Ex Parte Ravet et al

Patent Trial and Appeal Board

Oct 11, 2016

12445645 (P.T.A.B. Oct. 11, 2016)

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
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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 ).
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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).
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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
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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.
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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.
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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
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