DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
2. Claims 1-4 are objected to because of the following informalities:
Claims 2 and 4: “claim” is not a proper noun and should not be capitalized.
Claims 1-4: the numbers are not followed by a period (i.e., “1” should be “1.”)
Appropriate correction is required.
Claim Rejections - 35 USC § 102
3. 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.
4. Claims 3 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kai et al. (US 9,306,215).
Regarding claims 3 and 4, Kai teaches as summarized in Kai’s claim 1:
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Kai teaches at least the following specific examples of the composition:
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The details of the positive electrode material layer 24, negative electrode active material layer, and aqueous solution are taught at C3/L19-C7/L3. Accordingly, claims 3 and 4 are fully anticipated by Kai.
Claim Rejections - 35 USC § 103
5. 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.
6. Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Young
et al. (US 2016/0233493) in view of Hayashi et al. (US 2015/0221989).
Regarding claim 1, Young teaches a hydrogen storage alloy for use in a nickel metal hydride batteries (P3) and incorporated therein (claim 33). Young does not explicitly detail the basic construct of a nickel-metal hydride battery; however, Hayashi teaches the known, basic constituents of a nickel-metal hydride battery (P13, 53; Fig. 2) include a positive electrode including a positive electrode active material layer (P13, 53, 59-71), a negative electrode active material layer containing a hydrogen storage alloy (P13, 72-74), and an aqueous electrolyte (P75-79, 143; entire disclosure relied upon).
Therefore, it would have been obvious to one having ordinary skill in the art at the effective filing date of the invention to look to known nickel-metal hydride battery constructs such as that taught by Hayashi and implement the same constituents for the nickel-metal hydride battery of Young that is not explicitly detailed.
Young optimizes the compositions of hydrogen storage alloys of modified “ABX type base alloys (at least one A and one B element) with one or more modifying elements” with “ABX” including an AB2 main phase (P15-16, 40, 105-106), wherein the hydrogen storage alloys may comprise:
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It is noted that the atomic ratio of “ii) to i)” is equivalent to the atomic ratio of the “B” elements relative to the “A” elements in the modified AB2 type alloy. Young teaches the modified AB2 type alloys contain C14 and/or C15 main Laves phases (P105-106), wherein “an AB2 phase” is also called “Laves phases” and have three key crystal structures as would be immediately known to one having ordinary skill in the art: C15 (cubic MgCu2-type), C14 (hexagonal MgZn2-type), and C36 (hexagonal MgNi2-type).
Young further teaches the following atomic percentages of the constituents:
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In either alloy genus composition above (i.e., that presented within P132 or P133), a prima facie case of obviousness exists against the claimed ranges given in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP § 2144.05).
Regarding claim 2, Young teaches the genus alloy composition above (P132-133), wherein in the genus grouping of P133, the ratio of Mn: Cr at the B site using the taught ranges is 0.6-18 (i.e., the largest value of Mn (18%) against the smallest amount of Cr (1%) provides the upper bound of 18, and the smallest value of Mn (6%) relative to the largest value of Cr (10%) provides the lower bound of 0.6), a range overlapping with the claimed, thereby presenting a prima facie case of obviousness.
Regarding claim 3, Young teaches a hydrogen storage alloy for use in nickel metal hydride batteries (P3) and incorporated therein (claim 33). Young does not explicitly detail the basic construct of a nickel-metal hydride battery; however, Hayashi teaches the known, basic constituents of a nickel-metal hydride battery (P13, 53; Fig. 2) include a positive electrode including a positive electrode active material layer (P13, 53, 59-71), a negative electrode active material layer containing a hydrogen storage alloy (P13, 72-74), and an aqueous electrolyte (P75-79, 143; entire disclosure relied upon).
Therefore, it would have been obvious to one having ordinary skill in the art at the effective filing date of the invention to look to known nickel-metal hydride battery constructs such as that taught by Hayashi and implement the same constituents for the nickel-metal hydride battery of Young that is not explicitly detailed.
Young optimizes the compositions of hydrogen storage alloys of modified “ABX type base alloys (at least one A and one B element) with one or more modifying elements” with “ABX” including AB2 (P15-16, 40), wherein the hydrogen storage alloys may comprise:
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It is noted that the atomic ratio of “ii) to i)” is equivalent to the atomic ratio of the “B” elements relative to the “A” elements in the modified AB2 type alloy. Young teaches the modified AB2 type alloys contain C14 and/or C15 main Laves phases (P105-106), wherein “an AB2 phase” is also called “Laves phases” and have three key crystal structures: C15 (cubic MgCu2-type), C14 (hexagonal MgZn2-type), and C36 (hexagonal MgNi2-type) as would be immediately known to one having ordinary skill in the art.
Young teaches the hydrogen storage contains the AB2 phase that includes Ti, Zr in the A site; Ni, Mn, Cr, Fe, and Al in the B site (P97, 100, 102, Example 1, P190-194) and specific examples (alloy 0 through 5- P190) including Al in the atomic amounts of 0.6%, 0.4%, or 0.5%. Accordingly, the genus composition presented in claim 3 is entirely met by Young.
Regarding claim 4, Young teaches wherein the hydrogen storage alloy contains Al in a proportion of 0.6%, 0.4%, or 0.5% relative to all metal atoms of the hydrogen storage alloy (see the compositions in the table below P190), the examples anticipating the range of “10 at% or less” given:
"[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is 'anticipated' if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (citing In re Petering, 301 F.2d 676, 682, 133 USPQ 275, 280 (CCPA 1962)) (emphasis in original); see MPEP § 2131.03
7. Claims 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Visintin et al., “Hydrogen absorption characteristics and electrochemical properties of Ti substituted Zr-based AB2 alloys,” Intl. J. Hydrogen Energy, 26 (2001) 683-689 (copy provided by Applicant) in view
of Hayashi et al. (US 2015/0221989).
Regarding claim 1, Visitin teaches Zr-based AB2 alloys and specifically Zr1-xTixCrNi with x= 0.1, 0.2, and 0.4 for use as a negative electrode in nickel/metal-hydride rechargeable batteries (abstract) with the Experimental section detailing a cell including the negative electrode utilizing the above composition (mixed with a conductive agent and pressed onto a current collector porous nickel mesh) provided counter to a sintered NiOOH positive electrode (“a positive electrode active material layer”) in 1 M KOH electrolyte (“an electrolyte”) (p.684).
The above compositions of Zr1-xTixCrNi with x= 0.1, 0.2, and 0.4 each anticipate the genus presented for a hydrogen storage alloy having an AB2 main phase, the A site includes a combination of Zr and Ti (“Ti, Zr, or a combination thereof”); the B site includes Cr and Ni (“Mn, Cr, Ni, Fe, or a combination thereof”); wherein the atomic percentages are detailed below:
a proportion of Mn is zero (claimed range is 15 at% or less which includes zero),
a proportion of Cr is 33.3 at% (i.e., 1/3) (claimed range is 10-80 at%);
a proportion of Ni is 33.3% (i.e., 1/3) (claimed range is 10-80 at%), and
a proportion of Fe is zero (claimed range is 50 at% or less which includes zero).
Accordingly, the above compositions each anticipates the genus presented within the claim:
"[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is 'anticipated' if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (citing In re Petering, 301 F.2d 676, 682, 133 USPQ 275, 280 (CCPA 1962)) (emphasis in original); MPEP § 2131.03.
Although the solvent of the 1 M KOH electrolyte in the cell constructed is not explicitly stated as water (thereby providing “an aqueous electrolyte” as claimed) one of ordinary skill in the art would infer it as such in the absence of a specific solvent recitation, wherein aqueous KOH electrolytes are standard for nickel-metal hydride battery constructs. For the avoidance of any doubt, Hayashi teaches the known, basic constituents of a nickel-metal hydride battery (P13, 53; Fig. 2) include a positive electrode including a positive electrode active material layer (P13, 53, 59-71), a negative electrode active material layer containing a hydrogen storage alloy (P13, 72-74), and an aqueous electrolyte (P75-79, 143; entire disclosure relied upon).
Therefore, it would have been obvious to one having ordinary skill in the art at the effective filing date of the invention to look to known nickel-metal hydride battery constructs such as that taught by Hayashi and implement the same constituents for the nickel-metal hydride battery of Visintin including the use of an aqueous electrolyte (P75-79, 143).
Regarding claim 2, Visintin teaches wherein an atomic ratio of Mn relative to Cr at the B site of the negative electrode active material is zero, thereby anticipating the claimed range of 0.8 or less:
"[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is 'anticipated' if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (citing In re Petering, 301 F.2d 676, 682, 133 USPQ 275, 280 (CCPA 1962)) (emphasis in original); MPEP § 2131.03.
Conclusion
8. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
The EPO search opinion mailed 8/20/2024 includes an additional 7 references cited and summarized as teaching the subject matter claimed. The JP search report cites an additional 2 references concluding the subject matter as lacking novelty over the prior art. The references have been cited in the IDS’s filed and should be reviewed by Applicant when making amendments in the interest of compact prosecution.
Takemoto et al. (WO 2022/250093) (using US 2024/0282914 as an English-language translation and copy thereof) teaches AB2 hydrogen storage alloy compositions with the following atomic percentages along with a general teaching of optimization and ranges of each of the elements:
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See also:
Sawa (US 2022/0190327) which details a hydrogen storage alloy and outlines the criticality of each specific element and why a given range is important for the respective element.
Ogawa et al. (US 2023/0285942) and Sawa et al. (US 2021/0408535).
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA J BARROW whose telephone number is (571)270-7867. The examiner can normally be reached Monday-Friday 9am - 6pm CST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ula Ruddock can be reached at (571) 272-1481. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMANDA J BARROW/Primary Examiner, Art Unit 1729
Prosecution Insights