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 .
Claims 1-3, 6-9, 11-13 are pending. Claims 4-5, 10 are canceled.
Claims 1-3, 6-9, 11-13 stand rejected under 35 U.S.C. 103 as being unpatentable over Jeong et al.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 6-9, 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Jeong et al (WO Patent 2017/150945).
To further advance the prosecution of this invention, Jeong et al (US Patent Application 2019/0020022) which is an English equivalent of (WO Patent 2017/150945) will be used in this rejection.
Regarding claims 1-3, 6-9, 11-13, Jeong et al teaches a precursor of a positive electrode active material for a battery comprising the formula Ni1-(x+y+z)CoxMyMnz(OH)2, wherein M is one or more of Al, Zr, Mg, Zn, Y, Fe and Ti, 0<x<1, 0≤y<1, 0<z<1, 0<x+y+z<1 (Paragraphs 12-13). Jeong et al further teaches the precursor has an average particle size of 7-20µm and surface area of 5-30m2/g (which overlaps the instantly claimed range) (Paragraph 40). Jeong et al further teaches the primary particle may have an aspect ratio of major axis/minor axis of 5-30 (which satisfies a minor axis/major axis of 0.03-0.2) (Paragraph 34). Jeong et al further teaches a method including preparing a metal containing solution by mixing a nickel raw material, cobalt raw material and a manganese raw material, introducing an ammonium cation containing complex forming agent and a basic compound to the metal containing solution and co-precipitation reaction at a pH of 10.5-12 (which overlaps the claimed pH of 11.2 or less) (Paragraph 14). Jeong et al further teaches the ammonium cation containing complex forming agent is added to have a molar ratio of 0.5-1 with respect to 1 mol of metal containing solution (which overlaps the instantly claimed range of 0.3 to 0.5) (Paragraph 59). Jeong et al further teaches preparing a positive electrode active material prepared by mixing the precursor with a lithium material, heating the result to form a lithium oxide (Paragraphs 65, 67, 72). Jeong et al further teaches the positive electrode active material having a tap density of 2.5-3 g/cc (Paragraph 80). However, Jeong et al fails to disclose the aspect ratio and batch type reactor, stirring speed and nucleation and particle growth performed without changing the pH in the method of producing the positive active material precursor.
With regard to the aspect ratio, it would have been obvious to one of ordinary skill in art before the effective filing date of the claimed invention to have provided the claimed aspect ratio as Jeong et al teaches the primary particle may have an aspect ratio of major axis/minor axis of 5-30 (which satisfies a minor axis/major axis of 0.03-0.2). Furthermore, A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties, see Titanium Metals Corp. of America v. Banner, 778F.2d 775,227 USPQ 773 (Fed. Cir. 1985). See MPEP 2144.051. A change is size is generally recognized as being within the level of ordinary skill in the art, see In re Rose, 105 USPQ 237 (CCPA 1955). Adjusting the aspect ratio of the primary particles to 0.3 to 0.5 in Jeong et al would only be obvious to the ordinary artisan, absent unexpected results or criticality.
With regard to the batch type reactor, stirring speed and nucleation and particle growth performed without changing the pH in the method of producing the positive active material precursor, any difference imparted by the product by process limitations would have been obvious to one having ordinary skill in the art at the time the invention was made because where the examiner has found a substantially similar product as in the applied prior art, the burden of proof is shifted to the applicant to establish that their product is patentably distinct, not the examiner to show the same process of making, see In re Brown, 173 USPQ 685 and In re Fessmann, 180 USPQ 324. Jeong et al teaches a hydroxide precursor of a positive electrode active material having the formula as instantly claimed and D50 particle size, surface area and the positive electrode active material with an overlapping pellet density as the instant invention and molar ratio of ammonium to transition metal cations in the solution for preparing a co-precipitation reaction. A prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I).
Response to Arguments
Applicant's arguments filed July 15, 2026 have been fully considered but they are not persuasive.
With respect to the obviousness rejection over Jeong et al, Applicant argues that Jeong et al only teaches the aspect ratio of 0.03-0.2, it would have been obvious to one of ordinary skill in art before the effective filing date of the claimed invention to have provided the claimed aspect ratio as Jeong et al teaches the primary particle may have an aspect ratio of major axis/minor axis of 5-30 (which satisfies a minor axis/major axis of 0.03-0.2). Furthermore, A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties, see Titanium Metals Corp. of America v. Banner, 778F.2d 775,227 USPQ 773 (Fed. Cir. 1985). See MPEP 2144.051. A change is size is generally recognized as being within the level of ordinary skill in the art, see In re Rose, 105 USPQ 237 (CCPA 1955). Adjusting the aspect ratio of the primary particles to 0.3 to 0.5 in Jeong et al would only be obvious to the ordinary artisan, absent unexpected results or criticality.
With respect to Applicant’s arguments of unexpected results, the Examiner respectfully disagrees as Applicant has failed to provide unexpected results with regard the ranges as instantly claimed. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). Applicant argues that Example 1/3 compared to Examples 2/4 provide unexpected results/criticality. The Examiner respectfully disagrees as one example within a range and one example outside of the range does not provide criticality for the claimed range. It has been held that to overcome a reasonable case of prima facie obviousness a given claim must be commensurate in scope with any showing of unexpected results, In re Greenfield, 197 USPQ 227.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/TANISHA DIGGS/Primary Examiner, Art Unit 1761 September 28, 2026
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