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 § 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.
Claims 11 and 16-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Baker et al. (WO-2014102531-A2).
Regarding claims 11 and 16-17
Baker discloses a method of mixing the starting materials in the correct stoichiometric ratio and pressing into a pellet, then heating to 300 to 800 C under a non-oxidizing atmosphere (i.e., inert gas conditions) until a reaction product forms, colling the pellets before grinding to a powder (page 19, liens 13-18).
Baker discloses that the starting a materials include ammonium hypophosphite (i.e., (NH4)H2PO2)and iron oxide (i.e., particulate transition metal oxide) in a 2:1 weight ratio (Example 2, Table 1).
As the temperature is higher than the minimum used, it is expected that the temperature will be greater than the melting point or decomposition temperature of the hypophosphite compound)
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 12-15 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Baker et al. (WO-2014102531-A2), as applied to claims 11 and 16-17 above.
Regarding claim 12
As the heating range of the reference overlaps the claimed range, the subject matter as a whole would have been obvious to one having ordinary skill in the art at the time the invention was made to have selected the overlapping portion of the range disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. In re Malagari, 182 U.S.P.Q. 549.
Regarding claim 13
Baker discloses that the heating can be carried out at a single temperature, or over a range of temperatures (page 11,lines 31-35). As such heating with a gradually increasing temperature is obvious if not anticipated.
Regarding claim 14
Baker discloses that the heating is carried out for 0.5 to 12 hours (page 12, lines 9-12).
As the time range of the reference overlaps the claimed range, the subject matter as a whole would have been obvious to one having ordinary skill in the art at the time the invention was made to have selected the overlapping portion of the range disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. In re Malagari, 182 U.S.P.Q. 549.
Regarding claim 15
Baker discloses it is important for the materials to have high purity, and that a high temperature can be used to remove the volatiles (i.e., purifying) (page 2, line 24 to page 3, line 7). As such it would have been prima facie obvious to purify the product.
Additionally, if a first prior art process is improved to enhance the purity of the product produced by the process, and if the purified product has no structural or functional difference from the products produced by other prior art processes, then the improvement in the first process that improves the purity of the product does not give rise to patentability. See Purdue Pharma v. Epic Pharma, 811 F.3d 1345, 117 USPQ2d 1733 (Fed. Cir. 2016).
Regarding claim 18
Baker discloses the use of titanium oxide (page 2, lines 20-23). Thus making the use of titanium oxide obvious if not anticipated.
Regarding claim 19
Baker discloses that his compounds can be used as the active material (i.e., catalyst) in electrodes (i.e., an electrochemical device). Further, it would be obvious to also use the titanium phosphate containing material as well.
Conclusion
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JAMES E. MCDONOUGH
Examiner
Art Unit 1734
/JAMES E MCDONOUGH/Primary Examiner, Art Unit 1734
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