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 .
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.
Claim(s) 7-10, 12-13, 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Merkley et al, WO 02/28795 in view of Hagen et al, U.S. Patent Application Publication No. 2014/0121303 and in the alternative, further in view of Famy et al, U.S. Patent Application Publication No. 2005/0058817.
Merkley discloses a fiber cement composite material. The material comprises cellulosic fibers which are sized to make them more hydrophobic. See abstract. Merkley teaches that using the sized cellulosic fibers improves the fiber cement by reducing water absorption, migration and permeability, while improving freeze-thaw resistance, rot and UV resistance. See page 6, final paragraph. The composition of Merkley can comprise a cementitious binder such as Portland cement, silica, and sized cellulosic fibers which are sized to make the fibers more hydrophobic. See page 8, final paragraph. The sizing agent makes up 0.01 to 10% of the cellulose fiber weight. See page 9, first full paragraph. The sizing agent can be a silane product such as silanol. See page 20, line 7. The composition can further comprise a density modifier such as perlite or calcium silicate. See page 14, second full paragraph. The silanol composition can include dispersants. The composition can comprise about 10-80 percent cementitious binder, about 20-80% silica, 0-50% density modifiers,0.5-20% cellulosic fibers. The dry weight of the sizing agent can be from 0.01-50% weight of the dry cellulose fibers. See page 24, first full paragraph.
With regard to the claims as amended 12/23/25, the limitation that the fiber cement composite article is produced by a Hatschek process followed by autoclave curing, it is noted that the instant claims are drawn to a product, not a process of making. Therefore, the burden is shifted to Applicant to show an unobvious difference between the claimed product and the prior art product. Further, with regard to the limitation that the material is waterproof, it is noted that waterproofness is not considered an absolute in the instant specification, since the instant specification discloses the structure as being “more waterproof”. Similarly, Merkley teaches that coating the fibers and providing various fillers substantially increases the water resistance, which is equated with waterproofness as claimed.
With regard to the claims as amended 1/31/25, the range of 10-80% encompasses the claimed range of 20-45%.
Merkley differs from the claimed invention because it does not disclose incorporating a fine pozzolanic material comprising amorphous silica and does not clearly teach a silica fume as a pozzolanic material.
However, Hagen teaches that 0.5-30 wt% of pozzolanic material are typically included in compositions including cement compounds. See paragraph 0034. Hagen teaches that the pozzolanic material can be fumed silica. See 0009. Note that fumed silica is amorphous and that fumed silica is disclosed as being a fine pozzolanic material in the instant specification. No particular dimensions are provided in the specification regarding “fine”, so since fumed silica is an example of a fine pozzolanic material in the specification, it is presumed to meet the limitation of fine amorphous silica.
Therefore, it would have been obvious to one of ordinary skill in the art to have added a pozzolanic material such as silica fume as taught by Hagen to the composition of Merkley in view of its art recognized suitability for this intended purpose. Once the composition of Merkley was modified by Hagen, it would be reasonable to expect that the composition would have the properties of waterproofness as set forth in claim 15, since like materials must have like properties, or to have selected the amount of sized fibers which provided the desired degree of hydrophobicity to the final product.
Additionally, in the alternative, while neither Merkley nor Hagen teach processing by a Hatschek process, Fumy teaches cementitious panels which are formed by a Hatschek process, (see paragraph 0003, 0038, 0040) and which can include pozzolanic materials, (see paragraph 0011), as well as fibers and a cementitious binder. Therefore, in view of the teaching of Fumy, it would have been apparent that the composition of Merkley as modified by Hagen would have been able to be manufactured panels using a Hatschek process.
Claim(s) 30, 40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Merkley in view of Hagen and alternatively further in view Fumy, U.S. Patent Application Publication No. 2005/0058817 as applied to claims above, and further in view of Bezubic, Jr. et al, U.S. Patent Application Publication No. 2004/0083677.
Merkley differs from the claimed invention because it does not teach forming layers of the cement composition and pigmented layers.
However, Bezubic teaches that laminates may be formed comprising layers cementitious composition and intervening layers of a resinous composition comprising a pigment in order to provide a building product with improved strength and which can have particular colors visible throughout the structure or at surfaces. See entire document, particularly paragraph 0013-0014.
Therefore, it would have been obvious to one of ordinary skill in the art to have employed a layered structure as taught by Bezubic in order to form a stronger product having the desired appearance. With regard to claim 40, since the composition of Merkley as modified by Stav would be the same as the claimed composition, it would be expected that the composition when layered as taught by Bezubic would have the property of layers being visible or not depending on what type of saw was used to cut the structure, since like materials must have like properties.
Claim(s) 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Merkley in view of Hagen and in the alternatively further in view of Fumy, and Bezubic as applied to claims above, and further in view of BE 874884A.
Bezubic does not disclose that the pigments comprise iron, aluminum, silicon or titanium oxide. However, BE ‘884 teaches it was known to use iron oxide pigments to color cement compositions.
Therefore, it would have been obvious to one of ordinary skill in the art to have employed an iron oxide pigment to color the composition of Merkley in view of its art recognized suitability for this intended purpose.
Applicant's arguments filed 12/23/25 have been fully considered but they are not persuasive. Applicant argues that Hagan teaches away from the claimed invention because it includes gypsum, while the instant invention is formed into a slurry to be made by the Hatschek process. However, Hagan also forms the material into a slurry by adding water to the dry ingredients before using. See paragraph 0040.
Applicant argues that the combination of Merkley and Hagan would render Hagan unsuitable for its intended purpose. However, the combination of references does not modify Hagan at all, but rather Hagan is relied on to show that a fine pozzolanic material was known to be useful as an additive to cement compositions. The combination of references proposes adding the pozzolanic material to Merkley which would modify Merkley but not modify Hagan.
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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/ELIZABETH M IMANI/Primary Examiner, Art Unit 1789