DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
In response to the amendment received on 11/17/2025:
claims 1, 3-8, 10-13, 15-18 and 20-24 are currently pending;
claims 6-8, 10-13, 15-18 and 22-23 are withdrawn;
the 112(a) and 112(b) rejections to claim 24 are withdrawn in light of Applicant’s argument that Fig. 2 illustrates a defined exterior surface and an interior volume pointing out the claimed limitations of claim 24 (see Applicant’s arguments at page 5, paragraphs 4-5), which is persuasive; and
all prior art grounds of rejection are maintained for at least the reasons as set forth herein.
Claim Interpretation
Claim 1 lines 3-4 recites “forming the material composition having the passivated calcined lime clasts dispersed throughout, including within a volume of the material composition, the passivated calcined lime clasts enabling lime therein to react with the SCM in the presence of water upon formation of a crack or pore in the material composition”, and claim 24 recites “wherein the material composition is in a solid state that defines a structural element having exterior surfaces and an interior volume, and wherein the passivated calcined lime clasts are dispersed throughout in the interior volume”.
Based on specification at page 3 lines 17-24 disclosing FIGS. 3A-3D show the formation of bottacioli attributed to two pathways during the production of lime for Roman mortars due to the temperature gradient in the kiln (FIG. 3A)… at temperatures near the onset of calcination (FIG. 3B), CaO or Ca(OH)2 is protected by unreacted CaCO3… at intermediate temperatures, this rim can be calcium-(alumina)-silica-hydrates or CaCO3… at extremely high temperatures (FIG. 3C), sintering and subsequent passivation of the lime occurs, leaving it unreactive… regardless of the mechanism, when cracks or degradation expose the bottacioli to water (FIG. 3D), the calcium is leached out and joins with unreacted pozzolanic material to form binder-like material or recrystallizes as CaCO3, and specification at page 6 lines 10-13 disclosing in certain embodiments, calcined lime is made by calcining calcium carbonate at temperatures ranging from 600 oC (under calcined) to 1450 oC (sintered)… preferably, lime can be calcined between 600 oC and 750 oC or over 1300 oC.
It appears that “passivated lime clasts” is calcium carbonate calcined at temperatures either between 600 oC and 750 oC or over 1300 oC, wherein a “rim” (or layer of CaCO3 or calcium-(alumina)-silica-hydrates) protects the inner core of CaO or Ca(OH)2. Based on Fig. 3D, the “passivated lime clasts” are dispersed throughout the claimed “material composition”, including “a volume” of the claimed “material composition”.
Claim 1 line 3 recites “fine aggregate”, wherein “fine aggregate” has a particle size between 150 microns and 4 mm based on specification at page 6 lines 14-16 disclosing particles between 150 microns and 4 mm are retained for admixture replacement of fine aggregates… (e.g. quartz, sand).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-5, 20-21 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Herfort et al. (US 2012/0055376 A1) (“Herfort” hereinafter) in view of Sadler (US 4,326,891) (“Sadler” hereinafter) and Perry et al. (US 6,514,334 B1) (“Perry” hereinafter).
Regarding claim 1, Herfort teaches a material composition (see Herfort at [0020] teaching the present disclosure… relates to a cement), wherein cement is taken to meet the claimed material composition based on the structure as outlined below, comprising:
a supplementary cementitious material (SCM) (see Herfort at [0020] teaching cement comprising… a supplementary cementitious material),
passivated calcined lime (see Herfort at [0020] teaching an optionally heat treated carbonate material, see Herford at [0021] teaching b) heating a mixture of the clay material and the carbonate material to a temperature of between 400 and 700oC, see Herford at [0026] teaching the term “carbonate material” refers to solid material composed primarily… of carbonate minerals such as the minerals… calcite (CaCO3)). The carbonate material heated to a temperature of between 400 and 700oC is taken to meet the claimed passivated calcined lime since the carbonate material heated to a temperature of between 400 and 700oC as taught by Herfort and the claimed passivated calcined lime in claim 1, specification at page 3 lines 17-24 disclosing FIGS. 3A-3D show the formation of bottacioli attributed to two pathways during the production of lime for Roman mortars due to the temperature gradient in the kiln (FIG. 3A)… at temperatures near the onset of calcination (FIG. 3B), CaO or Ca(OH)2 is protected by unreacted CaCO3, and specification at page 6 lines 10-13 disclosing in certain embodiments, calcined lime is made by calcining calcium carbonate… preferably, lime can be calcined… between 600 oC and 750 oC, employ substantially similar materials and process, it is reasonable to believe that the claimed properties (i.e., passivated calcined lime) would have naturally flowed following the teaching of Herfort (see MPEP 2112.01),
ordinary Portland cement (OPC) (see Herfort at [0020] teaching cement comprising… Portland cement clinker), and
forming the material composition having the passivated calcined lime dispersed throughout, including within a volume of the material composition (see Herfort at [0021] teaching a method of producing cement… b) heating a mixture of clay and the carbonate material to a temperature of between 400 and 700 oC, and c) blending the mixture with a Portland cement clinker). Since the carbonate material heated to a temperature of between 400 and 700oC is mixed with the clay material and Portland cement clinker, there is a reasonable expectation of success from one of ordinary skill in the art that the carbonate material heated to a temperature of between 400 and 700oC (or passivated calcined lime) is dispersed throughout, including within a volume of the resulting cement (or material composition),
the passivated calcined lime enabling lime therein to react with the SCM in the presence of water upon formation of a crack or pore in the material composition (this recitation is being treated as being taught by Herfort because the carbonate material heated to a temperature of between 400 and 700oC as taught by Herfort is expected to be capable of enabling lime therein to react with the SCM in the presence of water upon formation of a crack or pore in the material composition).
Herfort does not explicitly teach that i) the passivated calcined lime is a clast, and ii) the material composition further comprises fine aggregate.
With respect to i), specification at page 6 lines 11-15 discloses that calcined lime is made by calcining calcium carbonate… preferably, lime can be calcined… between 600 oC to 750 oC… the resulting calcined lime can be crushed, ground or milled and sieved, and the particles between 150 microns and 4 mm are retained for admixture replacement of fine aggregates. The claimed “clasts” in interpreted to be calcined calcium carbonate with particle size between 150 microns and 4 mm.
Herfort teaches according to a preferred embodiment… the optionally heat treated carbonate material is ground (see Herfort at [0060]), but Herfort does not explicitly teach “clasts” or particle size between 150 microns and 4 mm. As mentioned, Herfort teaches the term “carbonate material” refers to solid material composed primarily… of carbonate minerals such as… the minerals calcite (CaCO3) (see Herford at [0026]).
Like Herfort, Sadler teaches cement comprising carbonate minerals (see Sadler at C2 L31-34 teaching an article of manufacture comprising essentially a hydraulic cement binder… with a ground calcium carbonate, see Sadler at C2 L40 teaching preferably the hydraulic cement is a Portland cement).
Sadler also teaches it is desirable to select calcium carbonates having a highly compacted, structurally sound crystalline structure… this does not mean that all the other mineral forms of calcium carbonate or artificially generated calcium carbonate would fail to meet the requirements of the disclosure… some limestone deposits… may consist of a substantial amount of calcium carbonate in a highly compacted structurally sound crystalline form (see Sadler at C3 L658-68). Sadler further teaches preferably the calcium carbonate… is derived from a ground marble… this ground marble can have an average particle size ranging from 0.2 microns to as large as 200 microns (see Sadler at C2 L20-24). Ground calcium carbonate having an average particle size ranging from 0.2 microns to as large as 200 microns is taken to meet the claimed “clasts” or particle size between 150 microns and 4 mm.
Additionally, MPEP states that "[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation", and “the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” (see MPEP § 2144.05.II.A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to grind the heat treated carbonate material as taught by Herfort to an average particle size ranging from 0.2 microns to as large as 200 microns as taught by Sadler because there is a reasonable expectation of success that the disclosed particle size would be suitable.
With respect to ii), like Herfort, Perry teaches cement mixtures (see Perry at C1 L10-25 evidencing known materials produced from cementitious mixtures generally fall into two groups mortars and concretes… mortars and concretes include a filler and a hydraulic or non-hydraulic cement… fillers are typically classified as either fine or coarse aggregates… fine aggregates… generally have a particle size of less than about 5 mm size… whilst concretes and mortars commonly contain fine aggregates, only concretes contain coarse aggregates… the purpose of the cement is to coat the aggregate particles and to bond the aggregates into a monolithic product… hydraulic cements harden by the chemical reaction of hydration and common examples thereof include ordinary Portland cement (OPC), limestone… lime… and pozzolanic materials).
Additionally, MPEP states that “the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination” (see MPEP § 2144.07). In this case, one of ordinary skill in the art would appreciate that it is known to mix fine aggregates with cement so as to form a mortar.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to mix fine aggregates with cement as taught by Perry in the cement mixture as taught by Herfort because fine aggregates are suitable materials for its intended use so as to form a mortar.
Regarding claim 3, Herfort in view of Sadler and Perry teach the limitations as applied to claim 1 above, and Herfort further teaches wherein between 1 wt% to 30 wt% of the material composition is SCM (see Herfort at [0041] teaching the supplementary cementitious material comprises… a heat treated clay material, see Herfort at [0053] teaching the heat treated clay material constitutes at least 7% w/w… of the cement) (see MPEP 2144.05(I)).
Regarding claim 4, Herfort in view of Sadler and Perry teach the limitations as applied to claim 1 above, and Herfort further teaches wherein between 1 wt% to 45 wt% of the material composition is passivated calcined lime clasts (see Herfort at [0053] teaching the optionally heat treated carbonate material constitutes at least 8% w/w of the cement) (see MPEP 2144.05(I)).
Regarding claim 5, Herfort in view of Sadler and Perry teach the limitations as applied to claim 1 above, and Herfort further teaches wherein the SCM includes… calcined clay (see Herfort at [0041] teaching the supplementary cementitious material comprises… a heat treated clay material, see Herfort at [0069] teaching the heat treated clay material is calcined clay).
Regarding claim 20, Herfort in view of Sadler and Perry teach the limitations as applied to claim 1 above, and Sadler further teaches wherein the passivated calcined lime clasts are between 150 microns and 4 mm (see Sadler at C2 L20-24 teaching preferably the calcium carbonate… can have an average particle size ranging from 0.2 microns to as large as 200 microns) (see MPEP 2144.05(I)).
Regarding claim 21, Herfort in view of Sadler and Perry teach the limitations as applied to claim 1 above, and Herfort further teaches wherein the passivated calcined lime clasts are calcined at temperatures between 600 °C and 1450 °C (see Herfort at [0021] teaching a method of producing cement… b) heating… the carbonate material to a temperature of between 400 and 700 oC) (see MPEP 2144.05(I)).
Regarding claim 24, Herfort in view of Sadler and Perry teach the limitations as applied to claim 1 above, and Herfort in view of Sadler and Perry further teach wherein the material composition is in a solid state that defines a structural element having exterior surfaces and an interior volume, and wherein the calcined lime particles are dispersed throughout in the interior volume (since the cement mixture as taught by Herfort in view of Sadler and Perry and the claimed material composition of claims 1 and 24 employ substantially similar materials and process, it is reasonable to believe that the claimed properties (i.e., the composition defines a structural element having exterior surfaces and an interior volume, and wherein the calcined lime particles are dispersed throughout in the interior volume) would have naturally flowed following the teaching of Herfort in view of Sadler and Perry (see MPEP 2112.01)).
Response to Arguments
Applicant's arguments filed 11/17/2025 have been fully considered but they are not persuasive.
Applicant discusses that Hertfort does not teach calcining, passivating, or the combination thereof, nor the formation of clasts because Herfort states that decarbonation occurs upon heating carbonate materials to produce quicklime (CaO) at temperatures of above 900 oC… and the Examples section states that the limestone is explicitly not heated prior to inclusion in the clay material… the clay material is calcined at temperature of less than 800 oC, preferably less than 700 oC, which does not include the limestone when calcining… the present disclosure calcines lime prior to adding to the mixture (see Applicant’s arguments at page 6 paragraph 4).
Examiner acknowledges the arguments and respectfully notes there are several methods taught in Herfort. In the rejection outlined in the previous office action and outlined above, the method cited is in Herfort at [0021] and [0026] teaching b) heating a mixture of the clay material and the carbonate material to a temperature of between 400 and 700oC… the term “carbonate material” refers to solid material composed primarily… of carbonate minerals such as the minerals… calcite (CaCO3)). The carbonate material heated to a temperature of between 400 and 700o C is taken to meet the claimed passivated calcined lime since the carbonate material heated to a temperature of between 400 and 700oC as taught by Herfort and the claimed passivated calcined lime in claim 1, specification at page 3 lines 17-24 disclosing FIGS. 3A-3D employ substantially similar materials and process. It is reasonable to believe that the claimed properties (i.e., passivated calcined lime clasts) would have naturally flowed following the teaching of Herfort (see MPEP 2112.01), and there is a reasonable expectation of success from one of ordinary skill in the art that the carbonate material heated to a temperature of between 400 and 700o C (or passivated calcined lime) is dispersed throughout, including within a volume of the resulting cement (or material composition). In summary, Herfort has reasonably met the limitations of independent claim 1.
Examiner respectfully notes that "when the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not… therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product” (see MPEP 2112.01.I), and “if a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case… rebuttal evidence and arguments can be presented in the specification… or by way of an affidavit or declaration… however, arguments of counsel cannot take the place of factually supported objective evidence” (see MPEP § 2145.I). In this instance, the applicant should provide proof or evidence that the teachings of Herfort would not result in a product that is “passivated calcined lime clasts”.
As such, the rejection to independent claim 1 based on Herfort in view Sadler and Perry is maintained.
Applicant discusses that Sadler does not teach passivating, calcining, or the combination thereof regarding lime clasts because Sadler states that it is most desirable to use “only a minimum amount of calcium carbonate in amorphous or structurally unsound forms”, which is indicating a preference to not passivate and calcine calcium carbonate, as passivating and calcining give calcium carbonate a defined structure required in claim 1… Sadler does not make up for the deficiencies of Herfort… Sadler suggests calcining and passivating would be disadvantageous (see Applicant’s arguments at pages 6-7, bridging paragraph).
Examiner acknowledges the arguments and respectfully notes that Herfort, not Sadler is used to teach passivation and calcination of the calcium carbonate (see claim 1 rejection outlined in the previous office and above, and response to arguments bullet 18 above).
Additionally, MPEP states that “disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments” (see MPEP § 2123.II). Sadler’s teaching cited in Applicant’s argument is a preferred embodiment. However, Sadler also teaches that it is desirable to select calcium carbonates having a highly compacted, structurally sound crystalline structure… this does not mean that all other mineral forms of calcium carbonate or artificially generated calcium carbonate would fail to meet the requirements of the instant disclosure (see Sadler at C3 L58-65). Thus, Sadler do not suggest that calcining and passivating would be disadvantageous.
As such, the rejection to independent claim 1 based on Herfort in view Sadler and Perry is maintained.
Applicant discusses that the combination of Herfort and Sadler do not teach, motivate, or suggest the combination of “passivated calcined lime clasts” as outlined in bullets 18 and 19 above (see Applicant’s arguments at pages 6-7, bridging paragraph).
Examiner respectfully notes, as outlined in bullets 18 and 19, that Herfort in view Sadler and Perry have reasonably met the limitations of independent claim 1. As such, the rejection to independent claim 1 is maintained.
Applicant discusses that Perry does not teach passivating, calcining, or the combination thereof regarding lime clasts… Perry does not make up for the deficiencies of Hertfort and Sadler (see Applicant’s arguments at page 7, paragraph 2).
Examiner acknowledges the arguments and respectfully notes that Herfort, not Perry is used to teach passivation and calcination of the calcium carbonate (see claim 1 rejection outlined in the previous office and above, and response to arguments bullet 18 above). As mentioned, Herfort in view Sadler and Perry have reasonably met the limitations of independent claim 1. As such, the rejection to independent claim 1 is maintained.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/MARITES A GUINO-O UZZLE/Examiner, Art Unit 1731