Ex Parte YamamotoDownload PDFPatent Trial and Appeal BoardJan 31, 201814232560 (P.T.A.B. Jan. 31, 2018) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/232,560 01/13/2014 Satoshi Yamamoto 140036 6725 38834 7590 02/02/2018 WESTERMAN, HATTORI, DANIELS & ADRIAN, LLP 8500 Leesburg Pike SUITE 7500 Tysons, VA 22182 EXAMINER WEI, ZHONGQING ART UNIT PAPER NUMBER 1727 NOTIFICATION DATE DELIVERY MODE 02/02/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): patentmail @ whda.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SATOSHI YAMAMOTO Appeal 2017-005417 Application 14/232,560 Technology Center 1700 Before BRADLEY R. GARRIS, KAREN M. HASTINGS, and MICHAEL G. McMANUS, Administrative Patent Judges. McMANUS, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 5—12 of Application 14/232,560 under 35 U.S.C. § 102(b) as anticipated and/or under 35 U.S.C. § 103(a) as obvious. Final Act. (March 1, 2016) 2—5. Appellant1 seeks reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. §6. For the reasons set forth below, we AFFIRM. 1 SANYO Electric Co., Ltd. is identified as the real party in interest. Appeal Br. 1. Appeal 2017-005417 Application 14/232,560 BACKGROUND The present application generally relates to a nonaqueous electrolyte secondary (rechargeable) battery, and particularly relates to a nonaqueous electrolyte secondary battery that contains a lithium nickel cobalt manganese oxide as a positive electrode active material and a molybdenum oxide in a positive electrode active material mixture. The subject battery is described as having excellent high-temperature cycling characteristics even at a high charging voltage. Spec. 11. Claim 5 is representative of the pending claims and is reproduced below: 5. A nonaqueous electrolyte secondary battery comprising: a positive electrode plate including a positive electrode active material mixture layer that contains a positive electrode active material capable of absorbing and desorbing lithium ions; a negative electrode plate including a negative electrode active material mixture layer that contains a negative electrode active material capable of absorbing and desorbing lithium ions; and a nonaqueous electrolyte, the positive electrode active material containing 1% by mass or larger of a lithium nickel cobalt manganese oxide represented by LiaNixCoyMni_x_y02 (0.9 1-y), and the positive electrode active material mixture layer containing 0.01 to 3.0% by mass of a molybdenum oxide (MoOz; 2 < z < 3) with respect to the lithium nickel cobalt manganese oxide. Appeal Br. 6 (Claims App.). 2 Appeal 2017-005417 Application 14/232,560 REJECTIONS On appeal, the Examiner maintains the following rejection: Claims 5—12 are rejected under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over, Abe et al. (WO 2010/058717 Al, published May 27, 2010, using United States counterpart US 2011/0281179 Al as an English language equivalent) (hereinafter “Abeâ€). Final Act. 2—6. The Examiner also relies upon Numata et al. (US 2003/0082453 Al, published May 1, 2003) (hereinafter “Numataâ€) as evidence in support of one finding. Final Act. 6; Answer 6. DISCUSSION Rejection 1. The Examiner rejected claims 5—12 as anticipated by or, in the alternative, obvious over, Abe. In support of the rejection, the Examiner found that Abe teaches a positive electrode active material mixture layer that contains a molybdenum oxide. Final Act. 4 (citing Abe 175). The Examiner further found that Abe teaches to use an amount of M0O3 equal to 3% by mass of the positive electrode mixture. Id. (citing Abe 195). The Examiner additionally determined that “one of ordinary skill in the art would readily appreciate that M0O3 can be used in a nonaqueous electrolyte secondary batteries as evidenced by many prior arts such as, for example, Numata.†Id. at 6. Appellants do not specifically dispute the Examiner’s determination that M0O3 may be used in a secondary battery as evidenced by Numata. Appeal Br.; Reply Br. generally. The Examiner additionally found that Abe teaches that “the electroconductive agent of the positive electrode may be any electron- transmitting material not undergoing chemical change. . . . The amount of the electroconductive agent to be added to the positive electrode mixture is 3 Appeal 2017-005417 Application 14/232,560 preferably from 1 to 10% by mass.†Answer 4 (citing Abe 178). The Examiner further found that Numata evidences the “well known†practice of using Mo03 as an “electroconductive giving agent.†Id. at 4. In this regard, Numata provides, inter alia, as follows: A metal of Ti, Zr, Mo, Nb, or Ru or a compound (including alloy) containing this metal can be used as an electroconductive giving agent in the present invention. Among these, as most preferable electroconductive giving agents, the following substances are exemplified. * * * (ii) one or two or more compounds selected from a group consisting of TiN, ZrN, M0O3.... Numata ]Hf 32—34 (emphasis added). Appellant argues that the rejection is in error on several bases. First, Appellant argues that the cited portion of Abe discloses M0O3 as a positive electrode active material only of a primary battery, not a secondary battery. Appeal Br. 2—3. Appellant asserts that one of skill in the art would understand that use of M0O3 in the positive electrode of a lithium ion secondary battery would result in a reduction of the capacity of the secondary battery. Id. The Examiner cites to a portion of Abe which indicates that “for the positive electrode for lithium primary battery, there are mentioned oxides or chalcogen compounds of one or more metal elements such as . . . M0O3.†Abe 175 (emphasis added). Accordingly, paragraph 75 of Abe does not explicitly disclose M0O3 for use in a secondary battery. However, there is no dispute that Numuta exemplifies the use of such material for a secondary battery electrode. Abe also teaches using from 1 to 10% of “any electron- 4 Appeal 2017-005417 Application 14/232,560 transmitting material†as an electroconductive agent. Id. ^ IS. The Examiner reasonably determines that this includes M0O3. Answer 4—5. Second, Appellant argues that, based on Numata’s teaching, it would have been necessary to use a greater quantity of M0O3 than permitted by the claim. Appeal Br. 3; Reply 3^4. In support, Appellant asserts that Abe teaches to use 3 parts by mass of acetylene black (citing Abe 195) as an electroconductive agent while Numata teaches to use 10 parts by mass of M0O3 (citing Numata 173) as an electroconductive agent. Appeal Br. 3. Appellant concludes that “Numata teaches that a secondary battery needs about 4 times†more M0O3 than acetylene black. Id. Appellant additionally includes certain technical assertions unsupported by citation to factual evidence. Id. Such assertions will not be credited. Gemtron Corp. v. Saint- Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (“[Ujnswom attorney argument... is not evidence and cannot rebut. . . other admitted evidence . . . .â€); In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.â€). The Examiner does not rely on the example from Numata cited by the Appellant. Rather, the Examiner relies upon Abe’s teaching to use an electroconductive agent in an amount of “1 to 10% by mass.†Answer 4. Nor may Numata be said to teach away from Abe. Appellant does not cite to any portion of Numata that would discourage one from using the quantity of electroconductive agent taught by Abe. Indeed, the Numata example falls within the range taught by Abe. 5 Appeal 2017-005417 Application 14/232,560 Third, Appellant argues that one of skill in the art would not have been motivated to combine the teachings of Abe and Numata because Abe is directed to 4V-class secondary batteries while Numata is directed to 5V- class Li ion secondary batteries. Appeal Br. 4; Reply 5; see also Response After Final Action (May 27, 2016) 4—5. In this regard, Abe teaches that “those properties are good even when the final charging voltage is 4.4 V or more.†Abe 192 (emphasis added). Further, Numata teaches that “[although the present invention can also be applied to conventional 4V- class secondary batteries and 3 V-class secondary batteries, the application to 5V-class batteries is more effective.†Numata 137 (emphasis added). Thus, one of skill in the art would not have viewed the teachings of Numata as inapplicable to Abe. Accordingly, Appellants have not shown error in the Examiner’s obviousness rejection of claims 5-12. CONCLUSION The rejection of claims 5—12 as obvious over Abe is affirmed. We need not reach the rejection of claims 5—12 as anticipated by Abe. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 6 Copy with citationCopy as parenthetical citation