Ex Parte Jeoung et al

Patent Trial and Appeal Board

Jun 27, 2018

14024545 (P.T.A.B. Jun. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/024,545 09/11/2013
23363 7590 06/29/2018
Lewis Roca Rothgerber Christie LLP
POBOX29001
Glendale, CA 91209-9001
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Jin-Man Jeoung
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.
71455/S744 8725
EXAMINER
MCCONNELL, WYATTP
ART UNIT PAPER NUMBER
1727
NOTIFICATION DATE DELIVERY MODE
06/29/2018 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):
pto@lrrc.com
pair_cph@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JIN-MAN JEOUNG and KYEU-YOON SHEEM
Appeal2017-002196
Application 14/024,545
Technology Center 1700
Before ADRIENE LEPIANE HANLON, A VEL YN M. ROSS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 3-10, and 12-19. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In our Decision we refer to the Specification filed September 11, 2013, as
amended, ("Spec."), the Final Office Action appealed from dated November
13, 2015 ("Final Act."), the Appeal Brief filed May 16, 2016 ("Appeal Br."),
the Examiner's Answer dated September 23, 2016 ("Ans.") and the Reply
Brief filed November 22, 2016 ("Reply Br.").
2 Appellant is Applicant, Samsung SDI Co., Ltd., who is also identified as
the real party in interest. Appeal Br. 1.
Appeal2017-002196
Application 14/024,545
STATEMENT OF THE CASE
The subject matter on appeal relates to "a positive electrode for a
rechargeable lithium battery [that] exhibits good high rate characteristics and
cycle-life characteristics." Spec. ,r 7. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A positive electrode for a rechargeable lithium battery,
compnsmg:
a current collector; and
a positive active mass layer on the current collector, the
positive active mass layer comprising a mixture of a positive
active material, active carbon, a conductive material, and a
binder, the positive active mass layer having a positive active
mass density and a thickness satisfying Equation 1:
Equation 1
0.042 :S active mass density (glee)/ thickness (µm) :S 0.3
wherein the positive active material is selected from the group
consisting of compounds represented by:
LiaA1-b XbD2 where 0.90 :Sa :S 1.8, 0 :Sb :S 0.5;
LiaNi1-b-c CobMncDa where 0.90 :Sa :S 1.8, 0 :Sb :S 0.5, 0 :Sc :S 0.5,
0 < a :S 2;
LiaFeP04 where 0.90 :Sa :S 1.8,
wherein:
A is selected from Ni, Co, Mn, and combinations thereof;
Xis selected from Al, Ni, Co, Mn, Cr, Fe, Mg, Sr, V, rare
earth elements, and combinations thereof; and
Dis selected from 0, F, S, P, and combinations thereof.
Appeal Br. 12 (Claims App'x).
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Application 14/024,545
REJECTION
The Examiner maintains the rejection of claims 1, 3-10, and 12-19
under 35 U.S.C. § I03(a) as being unpatentable over Kaido 3 in view of
Yamaguchi4 and Saito. 5 Final Act. 2-3.
Appellant seeks our reversal of the Examiner's rejection of claims 1,
3-10, and 12-19. Appeal Br. 4. Appellant argues all claims together as a
group. See id. at 4--10. Therefore, consistent with the provisions of 37
C.F.R. § 4I.37(c)(l)(iv) (2013), we limit our discussion to claim 1, as a
representative claim, and all other claims stand or fall together with claim 1.
OPINION
The Examiner rejects claims 1, 3-10, and 12-19 as obvious over
Kaido in view of Yamaguchi and Saito. Final Act. 2-3. The Examiner finds
that Kaido teaches a positive electrode similar to that claimed except that in
Kaido, "[the] active material layer ha[ s] a thickness of 85 microns and a
density ranging from 2.85 to 3.14 g/cm3 ••• [leading] to a density/thickness
value ranging from 0.033 to 0.037, which falls slightly outside the
density/thickness ratio range recited in the amended claims." Final Act. 3.
But, the Examiner finds that the range of density to thickness ratio can be
ascertained through the routine adjustment of a known result effective
variable as taught by Saito. Id. According to the Examiner, "Saito teaches
that the thickness of a cathode active layer should be chosen to balance
between the benefit of increased capacity and energy density associated with
3 Kaido et al., US 2001/0012588 Al, published August 9, 2001 ("Kaido").
4 Yamaguchi et al., US 2004/0185330 Al, published September 23, 2004
("Yamaguchi").
5 Saito et al., US 2010/0216017 Al, published August 26, 2010 ("Saito").
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Application 14/024,545
a thicker cathode layer and the detriment of decreased lithium intercalation
efficiency when ... thickness is excessively increased." Id. at 3--4. The
Examiner further finds that "Saito also teaches that the density of the
cathode active layer should be chosen to balance between the benefit of
increased capacity and energy density associated with a higher density and
decreased lithium intercalation efficiency if the density is excessively
increased." Id. at 4. The Examiner acknowledges that Saito does not
specifically refer to the ratio of density and thickness but reasons that
"[t]here is nothing to indicate that Applicant's ratio is anything more than
what one arrives at after independently optimizing the thickness and density
and then calculating the ratio of those independently optimized values." Id.
The Examiner further finds that Yamaguchi discloses use of an active carbon
as the gas-absorbing agent to prevent battery swelling. Id. at 5.
Appellant contends that while Saito teaches ratio ranges that may fall
within the recited ratio range "Saito fails to teach or suggest that the
thickness and density should be controlled to provide any particular ratio of
those parameters that falls within the recited range." Appeal Br. 4--5.
Appellant further argues that Saito does not recognize that the ratio of
density to thickness is a result effective variable, that is, "that the ratio,
separate from the individual parameters, achieves any recognized result, and
therefore, the ratio cannot be considered a result-effective variable." Id. at
5. Therefore, Appellant urges that the Examiner relies upon impermissible
hindsight using Applicant's disclosure as a blueprint. Id. at 6-7.
Appellant's arguments are not persuasive of reversible error. The
ranges of positive active mass thickness and density taught in Kaido and
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Application 14/024,545
Saito overlap with the ranges taught by Appellant's Specification. 6
Compare Kaido ,r 283 (identifying a thickness of between 85-190 µm and a
density of 2. 85-3 .14 g/ cm3) and Saito ,r,r 46-4 7 (illustrating a thickness of
30-100 µm and a density of 1.40-1.95 g/cm3) with Spec. ,r,r 23-24
(describing a thickness of 10-200 µm and a density of 1.5--4.0 g/cm3); see
Ans. 8; see also Appeal Br. 4 (acknowledging that Saito discloses certain
ratio ranges that fall within the claimed range). The Examiner properly
establishes that each of positive active mass thickness and density are result
effective variables as taught by Saito. Final Act. 3--4; Ans. 8. In particular,
Saito describes
by thickening the anode active material layer 22B, the volume
occupied by the anode current collector 22A and the separator 23
in the battery is decreased and the energy density is improved
.... [But, i]f the thickness of the anode active material layer 22B
is excessively increased, there is a possibility that intercalation
efficiency of lithium ions is not sufficiently improved and
decomposition of the electrolytic solution is not sufficiently
inhibited.
Saito ,r 46. Saito further explains that an increase in volume density of the
anode active material improves cycle characteristics but that
if the volume density of the anode active material layer 22B is
smaller than 1.40 g/ cm3, there is a possibility that a sufficient
energy density may not be obtained ... [and] if the volume
density of the anode active material layer 22B is larger than 1.95
g/cm3, intercalation efficiency of lithium ions may be lowered or
the impregnation characteristics of the electrolytic solution to the
anode active material layer 22B may be lowered.
6 We observe, like the Examiner (Ans. 14), that Appellant's presently
claimed ratio does not overlap with the ratio of Kaido because Appellant
amended its claims during prosecution. See Amendment Filed with RCE, 2
and 6-7, dated July 13, 2015.
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Application 14/024,545
Id. ,I 47.
The Examiner correctly remarks that in Appellant's Specification
"[t]he ratio of thickness to density is not described as a separately tuned
parameter, but merely a result of independently adjusting the thickness and
density." Ans. 8. Even so, however, Saito does describe that a balance
between thickness and density must be reached to maximize the benefits
achieved of the increased thickness and density. Saito explains that
To further obtain a higher capacity in the lithium ion secondary
battery using the carbon material as an anode active material, as
one method, there is a method to increase the occupancy ratio of
the anode active material in the battery by increasing the
thickness of the anode active material layer and increasing the
volume density .... [Id. ,r 7].
However, when the thickness of the anode active material layer
is increased and the volume density of the anode active material
layer is increased, while a higher capacity is obtained, the
impregnation characteristics of the electrolytic solution to the
anode active material layer are lowered or intercalation
efficiency of lithium ions in charge is lowered. Accordingly, in
some cases, lithium becomes a dendrite to be precipitated and
loses its activity. In the result, internal short circuit may be
generated and thus the cycle characteristics may be lowered. [Id.
,r 8].
Thus, the Saito disclosure seeks to maximize thickness while improving
cycle-life performance. Id. ,r 13; see also id. ,r 33 (explaining that an
increase in density and thickness of the cathode active material "are
preferably implemented to obtain a high capacity").
And, contrary to Appellant's assertions (Appeal Br. 5---6; Reply Br.
1-3), the instant application is not analogous to Ex parte Nagano because
the applicant in Nagano separately claimed each of the three elements
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considered result effective variables-that is, (1) an aluminum powder
having a certain range mean particle sizes; (2) steel grinding particles having
a claimed range of average diameter; and (3) a ratio of the mean particle size
to average diameter as claimed. Ex parte Nagano, Appeal 2012-010624,
slip op. at 4 (PTAB July 30, 2014). Further, the Board stressed that missing
from the Examiner's rejection was an explanation of why one would have
optimized any of the three variables. Id. ("the Examiner does not adequately
explain why one would have optimized the aluminum powder particle size
or the grinding media diameter to the claimed ranges and does not direct us
to any evidence on this record that the ratio ... is a result effective variable
that would have been optimized to the claimed range"). Here, as the
Examiner aptly explains (Ans. 10),
the Examiner relies on art that (1) is directly related to the
disclosed invention, (2) provides a range for the thickness and
density that are substantially similar to the preferred range of
thickness and density taught by Applicant, (3) provides a reason
identical to that identified by Applicant for adjusting the
thickness and density, and (4) provides ranges for thickness[es]
and densit[ies] that result in a range for the ratio of thickness-to-
density that overlaps with Applicants claimed range.
Therefore, unlike Nagano, the preponderance of the evidence supports the
Examiner's prima facie case of obviousness.
Appellant also argues that the presently claimed invention yields
unexpected results. Appeal Br. 9. According to Appellant, "Examples 1
through 3 (including density/thickness ratios within the recited range)
showed 'surprisingly improved cycle-life characteristics' as well as charge
and discharge capacity compared to Comparative Examples 1 and 2
(including density/thickness ratios outside the recited range)." Id. And,
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Application 14/024,545
"Example 3 showed a 2-fold improvement in discharge capacity at SOC, and
a nearly 2-fold improvement in charge capacity at the same rate over
Comparative Example 2 (including the same density but a different
thickness)." Id. (referring to Spec. ,r 96, Tables 1 and 2)
Appellant's arguments regarding unexpected results attributable to the
claimed ratio are also unpersuasive. "[W]here there is a range disclosed in
the prior art, and the claimed invention falls within that range, there is a
presumption of obviousness." Iron Grip Barbell Co., Inc. v. USA Sports,
Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004). The presumption maybe
rebutted by evidence of unexpected results or a teaching away. Id. The
burden rests with Appellant to establish (1) that the alleged unexpected
results presented as being associated with the claimed invention are, in fact,
unexpected, (2) that the comparisons are to the disclosure of the closest prior
art, and (3) that the supplied evidentiary showing is commensurate in scope
with the claimed subject matter. See In re Klosak, 455 F .2d 1077, 1080
( CCP A 1972) ("the burden of showing unexpected results rests on he who
asserts them"); In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Here, Appellant fails to show that the results achieved are in fact
unexpected and Appellant's evidence is not commensurate over the entire
range or a substantial portion of the range. See In re Lindner, 457 F.2d 506,
508 (CCPA 1972) ("It is well established that the objective evidence of
nonobviousness must be commensurate in scope with the claims").
Appellant's Examples 1-3 showing improved cycle-life characteristics over
Comparative Examples 1 and 2, involve a ratio of active mass density to
thickness at the lower end of the claimed ratio range ( e.g., ratios of 0.042,
0.06, and 0.074 respectively) and fails to provide results across the entire
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Application 14/024,545
claimed range up to 0.3. Spec. ,r,r 75 (Example 1 ), 81 (Example 2), and 87
(Example 3). Furthermore, the increase in charge and discharge capacity
reflected in Example 3 and Comparative Example 2 is likewise limited, and
does not reflect improved results across the breadth of the claimed range.
In addition, and as the Examiner explains, "the only data that might
possibly be useful for establishing an unexpected result for the claimed ratio
is a comparison between Example 3 and Comparative Example 2" but,
improved charge and discharge capacity is expected based on the changes to
the thickness. Ans. 11; see also Saito ,r 8. In addition, because of the
limited data set provided, the Examiner rightly explains that "it is impossible
to determine if any different result between ... Examples and Comparative
Examples is due to the unclaimed change in thickness ( and thus not useful
for establishing an unexpected result for the claimed invention), or the
change in ratio." Ans. 12.
On balance, the weight of the evidence supports the Examiner's prima
facie case of obviousness.
CONCLUSION
Appellant failed to identify a reversible error in the Examiner's
rejection of claims 1, 3-10, and 12-19 under 35 U.S.C. § 103(a) as being
unpatentable over Kaido in view of Yamaguchi and Saito.
DECISION
For the above reasons, the Examiner's rejection of claims 1, 3,-10,
and 12-19 is affirmed.
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No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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