Ex Parte Ravet et alDownload PDFPatent Trial and Appeal BoardOct 11, 201612445645 (P.T.A.B. Oct. 11, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/445,645 07/08/2009 466 7590 YOUNG & THOMPSON 209 Madison Street Suite 500 Alexandria, VA 22314 10/13/2016 FIRST NAMED INVENTOR Nathalie Ravet 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. 3205-1103 9820 EXAMINER LI, TIJN ART UNIT PAPER NUMBER 1732 NOTIFICATION DATE DELIVERY MODE 10/13/2016 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): DocketingDept@young-thompson.com yandtpair@firs ttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NATHALIE RA VET, MICHEL GAUTHIER, THORSTEN LAHRS, GUOXIAN LIANG, and CHRISTOPHE MICHOT Appeal2016-007726 Application 12/445,645 Technology Center 1700 Before TERRY J. OWENS, BEYERL YA. FRANKLIN, and CHRISTOPHER C. KENNEDY, 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 1-12, 31-34 and 39--43. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a cathode material. Claim 1 is illustrative: 1. A cathode material C-AMX04, composed of particles of a compound corresponding to the formula AMX04 which have an olivine structure and which carry, on at least a portion of their surface, a carbon coating deposited by a thermal process, the formula AMX04 being such that: Appeal2016-007726 Application 12/445,645 - A represents Li, alone or partially replaced by at most 10% as atoms of Na or K; - M represents Fe (II), alone or partially replaced by at most 50% as atoms of one or more other metals chosen from Mn, Ni and Co and/or by at most 10% as atoms of one or more aliovalent or isovalent metals other than Mn, Ni or Co, and/or by at most 5% as atoms of Fe(III); and - X04 represents P04, alone or partially replaced by at most 10 mol% of at least one group chosen from S04 and Si04, said material having a water content of less than 1000 ppm throughout all stages of preparation, storage and use. Ho soya Cochran Adachi Hatta Yang Armand (Armand '318) Armand (Armand '260) 1 The References US 2002/0124386 Al US 2004/0018428 Al US 2004/0234853 Al US 2004/0241546 A 1 US 2007 /0059598 Al US 7,601,318 B2 WO 02/27824 Al The Rejections Sep. 12,2002 Jan.29,2004 Nov. 25, 2004 Dec. 2, 2004 Mar. 15, 2007 Oct. 13, 2009 Apr. 4, 2002 The claims stand rejected as follows: claims 1-5, 8 and 43 under 35 U.S.C. § 103 over Armand '260 in view of Cochran, claims 6, 31 and 32 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Adachi, claims 7, 33 and 34 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Hatta, claims 9 and 39--42 under 35 U.S.C. § 103 over Armand '260 in view of Cochran, Adachi and Hatta, claims 10-12 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Yang, claim 12 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Hosoya, claims 1-5, 8 and 43 under 35 U.S.C. §§ 102(b) and 103 over Armand '260, claims 6, 31 and 32 under 35 U.S.C. § 103 over Armand '260 in view of Adachi, claims 7, 33 and 34 under 35 U.S.C. § 103 over Armand '260 in 2 Appeal2016-007726 Application 12/445,645 view of Hatta, claims 9 and 39-42 under 35 U.S.C. § 103 over Armand '260 in view of Adachi and Hatta, claims 10-12 under 35 U.S.C. § 103 over Armand '260 in view of Yang, claim 12 under 35 U.S.C. § 103 over Armand '260 in view of Hosoya, claims 1-5, 8 and 43 on the ground of obviousness-type double patenting over claims 1-23 and 29 of Armand '260 in view of Cochran, claims 1-5, 8, 10, 11and43 on the ground of obviousness-type double patenting over claims 1-7, 78 and 82-85 of Armand '318 in view of Cochran, claims 1-5, 8 and 4 3 on the ground of obviousness-type double patenting over claims 1-23 and 29 of Armand '260, and claims 1-5, 8, 10, 11 and 43 on the ground of obviousness-type double patenting over claims 1-7, 78 and 82-85 of Armand '318. OPINION We affirm the rejections. The Appellants' claim 1, which is the sole independent claim, requires that the cathode material has "a water content of less than 1000 ppm throughout all stages of preparation, storage and use." The Appellants assert that this limitation should be considered a functional limitation (Reply Br. 9). The limitation is not a functional limitation because it does not recite a function. The Appellants assert that the limitation meets the requirements of a product-by-process limitation (i.e., the product can be defined only by the process steps by which it is made, and the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product) (Reply Br. 11 ). 3 Appeal2016-007726 Application 12/445,645 The limitation is not a product-by-process limitation because it does not recite a process step. The limitation recites a characteristic of the cathode material when it is made, i.e., it has a water content less than 1000 ppm. The recitation regarding storage and use pertains to the intended use of the material. Hence, the limitation is met by a cathode material which has a water content less than 1000 ppm when it is made and is capable of being stored and used such that the water content remains below 1000 ppm. Rejections under 35 U.S.C. § 102(b) and 103 Armand '260 discloses an electrode comprising carbon-coated grains of a compound having the formula LixM1-yM' y(X04)n (where 0:Sx:S2, O:Sy:S0.6, l:Sn:Sl.5, M is a transition metal or a mixture of transition metals from the first line of the periodic table, M' is an element with fixed valency chosen from Mg2+, Ca2+, Al3+, Zn2+ or a combination thereof, and Xis S, P or Si) made by reducing an equilibrated mixture of precursors of the compound's constituents in a reducing gas atmosphere which "preferably contains hydrogen or a gas that is capable of generating hydrogen under the synthesis conditions, ammonia or a substance capable of generating ammonia under the synthesis conditions or carbon monoxide, these gases being used in their pure state or in mixtures and it also being possible to use them in the presence of water vapor and/or in the presence of carbon dioxide and/or in the presence of a neutral gas (such as nitrogen or argon)" (col. 3, 11. 19-29; col. 6, 11. 8-16). The exemplary compounds include LiFeP04 and LiFe1-sMnsP04, where O:Ss:S0.9 (col. 5, 11. 55-59). The Appellants assert that Armand '260's mixture is reduced in the presence of water vapor and that water vapor is preferred (App. Br. 4). 4 Appeal2016-007726 Application 12/445,645 Annand '260 discloses that the presence of water vapor is optional (col. 6, 11. 8-16). The disclosure that "the amount of water vapor preferably corresponds to between 0.1 and 10 molecules, inclusively, of H20 pre atom of hydrocarbon" (col. 6, 11. 65-68) appears to pertain to the embodiment wherein the optional water vapor is used. Regardless, the disclosed amount of water is a preferred amount, and the reference is not limited to its preferred embodiments. See In re Kohler, 475 F.2d 651, 653 (CCPA 1973); In re Mills, 470 F.2d 649, 651(CCPA1972); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). The Appellants assert that the evidence in their Specification that water vapor reduces the cathode's cycle capacity shows an unexpected result (App. Br. 7-10; Reply Br. 3-5). That argument is not well taken because the Appellants have not set forth a side-by-side comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims and provided evidence that the results would have been unexpected by one of ordinary skill in the art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980); In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The Appellants assert that the applied references other than Armand '260 do not disclose a water content less than 1000 ppm (App. Br. 10-13; Reply Br. 13-16). That argument is deficient in that the Appellants are attacking the references individually when the rejection is based on a combination of 5 Appeal2016-007726 Application 12/445,645 references. See Jn re Keller, 642 F.2d 413, 426 (CCPA 1981); Jn re Young, 403 F.2d 754, 757-58 (CCPA 1968). The Examiner relies upon Armand '260 for a disclosure of a reducing gas atmosphere which does not contain water vapor (Ans. 3, 12). Thus, we are not persuaded of reversible error in the rejections under 35 U.S.C. §§ 102(b) and 103. Obviousness-type double patenting rejections Armand '260's claim 14 recites that "the gaseous reducing atmosphere comprises hydrogen or a gas that is capable of generating hydrogen under the synthesis conditions, ammonia or a substance capable of generating ammonia under the synthesis conditions or carbon monoxide, and wherein the hydrogen, ammonia, or carbon monoxide gas is used in a pure state or in a mixture, and, optionally, in the presence of water vapor, carbon dioxide, or a neutral gas." Armand '318's claim 43 recites that "a reducing atmosphere is provided which contains hydrogen or a gas that is capable of generating hydrogen under the synthesis conditions, or ammonia or a substance capable of generating ammonia under the synthesis conditions, or carbon monoxide, these gases being used in their pure state or mixtures, optionally in the presence of water vapor and/ or in the presence of carbon dioxide and/or in the presence of a neutral gas." The Appellants assert that Armand '260's claim 14 and Armand '3 l 8's claim 56 indicate that the synthesis is carried out in a reducing gas which may contain water vapor (App. Br. 13-16; Reply Br. 16-18). As pointed out above, Armand '260's claim 14 and Armand '318's claim 43 recite that the presence of water vapor is optional. 6 Appeal2016-007726 Application 12/445,645 Hence, we are not convinced of reversible error in the obviousness- type double patenting rejections. DECISION/ORDER The rejections of claims 1-5, 8 and 4 3 under 3 5 U.S. C. § 10 3 over Armand '260 in view of Cochran, claims 6, 31and32 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Adachi, claims 7, 33 and 34 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Hatta, claims 9 and 39-42 under 35 U.S.C. § 103 over Armand '260 in view of Cochran, Adachi and Hatta, claims 10-12 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Yang, claim 12 under 35 U.S.C. § 103 over Armand '260 in view of Cochran and Hosoya, claims 1-5, 8 and 43 under 35 U.S.C. §§ 102(b) and 103 over Armand '260, claims 6, 31and32 under 35 U.S.C. § 103 over Armand '260 in view of Adachi, claims 7, 33 and 34 under 35 U.S.C. § 103 over Armand '260 in view of Hatta, claims 9 and 39--42 under 35 U.S.C. § 103 over Armand '260 in view of Adachi and Hatta, claims 10-12 under 35 U.S.C. § 103 over Armand '260 in view of Yang, claim 12 under 35 U.S.C. § 103 over Armand '260 in view of Hosoya, claims 1-5, 8 and 43 on the ground of obviousness-type double patenting over claims 1-23 and 29 of Armand '260 in view of Cochran, claims 1-5, 8, 10, 11 and 43 on the ground of obviousness-type double patenting over claims 1-7, 78 and 82-85 of Armand '318 in view of Cochran, claims 1-5, 8 and 43 on the ground of obviousness-type double patenting over claims 1-23 and 29 of Armand '260, and claims 1-5, 8, 10, 11 and 43 on the ground of obviousness-type double patenting over claims 1-7, 78 and 82-85 of Armand '318 are affirmed. It is ordered that the Examiner's decision is affirmed. 7 Appeal2016-007726 Application 12/445,645 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § l.136(a). AFFIRMED 8 Copy with citationCopy as parenthetical citation