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 .
Response to Amendment
Currently, the pending Claims are 1, 3-7.
The examined Claims are 1, 3-7, with Claims 1, 3-6 being amended.
Response to Arguments
In view of the aforementioned amendments to the Claims, the previous rejections of record under 35 USC 112(b) are withdrawn.
Furthermore, Applicant has mainly amended independent Claim 1 to include the subject matter of now-cancelled Claim 2 (i.e. Claim 1 requires that the c/a ratio is 4.9619-4.9625).
In support of said amendment to Claim 1, Applicant presents arguments versus the prior art rejections of record (Pages 5-9 of Remarks). Applicant argues that as outlined in Table 1 and [0051] of Applicant’s Specification, a high thermal stability and improved cycling performance are attained for a positive electrode nickel-cobalt-manganese based active material having the claimed c/a ratio range (Pages 5-9 of Remarks). Applicant also argues that neither Nam, nor Kaneda, nor Zhang disclose a material with a c/a ratio specifically within the instantly claimed range, or otherwise recognize any specific benefits associated with a c/a ratio as instantly claimed (e.g. high thermal stability, improved cycling performance) (Pages 5-9 of Remarks). Finally, Applicant argues that the double patenting rejections of record are overcome in view of the amendments to the Claims (Pages 9-10 of Remarks).
Applicant’s arguments are not persuasive.
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 Ni0.60Co0.20Mn0.20(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 [0049]-[0050] 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.
Additionally, the instant Claims require a c/a ratio of 4.9619-4.9625, and the Claims of copending Application No. 18/416372 now require a c/a ratio of 4.9622-4.9631 (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. 18/416372, 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
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.
Claims 1, 3-7 are rejected under 35 U.S.C. 103 as being unpatentable over Nam et al. (US 2022/0093920).
Regarding Claim 1, Nam teaches a positive active material, and a lithium secondary battery comprising a positive electrode which comprises the positive active material (Abstract, [0001], [0025]). Nam teaches that the positive active material is a lithium nickel manganese cobalt oxide based active material (“nickel-cobalt-manganese-based active material”) ([0032]-[0039]). Nam teaches that as obtained by XRD, the c/a ratio (“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”) of the positive active material is 4.93-5.0, wherein Nam teaches that capacity, rate-dependent, and safety characteristics are reduced outside of said range ([0068]). It is noted that in the case where the claimed range(s) “overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness exists (See MPEP 2144.05 (I)).
Regarding Claim 3, Nam teaches the instantly claimed invention of Claim 1, as previously described.
Nam teaches that the positive active material comprises secondary particles formed of agglomerated primary particles, wherein the average particle size (D50) of the secondary particle is 7-20 µm, wherein Nam teaches that such a particle size improves filling density characteristics ([0075]). It is noted that in the case where the claimed range(s) “overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness exists (See MPEP 2144.05 (I)).
Regarding Claim 4, Nam teaches the instantly claimed invention of Claim 1, as previously described.
Nam does not explicitly teach a weight decrease amount, under the claimed conditions, in accordance with the claimed range.
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 [0020]-[0024] 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 teaches the instantly claimed invention of Claim 1, as previously described.
Nam does not explicitly teach a weight decrease ratio per minute, under the claimed conditions, in accordance with the claimed range.
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 [0032]-[0039] of Nam versus at least [0020]-[0024] 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).
Regarding Claim 6, Nam teaches the instantly claimed invention of Claim 1, as previously described.
As previously described (See Claim 1), Nam teaches a lithium secondary battery comprising a positive electrode which comprises the positive active material.
Regarding Claim 7, Nam teaches the instantly claimed invention of Claim 6, as previously described.
As previously described (See Claim 7), Nam teaches a lithium secondary battery comprising a positive electrode which comprises the positive active material.
Claims 1, 3-7 are rejected under 35 U.S.C. 103 as being unpatentable over Kaneda et al. (JP 2018-060759, provided by Applicant in the 05/19/25 IDS, and using Applicant’s provided machine translation for citation purposes).
Regarding Claim 1, Kaneda teaches a positive active material, and a lithium secondary battery comprising a positive electrode which comprises the positive active material ([Overview], [0013], [0024]). Kaneda teaches that the positive active material is a lithium nickel manganese cobalt oxide based active material (“nickel-cobalt-manganese-based active material”) ([0013]). Kaneda teaches that as obtained by XRD, the c/a ratio (“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”) of the positive active material is 4.9444-4.9721 (based on a c-axis value being 0.287-0.288 nm and an a-axis value being 1.424-1.427 nm) ([0013]). It is noted that in the case where the claimed range(s) “overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness exists (See MPEP 2144.05 (I)).
Regarding Claim 3, Kaneda teaches the instantly claimed invention of Claim 1, as previously described.
Kaneda teaches that the positive active material comprises secondary particles formed of agglomerated primary particles, wherein the average particle size (D50) of the secondary particle is 5-18 µm, wherein Kaneda teaches that such a particle size helps provide for high filling properties ([0048]). It is noted that in the case where the claimed range(s) “overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness exists (See MPEP 2144.05 (I)).
Regarding Claim 4, Kaneda teaches the instantly claimed invention of Claim 1, as previously described.
Kaneda does not explicitly teach a weight decrease amount, under the claimed conditions, in accordance with the claimed range.
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 [0013 of Kaneda versus at least [0020]-[0024] 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 teaches the instantly claimed invention of Claim 1, as previously described.
Kaneda does not explicitly teach a weight decrease ratio per minute, under the claimed conditions, in accordance with the claimed range.
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 [0013] of Kaneda versus at least [0020]-[0024] 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).
Regarding Claim 6, Kaneda teaches the instantly claimed invention of Claim 1, as previously described.
As previously described (See Claim 1), Kaneda teaches a lithium secondary battery comprising a positive electrode which comprises the positive active material.
Regarding Claim 7, Kaneda teaches the instantly claimed invention of Claim 6, as previously described.
As previously described (See Claim 7), Kaneda teaches a lithium secondary battery comprising a positive electrode which comprises the positive active material.
Claims 1, 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over Zheng et al. (US 2022/0336805).
Regarding Claim 1, Zheng teaches a lithium transition metal oxide cathode active material (Abstract, [0001], [0039]). Zheng teaches that the active material is a lithium nickel manganese cobalt oxide based active material (“nickel-cobalt-manganese-based active material”) ([0028], [0033]). Zheng teaches that as obtained by XRD, the c/a ratio (“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”) of the active material is preferably greater than 4.96 ([0125]). It is noted that in the case where the claimed range(s) “overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness exists (See MPEP 2144.05 (I)).
Regarding Claim 4, Zheng teaches the instantly claimed invention of Claim 1, as previously described.
Zheng does not explicitly teach a weight decrease amount, under the claimed conditions, in accordance with the claimed range.
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 lithium transition metal oxide cathode 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 [0028] and [0033] of Zheng versus at least [0020]-[0024] of Applicant’s PG Pub.).
Therefore, it is considered that the active material of Zheng 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 teaches the instantly claimed invention of Claim 1, as previously described.
Zheng does not explicitly teach a weight decrease ratio per minute, under the claimed conditions, in accordance with the claimed range.
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 lithium transition metal oxide cathode 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 [0028] and [0033] of Zheng versus at least [0020]-[0024] of Applicant’s PG Pub.).
Therefore, it is considered that the 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).
Regarding Claim 6, Zheng teaches the instantly claimed invention of Claim 1, as previously described.
Zheng does not explicitly teach a positive electrode comprising the active material.
However, Zheng teaches that the active material is specifically suitable for use as an active material in a cathode comprised in a rechargeable lithium ion battery ([0039], [0128]).
Therefore, it would have been obvious before the effective filing date of the claimed invention that one of ordinary skill in the art would use the active material of Zheng as an active material in a positive electrode comprised in a rechargeable lithium ion battery, given that Zheng teaches that the active material is specifically suitable for use as an active material in a cathode comprised in a rechargeable lithium ion battery.
Regarding Claim 7, Zheng teaches the instantly claimed invention of Claim 6, as previously described.
As previously described (See Claim 6), the positive electrode is comprised in a rechargeable lithium ion battery.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Zheng et al. (US 2022/0336805), and further in view of Nam et al. (US 2022/0093920).
Regarding Claim 3, Zheng teaches the instantly claimed invention of Claim 1, as previously described.
Zheng does not explicitly teach an average particle size in accordance with the claimed range.
However, Nam teaches a positive active material, and a lithium secondary battery comprising a positive electrode which comprises the positive active material (Abstract, [0001], [0025]). Nam teaches that the positive active material is a lithium nickel manganese cobalt oxide based active material ([0032]-[0039]). Nam teaches that as obtained by XRD, the c/a ratio of the positive active material is 4.93-5.0, wherein Nam teaches that capacity, rate-dependent, and safety characteristics are reduced outside of said range ([0068]). Nam teaches that the positive active material comprises secondary particles formed of agglomerated primary particles, wherein the average particle size (D50) of the secondary particle is 7-20 µm, wherein Nam teaches that such a particle size improves filling density characteristics ([0075]).
Therefore, it would have been obvious before the effective filing date of the claimed invention that one of ordinary skill in the art would form the active material of Zheng as secondary particles formed of agglomerated primary particle with an average particle size (D50) of the secondary particle being 7-20 µm, as taught by Nam, given that such a particle size would help improve filling density characteristics. It is noted that in the case where the claimed range(s) “overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness exists (See MPEP 2144.05 (I)).
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, 3-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1, 3, 5-7 of copending Application No. 18/416372 (reference application). 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 nickel-cobalt-manganese-based active material, positive electrode, and battery which comprise, at least, all of the recited limitations of instant Claims 1, 3-7. With respect to the overlap of the c/a ratios (i.e. 4.9619-4.9625 in the instant application vs. 4.9622-4.9631 in the reference application), It is noted that in the case where the claimed range(s) “overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness exists (See MPEP 2144.05 (I)).
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 MATTHEW W VAN OUDENAREN whose telephone number is (571)270-7595. The examiner can normally be reached 7AM-3PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Martin can be reached at 5712707871. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW W VAN OUDENAREN/Primary Examiner, Art Unit 1728
