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 .
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on July 14, 2026 is acknowledged. The traversal is on the grounds that Shin does not teach the XRD ratios of Group I. This is not found persuasive because not all groups require this technical feature therefore, Shin does not need to disclose that the positive electrode material precursor contains three-layer microspheres with XRD (110) and (102) crystal plane peaks having an intensity ratio of 1.0-8.0. Group II requires NixCoyMzTp(OH)q and the specifics for M, x, y, z, p, and q but never mentions the three-layer microsphere nor the XRD peaks. Therefore, because Shin teaches the precursor Ni0.88Co0.6Mn0.04(OH)2 (formula of instant claim 1 and 7 where M is MN, x=0.88, y=0.6, z=0.04, p=0, and q=2) and additional second precursors [0165], which is the common technical feature of Groups I, II, III, and IV; there is a lack of unity because there is not a special technical feature among the groups. .
The requirement is still deemed proper and is therefore made FINAL.
Claims 7-16 and 18-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on July 14, 2026.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on November 17, 2023, April 11, 2025, June 27, 2025, August 19, 2025, and May 28, 2026 have been considered by the examiner.
Claim Objections
Claim 5 is objected to because of the following informalities: There seems to be a typo in claim 5 line 4. “In the shape of sheet” should be corrected to “in the shape of a sheet”. Appropriate correction is required.
Claim 17 is objected to because of the following informalities: Because claim 7 has been withdrawn, it should not be referenced (claim 17, line 2). For purposes of compact prosecution, examiner will treat this as if the method steps of claim 7 were copied into claim 17. Appropriate correction is required.
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 1-6 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.
Regarding claim 1 (last line of instant claim 1), the phrases "preferably" and “more preferably” render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 2, the phrases "preferably" (claim 2, line 3) and “more preferably” (claim 2, line 4) render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 3, the phrases "preferably" (claim 3, lines 4 and 8-11) and “more preferably” (claim 3, lines 5 and 7-11) render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 4, the phrases "preferably" (claim 4, line 5), “more preferably” (claim 4, line 8), and “particularly preferably” (claim 4, line 12) render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 5, the phrase "preferably" (claim 5, line 3) renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 6 (claim 6 line 3), the phrases "preferably" and “more preferably” render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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 1-6 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Foreign Patent CN111370653A (IDS dated 11/17/2023; see attached English Translation), hereinafter Cao.
Regarding claims 1-3, Cao teaches a lithium battery positive electrode material precursor with the chemical formula Ni0.8Co0.1Mn0.1(OH)2 (Pg 5-6, example 1, preparation of precursors for cathode materials, step 4 line 2) (general formula of instant claims 1 and 3 where x=0.8, y=0.1, z=0.1, p=0, q=2, and M is Mn). The positive electrode material precursor contains secondary particles in the form of microspheres (‘cathode material precursor (secondary particle)’ Pg 10, test of precursors of cathode materials, paragraph 3, line 3) that have a three-layer structure from the inside to the outside, namely an inner core layer, a middle layer, and an outermost layer (‘the number of coating layers is 3 layers’ Pg 6, Example 1, preparation of precursors for cathode materials, step 4, line 3).
However, Cao fails to teach the inner core layer of the microsphere and the microsphere having an XRD intensity ratio of (110) and (102) crystal planes of 1.0-8.0 and 0.1-1.5, respectively (instant claims 1-2).
In the instant specification, each example contains the positive electrode material precursor that falls within the claimed formula NixCoyMzTp(OH)q, however, the XRD intensity ratios only fall within the most preferred claimed ranges in examples 1-9 and 11-23. An overlapping difference in the properties between examples 1-9 and 11-23 and comparative examples 1-4 is that the 0.1C discharge specific capacity mAh/g is greater than 203 mAh/g (instant specification Tables 1-2). Therefore, the claimed XRD intensity ratio appears to be attributed to or evidenced by the discharge specific capacity. Additionally, the positive electrode material precursor of Cao is made in a manner similar to that of the instant specification wherein nickel sulfate, cobalt sulfate, and manganese sulfate were mixed in a molar ratio of 8:1:1 to obtain a solution with a concentration of 2mol/L (instant specification Example 1 and Cao Example 1). NaOH and ammonia solutions were added to this mixture and then continuously added to a reaction kettle while maintaining specific concentrations and pHs (instant specification Example 1 and Cao Example 1). Finally the mixture was separated, washed, and dried to obtain the positive electrode material precursor (instant specification Example 1 and Cao Example 1). Therefore, because the positive electrode material precursor of Cao contains Ni0.8Co0.1Mn0.1(OH)2 (Cao Example 1) and has a discharge specific capacity of 214 mAh/g at 0.1C (Cao Table 3 and Pg 11, testing of cathode materials and batteries, paragraph 2) and was prepared in substantially the same manner, one of ordinary skill would appreciate the material of Cao will have XRD intensity ratios falling within the claimed ranges. “Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary” (MPEP 2112.01).
Regarding claim 4, Cao teaches the positive electrode material precursor according to claim 1, wherein, based on the total thickness of the three-layer structure being 100%, the thickness of the inner core layer in the microsphere accounts for 0.1%-50%, the thickness of the middle layer accounts for 40%-95%, and the thickness of the outermost layer accounts for 0.1%-20% (‘Preferably, when the number of coating layers n is 3, the diameter of the core is 0.5-2 microns, the thickness of the first coating layer is 0.4-1.5 microns, the thickness of the second coating layer is 0.2-1.1 microns, and the thickness of the third coating layer is 0.2-1.1 microns’ (Pg 4, paragraph 5). This demonstrates an overlap in ranges taught. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a Prima facie case of obviousness exists (MPEP 2144.05)).
Regarding claim 5, Cao teaches the positive electrode material precursor according to claim 1, wherein the shape of the primary particles of the positive electrode material precursor is a sheet (‘add the prepared positive electrode material and conductive agent and mix thoroughly, and then dry and roll to make a positive electrode sheet’ (Pg 11, testing of cathode materials and batteries, paragraph 1, line 3-4).
Regarding claim 6, Cao teaches the positive electrode material precursor according to claim 1, wherein the particle size D50 of the secondary particles of the positive electrode material precursor is 1-30µm (Table 1, Example 1, D50=5.9µm).
Regarding claim 17, Cao teaches the positive electrode material precursor prepared by the method according to claim 7. (‘mix nickel sulfate, cobalt sulfate, and manganese sulfate to obtain a mixed salt solution, prepare a sodium hydroxide solution, prepare an ammonia solution. Heat water in a reaction kettle and add the NaOH and ammonia solutions. The three solutions are then continuously added to the stirred reactor. Reactants were then separated and washed to obtain Ni0.8Co0.1Mn0.1(OH)2’ (Pg 5-6, preparation of precursors for cathode materials steps 1-4).
“Prepared by the method according to claim 7” is a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the product of the prior art was made by a different process (MPEP 2113). In this case, given the broadest reasonable interpretation, the final product resulting from the claimed product by
process limitation is “the positive electrode material precursor”. Art teaching this final product
reads on the limitation regardless of the process.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Mia K Holbrook whose telephone number is (571)272-9253. The examiner can normally be reached Monday - Friday 7:30-5.
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/M.K.H./Examiner, Art Unit 1724
/MIRIAM STAGG/Supervisory Patent Examiner, Art Unit 1724
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