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 .
Claim Interpretation
In claim 15, the term “high-power battery” is considered definite as the Specification outlines that the battery is applied to be used for the power of an electronic device as is known in the art [0085].
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 8 and 11 are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1 and 9 of prior U.S. Patent No. 12,155,057. This is a statutory double patenting rejection.
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.
Claims 1, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14 of U.S. Patent No. 12,155,057. Although the claims at issue are not identical, they are not patentably distinct from each other because the respective claims of the reference patent contain all of the limitations of the respective claims of the instant application.
Claim Rejections - 35 USC § 103
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.
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 1 and 3-16 are rejected under 35 U.S.C. 103 as being unpatentable over Torita et al. (PGPub 2018/0315985) as evidenced by Lee et al. (PGPub 2018/0123120) and further in view of Nakano (PGPub 2021/0280869).
Considering Claim 1, Torita discloses an anode for a lithium secondary battery (negative electrode [0084] for a nonaqueous battery [0099] that is a lithium ion secondary battery [0150]), comprising:
a current collector (negative electrode current collector [0084]); and
an anode active material layer formed on the current collector, and comprising a carbon-based anode active material, wherein the anode active material layer has a multi-layer structure (multi layers of negative electrode active material layer and intermediate layer [0084] which are both composed of active graphite particles [0087, 0065], which are formed on current collector [0084, Figure 7]).
Torita discloses that the alignment state of the graphite particles is adjusted using a magnetic flux density of 750 mT or more and 800 mT or less and may be 5 to 10 seconds [0112, 0113]. A ratio of intensity of the 110 diffraction line of a graphite crystal to an intensity of the 002 diffraction line indicates sufficient vertical alignment such that a current flow in the in-lane direction of the intermediate layer is sufficiently low during nail penetration [0057, Figure 3]. Teaching Reference Lee teaches that such alignment and such a method of magnetic field and application time [0033] achieves a negative electrode degree of divergence of 19 or more [Abstract].
However, Torita is silent to three or more layers.
Nakano discloses a battery negative electrode layer that includes a plurality of sub-active material layers [Abstract]. A graphite anode [0040, 0041] has three sub-active material layers [0077] to prevent deterioration [0010, 0011] and conduct ions more linearly and effectively [0078].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the multi-layered anode of Torita with the three sub-layer configuration of Nakano in order to prevent deterioration [0010, 0011] and conduct ions more linearly and effectively [0078].
Considering Claim 3, the combined teachings of Torita and Nakano are as applied in claim 1. Nakano discloses a battery negative electrode layer that includes a plurality of sub-active material layers [Abstract]. A graphite anode [0040, 0041] has three sub-active material layers [0077] to prevent deterioration [0010, 0011] and conduct ions more linearly and effectively [0078].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the multi-layered anode of Torita with the three sub-layer configuration of Nakano in order to prevent deterioration [0010, 0011] and conduct ions more linearly and effectively [0078].
Considering Claim 4, the combined teachings of Torita and Nakano are as applied in claim 1. Nakano discloses a battery negative electrode layer that includes a plurality of sub-active material layers [Abstract]. A graphite anode [0040, 0041] has three sub-active material layers [0077] to prevent deterioration [0010, 0011] and conduct ions more linearly and effectively [0078].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the multi-layered anode of Torita with the three sub-layer configuration of Nakano in order to prevent deterioration [0010, 0011] and conduct ions more linearly and effectively [0078].
Torita discloses that the paint is a precursor of the intermediate layer used [0104, 0120] and the magnetic field is applied after the layer is disposed [0108, 0110, 0111]. Therefore, the combined layers are subjected to the magnetic field and it appears that all of the graphite layers are oriented layers with a DD value of 19 or more.
Considering Claim 5, Torita discloses that the alignment state of the graphite particles is adjusted using a magnetic flux density of 750 mT or more and 800 mT or less and may be 5 to 10 seconds [0112, 0113]. A ratio of intensity of the 110 diffraction line of a graphite crystal to an intensity of the 002 diffraction line indicates sufficient vertical alignment such that a current flow in the in-lane direction of the intermediate layer is sufficiently low during nail penetration [0057, Figure 3]. Teaching Reference Lee teaches that such alignment and such a method of magnetic field and application time [0033] achieves a negative electrode degree of divergence of 19 or more [Abstract] and 60 or less [0005].
Considering Claim 6, Torita discloses graphite particles [0087, 0065] and a copper foil current collector [0085]. A ratio of intensity of the 110 diffraction line of a graphite crystal to an intensity of the 002 diffraction line indicates sufficient vertical alignment such that a current flow in the in-lane direction of the intermediate layer is sufficiently low during nail penetration [0057, Figure 3]. Based on the same graphite particles and alignment, it appears that Torita discloses the claimed sum of peak intensities with regards to the calculated degree of divergence.
Considering Claim 7, Torita discloses graphite particles [0087, 0065] and a copper foil current collector [0085]. A ratio of intensity of the 110 diffraction line of a graphite crystal to an intensity of the 002 diffraction line indicates sufficient vertical alignment such that a current flow in the in-lane direction of the intermediate layer is sufficiently low during nail penetration [0057, Figure 3]. Based on the same graphite particles and alignment, it appears that Torita discloses the claimed peak integral area values with regards to the calculated degree of divergence.
Considering Claim 9, Torita discloses graphite particles [0087, 0065] and a copper foil current collector [0085]. A ratio of intensity of the 110 diffraction line of a graphite crystal to an intensity of the 002 diffraction line indicates sufficient vertical alignment such that a current flow in the in-lane direction of the intermediate layer is sufficiently low during nail penetration [0057, Figure 3], and may correspond to a ratio of 002/110 of less than 345 (inverse of more than 0.0029) [0057], so a ratio of 200 for a lower nail penetration current would have been obvious to a person of ordinary skill in the art.
Considering Claim 10, Torita discloses graphite particles [0087, 0065] and a copper foil current collector [0085]. A ratio of intensity of the 110 diffraction line of a graphite crystal to an intensity of the 002 diffraction line indicates sufficient vertical alignment such that a current flow in the in-lane direction of the intermediate layer is sufficiently low during nail penetration [0057, Figure 3], and may correspond to a ratio of 002/110 of less than 345 (inverse of more than 0.0029) [0057], so a ratio of 200 for a lower nail penetration current would have been obvious to a person of ordinary skill in the art.
Considering Claim 12, Torita discloses that the negative material active layer has a thickness of 10 µm to 200 µm [0086] and an intermediate layer thickness of 3-5 µm [0059] to optimize the volumetric energy density of the battery [0059], so choosing within this combined range for a range of 100-205 µm for such predicted results would have been obvious to a person of ordinary skill in the art.
Considering Claim 13, Torita discloses that the carbon-based anode active material is artificial graphite or a mixture of artificial graphite and natural graphite ([0087]).
Considering Claim 14, Torita discloses that the anode active material layer further includes a Si-based anode active material, a Sn-based anode active material, or a combination thereof (negative electrode active material may include silicon, silicon oxide, tin, tin oxide, or combinations [0087]).
Considering Claim 15, Torita discloses a lithium secondary battery (lithium ion secondary battery [0150]), comprising,
an anode of claim 1 (negative electrode [0147], see claim 1);
a cathode (positive electrode [0147]); and
an electrolyte (electrolyte solution [0150]).
Considering Claim 16, the combined teachings of Torita and Nakano are as applied in claim 1. Nakano discloses conventional use of the batteries as a power source [0003] for an electric vehicle [0142], so such an expected use in the field [0142] would have been obvious to a person of ordinary skill in the art.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Torita et al. (PGPub 2018/0315985) as evidenced by Lee et al. (PGPub 2018/0123120) and further in view of Nakano (PGPub 2021/0280869) and Lee et al. (hereinafter Lee ‘611) (PGPub 2014/0322611).
Considering Claim 2, Torita is silent to an anode active mass density of 1.5 g/cc to 2.0 g/cc.
Lee ‘611 discloses an anode active material comprising an SiO/C – graphite composite [Abstract, 0057]. The electrode density after compression is 1.6 g/cc [0057]. The composite material provides high capacity and effectively inhibits volume expansion to improve lithium secondary battery life characteristics [Abstract].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the anode of Torita with the electrode density of Lee ‘611 in order to provide high capacity and effectively inhibit volume expansion to improve lithium secondary battery life characteristics [Abstract].
Allowable Subject Matter
Claims 8 and 11 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims, and if the statutory 35 U.S.C. 101 double patenting rejection is overcome.
The following is a statement of reasons for the indication of allowable subject matter: prior art reference US PGPub 2018/0315985 discloses a battery with a negative electrode that comprises an intermediate layer interposed between a current collector and the active material layer and contains graphite particles [Abstract]. The negative electrode active material may also contain graphite particles [0087]. The alignment state of the graphite particles is adjusted using a magnetic flux density of 750 mT or more and 800 mT or less and may be 5 to 10 seconds [0112, 0113]. A ratio of intensity of the 110 diffraction line of a graphite crystal to an intensity of the 002 diffraction line indicates sufficient vertical alignment such that a current flow in the in-lane direction of the intermediate layer is sufficiently low during nail penetration [0057, Figure 3].
Prior art reference US PGPub 2018/0123120 discloses a negative electrode including a negative active material layer containing a carbon-based material with a negative electrode degree of divergence value greater than or equal to 19 [Abstract]. Such orientation facilitates movement of Li ions in the negative electrode to maintain high rate capability and cycle life characteristics with minimized resistance [0035, 0036]. When the DD value is less than 19, remarkable deterioration occurs [0035] and heat is less able to diffuse through the horizontally disposed material which leads to thermal runaway [0037]. Such orientation is also achieved through a same strength magnetic field and application time as the previous prior art reference [0033].
When the teachings of these two prior art references are combined, it teaches a multi-layered graphite negative electrode structure with every layer necessarily having a DD value of greater than or equal to 19 in order to achieve sufficient alignment and maintenance of the battery characteristics. Even when combined with a reference such as US PGPub 2021/0280869, which teaches including a graphite anode [0040, 0041] having three sub-active material layers [0077] to prevent deterioration [0010, 0011], all graphite active material layers necessarily have a DD value of greater than or equal to 19, as opposed to at least one layer of the anode active material layer is a non-oriented layer having a DD value of less than 19 as required in claim 8. The non-orientation required would also not be met by arbitrary inherency as the alignment is achieved via the application of a magnetic field, and one layer would need to be treated separately in order to provide the combination of at least one layer with a DD value greater than or equal to 19 and at least one layer with a DD value less than 19 as required by claim 8.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER P DOMONE whose telephone number is (571)270-7582. The examiner can normally be reached M-F 8:00-4:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Basia Ridley can be reached at (571)272-1453. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER P DOMONE/Primary Patent Examiner
Art Unit 1725
