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 .
Status of Claims
Claims 1 & 3-4 are amended. Claims 2, 5-12 & 15 are canceled. Claims 1, 3-4, 13-14 & 16-17 are currently pending.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1. 3-4, 13-14 & 16-17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claim 1 requires, in formula 1-2, a maximum content of Co, Al and M to be 11 mol% and minimum content of 1.1 mol% (i.e based on the ranges of x, y, and z) with respect to the total molar content of Ni, Co, Al and M which corresponds to a minimum Ni content of 89 mol% and maximum Ni content of 98.9 mol% whereas the claim also discloses a nickel content of 75 mol% to 85 mol% (based on claimed value for “1-x-y-z”) which are in contradiction with one another. Since the ranges of x, y and z in formula 1-2 would not result in the claimed Ni content difference of 12 mol% to 16 mol% between the large secondary particle and the small secondary particles, for purposes of examination and until further clarification by the applicant, the claimed ranges for x, y and z in formula 1-2 are not being read as claim limitations.
Claims 3-4, 13-14 & 16-17 are rejected as being dependent on claim 1.
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 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.
Claims 1, 3-4, 14-15 & 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Choi (US 2019/0148717 A1) in view of Shin (US 2018/0287135 A1) and Oljaca (US 2014/0377659 A1) and evidenced by Guo (US 2021/0313563 A1).
Regarding claims 1 & 17, Choi teaches a lithium secondary battery comprising a positive electrode, a negative electrode, and an electrolyte disposed between the positive electrode and the negative electrode, wherein the positive electrode comprises a nickel based lithium metal composite oxide ([0062]-[0066]) comprising: large secondary particles having a particle size of 6 microns to 30 microns (i.e encompassing the claimed range of 10 microns to 17 microns) and small secondary particles having a particle size of 1 microns to 6 microns (i.e encompassing the claimed range of 2 microns to 5 microns) each reading on the claimed compositional formula ([0016]-[0018] & [0027]; Table 3), wherein a content of nickel in the large secondary particles is 85 mol% to 99 mol% based on the total content of transition metals in the nickel-based lithium metal composite oxide, and a content of nickel in the small secondary particles is 75 mol% to 89 mol% based on the total content of transition metals in the nickel-based lithium metal composite oxide and such that a difference between the nickel content in large and small secondary particles is preferably 5 mol% to 40 mol% (i.e encompassing the claimed range of 12 mol% to 16 mol%) ([0016]-[0019] & [0022]-[0023]), and wherein a content of the large secondary particles is preferably 60 parts by weight to 95 parts by weight (i.e encompassing the claimed range of 80 parts by weight to 90 parts by weight) based on 100 parts by weight of the total content of the large secondary particles and the small secondary particles ([0024]). Choi is silent as to 1) each of the small secondary particles and large secondary particles being formed of aggregates of primary particles; 2) the large secondary particles having a BET specific surface area of 0.3 m2/g to 0.8 m2/g and the small secondary particles having a BET specific surface area of 2 m2/g to 10 m2/g; and 3) a differential capacity (dq/dv) charge/discharge differential curve of a lithium secondary battery comprising a positive electrode comprising the nickel-based lithium metal composite, a ratio (A2/A1) of a discharge peak intensity (A2) to a charge peak intensity (A1), appearing at a voltage of 4.1V to 4.25V and a current of 1 C, is 1.1 or more after each of 1 charge/discharge cycle, 30 charge/discharge cycles and 50 charge/discharge cycles. Shin teaches a positive electrode active material comprising a nickel-based lithium metal composite oxide including secondary particle comprising an aggregate of primary particles ([0026]-[0038]). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to form secondary particles as aggregates of primary particles in order to obtain excellent output characteristics as taught by Shin ([0064]). Oljaca teaches a positive electrode active material comprising a nickel-based lithium
metal composite oxide with a bimodal particle size distribution comprising: i) large particles
with an average particle size of 10 microns to 25 microns and a specific surface area of 0.3 m²/g;
and ii) small particles with an average particle size of 1 micron to 5 microns and a specific
surface area of 2.5 m²/g ([0071]-[0073] & [0076]-[0080]). It would have been obvious to one of ordinary skill in the art, before the effective filing
date of the present invention, to provide large particles with a lower surface area of about 0.3
m²/g and small particles with a higher surface area of 2.5 m²/g in view of achieving high energy
and long cycle life due to good packing density afforded by inclusion of the large particles and
increased power and lower mass transport limitations by incorporating the smaller particles as
taught by Oljaca (10071]-[0073] & [0076]). While it is unclear from fig. 2 of Choi that the large particles and small particles are in the form of secondary particles, one of ordinary skill in the art would be apprised to provide a nickel-based lithium composite oxide formed as a mixture of small particles and large particles wherein the large particles and small particles have a nickel-content difference and are each in the form of secondary particles formed by aggregating a plurality of primary particles as evidenced by Guo (Figs. 1A-1B; [0030]-[0032], [0042]-[0045]). Note that the large secondary particles in fig. 1A of Guo are substantially spherical similarly to the shape of the large particles in fig. 2 of Choi. Moreover, it is noted that Choi’s modified nickel-based lithium metal composite oxide comprises substantially the same composition (i.e from formulas of the nickel-based lithium metal composite oxide as noted above and including the same weight ratio of the large secondary particles relative to the small secondary particles) as that of the presently claimed invention, and substantially the same structure (i.e large and small secondary particles having the respectively recited particle size ranges) as that of the presently claimed invention. Furthermore, it is noted that the method of producing the nickel-based lithium metal composite oxide of the present invention is substantially identical to that of the present invention as noted in the rejection of claims 13-14 & 16 below. Accordingly, the nickel-based lithium metal composite oxide of Choi as modified by Shin would be expected to inherently possess the presently claimed properties of claims 3-4. “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)”. See MPEP 2112.01 I
Regarding claims 3-4, Choi as modified by Shin and Oljaca teaches the positive electrode active material of claim 1 but is silent as to the charge peak as the charge peak intensity A1 and the discharge peak at the discharge peak intensity A2 being a peak appearing at a voltage of 4.14V to 4.17V (claim 3); and a ratio (A2/A1) of a discharge peak intensity (A2) to a charge peak intensity (A1), appearing at a voltage of 4.1V to 4.25V and a current of 1 C, is 1.1 to 1.5 (claim 4). While modified Choi is silent as to the properties recited in instant claims 3-4, it is noted that Choi’s modified nickel-based lithium metal composite oxide comprises substantially the same composition (i.e from formulas of the nickel-based lithium metal composite oxide as noted above and including the same weight ratio of the large secondary particles relative to the small secondary particles) as that of the presently claimed invention, and substantially the same structure (i.e large and small secondary particles having the respectively recited particle size ranges) as that of the presently claimed invention. Furthermore, it is noted that the method of producing the nickel-based lithium metal composite oxide of the present invention is substantially identical to that of the present invention as noted in the rejection of claims 13-14 & 16- below. Accordingly, the nickel-based lithium metal composite oxide of Choi as modified by Shin and Oljaca would be expected to inherently possess the presently claimed properties of claims 3-4. “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)”. See MPEP 2112.01 I.
Regarding claims 13-14 & 16, Choi teaches a method of preparing a nickel-based lithium metal composite oxide, the method comprising: mixing a large particle nickel-based metal hydroxide having a nickel content of 85 mol% to 99 mol%, based on the total content of transition metals in the large particle nickel-based metal hydroxide, small particle nickel-based metal hydroxide having a nickel content of 75 mol% to 89 mol%, based on total content of transition metal in the small particle nickel based metal hydroxide and a lithium precursor such as lithium hydroxide and lithium carbonate to obtain a precursor mixture, and heat-treating the precursor mixture at a temperature of “860°C to 720°C” (which appears to contain a typo and should read 660°C to 720°C since the optimal capacity is expressed over a range of 660°C to 720°C based on results in fig. 1) to obtain the nickel-based lithium metal composite oxide of claim 1, wherein a difference between the nickel content in large and small secondary particles is 10 mol% or more (Fig. 1; [0030], [0033]-[0042] & [0052]).
Response to Arguments
Applicant's arguments filed 09/29/2026 have been fully considered but they are not persuasive. In response to Applicant’s arguments that the cited references not fairly teach or suggest the presently claimed subject matter, the examiner respectfully disagrees. Specifically, Applicant argues that “Choi experimentally admits that the optimal capacity is not achieved at Ni content difference of 10 mol% ([0025]-[0026]) which actually teaches away from any motivation to combine toward the 12-16 mol% difference recited in the claims”. However, Choi discloses that a Ni content difference between the large particles and the small particles is preferably 5 mol% to 40 mol% ([0023]). Moreover, Choi teaches that when the content of the small particles is 20 wt% and the Ni content difference is 10 mol% or less, an optimal capacity was not expressed whereas in the case where the content of the small particles is 20 wt% to 40 wt% and the Ni content difference is 5 mol%, an optimal capacity was expressed ([0025]). While a Ni content difference of 5 mol% may correspond to a preferred embodiment of Choi, it is noted that this does not constitute a teaching away from the broader disclosure of a range of 5 mol% to 40 mol% for the Ni content difference as noted above. “Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994)”. See MPEP 2123 II. Therefore, applicant’s arguments that it would not have been obvious to use a Ni content difference of 12 mol% to 16 mol% is not found to be persuasive since this range is wholly encompassed in the broader range of 5 mol% to 40 mol% disclosed in Choi for the Ni content difference. With regards to applicant’s arguments that the references cited in previous office actions does teach or suggest the claimed BET surface area of the large secondary particles and the small secondary particles, Oljaca is herein cited for obviating the claimed values of the BET specific surface area as noted in the above updated rejection of claim 1.
Thus, in view of foregoing, claims 1, 3-4, 13-14 & 16-17 stand rejected.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Feng (US 2017/0155139 A1) and Hiratsuka (US 2021/0265627 A1) each disclose a lithium secondary battery comprising a cathode including a Ni-based lithium metal oxide active material having a bimodal particle size distribution including large secondary particles and small secondary particles.
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHANAEL T ZEMUI whose telephone number is (571)272-4894. The examiner can normally be reached M-F 8am-5pm (EST).
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/NATHANAEL T ZEMUI/Examiner, Art Unit 1727
