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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1, 2, 6, 9-13, 20, 22-26, and 30 in the reply filed on 11/10/2025 is acknowledged. Claims 14, 15, and 17-19 have been withdrawn.
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.
Claim(s) 1, 6, 10, 13, 20, 23, and 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lim et al (KR 2019-0020992 and its machine translation) in view of Gao et al (Nano Energy Chemistry article, as cited by applicant).
Lim et al disclose a method of preparing cathode active material particles (NCM which would have an ordered layered structure; instant claims 10, 23), wherein the method includes
preparing a metal precursor solution comprising a lithium, a manganese, a nickel, and a cobalt precursor (instant claim 20),
forming droplets of the precursor solution using an ultrasonic atomizing apparatus (1.7 MHz, example 1-1, [0104])
preparing a powder by reacting the droplets through a flame spray pyrolysis using a high (instant claims 1, 20, 30; continuous liquid flow process, see examples and same apparatus) temperature flame to form particles/ powder by drying/ decomposing the droplets,
and wherein the powder is collected to be calcined (the method of the reference does not explicitly include a step of collecting the powder, but the powder would clearly be collected to be further processed by calcination then preparing the cathode active material as known in the art)
and finally heat-treating the powder to form the cathode active materials in an oxygen atmosphere 750 to 950 o C (the time and temperature for the pyrolysis and calcination are controlled to adjust particle properties; [0076]-[0087]).
The precursor is prepared by dissolving lithium nitrate, nickel nitrate, manganese nitrate, and cobalt nitrate to water ([0105], instant claim 20), and the particles should have a size of about 0.3 to 10, preferably 0.7 to 3 microns ([0083]; instant claim 6)
Regarding the high nickel cathode material, the Lim et al reference teaches the following formula
PNG
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84
490
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Greyscale
, wherein the moles of Mn and Ni are each greater than 0 and less than or equal to 1.0. While the one example includes a high amount of Mn “b” (~0.558), one ordinary skill in the art would have envisaged are formula wherein there is a greater amount of Ni given that both elements are taught to have the same definition and one of skill in the art could have prepared the compound having an amount of Ni of about 0.6 given the range of up to 1 (high nickel materials are defined in the art as having a Ni content of about 0.6 and greater), to be present in an amount greater than that on the Mn as required by the instant claim 1. A high Ni content is well known in the art as providing improved capacity, a property one of ordinary skill in the art would seek to improve. Given the range of both Mn and Ni, and that the single non-limiting example demonstrate a content of one element in an amount of about “high” content range in the higher end of the range of 0< b or c < 1.0, one of ordinary skill in the art would have arrived at the Ni content through routine experimentation and optimization of battery properties to achieve a cathode active material having increased capacity.
The reference is broad with respect to the pyrolysis, and does not specifically disclose preheating the droplets prior to decomposing them in the burner.
However, Gao et al disclose a similar process wherein three-step calcination process, wherein the process includes “preheating” at two lower temperatures to decrease the length of the high temperature (780 o C) treatment with the first zone having a temperature of 450 o C, and the second at 530 o C prior to the final calcination at high temperature (780 o C). The process allows for improved crystal structure by controlling the temperature and including the preheating steps prior to high temperature calcination (page 2, 2.1; instant claims 1, 20).
Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the instant invention to prepare the particles/ powder of Lim et al, choosing as the calcination process for forming the cathode active material by the process of Gao et al, which controls the calcination by including preheating steps to limit the high temperature exposure, to achieve an improved layered crystal structure by controlling the temperature of calcination.
Claim(s) 9, 22, 24-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lim et al in view of Gao et al, in further view of Duan et al (CN 114212834 and its machine translation).
Lim et al and Gao et al have been discussed above. The references teach a process of preparing a NCM-type cathode active material and teaches that known precursors may be included and provides broad non-limiting examples, but fails to specifically disclose urea in the precursor solution, or the specific transition metal nitrates added ([[0065]-[0068], [0105]).
Duan et al disclose a method of preparing a positive electrode material, broadly, and teaches that it is known to include a Ni salt, a Mn salt, and a Co salt in combination with water an urea, and wherein the salts known in the art include nickel nitrate hexahydrate, manganese nitrate tetrahydrate, and cobalt nitrate tetrahydrate ([0019]-[0021]).
Given that the reference teaches known precursor salts for Ni, Co, and Mn in the preparation of NCM cathode active materials, and that it is known to include urea in the precursor solution, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the instant invention to prepare the material of Lim et al in view of Gao et al, choosing as the salts, those taught to by Duan et al to be known and equivalent to those suggested by Lim et al, and add urea taught to be a known precursor solution additive, to the process of Lim et al in view of Gao et al. The resultant method would include the precursor materials as set forth by the instant claims.
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.
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, 2, 9-13, 20, 22-26, and 30 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9, 11, 14, 17, and 19-27 of copending Application No. 18/176630 (reference application; PG Pub 2023/0278888). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘630 application claims a process of preparing a nickel-rich cathode material comprising the processing steps as set forth by the instant claims 1 and 20, wherein the droplets of precursor solution are aerosolized, pre-heated, then calcined at a time and temperature which is controlled/ adjusted to result in an active material particle having desired properties. The time and temperature, as well as the flow rates of the preheating zones fall within the ranges set forth by the claims ranges, and the active material is NCM811 or NCM822 (which would have the properties as claimed by the instant claims, and taught to have an ordered layer structure as known in the art), as claimed by the instant claims and having structural features and properties as claimed given the process steps which are defined and claimed as the precursor materials as instantly claimed (such as the process having similar materials, process conditions and staring materials would form a single crystal nickel-rich material). Therefore, it would have been obvious to one of ordinary skill in the art to prepare a nickel-rich cathode active material by the method of the ‘630 application, wherein the steps and reactants, as well as the resultant materials also meet the limitations of the instant claims for the single crystal nickel rich cathode active material particles.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Li et al (Journal of Energy Chemistry article cited by applicant) disclose an ultrasonic spray pyrolysis method of forming nickel-rich cathode active materials (NCM, abstract), wherein the method includes preparing a precursor solution comprising transition metal chlorides (salts; Ni, Co, Mn )in DI water, aerosolizing the precursor into droplets by an ultrasonic nebulizer (1.75 MHz), then sprayed/ carried into a vertical furnace (not a burner with a flame; (see page 447, column 2). The reference teaches spray pyrolysis, but not flame pyrolysis, and fails to teach the pre-heating as claimed.
Zhang et al (Journal of Power Sources article cited by applicant) is by the same inventors and is unavailable as prior art, but it cited as teaching the method including flame pyrolysis as set forth by the instant claims.
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/AMANDA C. WALKE/ Primary Examiner, Art Unit 1722