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 .
Response to Amendment
The preliminary amendment filed on 12/28/2023 is entered and acknowledged by the Examiner. Claims 5-7 and 14-17 have been amended. Claims 10-12 and 19-33 have been canceled. Claims 1-9, 13-18, and 34 are currently pending in the instant application.
Information Disclosure Statement
The information disclosure statement (IDS) filed on 12/28/2023 is in compliance with the provisions of 37 CFR 1.97 and has been considered by the examiner. An initialed copy accompanies this Office Action.
Drawings
The drawings filed on 12/28/2023 have been considered.
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 1-4 are rejected under 35 U.S.C. 102(a)(1) as anticipated by an article to “Structure of EuCrO4 and Its Electronic and Magnetic Properties” (hereinafter Konno).
Initially, it should be note that the Konno reference is cited in the IDS filed on 12/28/2023.
Claim Interpretation: Claim 1 is drawn to a composition MxABO4 where M is Ca, Mg, and Na, but x can equal zero. Thus, the claimed composition can be an undoped ABO4 composition when x=0 and M dopant is not required.
Regarding claim 1, Konno discloses a composition of REMO4 where RE is rare earth metal (III) and M is V, P, and As (See Abstract). Konno also discloses a composition of EuCrO4 (See Abstract). The composition of Konno meets the claimed ABO4 composition with A includes rare earth metal such as Eu and B includes V, P, As, and Cr. Konno discloses a composition having the same chemical structure as the claimed ABO4 composition. It’s noted that Applicant described the ABO4 Composition including EuCrO4 (See [0006] of the present specification). Therefore, the EuCrO4 composition of Konno are expected to have a crystal structure with a tetragonal I4_1/amd space group and has edge-sharing AO8 dodecahedral and BO4 tetrahedral as claimed.
Regarding claims 2 and 3, Konno discloses the composition comprises A-site includes Eu and B-site includes Cr (See Abstract, EuCrO4)
Regarding claim 4, Konno also discloses the composition comprises REMO4 where RE (A-site) is rare earth metal (III) and M (B-site) is V as required in claim 4 (See Abstract). The rare earth metal (III) encompasses Eu, Y, Sc, and Yb.
The reference specifically or inherently meets each of the claimed limitations in their broadest interpretations. The reference is anticipatory.
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.
Claims 5-9 and 13-18 are rejected under 35 U.S.C. 103 as being unpatentable over the article to Konno.
Konno is relied upon as set forth above.
With respect to claims 5-9 and 13-18, Claims recite the phrase “made using a solid state method or a sol-gel method” and render the claims as product-by-process claims. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure limited by the steps. Therefore, the patentability of the ABO4 Composition does not depend on its method of production and the claimed steps were not given patentable weight. Moreover, Konno discloses the composition comprises EuCrO4 as in claims 5 and 14 (See Abstract), but fail to explicitly disclose ABO4 is EuVO4, YVO4, ScVO4, YbVO4, or YCrO4 as recited in claims 6-9, 13, and 15-18. Note dopant Mg, Ca or Na is an optional component when x=0 in the claimed MxABO4.
Given that Konno discloses a composition of REMO4 where RE (A-site) is rare earth metal (III) and M (B-site) includes V (See Abstract). Konno discloses compositions that include REMO4 structure where RE (A-site) is rare earth metal (III) and M (B-site) includes V (See Abstract). The rare earth metal (III) of Konno encompasses Eu, Y, Sc, and Yb.
Therefore, it would have been obvious for a skilled artisan to formulate the REMO4 composition of Konno to form EuVO4, YVO4, ScVO4, and YbVO4 as claimed by selecting RE (A-site) from a rare earth metal III encompassing Eu, Y, Sc, Yb and M (B-site) including V. The subject matter as a whole would have been obvious to skilled artisan at the time the invention was filed to select A-site and B-site from the disclosure of Konno to optimization for the REMO4 composition for best results.
Additionally, any difference imparted by the product by process limitations would have been obvious to one having ordinary skill in the art at the time the invention was made because where the examiner has found a substantially similar product as in the applied prior art, the burden of proof is shifted to the applicant to establish that their product is patentably distinct, not the examiner to show the same process of making, see In re Brown, 173 USPQ 685 and In re Fessmann, 180 USPQ 324.
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Konno as applied to the above claims, and further in view of US 4,855,637 (hereinafter Watanabe).
Konno is relied upon as set forth above.
With respect to claim 34, Konno disclose REMO4 (ABO4) composition, but does not disclose a cathode including the composition.
Watanabe discloses a cathode comprising Sc oxide including ScVO4 (See Claim 6).
It would have been obvious for a skilled artisan at the time the invention was filed to incorporate the REMO4 (ABO4) composition of Konno in a cathode as suggested by Watanabe and the results would have been predictable because Watanabe discloses the ABO4 composition can be utilize in a cathode.
In view of the foregoing, the above claims have failed to patentably distinguish over the applied art.
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 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KHANH TUAN NGUYEN whose telephone number is (571)272-8082. The examiner can normally be reached M-F 9:00 AM to 5:00 PM EST.
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/KHANH T NGUYEN/Primary Examiner, Art Unit 1761