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 .
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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 23 December 2025 has been entered.
Claim Amendments
Applicant’s amendment to claim 34 filed on 23 December 2025 has been received and considered for this action. New claims 67-70 and the cancellation of claims 35 and 46 are also acknowledged.
Claim Rejections - 35 USC § 103
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.
Claims 34, 36-39, 44, 47-50, 52, 67, and 69-70 are rejected under 35 U.S.C. 103 as being unpatentable over Hunt (US 2006/0278131 A1) in view of Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289) and Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836). Evidence with respect to claim 39 is provided by Feeco (“Rotary Kilns,” Feeco International product brochure, archived 16 May 2017, [retrieved on 27 May 2025]. Retrieved from the Internet: <URL: https://web.archive.org/web/20170516235512/http://go.feeco.com/acton/attachment/12345/f-0074/1/-/-/-/-/FEECO-Rotary-Kilns.pdf>), and with respect to claim 50 by Nijland and Larbi (“Chapter 8: Microscopic examination of deteriorated concrete,” in Volume 1: Non-Destructive Evaluation of Reinforced Concrete Structures, Woodhead Publishing Series in Civil and Structural Engineering, 2010, pp. 137-179, hereinafter “Nijland”).
Regarding claim 34, Hunt discloses a method for alumina-containing waste residuals for use in the manufacture of hydraulic binders (a method of manufacturing a hydratable cementitious material, which includes providing at least one waste material containing aluminum in the form of alumina (aluminum oxide); abstract and paragraph 27), comprising heating the residuals to remove water and oxidize organic material contained therein, wherein the temperature of the residuals is controlled during heating such that they are heated to a temperature no higher than 500°C (thermally treating each waste material to a temperature of at least 100 °C, paragraph 9; particularly preferred that the each temperature does not exceed about 500 °C, paragraph 24), which meets the limitation of being heated to a temperature no higher than 700 °C. Hunt also teaches that these temperatures remove water (paragraph 17) and that at temperature above 200 °C carbon dioxide is produced (paragraph 24) indicating the oxidation of organic material therein (see also paragraph 41, involatile materials such as carbon being driven off [as carbon dioxide]).
Regarding the residuals being amorphous, Hunt teaches that the desired structure of the product may be amorphous ([0036]) but is silent on the crystallinity of the residuals being treated. Hunt further teaches that the waste residuals can be sewage sludge ([0026)], but does not specifically teach drinking water treatment residuals as the waste material to be treated.
However, Lee teaches that sludge from drinking water purification plants is alumina containing (Table 1) and a better candidate than wastewater sludge (sewage sludge) for concrete admixtures (p. 284, column 1, paragraph 2).
Furthermore, Babatunde teaches the repurposing of alum sludge from drinking water treatment facilities (Section 2.1), and further teaches that these drinking water treatment residuals are composed primarily of amorphous aluminum species (The Al-WTR …[are] predominantly composed of amorphous aluminium species; Section 4).
Therefore, it would have been obvious to use amorphous drinking water treatment residuals in place of the sewage sludge in the method of Hunt, as taught by Lee and Babatunde, thereby arriving at the claimed invention. One of ordinary skill in the art would have been motivated to do so because Lee teaches that this alumina-containing waste material is a better candidate for concrete admixtures than sewage sludge because of its lower heavy metal and organic content (p. 284, column 1, paragraph 2) and because Babatunde teaches that such materials are predominately amorphous.
Regarding claims 36 and 37, modified Hunt teaches the method of claim 34, where Hunt further teaches a preferred maximum temperature of at least 100 °C and not more than 500 °C, which overlaps with each of the claimed temperature ranges in claim 36 (between 350 °C and 650 °C) and claim 37 (between 400 °C and 500 °C).
It is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art”, as they do for the temperature ranges recited in claims 34-37, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985) (see MPEP 2144.05.01).
Regarding claim 38, modified Hunt teaches the method of claim 34, where Hunt further teaches that the temperature can be controlled during heating such that at least some amorphous aluminum oxide or aluminum hydroxide present in the residuals remains in its amorphous state (waste material is thermally treated to a temperature whereby the preferred structure (whether it is crystalline, semi-amorphous or amorphous) is obtained; paragraph 41).
Regarding claim 39, modified Hunt teaches the method of claim 34, where Hunt teaches the residuals being heated in a heating chamber (rotary kiln, paragraph 37). As an inherent property of a rotary kiln, its temperature is controlled by controlling a supply of heat to the heating chamber, as evidenced by Feeco (a direct-fired rotary kiln heats material by passing the combustion gases through the rotary kiln, page 4, paragraph 1; an indirect- fired kiln is enclosed in a furnace, which is then heated, page 5, paragraph 2).
Regarding claims 44, 47, and 69, modified Hunt teaches the method of claim 34, and Lee further teaches that drinking water treatment plant residuals (sludge from water purification) are first dewatered to a water content of between 30 and 40% (p. 285, column 1, paragraph 2), which meet the limitations of claims 44 and 47, and also demonstrates that the residuals can be dewatered to this level, thereby also meeting the limitations of claim 69.
Therefore, it would have been obvious to one of ordinary skill in the art to at least partially dewater the residuals prior to heating to a water content of between 30% and 40%, which lies in the instantly claimed range of claim 47 (between 20% and 40%). One of ordinary skill the art would have been motivated to do so in order to prepare the sludge for further processing into concrete mix, as taught by Lee.
Regarding claim 48, modified Hunt teaches the method of claim 34, where Hunt teaches the residuals are ground after heating to a particle size of preferably below 50 microns (paragraphs 43-44), which includes the instantly claimed size of 40 microns or about 40 microns.
It is again noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985) (see MPEP 2144.05.01).
Regarding claim 49, modified Hunt teaches the method of claim 34, where Hunt teaches the residuals are hydrated after heating (paragraph 18), which will necessarily convert amorphous aluminum oxide in the material to amorphous aluminum hydroxide.
Regarding claim 50, modified Hunt teaches the method of claim 34, as analyzed above, where Hunt teaches the residuals are mixed with a source of calcium ions and a source of sulfate ions (Portland cement, paragraph 15, which is described as containing calcium sulfate in paragraph 3) and then hydrated (paragraph 18), which will include the addition of water, and where the mixing will continue once water is added. Furthermore, as evidenced by Nijland (p. 163, paragraph 2), ettringite is a primary constituent of hydration of Portland cement concrete, and thus is expected to form upon hydration of the mixture that contains Portland cement.
Regarding claim 52, modified Hunt teaches the method of claim 34, as analyzed above where Hunt teaches the residuals are mixed with a source of calcium ions (Portland cement, paragraph 15, which contains calcium ions, paragraph 3) in the presence of water (hydration implies the presence of water, paragraph 18).
Regarding claim 67, modified Hunt teaches the method of claim 34, where amorphous drinking water residuals are processed by heating the residuals to remove water and oxidize organic material contained therein. There is nothing about the method of modified Hunt that distinguish it from the methods of the present application that would make it unsuitable for manufacturing hydraulic binders comprising at least 75% amorphous aluminum oxide.
Furthermore, the open claim language of claim 34 allows for the inclusion of a step wherein other components are added in any amount to those materials generated by the processing method recited in the claim; such a step would render the method able to generate a hydraulic binder comprising at least 75% amorphous aluminum oxide, and therefore the method of modified Hunt would also be suitable for manufacturing such a binder. Therefore, the method of modified Hunt would be suitable for manufacturing hydraulic binder comprising at least 75% amorphous aluminum oxide and meets the limitations of claim 67.
Regarding claim 70, modified Hunt teaches the method of claim 34, where Hunt teaches that the temperature of the residuals is controlled during heating such that they are heated to a temperature of 100-500 °C (thermally treating each waste material to a temperature of at least 100 °C, paragraph 9; particularly preferred that the each temperature does not exceed about 500 °C, paragraph 24), which overlaps with the instantly claimed range of between 350 °C and 700 °C. Hunt also teaches that the temperature of the residuals can be controlled during heating such that the desired structure of the material, crystalline, amorphous, or semi-amorphous—can be obtained ([0041]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to control the temperature of the residuals during heating such that amorphous aluminum oxide and/or aluminum hydroxide present in the residuals remains in its amorphous state, as taught by Hunt. One of ordinary skill in the art would have been motivated to do so because Hunt teaches this as one possible embodiment of their method.
Claim 40 is rejected under 35 U.S.C. 103 as being unpatentable over Hunt (US 2006/0278131 A1) in view of Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289) and Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), and as evidenced by Feeco, as applied to claim 39 above, and further in view of Woodard & Curran, Inc. (“Chapter 9: Solid Waste Treatment and Disposal” in Industrial Waste Treatment Handbook, 2 ed., Butterworth-Heinemann, 2006, pp. 363-408, hereinafter “Woodard”).
Regarding claim 40, modified Hunt teaches the method of claim 39, and Hunt further teaches that carbon can be removed from the residuals by increasing the temperature (at higher temperature the materials become more pure as a result of involatile materials, such as carbon, being driven off; paragraph 41), and that carbon dioxide is produced at high temperatures (paragraph 24). Because the conversion of carbon to carbon dioxide is an oxidation reaction, Hunt therefore teaches that substantially all organic material in the residuals is oxidized. Hunt does not explicitly teach that air is added to the heating chamber at a rate adapted to ensure that substantially all organic material in the residuals is oxidized.
However, Woodard also teaches that incineration in a rotary kiln can be used to remove all combustible substances in a solid waste stream (p. 386, column 2, paragraphs 2-3), and it is well known in the art that combustible substances include organic materials. Woodard further teaches that air can be injected into the combustion chamber of a rotary kiln (p. 389, column 2, Rotary Kiln Technology), and that the quantity of oxygen made available is an important parameter in the incineration/combustion process (p. 390, column 1, paragraph 2). It is noted that the oxygen in this system is introduced via the air injections, and the quantity of oxygen introduced can be controlled by either controlling the rate of air being added, or the time over which it is added.
Therefore, it would have been obvious to one of ordinary skill in the art to modify the method of Hunt to add air to the heating (combustion) chamber at a rate adapted to ensure that all organic material or substantially all organic material in the residuals is oxidized, as taught by Woodard. One of ordinary skill would have been motivated to do so because the quantity/rate of oxygen addition is recognized as an important parameter in the combustion of waste materials, as taught by Woodard, and such combustions are known to remove organic materials in the residuals to afford a more pure material, as taught by Woodard and Hunt.
Claims 41-43 are rejected under 35 U.S.C. 103 as being unpatentable over Hunt (US 2006/0278131 A1) and Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289) and Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as applied to claim 39 above, and further in view of Feeco (“Rotary Kilns,” Feeco International product brochure, archived 16 May 2017, [retrieved on 27 May 2025]. Retrieved from the Internet: <URL: https://web.archive.org/web/20170516235512/http://go.feeco.com/acton/attachment/12345/f-0074/1/-/-/-/-/FEECO-Rotary-Kilns.pdf>), and with regard to claims 42 and 43, as further evidenced by Nazari et al. (“Development of a Metallurgical Process for Eramet’s Mabounié Nb-REE Project”. In: Davis, B., et al. Extraction 2018. The Minerals, Metals & Materials Series. Springer, Cham. [retrieved on 27 May 2025]. Retrieved from the Internet: <URL: https://doi.org/10.1007/978-3-319-95022-8_198>).
Regarding claim 41, modified Hunt teaches the method of 39, as analyzed above, where Hunt teaches the residuals are heated in a heating chamber of a rotary kiln (paragraph 37), but does not explicitly teach the heating chamber being heated indirectly by heating an exterior of the heating chamber, as required by claim 41, or the remaining limitations of claims 42 and 43.
However, Feeco teaches that rotary kilns can be of the indirect-fired type (page 5), in which the heating chamber is heated indirectly by heating an exterior of the heating chamber (an indirect- fired kiln is enclosed in a furnace, which is then heated externally; page 5, paragraph 2). Feeco further teaches that such kilns allow for the processing environment to be more tightly controlled, in particular by providing precise temperature control (page 5, advantage 3).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use the general method disclosed by Hunt with the indirect-fired kiln of Feeco. One of ordinary skill would have been motivated to do so in order to have precise control of temperature, as taught by Feeco.
Regarding claim 42, modified Hunt teaches the method of claim 41, where Feeco further teaches an indirect fired rotary kiln wherein the exterior of the heating chamber is heated by means of burners acting directly on the exterior of the heating chamber (page 5, figure shows Burners), and as further evidenced by Nazari et al., who further illustrate the burners of the Feeco apparatus acting on the exterior of the heating chamber (Fig. 5).
Regarding claim 43, modified Hunt teaches the method of claim 41, where Feeco further teaches an indirect fired rotary kiln wherein the heating chamber is located within a heating jacket (p. 5, Furnace) receiving hot gases from a burner, and as further evidenced by Nazari et al., who further illustrate the heating chamber within a heating jacket (Fig. 5, element D) receiving hot gases from a burner (Fig. 5, element L).
Claim 45 is rejected under 35 U.S.C. 103 as being unpatentable over Hunt (US 2006/0278131 A1) and Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289) and Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as applied to claim 34 above, and further in view of Burris et al. (“Management of Water Treatment Plant Residuals” in Advances in Water and Wastewater Treatment (2004). American Society of Civil Engineers (ASCE). Retrieved from <URL: https://app.knovel.com/hotlink/pdf/id:kt00A7S5T7/advances-in-water-wastewater/mechanical-dewatering>).
Regarding claim 45, modified Hunt teaches the method of claim 44, as analyzed above, but neither Hunt nor Lee teach the details of the method used to dewater the residuals.
However, Burris teaches that residuals from a drinking water treatment process (p. 543, paragraph 1) can be dewatered by a mechanical process, including by using a belt dryer (belt filter press; p. 562, paragraph 7).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to dewater the residuals in the method of modified Hunt by using the mechanical process of a belt dryer. One of ordinary skill would have been motivated to do so because while Lee teaches that the residual sludge should be dewatered, they do not provide the details of the process, while Hunt teaches that mechanical dewatering by a belt dryer is one such method.
Claim 51 is rejected under 35 U.S.C. 103 as being unpatentable over Hunt (US 2006/0278131 A1) in view of Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289) and Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as evidenced by Nijland and Larbi (“Chapter 8: Microscopic examination of deteriorated concrete,” in Volume 1: Non-Destructive Evaluation of Reinforced Concrete Structures, Woodhead Publishing Series in Civil and Structural Engineering, 2010, pp. 137-179), as applied to claim 50 above, and further in view of O’Looney and Pavia (“A Study of the Functionality of Hydrated Lime as an Admixture,” J. Mat. Sci. Res. 2015, 4(1), 1-11, hereinafter “O’Looney”) and Ikeda (JP H05310453 A). The previously provided English machine translation of Ikeda (JP H05310453 A) is used in the analysis below.
Modified Hunt teaches the method of claim 50, where Hunt teaches the residuals are mixed with Portland cement (paragraph 15) containing calcium sulfate (paragraph 3) in the presence of water (paragraph 18), as analyzed above. Hunt does not teach the residuals being additionally mixed with hydrated lime, or a source of calcium sulfate beyond the Portland cement.
However, O’Looney teaches that hydrated lime improves the workability of Portland cement mortars (abstract). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to add hydrated lime to the mixture of residuals, Portland cement and calcium sulfate in the presence of water. One of ordinary skill would have been motivated to do so in order to increase workability of the resulting mortar, as taught by O’Looney.
Furthermore, Ikeda teaches the addition of calcium sulphate (gypsum dihydrate, CaSO4.2H2O, was added to the [heat treated residuals], paragraph 16) to prepare a total of five types of cement powders from water treatment residuals.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to carry out the method of claim 34, wherein the residuals are mixed with Portland cement in the presence of water (Hunt, paragraphs 15 and 18), and to add hydrated lime, as taught by O’Looney, and more calcium sulfate, as taught by Ikeda to this mixture. One of ordinary skill in the art would have been motivated to do so in order to prepare different types of cements powders, and to improve their workability. Nijland again provides evidence that ettringite would from the hydration of the Portland cement found in this mixture (p. 163, paragraph 2).
Claim 68 is rejected under 35 U.S.C. 103 as being unpatentable over Hunt (US 2006/0278131 A1) in view of Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289) and Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as applied to claim 34 above, and further in view of Dahhou et al. (Waste Biomass Valor. 2016, 7, 1177-1187).
Regarding claim 68, modified Hunt teaches the method of claim 34 but does not explicitly teach the water treatment residuals having a degree of crystallization less than 25%.
However, Dahhou also teaches the thermal treatment of drinking water residuals (abstract), and further teaches that amorphous phases of the sludge appear to be more reactive to heat treatment (p. 1183, ¶ 1).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to seek out water treatment residuals that are highly amorphous and have low degrees of crystallization, including in the claimed range of less than 25%. One of ordinary skill in the art would have been motivated to do so because Dahhou teaches that these residuals are the most responsive to heat treatments.
It is noted that the courts have found that “where 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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 II. Therefore, the claimed ranges of crystalline phase content merely represent an obvious variant and/or routine optimization of the condition in the cited prior art.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 34-37, 40, 52, 67 and 69 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 12,275,673 in view of Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), and with respect to claim 69, as evidenced by Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289).
Claim 4 of the ‘673 patent teaches a method for processing drinking water treatment residuals for use in the manufacture of hydraulic binders (a method for the manufacture of a high alumina hydraulic binder comprising hydrating a source of aluminum ions with a source of calcium ions in the presence of water to form mineral hydrates … wherein said source of aluminum ions comprises drinking water treatment residuals) comprising heating the residuals to remove water and oxidize organic material contained therein (heating said material …wherein air or oxygen are added to the mixture during said heating to facilitate oxidation of said organic material; claims 1 and 4), wherein the temperature of the residuals is controlled during heating such that they are heated to a temperature of at least 350 °C, which overlaps with the instantly claimed range of no higher than 700 °C, as required by instant claim 34, and also with the ranges recited in instant claims 35-37.
It is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art”, as do the temperature ranges here, a prima facie case of obviousness exists.
While the claims of the ‘673 patent do not require that the drinking water treatment residuals be amorphous, Babatunde teaches that such residuals are predominately amorphous (Section 4). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use amorphous drinking water residuals in the method of the ‘673 patent.
Regarding claim 40, the ‘673 patent teaches air being added to the mixture during said heating to facilitate oxidation of organic material (claims 1 and 4). Therefore it would have been obvious to one of ordinary skill in the art to add air to the heating chamber at a rate adapted to ensure that substantially all organic material in the residuals is oxidized.
Regarding claim 52, claim 4 of the ‘673 patent requires hydrating drinking water treatment residuals with a source of calcium ions, which will involve the residuals being mixed with a source of calcium ions in the presence of water.
Regarding claim 67, the method of claim 34 uses open claim language, and at least the addition of hydraulic binder additives comprising at least 75% amorphous aluminum oxide would generate the hydraulic binders recited in the claim. Therefore, the method of claim 34 can be considered “suitable” for manufacturing such a composition.
Regarding claim 69, the drinking water treatment residuals used in the method of the ‘673 patent are capable of being dewatered to the required extent, as evidence by Lee (p. 285, column 1, paragraph 2).
Claims 38-40, 48-51 and 70 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 4 and 5 of U.S. Patent No. 12,275,673 in view of Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as applied to claim 34 above, and further in view of Hunt (US PGPub 2006/0278131 A1).
Regarding claim 38, modified claim 4 of the ‘673 patent teaches all the limitations of claim 34, as analyzed above, but does not teach the temperature of the residuals controlled during heating such that at least amorphous aluminum oxide or aluminum hydroxide present in the residuals remains in its amorphous state.
However, Hunt teaches that waste materials may be thermally treated to a temperature whereby a preferred structure (e.g. amorphous) is obtained (paragraph 41).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of claim 4 of the ‘673 patent and to control temperature of the residuals during heating such that at least amorphous aluminum oxide or aluminum hydroxide present in the residuals remains in its amorphous state. One of ordinary skill in the art would have been motivated to so because the individual materials can have significant physical and chemical changes [occur during thermal treatment] that are a benefit to the cementitious material (Hunt, paragraph 39).
Regarding claim 39, the modified claims of the ‘673 patent teach the general method of claim 34, but do not explicitly teach the residuals being heated in a heating chamber, where the temperature of the residuals is controlled by at least the addition of at least air or water to the chamber of by controlling a supply of heat to the heating chamber.
However, Hunt teaches the heating waste residuals in the heating chamber of a rotary kiln with the temperature of the residuals being controlled by controlling a supply of heat to the heating chamber (paragraph 37).
Regarding claim 48, while the modified claims of the ‘673 patent do not teach the residuals being milled or ground after heating, Hunt does teach the residuals being ground after heating to particle size of preferably below 50 microns (paragraphs 43-44), which includes the instantly claimed size of 40 microns or about 40 microns.
It is noted that the courts have stated where the claimed ranges overlap or lie inside the ranges disclosed by the prior art.
Regarding claim 49, Hunt also teaches the residuals being hydrated after heating (paragraph 18), which will necessarily convert amorphous aluminum oxide in the material to amorphous aluminum hydroxide.
Regarding claim 50, Hunt teaches mixing the residuals with a source of calcium ions and a source of sulfate ions (Portland cement, paragraph 15, which is described as containing calcium sulfate in paragraph 3) and then hydrating (paragraph 18), which will include the addition of water, and where the mixing will continue once water is added. Furthermore, as evidenced by Nijland and Larbi (p. 163), ettringite is a primary constituent of hydration of Portland cement concrete, and thus is expected to form upon hydration of the mixture that contains Portland cement.
Regarding claim 51, claim 5 of the ‘673 patent teaches the mixing of the water treatment residuals with hydrated lime in the presence of water (claims 1 and 5), but they do not teach mixing with Portland cement or calcium sulfate. However, Hunt teaches the mixing of the residuals with Portland cement containing calcium sulfate (paragraphs 15 and 3).
Regarding claim 70, the modified claims of the ‘673 patent teach the limitations of claim 34, and Hunt teaches that the temperature of the residuals can be controlled during heating such that the desired structure of the material, crystalline, amorphous, or semi-amorphous—can be obtained ([0041]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to control the temperature of the residuals during heating such that amorphous aluminum oxide and/or aluminum hydroxide present in the residuals remains in its amorphous state, as taught by Hunt. One of ordinary skill in the art would have been motivated to do so because Hunt teaches this as one possible embodiment of their method.
Claims 41-43 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 4 and 5 of U.S. Patent No. 12,275,673 in view of Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836) and Hunt (US PGPub 2006/0278131 A1), as applied to claim 39, and further in view of Feeco (“Rotary Kilns,” Feeco International product brochure, archived 16 May 2017, [retrieved on 27 May 2025]. Retrieved from the Internet: <URL: https://web.archive.org/web/20170516235512/http://go.feeco.com/acton/attachment/12345/f-0074/1/-/-/-/-/FEECO-Rotary-Kilns.pdf>), and with respect to claims 42 and 43, as further evidenced by Nazari et al. (“Development of a Metallurgical Process for Eramet’s Mabounié Nb-REE Project”. In: Davis, B., et al. Extraction 2018. The Minerals, Metals & Materials Series. Springer, Cham. [retrieved on 27 May 2025]. Retrieved from the Internet: <URL: https://doi.org/10.1007/978-3-319-95022-8_198>).
Regarding claim 41, the claims of the ‘673 patent as modified by Hunt, teaches the method of claim 39, as analyzed above, wherein the residuals are heated in a heating chamber of a rotary kiln (paragraph 37), but does not explicitly teach the heating chamber being heated indirectly by heating an exterior of the heating chamber, as required by claim 41, or the remaining limitations of claims 42 and 43.
However, Feeco teaches that rotary kilns can be of the indirect-fired type (page 5), in which the heating chamber is heated indirectly by heating an exterior of the heating chamber (an indirect- fired kiln is enclosed in a furnace, which is then heated externally; page 5, paragraph 2). Feeco further teaches that such kilns allow for the processing environment to be more tightly controlled, in particular by providing precise temperature control (page 5, advantage 3).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use the general method modified ‘673 with the indirect-fired kiln of Feeco. One of ordinary skill would have been motivated to do so in order to have precise control of temperature, as taught by Feeco.
Regarding claim 42, modified ‘673 teaches the method of claim 41, where Feeco further teaches an indirect fired rotary kiln wherein the exterior of the heating chamber is heated by means of burners acting directly on the exterior of the heating chamber (page 5, Figure shows burners), and as further evidenced by Nazari et al., who further illustrate the burners of the Feeco apparatus acting on the exterior of the heating chamber (Fig. 5).
Regarding claim 43, modified ‘673 teaches the method of claim 41, where Feeco further teaches an indirect fired rotary kiln wherein the heating chamber is located within a heating jacket receiving hot gases from a burner, and as further evidenced by Nazari et al., who further illustrate the heating chamber within a heating jacket receiving hot gases from a burner (Fig. 5).
Claims 44 and 47 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 12,275,673 in view of Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as applied to claim 34, and further in view Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289).
Regarding claims 44 and 47, claim 4 of the ‘673 patent teaches the method of claim 34, but the claims of the ‘673 patent do not teach dewatering of the drinking water treatment residuals or the further limitations of claim 47.
However, Lee further teaches that drinking water treatment plant residuals (sludge from water purification) can be used in concrete mixtures (abstract) and that they are first dewatered to a water content of between 30 and 40% (p. 285, column 1, paragraph 2).
Therefore, it would have been obvious to one of ordinary skill in the art to at least partially dewater the residuals in the method of the ‘673 patent prior to heating to a water content of between 30% and 40%, which lies in the instantly claimed range of claim 47 (between 20% and 40%). One of ordinary skill the art would have been motivated to do so in order to prepare the sludge for further processing into concrete mix, as taught by Lee.
Claims 45 and 46 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 12,275,673 in view of Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as applied to claim 34, and further in view of Lee et al. (Env. Eng. Sci. 2012, 29(4), 284-289) and Burris et al. (“Management of Water Treatment Plant Residuals” in Advances in Water and Wastewater Treatment (2004). American Society of Civil Engineers (ASCE). Retrieved from <URL: https://app.knovel.com/hotlink/pdf/id:kt00A7S5T7/advances-in-water-wastewater/mechanical-dewatering>).
Regarding claim 45-46, modified ‘673 patent teaches the method of claim 44, as analyzed above, but neither the claims of the ‘673 patent nor Lee teach the details of the method used to dewater the residuals.
However, Burris teaches that residuals from a drinking water treatment process (p. 543, paragraph 1) can be dewatered by a mechanical process, including by using a belt dryer (belt filter press; p. 562, paragraph 7).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to dewater the residuals in the method of modified ‘673 using the mechanical process of a belt dryer. One of ordinary skill would have been motivated to do so because while Lee teaches that the residual sludge should be dewatered, they do not provide the details of the process, while Hunt teaches that mechanical dewatering by a belt dryer is one such method.
Claim 68 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 12,275,673 in view of Babatunde et al. (Environ. Pollut. 2009, 157, 2830-2836), as applied to claim 34, and further in view of Dahhou et al. (Waste Biomass Valor. 2016, 7, 1177-1187).
Regarding claim 68, modified claim 4 of the ‘673 patent renders the method of claim 34 obvious, but does not teach the water treatment residuals having a degree of crystallization less than 25%.
However, Dahhou also teaches the thermal treatment of drinking water residuals (abstract), and further teaches that amorphous phases of the sludge appear to be more reactive to heat treatment (p. 1183, ¶ 1).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to seek out water treatment residuals that are highly amorphous and have low degrees of crystallization, including in the claimed range of less than 25%. One of ordinary skill in the art would have been motivated to do so because Dahhou teaches that these residuals are the most responsive to heat treatments.
It is noted that the courts have found that “where 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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 II. Therefore, the claimed ranges of crystalline phase content merely represent an obvious variant and/or routine optimization of the condition in the cited prior art.
Response to Arguments
Applicant’s arguments, page 9 of the reply filed 23 December 2025, with respect to the rejections of claims 34, 44, 47, 49, 50, and 52 under 35 USC § 102 have been fully considered and are persuasive in that Ikeda does not anticipate the method of amended claim 34. The rejection of these claims under 35 USC § 102 has been withdrawn.
Applicant's arguments, pages 9-10 of the reply filed 23 December 2025, with respect to rejections of claims 34-39, 44, 47-50, and 52 over Hunt and Lee have been fully considered. These arguments are persuasive with respect to the observation that Hunt is silent regarding the structural state of the aluminum-containing phases of the water treatment residuals.
Therefore, the rejection has prior rejections under 35 USC § 103 have been withdrawn. However, upon further consideration, a new ground of rejection is made in view of Babatunde, who teaches that the aluminum-containing sludge from drinking water treatment residuals is predominately composed of amorphous alumina, as analyzed above.
The remaining arguments with respect to Hunt and Lee are not persuasive. Hunt is not silent on the origin of the waste materials, and lists many waste material sources, including sewage sludge ([0026]). Lee teaches that drinking water treatment residuals are an advantageous substitute for sewage sludge, rendering the use of drinking water residuals obvious.
Hunt is also not silent on the purposeful preservation of amorphous phases in the waste materials, as Hunt teaches that the material may be treated to a temperature whereby the preferred structure, including an amorphous one, is obtained ([0041]).
In response to applicant's arguments against Lee individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant argues against Lee by asserting that Lee does not teach using drinking water residuals as a reactive alumina source or thermal pretreatment of the residuals. But Lee is not relied upon to provide these teachings. Lee is used to teach only that drinking water residuals are alumina containing waste materials with advantages in cement materials over the related sewer sludges, including lower heavy metal content (p. 284, col.1, paragraph 2), that would extend to using them in place of the sewage sludge in the method of Hunt. Hunt provided the teaching to thermally treat these materials at temperatures below 500 °C (particularly preferred that each temperature does not exceed about 500 °C; [0024]) and Lee does not teach away from these features of the method.
Applicant's arguments with respect to the rejections of the remaining dependent claims, pages 10-13, rely upon the assertion that the combination of Hunt and Lee does not teach method of claim 34, and that the additional prior art does not fill the void. These arguments are unpersuasive because Hunt, Lee and Babatunde teach all the features of claim 34, as analyzed above, and the cited prior art continues to teach the additional elements recited in the dependent claims.
Conclusions
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/NICHOLAS A. PIRO/Assistant Examiner, Art Unit 1738
/PAUL A WARTALOWICZ/Primary Examiner, Art Unit 1735