COMMISSARIAT À L'ÉNERGIE ATOMIQUE ET AUX ÉNERGIES ALTERNATIVES

Patent Trials and Appeals Board

Dec 16, 2020

2020000573 (P.T.A.B. Dec. 16, 2020)

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.
14/906,689 01/21/2016 David Peralta BRV6-58134 9320
116 7590 12/16/2020
PEARNE & GORDON LLP
1801 EAST 9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
EXAMINER
KOROVINA, ANNA
ART UNIT PAPER NUMBER
1729
NOTIFICATION DATE DELIVERY MODE
12/16/2020 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):
patdocket@pearne.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID PERALTA, FREDERIC FABRE, PIERRE FEYDI,
SEBASTIEN MARTINET, MARLENE REY, and LOIC SIMONIN
____________

Appeal 2020-000573
Application 14/906,689
Technology Center 1700
____________

Before CHRISTOPHER C. KENNEDY, JEFFREY R. SNAY, and
BRIAN D. RANGE, Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–6 and 13. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies COMMISSARIAT À L’ÉNERGIE
ATOMIQUE ET AUX ÉNERGIES ALTERNATIVES as the real party in
interest. Appeal Br. 2.
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Application 14/906,689

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BACKGROUND
The invention relates to over-lithiated lamellar oxide materials useful
for lithium-ion battery positive electrodes. Spec. 1. Claim 1, the only
independent claim on appeal, reads as follows:
1. A lithium-ion battery positive electrode material
comprising a powder of over-lithiated lamellar oxide fitting the
following formula (I):
Li1+x(MnaNibMc)1-xO2
(I)
wherein:
* x is comprised in a range from 0.1 to 0.26;
* a+b+c=l with the condition that a and b are different from O;
* when c is different from 0, M is a transition element other
than cobalt,
said powder having a specific surface area ranging from 1.8 to 6
m2/g and having a tapped density greater than or equal to 1. 6
g/cm 3.
Appeal Br. 11 (Claims Appendix).

REJECTIONS
I. Claims 1, 5, 6, and 13 stand rejected under 35 U.S.C. § 103 as
unpatentable over Endo2 and Kikuchi.3
II. Claim 2 stands rejected under 35 U.S.C. § 103 as unpatentable over
Endo, Kikuchi, and Howard.4
III. Claims 3 and 4 stand rejected under 35 U.S.C. § 103 as unpatentable
over Endo, Kikuchi, and Shin.5

2 US 2013/0146808 A1, published June 13, 2013.
3 US 7,241,532 B2, issued July 10, 2007.
4 US 2005/0136329 A1, published June 23, 2005.
5 Shin et al., (“Synthesis and electrochemical properties of Li[Li(1-
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OPINION
Rejection I: obviousness of claims 1, 5, 6, and 13
With regard to the Examiner’s rejection of claims 1, 5, 6, and 13,
Appellant argues only claim 1. See Appeal Br. 3–9. We select claim 1 as
representative of the rejected group. Claim 5, 6, and 13 stand or fall with
claim 1.
Relevant to Appellant’s arguments on appeal, the Examiner finds
Endo discloses an over-lithiated lamellar oxide powder that satisfies formula
(I) and has a specific surface area within the recited range of 1.8–6 m2/g.
Final Act. 6 (citing Endo Table 11, Example 31). The Examiner finds Endo
does not disclose a tapped density for the powder, but finds Kikuchi would
have provided a reason to limit Endo’s powder materials to those exhibiting
a tapped density of greater than or equal to 1.6 g/cm3. Id. Particularly, the
Examiner finds Kikuchi teaches positive electrode powder material having a
lower tapped density “necessitates an increased battery volume” and
“result[s] in a low energy capacity when a battery having a reduced sized is
to be produced.” Id. See Kikuchi 6:45–60. Appellant does not dispute the
Examiner’s findings regarding Kikuchi. See Appeal Br. 4 (“Appellant does
not materially dispute that Kikuchi teaches particles having a tapped density
of 0.8 to 3.0 g/cm3, and that such a dapped density could be desirable.”).
Appellant argues “one of ordinary skill in the art would not have
recognized a reasonable expectation of success in either replacing or
modifying the powder of Endo’s example in view of Kikuchi’s teachings.”
Id. In support of that argument, Appellant relies on the fact that none of the

2x)/3NixMn(2-x)/3]O2 as cathode materials for lithium secondary batteries,”
Journal of Power Sources 112 (2002) 634-638).
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examples reported in Kikuchi’s Table 1 exhibited “both a specific surface
area and a tapped density” within the ranges recited in claim 1. Id. at 5.
Appellant contends neither specific surface area nor tapped density can
easily be predicted “because both will vary widely depending on the
composition, among other things.” Id. at 6. Appellant argues the combined
disclosures of Endo and Kikuchi would not have enabled one skilled in the
art to produce the claimed powder having both specific surface area and
tapped density within the recited ranges. Id. at 7.
Appellant’s arguments are not persuasive of reversible error. There is
no dispute that both Endo and Kikuchi are directed to electrode materials for
use in lithium batteries. See Endo Abstract; Kikuchi Abstract. Endo
exemplifies at least one such material that satisfies formula (I) and
reportedly has a specific surface area within the recited range. Endo Table
11, Example 31. Kikuchi discloses similar materials and specifies preferred
specific surface area and tapped density values that encompass or meet those
recited in claim 1. Kikuchi 6:6–20 (identifying preferred specific surface
area values of 0.3 m2/g or larger and 8 m2/g or smaller); id. 6:49 (identifying
a preferred tapped density range of 1.6 g/cm3 or higher). Appellant does not
identify persuasive evidence that would support the argument that achieving
surface area and tapped density values within Kikuchi’s disclosed preferred
ranges would have required more than routine experimentation. To the
contrary, Endo states, “an active material having a high density and a small
specific surface area can be obtained.” Endo ¶ 62. The Specification
similarly contends the intended product of the invention can be obtained
through use of “sufficient conditions,” which conditions “may be determined
by one skilled in the art by means of preliminary tests.” Spec. 14. See also
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id. at 10 (“The over-lithiated lamellar oxide should be prepared under
operating conditions allowing perfect control of the specific surface area and
of the morphology of the obtained powder.”).
In the Reply Brief, Appellant further argues Kikuchi’s electrode
material includes boron or bismuth, which are not required by claim 1.
Reply Br. 2–3. However, Appellant does not persuasively explain why
Kikuchi’s inclusion of those elements would negate Kikuchi’s general
disclosure regarding preferred specific surface area and tapped density
values.6
A preponderance of the evidence supports the Examiner’s underlying
findings and obviousness determination. Appellant does not persuasively
identify reversible error. Accordingly, we sustain the Examiner’s Rejection
I as applied to each of claims 1, 5, 6, and 13.

Rejections II and III
Appellant does not separately argue either Rejection II or III, except
to implicitly rely on the arguments presented in connection with claim 1.
See Appeal Br. 9–10. We find Appellant’s arguments unpersuasive for the
reasons set forth above. Accordingly, we also sustain the Examiner’s
Rejection II and Rejection III.

6 Appellant also challenges in the Reply Brief the Examiner’s apparent
citation in the Examiner’s Answer to an additional prior art reference not
relied upon in the ground of rejection set forth in the Final Office Action.
See Reply Br. 3–6. Our decision does not rely upon prior art beyond that
which the Examiner identifies in stating the ground of rejection.
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Application 14/906,689

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CONCLUSION
The Examiner’s decision rejecting claims 1–6 and 13 is affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5, 6, 13 103 Endo, Kikuch 1, 5, 6, 13
2 103 Endo, Kikuch,
Howard
2
3, 4 103 Endo, Kikuch, Shin 3, 4
Overall
outcome
1-6, 13

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED