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 Rejections - 35 USC § 103
2. 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.
3. 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.
4. 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.
5. Claim(s) 1-9 and 12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cho et al. (US 10,797,317) as cited in IDS dated 11/3/25.
Regarding claim 1, Cho discloses a positive electrode active material (claim 1) comprising: a lithium transition metal oxide which is in a form of a single particle(Col. 4, lines 64-67 to Col. 5, lines 1-2), wherein the single particle has a surface part and a core(claim 1); and a coating part which is formed on the surface part(claim 1), wherein the coating part contains cobalt(claim 1), wherein the surface part has a layered (R-3m) structure (claim 1), and nickel included in the surface part has an average oxidation number of +2.00 to + 3.00 (Col. 4, lines 33-44 and lines 52-57) which overlaps the claim range of +2.36 to +3.00, thus reading on the limitation.
Cho is explicitly silent to the claim range however “in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 2, Cho discloses the surface part is a region from an outermost surface of the lithium transition metal oxide in the form of a single particle to a depth of 5 nm to about 10 nm (claim 5) which is within the claim range of 1 nm to 50 nm toward a center, thus reading on the limitation.
Regarding claim 3, Cho discloses a content of the cobalt compound in the coating layer is about 0.5 parts to about 5.0 parts by weight with respect to 100 parts by weight of the composite cathode active material (claim 7), when the content of the cobalt compound is within this range, Ni3+ ions or Co4+ present in a large amount in a transition metal layer may be reduced into Ni2+ or Co3+/2+, or both of these ions may be reduced at the same time, during a synthesis process of the composite cathode active material, so that interfacial reactivity between the composite cathode active material and liquid electrolyte may be reduced (Col. 6, lines 18-25).
Cho discloses a Ni content in the lithium transition metal oxide may be about 5 mol % to about 10 mol % with respect to 100 mol % of the lithium transition metal oxide and when the Ni content is within this range, the composite cathode active material may have improved stability, reversible capacity, and lifetime characteristics (Col. 5, lines 44-49) but does not explicitly disclose the cobalt and the nickel satisfy a Co/Ni ratio (mol/mol) of 0.10 to 0.80 based on an entirety of the surface part and the coating part.
It would have been obvious to one of ordinary skill in the art to provide the positive electrode active material of Cho with the cobalt and the nickel satisfy a Co/Ni ratio (mol/mol) of 0.10 to 0.80 based on an entirety of the surface part and the coating part in order to balance interfacial reactivity and lifetime characteristics, 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. MPEP §2144.05 (II-A).
Regarding claim 4, Cho discloses the coating part is formed on about 90% or less or about 10% or less (Col. 6, lines 4-13) which overlaps the claim range of 10% to 100% of the outer surface of the surface part based on a total area of the outer surface of the surface part of the lithium transition metal oxide, thus reading on the limitation.
Cho is explicitly silent to the claim range however “in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 5, Cho discloses the coating part is positioned in a form of islands on the outer surface of the surface part(Col. 6, lines 4-5).
Regarding claim 6, Cho discloses the coating part comprises LiCoO₂ (Col. 5, lines 10-13).
Regarding claim 7, Cho discloses the lithium transition metal oxide comprises at most 50 crystalline grains(Col. 22, lines 23-30).
Regarding claim 8, Cho discloses the surface part comprises a layered structure of nickel cobalt manganese oxide converted from a NiO layer(Col. 18, lines 66-67 to Col. 19, lines 1-3). The instant claim includes a recitation describing the manner in which the surface port is formed: by converting from a NiO layer. Said recitation appears to be product-by-process language. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. MPEP 2113.
Regarding claim 9, Cho discloses the lithium transition metal oxide is a lithium composite transition metal oxide comprising nickel, cobalt, and manganese (Col. 4, lines 16-29).
Regarding claim 12, Cho discloses a method for producing the positive electrode active material of claim 1, comprising: 1) mixing lithium transition metal oxide particles in a form of a single particle with a cobalt source to form a mixture(Examples 6 and 9); and 2) heat-treating the mixture(Examples 6 and 9).
Regarding claim 13, Cho discloses in the mixing, an additional metal source is further mixed (Col. 7, lines 44-51, Col. 9, lines 54-67).
Regarding claim 14, Cho discloses the heat-treating is performed at about 700°C to about 950°C (claim 17) which overlaps the claim range from 500 to 800 °C, thus reading on the limitation.
Cho is explicitly silent to the claim range however “in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
6. Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cho et al. (US 10,797,317) as cited in IDS dated 11/3/25 as applied to claim 1 above, and further in view of Celasun et al. (US 2021/0119204) as cited in IDS dated 8/5/25.
Regarding claim 10, Cho does not explicitly disclose the lithium transition metal oxide is a lithium composite transition metal oxide represented by Formula 1 below: [Formula 1]
LiaNixCoyM¹zM²₁-x-y-zO₂ where, M1 is at least one selected from the group consisting of Mn and Al, M² is at least one selected from the group consisting of B, Ba, Ce, Cr, F, Mg, V, Ti, Fe, Zr, Zn, Si, Y, Nb, Ga, Sn, Mo, W, P, S, Sr, Ta, La, and Hf, 1.0≤a≤1.3, 0.6≤x<1.0, 0≤y≤0.4, and 0≤z≤0.4.
Celasun teaches a positive electrode active material for a lithium ion battery, comprising a lithium transition metal-based oxide powder, the powder comprising single crystal monolithic particles comprising Ni and Co and having a general formula Li1+a ((Niz (Ni1/2 Mn1/2)y Cox)1-kAk)1-a O2, wherein A is a dopant, −0.02<a≤0.06, 0.10≤x≤0.35, 0≤z≤0.90, x+y+z=1 and k≤0.01, the particles having a cobalt concentration gradient wherein the particle surface has a higher Co content than the particle center(abstract). Celsun teaches the positive electrode material enhances the battery performances, such as capacity, cycle stability and rate capability([0001]). Celasun teaches the material can be used in solid state lithium ion batteries or non-aqueous lithium ion batteries at a high voltage due to its special morphology([0001]). Celasun teaches the lithium transition metal oxide is a lithium composite transition metal oxide represented by Formula 1, LiaNixCoyM¹zM²₁-x-y-zO₂ where, M1 is at least one selected from the group consisting of Mn, a=1.0, x=0.625, y=0.200, and z=0.175([0105], Example 1).
It would have been obvious to one of ordinary skill in the art to modify the positive electrode active material of Cho with teaches the lithium transition metal oxide is a lithium composite transition metal oxide represented by Formula 1, LiaNixCoyM¹zM²₁-x-y-z O₂ where, M1 is at least one selected from the group consisting of Mn, a=1.0, x=0.625, y=0.200, and z=0.175 as taught by Celasun in order to enhance battery performances.
7. Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cho et al. (US 10,797,317) as cited in IDS dated 11/3/25 as applied to claim 1 above, and further in view of Choi et al. (US 2018/0145322) as cited in IDS dated 3/25/24.
Regarding claim 11, Cho does not explicitly disclose the lithium transition metal oxide is a lithium composite transition metal oxide represented by Formula 2 below: LiaNibCocMndM1eO2 [Formula 2] where, M1 is at least one selected from the group consisting of Al, Zr, B, W, Mo, Cr, Nb, Mg, Hf, Ta, La, Ti, Sr, Ba, Cc, Sn, Y, Zn, F, P, and S, 0.9≤a≤1.1, 0.8≤b<1, 0<c<0.2, 0<d<0.2, 0≤e<0.1, and b+c+d+e=1.
Choi teaches a composite cathode active material includes a first cathode active material including a core including a first lithium transition metal oxide represented by Formula 1 and having a first layered crystalline phase that belongs to a R-3m space group; and a coating layer disposed on the core and including a second lithium transition metal oxide having a plurality of layered crystalline phases, wherein each layered crystalline phase of the plurality of layered crystalline phases has a different composition: LiaMO2 Formula 1, wherein, in Formula 1, 1.0≤a≤1.03; and M includes nickel and an element including a Group 4 element to a Group 13 element other than nickel(abstract). Choi teaches the lithium transition metal oxide is a lithium composite transition metal oxide represented by Formula 2 below: LiaNibM2cM3dO2 [Formula 2] where, 1.0≤a≤1.03, 0.4<b<1, 0<c<0.3, 0<d<0.4, and b+c+d=1, and M2 and M3 are different from each other and are each any one selected from among manganese and cobalt (claim 3).
It would have been obvious to one of ordinary skill in the art to modify the positive electrode active material of Cho with the lithium transition metal oxide is a lithium composite transition metal oxide represented by Formula 2 below: LiaNibM2cM3dO2 [Formula 2] where, 1.0≤a≤1.03, 0.4<b<1, 0<c<0.3, 0<d<0.4, and b+c+d=1, and M2 and M3 are different from each other and are each any one selected from among manganese and cobalt as taught by Choi as obvious to try choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. See MPEP 2143.
Double Patenting
8. 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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
9. Claims 1-6 and 9-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 18/864,388 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because instant independent claim 1 recites a positive electrode active material that is similar in structure and composition to the positive electrode active material recited in claims 1-4 of the copending application. Instant claims 12-14 recite the limitations for producing the positive electrode active material similar to claims 11-13 of the copending application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICTORIA HOM LYNCH whose telephone number is (571)272-0489. The examiner can normally be reached 7:30 AM - 4:30 PM EST M-F.
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/VICTORIA H LYNCH/Primary Examiner, Art Unit 1724
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