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
Upon entry of the amendment filed on 30 March 2026, Claim(s) 1 is/are amended. The currently pending claims are Claims 1-9.
Applicants’ remarks and amendments have been carefully considered; however, they are not found persuasive and the rejections are maintained. Further, new grounds of rejections are provided necessitated by the amendments.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bergner (US-20230406722-A1).
Claims 1-6 and 8: Bergner discloses particulates of (oxy)hydroxide of a transition metal precursor having a BT range of 2-70 m2/g, a loading amount range of 10-25% wt., D50 range of 5-12 microns and a bimodal distribution with a first particulate having a diameter of 3-7 microns and a second particulate having a diameter of 11-17 microns (abs, ¶10-26, 77-89, Tables 1, 2 and Figs 3-5 with accompanying text). Further, Bergner discloses a similar formula - see formula (I). Bergner discloses optimizing the loading amounts to achieve high electrochemical performance and excellent cycling stability (¶10, examples). The Bergner reference discloses the claimed invention but does not explicitly disclose the claimed ratios of the BET, diameter and loading amounts. It is noted that the claimed ratios and amounts are construed as result-effective variables, i.e., variables which achieve a recognized result. Given that the Bergner reference discloses a similar composition and is expressly motivated to optimize the size, loading amounts and surface area variables, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05. Thus, it would have been obvious to one of ordinary skill in the art at the time of the invention to optimize known variables, i.e. the diameter, loading amounts and the surface area, since the reference also discloses a similar end-product and similar ranges. Further, obviousness only requires a reasonable expectation of success and there is no evidence nor teaching that the selection or optimization of the claimed components would be repugnant to a skilled artisan.
Claim 7: Regarding the claimed tap density property, if a prior art reference teaches the substantially identical structure and material, it would be reasonable that the same function and/or property would be imparted or exhibited. See MPEP 2112.01. Applicant is welcomed to provide any evidence that the disclosed material is exceedingly different from the claimed material - thus the claimed properties would inevitably not be present.
Claim 9: Bergner discloses the heat treatment and battery end-products (abs, examples and Tables 1-4 with accompanying text).
Claim(s) 1-4, 6, 7 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Paulsen (USUS-20150311512-A1).
Claims 1-4 and 6: Paulsen discloses a bimodal lithium transition metal oxide powder for a battery that comprises a first powder having a D50 greater than 15 microns, a second powder having a D50 of less than 5 microns and the large particle having a different surface area than the small particles based on the size and the porosity – thus meeting the claimed size distribution, different BET surface areas and precursor limitations under BRI (abs, ¶ 15-25, 106-133 examples and Figs 5 and 9 with accompanying text). Further, Paulsen discloses optimizing the loading amounts to achieve high electrochemical performance (examples). The Paulsen reference discloses the claimed invention but does not explicitly disclose the claimed ratios of the BET, diameter and loading amounts. It is noted that the claimed ratios and amounts are construed as result-effective variables, i.e., variables which achieve a recognized result. Given that the Paulsen reference discloses a similar composition and is expressly motivated to optimize the size, loading amounts and surface area variables, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05. Thus, it would have been obvious to one of ordinary skill in the art at the time of the invention to optimize known variables, i.e. the diameter, loading amounts and the surface area, since the reference also discloses a similar end-product. Further, obviousness only requires a reasonable expectation of success and there is no evidence nor teaching that the selection or optimization of the claimed components would be repugnant to a skilled artisan.
Claim 7: Paulsen discloses a tap density of 1.36 g/cm3 and 0.6 g/cm3 for the first and second material (¶95, 122 and examples).
Claim 9: Paulsen discloses the sintering process and battery end-product (abs, ¶26, 29, 95, 96 and 157).
Claim(s) 1-4, 6, 8 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee (US-20230352654-A1).
Claims 1-4 and 6: Lee discloses a positive electrode active material for a battery that comprises a mixture of a first material with a first loading weight and a first BET specific area and a second material having a second loading weight and a second BET surface area (abs, ¶14-28, 46-58, 77-106, 114-117 and examples). Further, Lee discloses a D50 range of 1-15 microns and optimizing the loading amounts, BET and size to achieve enhanced high energy density, high voltage, long cycle life, and low self-discharging rate (¶ 3, 14-30 and 46-58). The Lee reference discloses the claimed invention but does not explicitly disclose the claimed ratios of the BET, diameter range and loading amounts. It is noted that the claimed ratios and amounts are construed as a result-effective variable, i.e., variables which achieve a recognized result. Given that the Lee reference discloses a similar composition and is expressly motivated to optimize the size, loading amounts and surface area variables, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05. Thus, it would have been obvious to one of ordinary skill in the art at the time of the invention to optimize known variables, i.e. the diameter, loading amounts and the surface area, since the reference also discloses a similar end-product. Further, obviousness only requires a reasonable expectation of success and there is no evidence nor teaching that the selection or optimization of the claimed components would be repugnant to a skilled artisan.
Claim 8: Lee discloses the precursor composition formula I (¶47-57, 77-101 and examples).
Claim 9: Lee discloses the sintering process and battery end-product (abs, ¶44, 57-60, 122, 141-146 and examples).
Claim(s) 1-4, 6, 8 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Han (US-20200185714-A1) in view of Lee.
Claims 1-4 and 6: Han discloses a bimodal positive electrode material for a battery that comprises a mixture of small particles having a D50 of 2-8 microns and a small particle having a D50 of 10-20 microns at various loading ratios (abs, ¶ 10, 30-55, 61 and examples). The Han reference discloses the claimed invention but does not explicitly disclose the feature of BET surface areas ratio range. It is noted that the size difference would expectedly lead to different BET surface areas. In an analogous art, the Lee reference discloses that particles with different BET values and optimizing the BET ratios to gain the benefit of enhanced high energy density, high voltage, long cycle life, and low self-discharging rate is well known in the art (see above). One of ordinary skill in the art would have recognized that applying the known technique of Lee to the teachings of Han would have yielded predictable results because the level of ordinary skill in the art demonstrated by the cited references shows the ability to apply such features into similar systems, methods and compositions for the benefit gain of enhanced high energy density, high voltage, long cycle life, and low self-discharging rate. See MPEP 2143. Further, it is noted that obviousness only requires a reasonable expectation of success and there is no evidence nor teaching that the optimization would be repugnant to a skilled artisan.
Claim 8: Han and Lee disclose the claimed chemical composition formula I (Han:¶46-58, 77-101 & Lee: see above).
Claim 9: Han and Lee disclose the sintering process and battery end-product (Han: abs, ¶123 & Lee: abs, ¶26, 29, 95, 96 and 157).
Claim(s) 5 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Paulsen, Lee or Han and Lee as applied to claim 1 above, and further in view of Nagao (US20230159349A1).
Paulsen, Lee or Han and Lee disclose the claimed invention but do not explicitly disclose the claimed BET and tap density range. In an analogous art, the Nagao reference discloses positive electrode active material precursor with a similar D50 range and chemical composition and having a tap density range of 0.6-2.0 g/cm3 and a BET surface areas range of 6-45 m2/g is well known in the art to gain the benefit of enhanced stability, density and discharge rate characteristics (abs, ¶7-32, 43, 49, 103-126, 262, 273 and Tables 1 and 2 with accompanying text). One of ordinary skill in the art would have recognized that applying the known technique and ranges of Nagao to the teachings of Paulsen, Lee or Han and Lee would have yielded predictable results because the level of ordinary skill in the art demonstrated by the cited references shows the ability to apply such features into similar systems, methods and compositions for the benefit gain of enhanced stability, density and discharge rate characteristics. See MPEP 2143. Further, it is noted that obviousness only requires a reasonable expectation of success and there is no evidence nor teaching that the substitution and/or optimization would be repugnant to a skilled artisan.
Response to Arguments
Applicant's arguments filed 30 March 2026 have been fully considered but they are not persuasive.
Applicant argues that the cited references are directed to the positive electrode material instead of the claimed transition metal precursors (pg. 6-8).
The examiner respectfully notes that the cited references disclose the same chemical composition with the same hydroxide, oxide or oxyhydroxide of the same transition metals – thus the precursor limitation does not seem to impart any chemical and/or structural limitations not shown in the cited references. It is noted that the method/precursor limitation is construed as an intended use of the material.
Applicant argues impermissible hindsight regarding the BET feature and the difference in physical mixing and co-sintering process (pg. 8-11 and 15).
In response to applicant's argument concerning impermissible hindsight, examiner asserts that "[a]ny judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time claimed invention was made and does not include knowledge gleaned only from applicant's disclosure, reconstruction is proper." In re McLaughlin, 170 USPQ 209, 212 (CCPA 1971). In the instant case, the examiner respectfully notes that the cited references disclose the BET values similar to applicant’s range and it would have been obvious to optimize the BET values. Applicant is welcome to provide evidence that the optimization would be repugnant to a skilled artisan and/or the showing of unexpected results for the claimed ranges. Regarding the argument directed to the process, it is noted that the instant claims are directed to a material thus the intended use of the material does not seem to impart any chemical and/or structural differences.
Applicant argues that the cited references lack the design BET parameter(s) (pg. 11-12).
The examiner respectfully notes that the cited references disclose the same chemical composition with the same hydroxide, oxide or oxyhydroxide of the same transition and is motivated the structural parameters of the particles such as porosity, surface area and/or BET values – thus it would have been well within the purview of a skilled artisan to optimize known variables and there is no evidence nor teaching that the optimization would be repugnant to a skilled artisan.
Applicant argues that the Paulsen references is silent regarding the BET ratio (pg. 11-12).
The examiner respectfully notes that the Paulsen reference discloses similar particles with similar hydroxide, oxide or oxyhydroxide of the same transition and is motivated to optimize the structural parameters of the particles such as porosity, surface area and/or BET values – thus it would have been well within the purview of a skilled artisan to optimize known variables and there is no evidence nor teaching that the optimization would be repugnant to a skilled artisan. In particular, it is noted that, in order to overcome the prima facie case of obviousness for the numerical range claim limitation, the applicant may show (1) criticality or unexpected result of the range, (2) the prior art teaches away from the claim or (3) pertinent secondary factors to rebut the rejection under 35 USC 103. MPEP 2144.05. Here, the examiner has provided a proper rationale for the optimization and applicant has failed to provide any evidence that the claimed BET ratio would lead to critical and/or unexpected results.
Applicant argues that the Lee references has a different starting point and discloses a different processing step (pg. 13-15).
The examiner respectfully notes that the Lee reference discloses similar particles with similar hydroxide, oxide or oxyhydroxide of the same transition and is motivated to optimize the BET ratio – thus it would have been well within the purview of a skilled artisan to optimize known variables and there is no evidence nor teaching that the optimization would be repugnant to a skilled artisan. In particular, it is noted that, in order to overcome the prima facie case of obviousness for the numerical range claim limitation, the applicant may show (1) criticality or unexpected result of the range, (2) the prior art teaches away from the claim or (3) pertinent secondary factors to rebut the rejection under 35 USC 103. MPEP 2144.05. Regarding the argument directed to the process, it is noted that the instant claims are directed to a material thus the intended use of the material does not seem to impart any chemical and/or structural differences.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/TRI V NGUYEN/ Primary Examiner, Art Unit 1764
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