Ex Parte Yoshioka et alDownload PDFPatent Trial and Appeal BoardSep 28, 201613225603 (P.T.A.B. Sep. 28, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 13/225,603 38485 7590 ARENT FOX LLP FILING DATE 09/06/2011 09/30/2016 1675 BROADWAY NEW YORK, NY 10019 FIRST NAMED INVENTOR Makoto Yoshioka 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 036433.03090 1924 EXAMINER NGUYEN,KHANHTUAN ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 09/30/2016 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): patentdocket@arentfox.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HITOMI NISHIDA, Legal Representative, T AKAFUMI INA GU CHI, Legal Representative, MAKOTO YOSHIOKA, MASUTAKA OUCHI, TAKESHI HAYASHI, and KUNIO NISHIDA, Deceased Appeal2015-005736 Application 13/225,603 Technology Center 1700 Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and MICHAEL G. McMANUS, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE The Appellants filed an appeal under 35 U.S.C. § 134 from an Examiner's decision finally rejecting claims 1 and 3-17. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. Independent claims 1, 16, and 17 are reproduced below from the Claims Appendix of the Appeal Brief dated November 25, 2014 ("App. Br."). The limitations at issue are italicized. Appeal2015-005736 Application 13/225,603 1. A method for producing an electrode active material for a secondary battery, which contains a lithium containing phosphate compound with a olivine-type framework represented by LiMP04, wherein M is one or more elements selected from the group consisting of Mn, Fe, Co, Cu, Ni, and Mg, the method comprising: a first firing step of firing a mixture of starting raw materials for the electrode active material at a first temperature to produce a first fired mixture; grinding the first fired mixture into a ground powder; and a second firing step of firing the ground powder at a second temperature higher than the first temperature, wherein the first firing step includes a step of heating the mixture until a volatile component is removed therefrom almost completely, and wherein the volatile component is carbon, nitrogen, and hydrogen contained in the starting raw materials. 16. A precursor containing a lithium containing phosphate compound composed of Li, M, and P04, and containing substantially no volatile component, wherein Mis one or more elements selected from the group consisting of Mn, Fe, Co, Cu, Ni and Mg, and wherein the volatile component is carbon, nitrogen, and hydrogen. 1 7. A precursor containing a lithium containing phosphate compound with an olivine-type framework represented by LiMP04, and containing substantially no volatile component, wherein M is one or more elements selected from the group consisting of Mn, Fe, Co, Cu, Ni and Mg, and wherein the volatile component is carbon, nitrogen, and hydrogen. App. Br. 7, 9. The claims on appeal stand rejected as follows: 2 Appeal2015-005736 Application 13/225,603 (1) claims 1, 3-12, and 14--17 under 35 U.S.C. § 102(b) as anticipated by Dai et al.; i, 2 and (2) claim 13 under 35 U.S.C. § 103(a) as unpatentable over Dai in view of Izumi et al. 3 The Appellants present the same arguments in support of the patentability of each of independent claims 1, 16, and 17 and state they "[are] not separately arguing the patentability of dependent claims 3-15 at this time." App. Br. 6. Thus, we select claim 1 and decide the appeal based on that claim. 37 C.F.R. § 41.37 (c)(iv) (2014). B. DISCUSSION The Examiner finds Dai discloses a lithium iron phosphate (LiFeP04) cathode material for secondary batteries and a method for preparing the cathode material. Ans. 2; see also Ans. 3 (finding that LiFeP04 has an olivine-type structure). The Examiner finds the method disclosed in Dai comprises the step of: [HJ eating or sintering a mixture of iron compound, phosphorous [sic, phosphorus] compound, lithium compound, carbon additive, and organic solvent such as ethanol and/or alcohol to a first temperature under an inert gas or gas mixture atmosphere at a temperature about 300 to 600°C in an oxygenated environment[. 4] Ans. 2 (citing Dai iii! 18, 22). 1 US 2009/0081102 Al, published March 26, 2009 ("Dai"). 2 Claim 2 is included in the statement of the rejection in the Examiner's Answer. See Examiner's Answer dated March 12, 2015 ("Ans."), at 2. Claim 2, however, was cancelled in an amendment dated December 23, 2013. See Final Office Action dated March 5, 2014, at 2 (indicating that claim 2 is cancelled); see also Advisory Action dated September 16, 2014 (indicating that claims 1 and 3-17 are rejected). The statement of the rejection has been corrected to omit claim 2. 3 JP 2009-062256, published March 26, 2009 ("Izumi"). 4 Dai discloses that the mixture is annealed in an oxygenated environment before or after the first sintering step. Dai if 18. 3 Appeal2015-005736 Application 13/225,603 The Examiner finds that heating or sintering the mixture to a temperature of about 300 to 600°C would inherently remove, almost completely, the volatile components from the mixture as recited in claim 1, because the Appellants' first firing step is carried out at a temperature of 500°C or more. Ans. 2-3 (citing Spec. § 3 7); see also Spec. i-f 3 7 ("[ t ]he first temperature is preferably a temperature for the removal of the volatile components" and "is preferably a temperature higher than 400°C" and "is further preferably a temperature of 500°C or more"). The Appellants argue that the first sintering step in Dai "is carried out in an inert atmosphere so that there will be no reaction with the volatile component" (emphasis omitted). App. Br. 4 (citing Dai i-fi-1 18, 23). Thus, in contrast to the claimed invention, the Appellants argue that "the cathode material of Dai et al. includes carbon after the first sintering step is carried out." App. Br. 4. The Appellants also direct our attention to paragraph 69 of Dai which is said to provide that: [T]he purpose of the various processes of annealing, heating and sintering of Dai ... are carried out such that "the carbon content can be more evenly distributed among the lithium iron phosphate particles, thereby providing a cathode material with higher tap density, higher volumetric capacity, and overall enhanced electrical properties." This "even distribution of the carbon particles" shows that the carbon (i.e., volatile component) is still significantly present in the material. App. Br. 5. Significantly, the Appellants have failed to show that the carbon present in Dai's material after the first sintering step is volatile. See Ans. 8 (finding that the carbon additive disclosed in Dai is not a volatile component). 5 In that regard, Dai 5 The Appellants disclose that volatile components are H20, C02, and N2. Spec. i-f 85. The Appellants do not direct us to any definition of "volatile component" 4 Appeal2015-005736 Application 13/225,603 discloses that the mixture of raw materials is sintered at a temperature as high as 600°C, which the Examiner finds inherently removes, almost completely, 6 volatiles from the starting raw materials. Ans. 2-3; see also Dai i-f 27 (mixture in Example 1 is sintered in a first sintering step at a temperature up to 500° C). We recognize that the first sintering step in Dai is carried out in an inert gas or a reducing gas atmosphere. See Dai i-fi-1 18, 23. However, the Appellants have not directed us to any credible evidence showing that the inert atmosphere disclosed in Dai suppresses the release of volatile carbon materials at a temperature as high as 500°C or 600°C in the first firing step. The Appellants raise no other arguments for patentability of the appealed claims. In sum, the Appellants have failed to show reversible error in the Examiner's finding of anticipation. Therefore, the§ 102(a) rejection of claims 1, 3-12, and 14--17 and the§ 103(a) rejection of claim 13 are sustained. C. DECISION The Examiner's decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l ). AFFIRMED that includes the carbon additives disclosed in Dai which comprise, inter alia, artificial graphite and natural graphite. Dai i-f 8. 6 The Appellants do not assign a numerical value to "almost completely" in their Specification. 5 Copy with citationCopy as parenthetical citation