PPG INDUSTRIES OHIO, INC

Patent Trials and Appeals BoardDec 24, 2021

2021000508 (P.T.A.B. Dec. 24, 2021)

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. 13/836,415 03/15/2013 Noel R. Vanier 12008779A1 4574 24959 7590 12/24/2021 PPG Industries, Inc. IP Law Group One PPG Place 39th Floor Pittsburgh, PA 15272 EXAMINER MCDERMOTT, HELEN M ART UNIT PAPER NUMBER 1727 NOTIFICATION DATE DELIVERY MODE 12/24/2021 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): ipdocket@ppg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NOEL R. VANIER, DAVID B. ASAY, KURT G. OLSON, EDWARD F. RAKIEWICZ, DONGHAI WANG, and RAN YI Appeal 2021-000508 Application 13/836,415 Technology Center 1700 Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and SHELDON M. MCGEE, Administrative Patent Judges. MCGEE, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1–4 and 6–34.1 We have jurisdiction. 35 U.S.C. § 6(b). We reverse. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as PPG Industries Ohio, Inc. Appeal Br. 1. Appeal 2021-000508 Application 13/836,415 2 CLAIMED SUBJECT MATTER The claims are directed to a lithium ion battery anode coating material. Claims 1, 19. The anode comprises a conductive substrate such as copper foil, or other metal foils, having a graphenic carbon particle- containing coating. Spec. ¶ 9. Graphenic carbon particles possess structures comprising one or more layers of one-atom-thick planar sheets of sp2- bonded carbon atoms that are densely packed in a honeycomb crystal lattice. Id. ¶ 14. The graphenic carbon particles used in the anode coating material have at least 3 stacked atom layers and a Raman spectroscopy 2D/G peak ratio of at least 1:1. Id. ¶ 18; claims 1, 19. The 2D/G peak ratio refers to the ratio of the intensity of the 2D peak at 2,692 cm-1 to the intensity of the G peak at 1,580 cm-1. Spec. ¶ 18. Independent claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A lithium ion battery anode coating material comprising: lithium-reactive metal particles; thermally-produced graphenic carbon particles comprising substantially flat planar sheets having aspect ratios of greater than 3:1, having at least 3 stacked atom layers, and having a Raman spectroscopy 2D/G peak ratio of at least 1:1; and a binder connecting the lithium reactive metal particles and the graphenic carbon particles together to form the coating, wherein the lithium reactive metal particles and the graphenic carbon particles are individually bound together with each other by the binder, and the graphenic carbon particles form a continuous network in the coating. Appeal 2021-000508 Application 13/836,415 3 REJECTIONS2 I. Claims 1–4, 6–12, 14–23, and 26–34 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Zhamu ’4673 in view of Kim4; II. Claim 13 under 35 U.S.C. § 103(a) as unpatentable over Zhamu ’467 in view of Kim and Green5; and III. Claims 24 and 25 under 35 U.S.C. § 103(a) as unpatentable over Zhamu ’467 in view of Kim and Zhamu ’409.6 Final Act. 5–10. OPINION The dispositive issue on appeal is whether the Examiner has established that Zhamu ’467’s nano-scaled graphene platelets (NGPs) having at least 3 stacked atom layers have a Raman spectroscopy 2D/G peak ratio of at least 1:1 as recited in the independent claims. Because the Examiner failed to do so, we reverse the rejections. In rejecting claim 1, the Examiner finds that Zhamu ’467 discloses a battery comprising 3 or more layers of NGP sheets, but does not disclose the NGP’s Raman spectroscopy 2D/G peak ratio. Final Act. 5–6. The Examiner finds that Kim discloses that the number of graphene films present may be determined based on the relative intensity of 2D and G bands’ 2 In the Answer, the Examiner withdrew the rejections of claims 23 and 30– 34 under 35 U.S.C. § 112, 1st paragraph, for failing to comply with the written description and the enablement requirements. Ans. 10. 3 US 2009/0117467 A1, published May 7, 2009. 4 US 2013/0052119 A1, published Feb. 28, 2013. 5 GB 2483373 A, published March 7, 2012. 6 US 2012/0064409 A1, published Mar. 15, 2012. Appeal 2021-000508 Application 13/836,415 4 spectroscopy peaks. Id. at 6. Specifically, the Examiner finds that “when a ratio of the intensity of the G band to that of the 2D band satisfies the relation I(2D)/I(G) ≥ 1, the graphene film is a single- or two-layer graphene, and in the three- or multi-layer graphene, the peak intensity ratio is 1.0 or less.” Id. (citing Kim ¶ 99). The Examiner concludes that in the instance where Zhamu ’467’s NGPs “have about 3 layers,” these NGPs “will have a 2D/G peak ratio of about 1:1.” Final Act. 6. The Examiner’s determination regarding a 3-layer NGP is not sufficiently supported, however, and amounts to a finding that there is a de facto linear relationship between the number of graphene layers and the Raman spectroscopy ratio of 2D/G. That finding has no basis in fact, however, because Kim identifies two example films––each with Raman spectroscopy 2D/G ratios below 1:1––as “three- or multi-layer” films. Kim ¶¶ 99, 100, 132. Kim also identifies an example film within the claimed “2D/G peak ratio of at least 1:1,” e.g., 3.4, and describes it as a “single-layer graphene film or two-layer graphene.” Id. ¶ 150. On this record, the Examiner provides no evidence to support that a 3- layer NGP in Zhamu ’467 would necessarily have a 2D/G peak ratio of “about 1:1.” Instead, the Examiner appears to improperly rely on the unfounded assumption that Kim’s disclosure that three or multilayer graphene films have a 2D/G “peak intensity [of] 1.0 or less” necessarily means that three layer films have a peak intensity of 1.0, four layer films have a peak intensity of a number slightly less than 1.0, and so on. See Kim ¶ 99. Because that position lacks sufficient evidentiary support, the rejections cannot be sustained. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“The Patent Office has the initial duty of supplying the Appeal 2021-000508 Application 13/836,415 5 factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.”). Our analysis supra applies equally to independent claim 19––and by extension, all dependent claims on appeal––because those claims also require that “thermally-produced graphenic carbon particles comprising substantially flat planar sheets . . . having at least 3 stacked atom layers, and . . . a Raman spectroscopy 2D/G peak ratio of at least 1:1.” CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 6–12, 14–23, 26– 34 103(a) Zhamu ’467, Kim 1–4, 6–12, 14–23, 26–34 13 103(a) Zhamu ’467, Kim, Green 13 24, 25 103(a) Zhamu ’467, Kim, Zhamu ’409 24, 25 Overall Outcome 1–4, 6–34 REVERSED