Ex Parte Saito et alDownload PDFPatent Trial and Appeal BoardDec 16, 201411371286 (P.T.A.B. Dec. 16, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte TAKAYA SAITO, YASUTAKA KOGETSU, TAKASHI TAKEUCHI, and HIDEKAZU HIRATSUKA ________________ Appeal 2013-001994 Application 11/371,286 Technology Center 1700 ________________ Before CHUNG K. PAK, TERRY J. OWENS, and MICHAEL P. COLAIANNI, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1 and 3. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a secondary battery. Claim 1 is illustrative: 1. A non-aqueous electrolyte secondary battery comprising: a positive electrode including a positive electrode active material; a negative electrode including a negative electrode active material; a separator interposed between said positive electrode and said negative electrode: and a non-aqueous electrolyte, wherein said positive electrode active material comprises secondary particles, each comprising an aggregate of primary particles, said primary Appeal 2013-001994 Application 11/371,286 2 particles comprising a transition metal-containing composite oxide capable of intercalating and deintercalating lithium ions, and wherein a value (Vpr) defined by the formula: Vpr = (1-C/D)/(A2xB3), is not less than 0.0005 and not greater than 0.04, where an average particle size of said primary particles is A μm, an average particle size of said positive electrode active material is B μm, tap density of said positive electrode active material is C g/ml, and a true density of said positive electrode active material is D g/ml, provided that C is from 2.4 to 2.6, wherein, said composite oxide is represented by the formula: LixN1-(y+z)CoyMzO2, where 1.01≤x≤1.05, 0.1≤y≤0.2, and 0.02≤z≤0.1, and said element M represents Al. The Reference Kikuchi1 WO 03/083969 A1 Oct. 9, 2003 The Rejection Claims 1 and 3 stand rejected under 35 U.S.C. § 103 over Kikuchi. OPINION We reverse the rejection. We need address only the sole independent claim, i.e., claim 1. That claim requires a secondary battery comprising a positive electrode active material which has a tap density of 2.4 – 2.6 g/cm3 and includes primary particles comprising a composite oxide having a specified formula. Kikuchi discloses a secondary battery comprising a positive electrode material having a tap density generally 2.5 g/cm3 or lower and, as an essential point, including a secondary particle of a lithium/transition metal 1 Citations herein to Kikuchi are to US 2005/0106463 A1, published May 19, 2005, which the Examiner relies upon as an English language equivalent of Kikuchi (Ans. 2). Appeal 2013-001994 Application 11/371,286 3 composite oxide containing boron and/or bismuth (¶¶ 14-15, 31, 45). An exemplified secondary particle lacking boron or bismuth has a composition (Li1.05Ni0.82Co0.15Al0.03O2) falling within the Appellants’ claim 1’s formula but has a tap density of 1.77 g/cm3 (Table 1, Reference Example 2). The Examiner presents a calculation which indicates that the positive electrode material in Kikuchi’s Reference Example 2 has a VPr (0.01377) within the Appellants’ claim 1(Ans. 3-4). The Examiner argues that Kikuchi’s Reference Example 2’s 1.77 g/cm3 tap density is close to the Appellants’ claim 1’s minimum required tap density (2.4 g/cm3), and that in view of Kikuchi’s disclosures that Reference Example 2’s composite oxide was made in the same manner as in Example 1 (tap density 1.89 g/cm3) and the positive electrode material can have a tap density as high as 2.5 g/cm3 (¶ 45), one of ordinary skill in the art would have made a composite oxide having Reference Example 2’s formula and a tap density of 2.5 g/cm3 “to have a larger amount of positive electrode material per unit volume to ensure a certain energy capacity is reached” (Ans. 5-6). The Examiner argues that “[n]othing in Kikuchi states that it is impossible for the compound of reference example 2 to achieve a higher tap density” (Ans. 10). Kikuchi obtains a tap density as high as 2.5 g/cm3 by including boron and/or bismuth in the composite oxide (¶ 45). The Examiner has not established that Kikuchi would have led one of ordinary skill in the art to make a composite oxide having that tap density but lacking boron and bismuth. Appeal 2013-001994 Application 11/371,286 4 “‘[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The Examiner has not provided the required articulated reasoning with rational underpinning. Accordingly, we reverse the rejection. DECISION/ORDER The rejection of claims 1 and 3 under 35 U.S.C. § 103 over Kikuchi is reversed. It is ordered that the Examiner’s decision is reversed. REVERSED lp Copy with citationCopy as parenthetical citation