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
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in China on 2/20/21. It is noted, however, that applicant has not filed a certified copy of the foreign application as required by 37 CFR 1.55. Examiner notes a Request to Retrieve Electronic Priority Application(s) was filed on 8/28/23.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 8/18/23 and 11/18/25 have been considered by the examiner.
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 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/398,629 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both recite an electrochemical device comprising a positive electrode and an electrolytic solution. The positive electrode incudes a positive active material containing Mg and the electrolytic solution comprises a carboxylate and a polynitrile compound wherein the polynitrile compound contains an ether-free dinitrile or an ether dinitrile, and further comprises a trinitrile compound.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/398,742 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both recite an electrochemical device comprising a positive electrode and an electrolytic solution. The positive electrode incudes a positive active material containing Mg and the electrolytic solution comprises a carboxylate and a polynitrile compound wherein the polynitrile compound contains an ether-free dinitrile or an ether dinitrile, and further comprises a trinitrile compound. Both recite the positive active material may further comprise an M1 element (see claim 4 of the present application).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 3-6, 9-14 and 18-20 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 3 recites “Dn50”, which is indefinite. The claim does not define the term “Dn50” and it is unclear what the term encompasses.
Claim 4 recites a specific surface area “C m2/g” and “0.004 ≤ C/Y ≤ 0.1”, which is indefinite. It is unclear how the specific surface area of the positive active material is determined. It is unclear how the weight percent of carboxylate (Y%) results in a value for C as recited in claim 4. “C” in claim 4 is not specifically defined.
Claim 5 recites “Dv10/Dn10”, which is indefinite. The claim does not define the terms “Dv10” and/or “Dn10” and it is unclear what the terms encompass.
Claim 5 recites the limitation "the particles" in line 5. There is insufficient antecedent basis for this limitation in the claim. See also claim 6.
Claim 6 recites “Dv10” and “Dn10”, which are indefinite. The claim does not define the terms “Dv10” and/or “Dn10” and it is unclear what the terms encompass.
Claim 9 recites a weight percent of the ether-free dinitrile compound is “B%” and “0.0001 ≤ B/X ≤ 0.02”, which is indefinite. It is unclear how the weight percent of the ether-free dinitrile compound is determined. It is unclear how the weight of the Mg element (X ppm) results in a value for “B” as recited in claim 9. “B%” in claim 9 is not specifically defined. See also claims 10 and 17.
Claim 11 recites the limitation "an ether dinitrile compound" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites “a trinitrile compound” and “the trinitrile compound comprises at least one of the ether-free trinitrile compound or the ether trinitrile compound”, which is indefinite and appears to improperly broaden the subject matter of claim 1. See also claim 18
Claim 13 recites the limitation "an ether-free dinitrile compound" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites “the ether-free dinitrile compound comprises a saturated dinitrile compound and an unsaturated dinitrile compound”, which is indefinite and appears to improperly broaden the subject matter of claim 1. Examiner suggests “the ether-free dinitrile compound comprises a saturated ether-free dinitrile compound and a saturated ether-free dinitrile compound”. See at least lines 2-4 and lines 5-7 of claim 13. See also claim 20.
Claim 18 recites the limitation "an ether dinitrile compound" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 18 recites the limitation "the nitrile compound" in line 6. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "an ether-free dinitrile compound" in line 2. There is insufficient antecedent basis for this limitation in the claim.
To the extent the claimed are understood in view of the 35 USC 112 rejections above, note the following prior art rejections.
Claim Rejections - 35 USC § 102
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.
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.
Claim(s) 1-10 and 15-17 is/are rejected under 35 U.S.C. 102(a)(1)/103 as being anticipated by, and alternatively unpatentable over, Abe et al., WO 2019/009177 A1.
Abe teaches a lithium battery comprising a positive electrode and an electrolytic solution [abstract]. The positive electrode has a positive electrode mixture layer containing a positive electrode active material and a binder, and for example, has a structure in which the positive electrode mixture layer is formed on one side or both sides of a current collector (page 9). The positive electrode active material (PAM) comprises a metal oxide (lithium-containing composite oxide) composes of Li and a metal M wherein M may include Mg. The PAM may be lithium cobaltate having at least one element M1 wherein M1 may include Mg. The amount of M1 is preferably 0.003 or more and preferably 0.03 or less (pages 9-10). The specific surface area of the PAM may be 0.1 m2/g or more. The average particle diameter of the PAM may be 10-35 mm. The PAM may contains two different PAMs having different average particle diameters (page 12). The Examples of Abe teach specific positive active materials containing Mg.
The electrolytic solution of Abe may contain a nonaqueous solvent comprising at least one propionate ester (carboxylate) represented by formula (1). Examples of the propionate ester include methyl propionate, ethyl propionate, propyl propionate, butyl propionate and the like, and one or more of these can be used. The amount of the propionate ester in the non-aqueous electrolyte is preferably 30% by volume or more, more preferably 50% by volume or more, in order to enhance the above-mentioned effects. Further, for the purpose of facilitating the dissociation of the lithium salt in the non-aqueous electrolytic solution, it is desirable to use in combination with a cyclic carbonate having a high dielectric constant. The amount of propionate ester is preferably 80% by volume or less, more preferably 70% by volume or less (page 19).
In addition, for the purpose of further improving the charge/discharge cycle characteristics of the battery and improving safety such as high temperature storage performance and overcharge prevention, the electrolytic solution further contains additives (including their derivatives) such as carbonate, anhydride, sulfonate ester, dinitrile, 1,3-propanesultone, diphenyl disulfide, cyclohexylbenzene, biphenyl, fluorobenzene, t-butylbenzene etc. It is preferable to use the propionate-based ester and the dinitrile compound as the non-aqueous electrolyte for a lithium ion secondary battery, in particular, because the charge and discharge cycle characteristics of the battery at a high voltage of 4.3 V or more become good. The amount of the dinitrile compound in the non-aqueous electrolyte for a lithium ion secondary battery is preferably 0.1% by mass or more, more preferably 0.3% by mass or more, and 10.0% by mass% or less is preferable, and 7.0% by mass or less is more preferable. (page 19). Specific examples of dinitrile compounds include malononitrile, succinonitrile, glutaronitrile, adiponitrile, 1,4-dicyanoheptane, 1,5-dicyanopentane, 1,6-dicyanohexane, 1,7-dicyanoheptane, 6-dicyanoheptane, 1,8-dicyanooctane, 2,7-dicyanooctane, 1,9-dicyanononane, 2,8-dicyanononane, 1,10-dicyanodecane, 1,6-dicyanodecane, 2,4-dimethyl glutaronitrile etc. are mentioned (page 19-20). See also Example 8 of Abe.
Thus, the claims are anticipated. Abe teaches M may further include Co, Ni, Mn, Fe or Al. Abe teaches M1 may further include Zr, Ni, Mn, Ti or Al. The PAM may have particles with an average particle diameter of 4-8 mm.
The claims are alternatively unpatentable. Abe teaches the claimed invention with sufficient specificity. The ranges of the claims are broad and have been given the broadest reasonable interpretation. For example, the claims do not recite any specific positive active material, only that the positive active material contain Mg element in X ppm. Note the 35 USC 112 rejections above.
*
Claim(s) 1-4, 7-8, 11-12, 15-16 and 18-19 is/are rejected under 35 U.S.C. 102(a)(1)/103 as being anticipated by, and alternatively unpatentable over, Xiong et al., CN 111740162 A.
Xiong teaches an electrolyte, an electrochemical device including the same and an electronic device. The electrolyte includes isocyanate and an ether nitrile compound. The electrochemical device comprises the electrolyte, and has the improved high-temperature cycle, high-temperature storage performance, impedance and low-temperature discharge performance (abstract). The electrochemical device includes a positive electrode, a negative electrode, a separator, and the electrolyte. The positive electrode includes a positive electrode active material, the positive electrode active material includes element A, and the element A is selected from Mg, Ti, Cr, B, Fe, Zr, Y, Na and S. At least one of the elements, based on the weight of the positive active material, the content of the element A is less than 0.5 wt%. The cycle and floating performance of electrochemical devices can be significantly improved by doping the positive electrode active material. In some embodiments, the positive active material is selected from metal Mg-doped lithium cobalt oxide (LiCoO2), and the content of elemental Mg is less than about 0.5 wt% based on the weight of metal Mg-doped lithium cobalt oxide. The positive electrode includes a current collector and a positive active material layer on the current collector, and the positive active material layer includes the positive active material.
The electrolyte solution comprises an isocyanate and an ether nitrile. The isocyanate is represented by formula I (carboxylate). The ether nitrile compound includes at least one of the compounds represented by formula II or formula III.
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Formula II represents an ether dinitrile compound (X is a substituted or unsubstituted C2 to C10 alkylene or alkenylene containing at least one ether bond) and formula III represented an ether trinitrile compound. Based on the weight of the electrolyte, the content of the isocyanate is 0.01 wt% to 5.5 wt%, the content of the ether nitrile compound is 0.5 wt% to 6.5 wt%. Based on the weight of the electrolyte, the content A of the isocyanate and the content B of the ether nitrile compound satisfies 1/10 ≤ A/B ≤ 10. The electrolyte further comprises fluorocarboxylic acid ester (carboxylate) represented by formula IV:
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wherein R41 and R42 are each independently selected from substituted or unsubstituted C1 to C6 alkyl, substituted or unsubstituted C2 to C6 straight chain or branched alkenyl or substituted or unsubstituted C2 to C6 straight chain or branched chain alkynyl, wherein, when substituted, the substituent is F; wherein the fluorocarboxylic acid ester represented by the formula IV comprises at least one F; wherein the content of the fluorocarboxylic acid ester compound is 0.01wt % to 20wt%, based on the weight of the electrolyte.
Thus, the claims are anticipated. The lithium cobaltate doped with Mg has an average particle size D50 of 18 mm. See at least compound II-1 and compounds III-1 through III-4 of Xiong regarding claims 8, 11-12, 16 and 18-19.
The claims are alternatively unpatentable. Abe teaches the claimed invention with sufficient specificity. The ranges of the claims are broad and have been given the broadest reasonable interpretation. For example, the claims do not recite any specific positive active material, only that the positive active material contain Mg element in X ppm. Note the 35 USC 112 rejections above.
Allowable Subject Matter
Claims 13-14 and 20 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. The claims recite the polynitrile compound comprises the ether-free dinitrile compound wherein the ether-free dinitrile compound includes both a saturated ether-free dinitrile (Q wt%) and an unsaturated ether-free dinitrile (V wt%) wherein 0.05≤ V/Q ≤1, as recited by claims 13-14 and 20.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRACY DOVE whose telephone number is (571)272-1285. The examiner can normally be reached M-F 9:00-3:00.
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/TRACY M DOVE/Primary Examiner, Art Unit 1725