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 .
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 non-obviousness.
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 1-2, 4-7, 9-10 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2018/0287145).
Regarding claim 1, Lee et al. discloses in Figs 1-2, a lithium secondary battery ([0036]), comprising: a cathode ([0036]); a separator ([0017]); and an anode ([0017]) including an anode current collector (ref 100) and an anode active material layer ([0017], refs 210, 220) formed on the anode current collector (ref 100) and facing the cathode ([0036]) with the separator ([0036]) interposed therebetween, wherein the anode active material layer ([0017], refs 210, 220) comprises a first anode active material layer (ref 210) and a second anode active material layer (ref 220) sequentially stacked ([0017], Fig 1) on the anode current collector (ref 100), wherein the first anode active material layer (ref 210) includes a first anode active material ([0020], [0021]) and a first anode binder ([0031], [0032]) containing a styrene-butadiene-based rubber (SBR) binder ([0031], [0048]), and the second anode active material layer (ref 220) includes a second anode active material ([0020], [0021]) and a second anode binder ([0031], [0032]) containing an acryl-based binder ([0031]), and further discloses the second binder is different from the first binder ([0031]).
Further, Lee et al. discloses its binders as a finite list of binders, including acryl-based binders, at [0031].
As such, it would have been obvious to one of ordinary skill in the art at the time of filing to incorporate the second binder as an acryl-based binder (that does not include SBR therein). KSR, 550 U.S. at 421, 82 USPQ2d at 1397.
The KSR Court recognized that “[w]hen there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.” KSR, 550 U.S. at 421, 82 USPQ2d at 1397
In this instance, it would have been obvious to one of ordinary skill in the art at the time of filing to incorporate the second binder as an acryl-based binder to enhance the adhesion of the electrode layers ([0031], [0032]).
Regarding claim 2, Lee et al. discloses all of the claim limitations as set forth above and also discloses each of the first anode active material (ref 210) and the second anode active material (ref 220) includes a silicon-based active material ([0020], [0021]) and a graphite-based material ([0020], [0021]).
Regarding claim 4, Lee et al. discloses all of the claim limitations as set forth above and also discloses the graphite-based active material includes a mixture of an artificial graphite ([0020], [0021]) and a natural graphite ([0020], [0021]).
Regarding claims 5 and 6, Lee et al. discloses all of the claim limitations as set forth above, but the reference does not explicitly disclose a weight ratio of the artificial graphite to the natural graphite is in range of 2 to 10. As lithium binding and charging performance (see Lee et al, [0021]) are variables that can be modified, among others, by adjusting said relative amounts of natural to artificial graphite, with said lithium binding and charging performance both varying as the relative amounts of natural to artificial graphite are varied, the precise amounts of natural to artificial graphite would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was filed. As such, without showing unexpected results, the claimed relative amounts of natural to artificial graphite cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was filed would have optimized, by routine experimentation, the relative amounts of natural to artificial graphite in the negative electrode of Lee et al. to obtain the desired balance between the lithium binding and charging performance (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 7, Lee et al. discloses all of the claim limitations as set forth above and also discloses the silicon-based active material includes SiOx (0<x<2) ([0020]).
Regarding claim 9, Lee et al. discloses all of the claim limitations as set forth above and also discloses the first anode binder includes a mixture of SBR ([0031]) and a carboxymethyl cellulose (CMC) ([0031]).
Regarding claim 10, Lee et al. discloses all of the claim limitations as set forth above, but the reference does not explicitly disclose a loading weight including the second anode active material and the second anode binder within the second anode active material layer is larger than a loading weight including the first anode active material and the first anode binder within the first anode active material layer. As battery electrical performance and electrode binding strength (see Lee et al, [0021], [0031) are variables that can be modified, among others, by adjusting said relative amounts of first active + binder to second active + binder, with said battery electrical performance and electrode binding strength both varying as the relative amounts of first active + binder to second active + binder are varied, the precise amounts of first active + binder to second active + binder would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was filed. As such, without showing unexpected results, the claimed relative amounts of first active + binder to second active + binder cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was filed would have optimized, by routine experimentation, relative amounts of first active + binder to second active + binder in the negative electrode of Lee et al. to obtain the desired balance between battery electrical performance and electrode binding strength (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 14, Lee et al. discloses all of the claim limitations as set forth above. Further, the envisaged structure of Lee et al. as set forth above results in an anode structure substantially identical in structure and composition to the anode as set forth in the instant claim, and the current collector is 8 or more microns thick ([0048], [0050]) and a total thickness of the anode active material layer is 50 - 200 microns ([0048], [0050]). Therefore, an elongation rate would inherently be 5% or more, the same as set forth in the instant claim. The courts have found 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). “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.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2018/0287145) as applied to claim 2 above, and further in view of Oh et al. (US 2013/0122378).
Regarding claim 3, Lee et al. discloses all of the claim limitations as set forth above but does not explicitly disclose 2 to 9.5 parts by weight of silicon with respect to the 100 part by weight of the graphite-based active material, wherein the silicon-based active material includes SiOx (0<x<2).
Oh et al. discloses in Figs 1-3, a lithium secondary battery (ref 100) including a negative electrode comprising an Si-C composite material ([0010]) comprising SiOx (0<x<2) ([0010]) mixed in an amount of 6:94 Si:C ([0010]). This configuration enhances capacity, cycle characteristics, and life cycle characteristics of the battery ([0008], [0010]).
Oh et al. and Lee et al. are analogous since both deal in the same field of endeavor, namely, batteries.
It would have been obvious to one of ordinary skill in the art at the time of filing to incorporate the SiOx/C composite of Oh et al. at the ratio disclosed by Oh et al. to the negative electrode of Lee et al. enhance capacity, cycle characteristics, and life cycle characteristics of the battery.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2018/0287145) as applied to claim 1 above, and further in view of Momose et al. (US 2014/0349185).
Regarding claim 8, modified Lee et al. discloses all of the claim limitations as set forth above but does not explicitly disclose the second anode binder includes a copolymer of poly(acrylic acid) and poly(vinyl alcohol) (a PAA-PVA copolymer).
Momose et al. discloses a secondary lithium battery (Abstract, Title) including an electrode comprising a copolymer of acrylic acid and vinyl alcohol ([0105], [0176]). This configuration allows viscosity adjustment and provides additional binding strength to the electrode ([0105]).
Momose et al. and Lee et al. are analogous since both deal in the same field of endeavor, namely, electrode binder materials.
It would have been obvious to one of ordinary skill in the art at the time of filing to incorporate the PAA-PVA copolymer disclosed by Momose et al. into the binder of Lee et al. to allow viscosity adjustment of the binder and provide additional binding strength to the electrode.
Claims 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2018/0287145) as applied to claim 1 above, and further in view of Kim et al. (KR 10-2019-0029320, see Machine Translation).
Regarding claim 11, Lee et al. discloses all of the claim limitations as set forth above but does not explicitly disclose the anode active material layer includes an overlapping region in which the SBR-based binder and the acryl-based binder are mixed, and the overlapping region is adjacent to an interface between the first anode active material layer and the second anode active material layer.
Kim et al. discloses in Figs 1-3, a lithium secondary battery (Abstract, Title), comprising: a cathode (P4/¶4); a separator (P7/¶7); and an anode (P9/¶4-6) including an anode current collector (P9/¶6) and an anode active material layer (P9/¶4-6) formed on the anode current collector (P9/¶4) and facing the cathode with the separator (P7/¶7) interposed therebetween, wherein the anode active material layer (P9/¶4-6) including, a first anode active material layer (P9/¶4-6) formed on the anode current collector (P9/¶6) and including a first anode active material (P9/¶4) and a first anode binder (P9/¶4) containing a styrene-butadiene-based rubber (SBR) binder (P9/¶4); and a second anode active material layer (P9/¶5) formed on the first anode active material layer (P9/¶4) and including a second anode active material (P9/¶5) and a second anode binder (P9/¶5) containing a acryl-based binder (P9/¶5), and each of the first anode active material (P9/¶4) and the second anode active material (P9/¶5) includes a silicon-based active material (P9/¶4-6, P5/¶1) and a graphite-based material (P5/¶1). Further, in embodiments 1-3 on P8-9, each anode active layer is formed into a slurry and coated one layer on top of the other, then dried and rolled (see P8-9, embodiments 1-3). This structure enhances the adhesion between the layers of the negative electrode (P5/¶”Problem to be solved”).
Kim et al. and Lee et al. are analogous since both deal in the same field of endeavor, namely, batteries.
It would have been obvious to one of ordinary skill in the art at the time of filing to incorporate the layer structure disclosed by Kim et al. into the electrode layer structure of Lee et al. to enhance adhesion between the layers of the negative electrode.
Further, via the envisaged structure of Lee et al. in view of Kim et al., it would have been obvious to one of ordinary skill in the art at the time of filing that the dried structure includes a final structure that appears to be the same as, or an obvious variant of, the structure of the instant claim (“the anode active material layer includes an overlapping region in which the SBR-based binder and the acryl-based binder are mixed, and the overlapping region is adjacent to an interface between the first anode active material layer and the second anode active material layer”).
Stated another way, the processing method renders a structure that includes an overlapping region at an interface of the two layers. As such, it would have been obvious to one of ordinary skill in the art at the time of filing that the end structure is the same as or an obvious variant of the structure of the instant claim.
Regarding claims 12 and 13, modified Lee et al. discloses all of the claim limitations as set forth above. The reference does not explicitly disclose the relative amounts of binder per layer location as set forth in the claims (“a content of the SBR-based binder within an upper layer portion of the first anode active material layer which is adjacent to the second anode active material layer is larger than a content of the SBR-based binder within an lower layer portion of the first anode active material layer which is adjacent to the anode current collector, and a content of the acryl-based binder within an upper layer portion of the second anode active material layer which is adjacent to an outer surface is larger than a content of the acryl-based binder within an lower layer portion of the second anode active material layer which is adjacent to the first anode active material layer.”). As the active material adhesion strength and battery electrical performance are variables that can be modified, among others, by adjusting said relative amounts of binder per layer location (see Kim et al., P2/¶3, ¶6, P5-6/¶ spanning), with said active material adhesion strength and battery electrical performance both varying as the relative amounts of binder per layer location is varied, the precise relative amounts of binder per layer location would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was filed. As such, without showing unexpected results, the claimed relative amounts of binder per layer location cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was filed would have optimized, by routine experimentation, the relative amounts of binder per layer location in the battery of modified Lee et al. as taught by Kim et al. to obtain the desired balance between the active material adhesion strength and battery electrical performance (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
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 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 11,876,217. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the ‘217 patent anticipate the instant claims. In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993).
Conclusion
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/KENNETH J DOUYETTE/ Primary Examiner, Art Unit 1725
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