that is, a transition metal compound represented by Ni0.6Co0.20Mn0.20(OH)2 mixed with LiOH that is subjected to a first and second calcination step, where the c/a ratio of each Example/Comparative Example was controlled by controlling parameters in the first and second calcination step (see at least [0047]-[0048] of Applicant’s PG Publication, wherein it is also noted that the Specification does not appear to discuss specific parameters or characteristics of the first and second calcination steps, let alone the aspects of said steps which are controlled to produce different c/a ratios).
The instant Claims, however, are not directed to the specific material evaluated in Table 1. Instead, the instant Claims are in reference generally to a “positive electrode nickel-cobalt-manganese-based active material. Moreover, (1) the positive electrode material(s) of Nam, Kaneda, and Zhang are not specifically and/or necessarily the same as in Applicant’s Examples/Comparative Examples, (2) Applicant has provided no evidence proving that the results shown Table 1 directly extend to the material(s) of Nam, Kaneda, and Zhang, let alone any other type(s) of nickel-cobalt-manganese-based active materials.
Further, Comparative Examples 1-3 in Table 1 only show results above 4.9631 but not below 4.9625. MPEP 716.02(d) II states to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).
Additionally, the instant Claims require a c/a ratio of 4.9622-4.9631, and the Claims of copending Application No. 18/416391 now require a c/a ratio of 4.9619-4.9625 (i.e. the c/a ratios still overlap). Therefore, Claims 1, 3-7 are still provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1, 3, 5-7 of copending Application No. 18/416391, as described below.
Nevertheless, new grounds of rejection are presented below as necessitated by Applicant’s amendments to the Claims.
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 1, 3, and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Nam et al. (US 2022/0093920 A1).
Regarding claims 1, 6, and 7, Nam et al. teach a positive electrode nickel-cobalt-manganese-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 4.9622 or more and 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.). However, they do not teach wherein a weight decrease amount in thermogravimetric analysis 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 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.).
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 thermogravimetric analysis 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 1, 3, and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable by Zheng et al. (US 2022/0336805).
Regarding claims 1, 6, and 7, Zheng et al. teach a positive electrode nickel-cobalt-manganese-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 4.9622 or more and 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.). However, they do not teach wherein a weight decrease amount in thermogravimetric analysis 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 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.).
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 thermogravimetric analysis 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 1, 3, and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable by Kaneda et al. (JP 2018/060759 A).
Regarding claims 1, 6, and 7, Kaneda et al. teach a positive electrode nickel-cobalt-manganese-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 4.9622 or more and 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.). However, they do not teach wherein a weight decrease amount in thermogravimetric analysis 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 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.).
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 thermogravimetric analysis 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, 3, 5-7 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, and 5-7 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, and 5-7 are provisionally rejected on the grounds 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
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 DANIEL S GATEWOOD whose telephone number is (571)270-7958. The examiner can normally be reached M-F 8:00-5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ula Tavares-Crockett can be reached at 571-272-1481. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Daniel S. Gatewood, Ph.D.
Primary Examiner
Art Unit 1729
/DANIEL S GATEWOOD, Ph. D/Primary Examiner, Art Unit 1729 September 28th, 2026
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