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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement filed 21 December 2023 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because Foreign Patent Document Cite No. 1 “EP 2306599 A1” appears to be the wrong document (perhaps applicant means to cite “EP 2306559 A1”). It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Claim Interpretation
The claim 44 recitation of “high surface area (HSA) product” is being interpreted as meaning graphitic particles with a surface area of greater than 20 m2/g based on applicant’s specification and instant claim 50.
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 41-60 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 41 recites “graphitic particles having a generally non-spheroidal form” where the relative term “”generally” renders the recitation as it’s unclear what scope of shapes or forms are encompassed by “generally non-spheroidal form”. Thus the term “generally” is a relative term which renders the claim indefinite. The term “generally” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
As such, the scope of claim 41 and by dependency claims 42-56 and 59-60 are rendered indefinite.
Claim 45 recites “a surface area (BET)” where it’s unclear if the recitation of BET in parentheses means the surface area is optionally measured by the BET method or necessarily measured by this method. As such, the scope of claim 45 cannot be determined and is rendered indefinite.
Claim 45 further recites "(i) about 2 to 60 m2/g; or (ii) about 2 to 6 m2/g " but in the recited ranges, the first end points do not include a unit of measure and it's unclear if the unit of measure of " m2/g " of the second end points applies to the first endpoints or if the first end points can be a different unit of measure. As such, the scope of claim 45 cannot be reasonably determined and is rendered indefinite.
Claim 46 recites "1.0 to 1.5 g/cc " but in the recited range, the first end point does not include a unit of measure and it's unclear if the unit of measure of "g/cc " of the second end point applies to the first endpoint or if the first end point can be a different unit of measure. As such, the scope of claim 46 cannot be reasonably determined and is rendered indefinite.
Claim 47 recites "25 to 37 S/cm" but in the recited range, the first end point does not include a unit of measure and it's unclear if the unit of measure of "S/cm" of the second end point applies to the first endpoint or if the first end point can be a different unit of measure. As such, the scope of claim 47 cannot be reasonably determined and is rendered indefinite.
Claim 49 recites “(ii) in the range of 200 to 500 kWh/t; (iv) in the range of 400 to 500 kWh/t; (vi) in the range of 700 to 1200 kWh/t; or (vii) in the range of 1000 to 1200 kWh/t " but in the recited ranges, the first end points do not include a unit of measure and it's unclear if the unit of measure of "kWh/t " of the second end points applies to the first endpoints or if the first end points can be a different unit of measure. As such, the scope of claim 49 cannot be reasonably determined and is rendered indefinite.
Claim 50 recites "(ii)in the range of 20 to 40 m2/g; (iii) in the range of 25 to 35 m2/g; (v) in the range of 40 to 80 m2/g; or (vi) in the range of 40 to 50 m2/g" but in the recited ranges, the first end points do not include a unit of measure and it's unclear if the unit of measure of "m2/g " of the second end points applies to the first endpoints or if the first end points can be a different unit of measure. As such, the scope of claim 50 cannot be reasonably determined and is rendered indefinite.
Claim 51 recites “the HSA product is also subjected, after mechanical exfoliation, to…” but it’s unclear what mechanical exfoliation is being referenced in this claim as no mechanical exfoliation step was ever previously recited. As such, the scope of claim 51 cannot be reasonably determined and is rendered indefinite.
Claim 54 recites "in the range of 0.5 to 6 µm" but in the recited range, the first end point does not include a unit of measure and it's unclear if the unit of measure of "µm" of the second end point applies to the first endpoint or if the first end point can be a different unit of measure. As such, the scope of claim 54 cannot be reasonably determined and is rendered indefinite.
Claim 55 recites “a surface area (BET)” where it’s unclear if the recitation of BET in parentheses means the surface area is optionally measured by the BET method or necessarily measured by this method. As such, the scope of claim 55 cannot be determined and is rendered indefinite.
Claim 55 further recites "(i) have a surface area (BET) of about 2 to 60 m2/g; or (ii) have a surface area (BET) of about 7 to 9 m2/g" but in the recited ranges, the first end points do not include a unit of measure and it's unclear if the unit of measure of "m2/g" of the second end points applies to the first endpoints or if the first end points can be a different unit of measure. As such, the scope of claim 55 cannot be reasonably determined and is rendered indefinite.
Claim 57 recites “graphitic particles having a generally non-spheroidal form” and is rejected as indefinite for the same reasons as set forth for claim 41 above. Claim 58 is also rejected by dependency from claim 57.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 41-42, and 57-60 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Saruwatari et al (US 2009/0017381).
Regarding claim 41 Saruwatari discloses a cathode composition, the cathode composition comprising a graphitic material additive (Example 1, paras [0046], [0110]-[0113], Fig. 1 see: manufacture of positive electrode including a conductive agent constituted by graphite and illustrated in Fig. 1 as first carbon particles 3), wherein the graphitic material additive comprises graphitic particles having a generally non-spheroidal form (Example 1, paras [0026], [0046], [0110]-[0113], Figs. 1 and 5 see: first carbon particles 3 having a flaky configuration) and a D50 of less than about 15 μm, optionally less than about 10 μm (Example 1, paras [0110]-[0113], see: conductive agent constituted by graphite with a particle size distribution d50 of 12μm).
Regarding claim 42 Saruwatari discloses the cathode composition of claim 41, wherein the non-spheroidal form of the graphitic particles encompasses a form that approximates either an oblate spheroid or a flake form (Example 1, paras [0026], [0046], [0110]-[0113], Figs. 1 and 5 see: first carbon particles 3 having a flaky configuration).
Regarding claim 57 Saruwatari discloses a cathode composition comprising a cathode active material ([0110] see: LiCoO2 active material), a graphitic material additive ([0110] see: conductive agent constituted by graphite), and a binder, the binder optionally being provided in the form of polyvinylidene fluoride (PVdF) ([0110] see: PVdF binder), wherein the graphitic material additive comprises graphitic particles having a generally non-spheroidal form, optionally either in a form that approximates an oblate spheroid or in a flake form (Example 1, paras [0026], [0046], [0110]-[0113], Figs. 1 and 5 see: first carbon particles 3 having a flaky configuration), and having a D.sub.50 of: (i) less than about 15 μm (Example 1, paras [0110]-[0113], see: conductive agent constituted by graphite with a particle size distribution d50 of 12μm).
Regarding claim 58 Saruwatari discloses the cathode composition of claim 57, wherein the cathode active material is provided in the form of lithium cobalt oxide (LCO) or nickel manganese cobalt (NMC) ([0110] see: LiCoO2 active material).
Regarding claim 59 Saruwatari discloses a lithium-ion battery comprising the cathode composition as described in claim 41 (See Example 1, paras [0110]-[0122]).
Regarding claim 60 Saruwatari discloses a method for producing the cathode composition as described in claim 41 (See Example 1, paras [0110]-[0113].
Claims 41-42, 44-49, and 51-60 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by PACHECO BENITO et al (US 2019/033067).
Regarding claim 41 PACHECO BENITO discloses a cathode composition (para [0212]), the cathode composition comprising a graphitic material additive ([0207]-[0210], [0212] see: milled expanded graphite in NMP dispersions X or Y), wherein the graphitic material additive comprises graphitic particles having a generally non-spheroidal form ([0033]-[0034] see: expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets (flakes)), and having a D50 of less than about 15 μm, optionally less than about 10 μm (Table 3 on page 15 see: dispersions X and Y having measured D50 of 14.54μm or 13.33μm or 9.83 μm).
Regarding claim 42 PACHECO BENITO discloses the cathode composition of claim 41, wherein the non-spheroidal form of the graphitic particles encompasses a form that approximates either an oblate spheroid or a flake form ([0033]-[0034] see: expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets (flakes)).
Regarding claim 44 PACHECO BENITO discloses the cathode composition of claim 41, wherein the graphitic particles comprise either an agglomerated fines product or a high surface area (HSA) product, the HSA product optionally being provided in flake form ([0017], [0033]-[0034] see: expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets (flakes)) and having a BET SSA from about 10 to about 40 m2/g and thus considered “high surface area”), and wherein the agglomerated fines product comprises secondary graphite particles, optionally comprising ground primary graphite particles, the secondary graphite particles predominantly having a form that approximates an oblate spheroid, the secondary graphite particles having a D.sub.50 of: (i) less than about 5 μm; or (ii) less than about 2 μm.
Regarding claim 48 PACHECO BENITO discloses the cathode composition of claim 44, wherein the HSA product comprises graphitic particles that have been: (i) subject to mechanical exfoliation; or (ii) subject to mechanical exfoliation performed by way of milling, impact, pressure and/or shear forces ([0033]-[0034], [0207]-[0210] see: expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets exfoliated by mechanical milling).
Regarding claim 49 PACHECO BENITO discloses the cathode composition of claim 44, wherein the HSA product comprises graphitic particles that have been subject to mechanical exfoliation ([0033]-[0034], [0207]-[0210] see: expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets exfoliated by mechanical milling), and the claim 49 recitations of “the mechanical exfoliation is conducted: (i) at greater than 200 kWh/t; (ii) in the range of 200 to 500 kWh/t; (iii) at greater than 400 kWh/t; (iv) in the range of 400 to 500 kWh/t; (v) at greater than 700 kWh/t; (vi) in the range of 700 to 1200 kWh/t; or (vii) in the range of 1000 to 1200 kWh/t” are directed to a method of manufacture of the claimed graphitic particles.
The examiner notes that the determination of patentability is determined by the recited structure of the product or apparatus and not by a method of making said structure. A claim containing a recitation with respect to the manner in which a claimed product or apparatus is made does not differentiate the claimed product or apparatus from a prior art product or apparatus if the prior art product or apparatus teaches all the structural limitations of the claim. See MPEP 2113 and 2114.
The cathode composition of PACHECO BENITO discloses all of the structural limitations of claim 49.
Regarding claim 51 PACHECO BENITO discloses the cathode composition of claim 44, wherein the HSA product has the flake form and the HSA product is also subjected, after mechanical exfoliation ([0033]-[0034], [0207]-[0210] see: expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets (flakes) exfoliated by mechanical milling), to: (i) drying methods that support the retention of its flake form; ([0018]-[0019] see: carbonaceous sheared nano-leaves particles are dried after milling and still present as nano-leaves particles (flakes)).
Regarding claims 45-47, and 52-56 PACHECO BENITO discloses the cathode composition as set forth in claim 44 and discloses the species of graphitic particles of a high surface area (HSA) product in the group of either an agglomerated fines product or a high surface area (HSA) product as set forth above in claim 44. The limitations of claims 45-47, and 52-56 are all directed to the agglomerated fines product species of graphitic particles. However, this species is anticipated as PACHECO BENITO discloses the other species of a high surface area (HSA) product in the Markush group set forth above in claim 44. As such, the limitations of claims 45-47, and 52-56 are also anticipated as they are directed to the species of the agglomerated fines product comprising secondary graphite particles, and optionally comprising ground primary graphite particles in the Markush group anticipated by PACHECO BENITO as set forth in claim 44 above.
See MPEP 2131.02 Genus-Species Situations:
II. A REFERENCE THAT CLEARLY NAMES THE CLAIMED SPECIES ANTICIPATES THE CLAIM NO MATTER HOW MANY OTHER SPECIES ARE NAMED
A genus does not always anticipate a claim to a species within the genus. However, when the species is clearly named, the species claim is anticipated no matter how many other species are additionally named. See Ex parteA, 17 USPQ2d 1716 (Bd. Pat. App. & Inter. 1990) (The claimed compound was named in a reference which also disclosed 45 other compounds. The Board held that the comprehensiveness of the listing did not negate the fact that the compound claimed was specifically taught. The Board compared the facts to the situation in which the compound was found in the Merck Index, saying that “the tenth edition of the Merck Index lists ten thousand compounds. In our view, each and every one of those compounds is ‘described’ as that term is used in [pre-AIA ] 35 U.S.C. 102(a), in that publication.”). Id. at 1718. See also In re Sivaramakrishnan, 673 F.2d 1383, 213 USPQ 441 (CCPA 1982) (The claims were directed to polycarbonate containing cadmium laurate as an additive. The court upheld the Board’s finding that a reference specifically naming cadmium laurate as an additive amongst a list of many suitable salts in polycarbonate resin anticipated the claims. The applicant had argued that cadmium laurate was only disclosed as representative of the salts and was expected to have the same properties as the other salts listed while, as shown in the application, cadmium laurate had unexpected properties. The court held that it did not matter that the salt was not disclosed as being preferred, the reference still anticipated the claims and because the claim was anticipated, the unexpected properties were immaterial.).
Regarding claim 57 PACHECO BENITO discloses a cathode composition comprising a cathode active material ([0212] see: cathode formed with NMC active material), a graphitic material additive ([0207]-[0210], [0212] see: milled expanded graphite in NMP dispersions X or Y), and a binder, the binder optionally being provided in the form of polyvinylidene fluoride (PVdF) ([0212] see: PvDF binder), wherein the graphitic material additive comprises graphitic particles having a generally non-spheroidal form, optionally either in a form that approximates an oblate spheroid or in a flake form ([0033]-[0034] see: expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets (flakes)), and having a D50 of: (i) less than about 15 μm; or (ii) less than about 10 μm (Table 3 on page 15 see: dispersions X and Y having measured D50 of 14.54μm or 13.33μm or 9.83 μm).
Regarding claim 58 PACHECO BENITO discloses the cathode composition of claim 57, wherein the cathode active material is provided in the form of lithium cobalt oxide (LCO) or nickel manganese cobalt (NMC) (paras [0022] and [0212] see: cathode formed with NMC active material).
Regarding claim 59 PACHECO BENITO discloses a lithium-ion battery comprising the cathode composition as described in claim 41 (para [0022]).
Regarding claim 60 PACHECO BENITO discloses a method for producing the cathode composition as described in claim 41 (paras [0207]-[0212]).
Claim Rejections - 35 USC § 102/103
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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.
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 41-42, 44-47, 52-57, and 59-60 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Spahr et al (US 2012/0077035).
Regarding claim 41 Spahr discloses a cathode composition, the cathode composition comprising a graphitic material additive ([0068]-[0069] see: forming a battery cathode with HOGA graphite), wherein the graphitic material additive comprises graphitic particles having a generally non-spheroidal form ([0050] see: HOGA graphite having a flaky particle shape) and regarding the claim 41 limitation of “a D50 of less than about 15 μm, optionally less than about 10 μm” Spahr discloses HOGA graphite particles with a D50 of less than about 15 μm, optionally less than about 10 μm (see Fig. 3 and Example 2 para [0124], Example 5 para [1027], Example 6 para [0128]). In the alternative where it’s not clear the recited examples are in the embodiment where HOGA graphite is used in the cathode composition, it would have been obvious to one having ordinary skill in the art at the time of the invention to select the HOGA graphite with these properties for the graphitic material additive in the cathode composition as they would be expected to have the same advantages other HOGA graphite particles have in cathode compositions (see paras [0068]-[0069]).
Regarding claim 42 Spahr discloses cathode composition of claim 41, wherein the non-spheroidal form of the graphitic particles encompasses a form that approximates either an oblate spheroid or a flake form ([0050] see: HOGA graphite having a flaky particle shape).
Regarding claim 44 Spahr discloses the cathode composition of claim 41, wherein the graphitic particles comprise either an agglomerated fines product or a high surface area (HSA) product, the HSA product optionally being provided in flake form ([0019], [0050] Fig. 3 see: HOGA graphite having a flaky particle shape and a BET surface area of higher than 20 m2/g or higher than 25 m2/g and thus considered a high surface area (HSA) product), and wherein the agglomerated fines product comprises secondary graphite particles, optionally comprising ground primary graphite particles, the secondary graphite particles predominantly having a form that approximates an oblate spheroid, the secondary graphite particles having a D.sub.50 of: (i) less than about 5 μm; or (ii) less than about 2 μm.
Regarding claims 45-47, and 52-56 Spahr discloses the cathode composition as set forth in claim 44 and discloses the species of graphitic particles of a high surface area (HSA) product in the group of either an agglomerated fines product or a high surface area (HSA) product as set forth above in claim 44. The limitations of claims 45-47, and 52-56 are all directed to the agglomerated fines product species of graphitic particles. However, this species is anticipated as Spahr discloses the other species of a high surface area (HSA) product in the Markush group set forth above in claim 44. As such, the limitations of claims 45-47, and 52-56 are also anticipated as they are directed to the species of the agglomerated fines product comprising secondary graphite particles, and optionally comprising ground primary graphite particles in the Markush group anticipated by Spahr as set forth in claim 44 above.
See MPEP 2131.02 Genus-Species Situations:
II. A REFERENCE THAT CLEARLY NAMES THE CLAIMED SPECIES ANTICIPATES THE CLAIM NO MATTER HOW MANY OTHER SPECIES ARE NAMED
A genus does not always anticipate a claim to a species within the genus. However, when the species is clearly named, the species claim is anticipated no matter how many other species are additionally named. See Ex parteA, 17 USPQ2d 1716 (Bd. Pat. App. & Inter. 1990) (The claimed compound was named in a reference which also disclosed 45 other compounds. The Board held that the comprehensiveness of the listing did not negate the fact that the compound claimed was specifically taught. The Board compared the facts to the situation in which the compound was found in the Merck Index, saying that “the tenth edition of the Merck Index lists ten thousand compounds. In our view, each and every one of those compounds is ‘described’ as that term is used in [pre-AIA ] 35 U.S.C. 102(a), in that publication.”). Id. at 1718. See also In re Sivaramakrishnan, 673 F.2d 1383, 213 USPQ 441 (CCPA 1982) (The claims were directed to polycarbonate containing cadmium laurate as an additive. The court upheld the Board’s finding that a reference specifically naming cadmium laurate as an additive amongst a list of many suitable salts in polycarbonate resin anticipated the claims. The applicant had argued that cadmium laurate was only disclosed as representative of the salts and was expected to have the same properties as the other salts listed while, as shown in the application, cadmium laurate had unexpected properties. The court held that it did not matter that the salt was not disclosed as being preferred, the reference still anticipated the claims and because the claim was anticipated, the unexpected properties were immaterial.).
Regarding claim 57 Spahr discloses a cathode composition comprising a cathode active material, a graphitic material additive, and a binder, the binder optionally being provided in the form of polyvinylidene fluoride (PVdF) (paras [0068]-[0070], [0073] see: a pressed mixture of electrolytic manganese dioxide (EMD), graphite, KOH electrolyte and some additional additives (binder) form the positive electrode (cathode)), wherein the graphitic material additive comprises graphitic particles having a generally non-spheroidal form, optionally either in a form that approximates an oblate spheroid or in a flake form ([0050] see: HOGA graphite having a flaky particle shape), and regarding the claim 57 limitations of “having a D50 of: (i) less than about 15 μm; or (ii) less than about 10 μm” Spahr discloses HOGA graphite particles with a D50 of less than about 15 μm, or less than about 10 μm (see Fig. 3 and Example 2 para [0124], Example 5 para [1027], Example 6 para [0128]). In the alternative where it’s not clear the recited examples are in the embodiment where HOGA graphite is used in the cathode composition, it would have been obvious to one having ordinary skill in the art at the time of the invention to select the HOGA graphite with these properties for the graphitic material additive in the cathode composition as they would be expected to have the same advantages other HOGA graphite particles have in cathode compositions (see paras [0068]-[0069]).
Regarding claim 59 Spahr discloses a lithium-ion battery comprising the cathode composition as described in claim 41 (para [0070]).
Regarding claim 60 Spahr discloses a method for producing the cathode composition as described in claim 41 (paras [0068]-[0070]).
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.
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.
Claim 43 is rejected under 35 U.S.C. 103 as being unpatentable over Saruwatari et al (US 2009/0017381) as applied to claims 41-42, and 57-60 above, and further in view of Nardi (US 6,828,064).
Regarding claim 43 Saruwatari discloses the cathode composition of claim 41, but does not explicitly disclose wherein the graphitic particles have a carbon content of: (i) greater than 99.9% wt/wt; or (ii) greater than 99.92% wt/wt.
However, Nardi teaches a cathode composition having expanded graphite particles with a purity level of greater than 99.9% wt/wt (C2/L35-37), where Nardi teaches conventional conductive additives employed in the cathode of the cell have included high levels of impurities which leads to an increase in gassing which decreases the performance of the cell (C2/L9-17).
Nardi and Saruwatari are combinable as they are both concerned with the field of cathode compositions with graphitic particles.
It would have been obvious to one having ordinary skill in the art at the time of the invention to modify the cathode composition of Saruwatari in view of Nardi such that the graphitic particles of Saruwatari have a carbon content of: (i) greater than 99.9% wt/wt as in Nardi (C2/L35-37) as Nardi teaches such excessive impurities leads to an increase in gassing which decreases the performance of the cell (C2/L9-17) and thus should be minimized.
Claims 44-56 are rejected under 35 U.S.C. 103 as being unpatentable over Saruwatari et al (US 2009/0017381) as applied to claims 41-42, and 57-60 above, and further in view of Atanassova et al (US 2020/0056050).
Regarding claim 44 Saruwatari discloses the cathode composition of claim 41, but does not explicitly disclose wherein the graphitic particles comprise either an agglomerated fines product or a high surface area (HSA) product, the HSA product optionally being provided in flake form, and wherein the agglomerated fines product comprises secondary graphite particles, optionally comprising ground primary graphite particles, the secondary graphite particles predominantly having a form that approximates an oblate spheroid, the secondary graphite particles having a D.sub.50 of: (i) less than about 5 μm; or (ii) less than about 2 μm.
Atanassova discloses graphitic particles for battery cathodes comprising a high surface area (HSA) product, the HSA product optionally being provided in flake form ([0004], [0007], [0074]-[0077] see: graphite particles of graphitic sheets with a BET surface area of greater than or equal to 20 m2/g and thus considered high surface area as recited above). Atanassova teaches the inclusion of such graphitic particles advantageously reduces the total concentration of conductive additives used, while still providing excellent battery performance or improving battery performance, e.g., cycle life, cold capacity, and hot storage capacity retention (Atanassova, [0006]).
Atanassova and Saruwatari are combinable as they are both concerned with the field of cathode compositions with graphitic particles.
It would have been obvious to one having ordinary skill in the art at the time of the invention to modify the cathode composition of Saruwatari in view of Atanassova such that the graphitic particles of Saruwatari comprise a high surface area (HSA) product, the HSA product optionally being provided in flake form as in Atanassova ([0004], [0007], [0074]-[0077] see: graphite particles of graphitic sheets with a BET surface area of greater than or equal to 20 m2/g and thus considered high surface area as recited above) as Atanassova teaches the inclusion of such graphitic particles advantageously reduces the total concentration of conductive additives used, while still providing excellent battery performance or improving battery performance, e.g., cycle life, cold capacity, and hot storage capacity retention (Atanassova, [0006]).
Regarding claim 48 modified Saruwatari discloses the cathode composition of claim 44, and Atanassova discloses wherein the HSA product comprises graphitic particles that have been: (i) subject to mechanical exfoliation; or (ii) subject to mechanical exfoliation performed by way of milling, impact, pressure and/or shear forces (Atanassova, [0088], [0090] see: carbonaceous or graphitic particles can include graphenes formed from mechanical exfoliation of graphite).
Regarding claim 49 modified Saruwatari discloses the cathode composition of claim 44, and Atanassova discloses wherein the HSA product comprises graphitic particles that have been subject to mechanical exfoliation (Atanassova, [0088], [0090] see: carbonaceous or graphitic particles can include graphenes formed from mechanical exfoliation of graphite), and the claim 49 recitation “the mechanical exfoliation is conducted: (i) at greater than 200 kWh/t; (ii) in the range of 200 to 500 kWh/t; (iii) at greater than 400 kWh/t; (iv) in the range of 400 to 500 kWh/t; (v) at greater than 700 kWh/t; (vi) in the range of 700 to 1200 kWh/t; or (vii) in the range of 1000 to 1200 kWh/t” is directed to a method of manufacturing the recited graphitic particles of the cathode composition.
The examiner notes that the determination of patentability is determined by the recited structure of the product or apparatus and not by a method of making said structure. A claim containing a recitation with respect to the manner in which a claimed product or apparatus is made does not differentiate the claimed product or apparatus from a prior art product or apparatus if the prior art product or apparatus teaches all the structural limitations of the claim. See MPEP 2113 and 2114.
The cathode composition of modified Saruwatari discloses all of the structural limitations of claim 49.
Regarding claim 50 modified Saruwatari discloses the cathode composition of claim 44, and Atanassova discloses wherein the HSA product comprises graphitic particles that have been subject to mechanical exfoliation (Atanassova, [0088], [0090] see: carbonaceous or graphitic particles can include graphenes formed from mechanical exfoliation of graphite), and the graphitic particles of the HSA product have a surface area (BET) of: (i) greater than 20 m2/g; (ii) in the range of 20 to 40 m2/g; (iii) in the range of 25 to 35 m2/g; (iv) greater than 40 m2/g; (v) in the range of 40 to 80 m2/g; or (vi) in the range of 40 to 50 m2/g (Atanassova, [0089] see: the graphenes can have a BET surface area of 100 m2/g).
Regarding claim 51 modified Saruwatari discloses the cathode composition of claim 44, wherein the HSA product has the flake form and the HSA product is also subjected, after mechanical exfoliation, to: (i) drying methods that support the retention of its flake form; o (ii) a cryogenic drying method (Atanassova, [0088], [0090] see: carbonaceous or graphitic particles can include graphenes formed from mechanical exfoliation of graphite which are further dried after being formed in the cathode paste (paras [0107]-[0108])).
Regarding claims 45-47, and 52-56 modified Saruwatari discloses the cathode composition as set forth in claim 44 and discloses the species of graphitic particles of a high surface area (HSA) product in the group of either an agglomerated fines product or a high surface area (HSA) product as set forth above in claim 44. The limitations of claims 45-47, and 52-56 are all directed to the agglomerated fines product species of graphitic particles. However, this species is anticipated as modified Saruwatari discloses the other species of a high surface area (HSA) product in the Markush group set forth above in claim 44. As such, the limitations of claims 45-47, and 52-56 are also anticipated as they are directed to the species of the agglomerated fines product comprising secondary graphite particles, and optionally comprising ground primary graphite particles in the Markush group anticipated by modified Saruwatari as set forth in claim 44 above.
See MPEP 2131.02 Genus-Species Situations:
II. A REFERENCE THAT CLEARLY NAMES THE CLAIMED SPECIES ANTICIPATES THE CLAIM NO MATTER HOW MANY OTHER SPECIES ARE NAMED
A genus does not always anticipate a claim to a species within the genus. However, when the species is clearly named, the species claim is anticipated no matter how many other species are additionally named. See Ex parteA, 17 USPQ2d 1716 (Bd. Pat. App. & Inter. 1990) (The claimed compound was named in a reference which also disclosed 45 other compounds. The Board held that the comprehensiveness of the listing did not negate the fact that the compound claimed was specifically taught. The Board compared the facts to the situation in which the compound was found in the Merck Index, saying that “the tenth edition of the Merck Index lists ten thousand compounds. In our view, each and every one of those compounds is ‘described’ as that term is used in [pre-AIA ] 35 U.S.C. 102(a), in that publication.”). Id. at 1718. See also In re Sivaramakrishnan, 673 F.2d 1383, 213 USPQ 441 (CCPA 1982) (The claims were directed to polycarbonate containing cadmium laurate as an additive. The court upheld the Board’s finding that a reference specifically naming cadmium laurate as an additive amongst a list of many suitable salts in polycarbonate resin anticipated the claims. The applicant had argued that cadmium laurate was only disclosed as representative of the salts and was expected to have the same properties as the other salts listed while, as shown in the application, cadmium laurate had unexpected properties. The court held that it did not matter that the salt was not disclosed as being preferred, the reference still anticipated the claims and because the claim was anticipated, the unexpected properties were immaterial.).
Claim 50 is rejected under 35 U.S.C. 103 as being unpatentable over PACHECO BENITO et al (US 2019/033067) as applied to claims 41-42, 44-49, and 51-60 above.
Regarding claim 50 PACHECO BENITO discloses the cathode composition of claim 44, and regarding the claim 50 recitation of “wherein the HSA product comprises graphitic particles that have been subject to mechanical exfoliation, and the graphitic particles of the HSA product have a surface area (BET) of: (i) greater than 20 m2/g; (ii) in the range of 20 to 40 m2/g; (iii) in the range of 25 to 35 m2/g; (iv) greater than 40 m2/g; (v) in the range of 40 to 80 m2/g; or (vi) in the range of 40 to 50 m2/g” PACHECO BENITO discloses in paras [0017], [0033]-[0034] that the mechanically expanded/exfoliated graphite additive having a carbonaceous sheared nano-leaves form of thin platelets (flakes)) has a BET SSA from about 10 to about 40 m2/g which substantially encompasses or otherwise overlaps applicants claimed ranges of “(i) greater than 20 m2/g; (ii) in the range of 20 to 40 m2/g; (iii) in the range of 25 to 35 m2/g; (iv) greater than 40 m2/g; (v) in the range of 40 to 80 m2/g; or (vi) in the range of 40 to 50 m2/g”. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
Claim 43 is rejected under 35 U.S.C. 103 as being unpatentable over PACHECO BENITO et al (US 2019/033067) as applied to claims 41-42, and 44-60 above, and further in view of Nardi (US 6,828,064).
Regarding claim 43 PACHECO BENITO discloses the cathode composition of claim 41, but does not explicitly disclose wherein the graphitic particles have a carbon content of: (i) greater than 99.9% wt/wt; or (ii) greater than 99.92% wt/wt.
However, Nardi teaches a cathode composition having expanded graphite particles with a purity level of greater than 99.9% wt/wt (C2/L35-37), where Nardi teaches conventional conductive additives employed in the cathode of the cell have included high levels of impurities which leads to an increase in gassing which decreases the performance of the cell (C2/L9-17).
Nardi and PACHECO BENITO are combinable as they are both concerned with the field of cathode compositions with graphitic particles.
It would have been obvious to one having ordinary skill in the art at the time of the invention to modify the cathode composition of PACHECO BENITO in view of Nardi such that the graphitic particles of PACHECO BENITO have a carbon content of: (i) greater than 99.9% wt/wt as in Nardi (C2/L35-37) as Nardi teaches such excessive impurities leads to an increase in gassing which decreases the performance of the cell (C2/L9-17) and thus should be minimized.
Conclusion
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ANDREW J. GOLDEN
Primary Examiner
Art Unit 1726
/ANDREW J GOLDEN/Primary Examiner, Art Unit 1726
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