POSITIVE ACTIVE MATERIAL, POSITIVE ELECTRODE PLATE, ELECTROCHEMICAL ENERGY STORAGE APPARATUS, AND APPARATUS
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 (IDS) submitted on 2/23/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 21-36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 and 14-17 of U.S. Patent No. 11,949,093 B2 in view of Holman et al. (US 2020/0203706 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 21, 22, 25, and 33 of the present application read on claim 1 of ‘093 in that the positive active material includes Ni, Co, and M, where M is Mn and Al and further Dv10 and Dn10 have the same limitations. Claims 23, 24, 26, 27, 28, 29, 30, 31, and 32 are identical to claims 16, 17, 4, 7, 8, 14, 15, 5, and 6 of ‘093 respectively. Further, claims 33, 34, and 35 are identical to claims 1, 3, and also 3 in ‘093 as it is in the scope of the claimed range. Finally, while claim 36 is also disclosing the limitation of a coating layer, claims 1 and 3 of ‘093 do not disclose the coating layer comprises at least one of Al2O3 and B2O3. However, this would be obvious to one of ordinary skill in the art in view of Holman et al. Holman et al. disclose a lithium nickel manganese cobalt oxide compound (Paragraphs 0042; 0063) which can additionally have a coating layer made of alumina (Al2O3)(Paragraph 0165).
The conflicting claims do not recite a positive electrode plate, a negative electrode plate, a separator sandwiched between the positive electrode plate and the negative electrode plate, and an electrolyte as required by present claim 21. However, the use is for a positive active material. Positive active materials are used in conjunction with negative active materials along with separators and electrolytes for use in secondary batteries.
Claims 21, 25, 31, and 33-36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 5-7, 12, and 13 of U.S. Patent No. 12,347,839 B2 in view of Holman et al. (US 2020/0203706 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 21 of the present applicatino read on claims 1 and 2 of ‘839 in that the positive active material includes Ni, Co, and M, where M is Mn and Al and further Dv10 and Dn10 have overlapping limitations. Specifically, claim 21 discloses Dv10 and Dn10 to be 2.5-8 µm and 0.5-3 µm, respectively; whereas claim 1 of ‘859 discloses Dv10 and Dn10 to be 0.5-3 µm and 0.3-2 µm, respectively. Claim 2 of ‘859 further narrows the range of Dn10 to 0.5-1.5 µm which is still within the claimed range of claim 21. Claims 33-35 overlap with claims 5-7 of ‘859. Claims 25 and 31 overlap with claims 12 and 13 of ‘859 respectively. Finally, while claim 36 is also disclosing the limitation of a coating layer, claims 5-7 of ‘093 do not disclose the coating layer comprises at least one of Al2O3 and B2O3. However, this would be obvious to one of ordinary skill in the art in view of Holman et al. Holman et al. disclose a lithium nickel manganese cobalt oxide compound (Paragraphs 0042; 0063) which can additionally have a coating layer made of alumina (Al2O3)(Paragraph 0165).
The conflicting claims do not recite a positive electrode plate, a negative electrode plate, a separator sandwiched between the positive electrode plate and the negative electrode plate, and an electrolyte. However, the use is for a positive active material. Positive active materials are used in conjunction with negative active materials along with separators and electrolytes for use in secondary batteries. Further, claims 14 and 15 of ‘859 disclose the use of a negative electrode and electrolyte, respectively.
Allowable Subject Matter
Claims 37-40 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: claim 37 discloses a method which comprises the step of performing graded screening of secondary particles which comprise Li, Ni, Co, and M, wherein M is either Mn or Al. Graded screening is not disclosed in searches for such a material nor in the prior art of record. Therefore, the step in this method makes claim 37 to be in condition for allowance. Further, claims 38-40 are also in condition for allowance due to dependence on claim 37.
The following is listing the closest prior art of record:
Feng et al. (US 2017/0155139 A1): Feng et al. teach a positive active electrode material for a secondary battery (Abstract). Further, the material can comprise a lithium metal oxide as disclosed in claim 1 (Paragraphs 0016-0017). The secondary particles are analyzed by a laser diffraction/scattering type particle size distribution measurement, a particle size (D10) corresponding to 10% in volume-based cumulative particle size distribution is in the range from 0.5 μm to 10 μm (Paragraph 0018).
However, Feng et al. do not disclose a particle size Dn10 of the positive active material is 0.5 μm to 3 μm, wherein Dn10 is a corresponding particle size when a cumulative number distribution percentage of the positive active material reaches 10%. Finally, Feng et al. do not disclose a sintering or graded screening step.
Shiozaki et al. (EP 1 391 950 A1): Shiozaki et al. disclose a positive electrode material comprising LiNi0.33Co0.33Mn0.33O2 (Paragraph 0032) having a Dv10 wherein 10% particle diameter is larger than 0.4 µm and not larger than 7 µm (Paragraph 0047). Further, Shiozaki et al disclose mixing a ternary precursor and sintering to form a lithium metal oxide (Paragraphs 0141-0149).
However, Shiozaki et al. do not disclose a particle size Dn10 of the positive active material is 0.5 μm to 3 μm, wherein Dn10 is a corresponding particle size when a cumulative number distribution percentage of the positive active material reaches 10%. In addition, Shiozaki et al. do not disclose a sintering or graded screening step.
Holman et al. (US 2020/0203706 A1): Holman et al. teach a positive active material (Abstract), wherein the positive active material is LixNiyCozMkMepOrAm (Paragraph 0042 and more specifically, NMC-811 in paragraph 0063.) or LixNiyCozMkMepOrAm whose surface is provided with a coating layer, wherein 0.85≤x≤l.15, 0<y<l, 0<z<1, 0<k<1, 0≤p≤0.1, 1≤r≤2, 0≤m≤1, m+r≤2, M is one or two selected from Mn and Al, Me is one or more selected from Zr, Zn, Cu, Cr, Mg, Fe, V, Ti, Sr, Sb, Y, W, and Nb, and A is one or more selected from N, F, S, and Cl (see Paragraph 0048).
However, Holman et al. do not disclose a particle size Dn10 of the positive active material is 0.5 μm to 3 μm, wherein Dn10 is a corresponding particle size when a cumulative number distribution percentage of the positive active material reaches 10%. While Holman does disclose a Dv10 value, it is only in a range of 1-2 µm (Paragraph 0042). Finally, Holman et al. do not disclose a sintering or graded screening step.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL S GATEWOOD whose telephone number is (571)270-7958. The examiner can normally be reached M-F 8:00-5:30.
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Daniel S. Gatewood, Ph.D.
Primary Examiner
Art Unit 1729
/DANIEL S GATEWOOD, Ph. D/ Primary Examiner, Art Unit 1729 February 11th, 2026