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 .
Election/Restrictions
Applicant's election with traverse of the invention of group 1, claims 1-15 and 37-41, in the reply filed on 12/01/25 is acknowledged. The traversal is on the ground(s) that the applicant believes that the claims as set forth contain a special technical feature as the claimed subject matter requires an MgO content of less than 91.5 ma% and the prior art to Knauss requires an MgO content of at least 92%. This is not found persuasive because Knauss teaches that the mass content may be about 92%, which obviates the claimed range. Knauss teaches that the grain size may be any conventional grain size used in the art of brickmaking. Lathe (cited below) establishes the claimed grain size as one that is conventionally used in brickmaking. Thus it cannot be said that the corresponding technical feature makes a contribution over the prior art.
The requirement is still deemed proper and is therefore made FINAL.
Claims 16-35 and 42-43 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12/01/25.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 11-12 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Instant claim 11 sets forth that the dry batch further comprises additional components. Claim 1 sets forth that the batch consists of the components as set forth and the scope of this claim doesn’t allow for the addition of other components. Similarly Instant claim 12 sets forth that the components of claim 1 only make up 90% by weight of the batch meaning that other components are included. On this basis, instant claim 11-12 does not further limit claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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.
Claim(s) 1-10, 13-15 and 37-41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Knauss in US4954463 in view of Lathe in US2599184.
Regarding Claim 1-2, 4, 37, 40-41: Knauss teaches the creation of a dry batch for the creation of various coarse ceramic refractory, shaped, fired or unfired magnesia spinel product (same intended use; See Abstract and Examples). Knauss teaches that the dry batch consists of a magnesia component (magnesite) and a sintered (calcined) bauxite (See Column 1, Lines 52-60) and does not contain additional components (meeting composition a) and is provided as a dry substance without solvent. Knauss teaches that both of these components may be provided in a granular form in a dry batch (See Table 1). Knauss teaches that the granular magnesia component has a magnesia content of at least about 92 wt% (ma%) and is used in an amount from 65-99 wt% (ma%) (See Column 1, Line 52-60). As this magnesite is the only magnesia grade of the dry substance mixture, the average content is just the content of MgO in the magnesite. Those of ordinary skill in the art would have found it obvious to use magnesite components having magnesium purities within about 10% of 92 wt% (ma%) based upon the explicit teachings of Knauss (83-100wt% (ma%)). On this basis, Knauss teaches an overlapping range of magnesia purity and content with claims 1, 4 and 37. Those of ordinary skill in the art would have found it obvious to use magnesium having purities within this overlapping range to arrive at the invention as claimed. Alternatively, it is noted that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Those of ordinary skill in the art would have expected the use of lower grades of magnesia to have the same effect of creating refractory bodies based upon the teachings of Knauss. Those of ordinary skill would have expected the creation of such bodies with any of the purities of Magnesia claimed, being less than 91.5% or less than 90%. Those of ordinary skill in the art would expect to make the same or similar products using such purities that were close to those taught by Knauss.
Knauss teaches that the dry batch contains 1-35 wt% (ma%) of a calcined (sintered) bauxite, the same granular elastifier component claimed, having an alumina content of greater than 83 wt% (ma%; See Column 1 Lines 52-60). Knauss thus teaches an overlapping range of bauxite in terms of its content and the content of Al2O3 in the material. Overlapping ranges have been held to present a prima facie case of obviousness over the prior art. Those of ordinary skill would only need to select from the overlapping portion of the range to arrive at the invention as claimed.
Knauss shows examples having various grain sizes (see Table 1), but it is unclear what wt% of bauxite has a size less than 0.5 mm or of 2.5 mm. Knauss also teaches that generally the grain sizes of the powders may be those that are conventionally used in the art, but doesn’t set forth what sizes are considered conventional (See Column 2, Lines 35-36).
However, Lathe teaches a conventional refractory brick making process (See Column 3) for the creation of bricks consisting essentially of MgO, bauxite, and silica, which is the same compositional components of Knauss. Lathe generally teaches that coarse powders should be used in the creation of refractory bricks and a mesh size from 6 to 20 is preferable (See Column 3, Lines 15-32). Knauss shows in Example 5, a refractory product based on an 80/20 mixture of magnesite/bauxite. Lathe teaches that the bauxite used may have a mesh size from minus 6 to plus 20, which is a range of particles from 0.841 mm to 3.36 mm. The particle size range of Lathe includes grains having a size of less than 2.5 mm or 2 mm (Re: Claim 40) and does not contain grains having a size of less than 0.5 mm (or 0.2 mm; Re: 2 and 41) and thus meets the grain distribution as claimed. Those of ordinary skill would have considered the grain sizes taught by Lathe to be a conventionally used grain size in the art of brickmaking and thus obvious to use in the creation of the dry batch of Knauss. Those of ordinary skill in the art would have been motivated to use any conventional grain size known within the art and would have expected the dry batch created to be useful in the art of brickmaking.
It is noted that the claims delineate a means for measuring grain size in terms of DIN66165-2:2016-08 and Knauss and Lathe are silent in terms of a means of measurement; however, the claims are drawn to a product and not a process for determining grain size.
Regarding Claim 3: Lathe teaches that the grain size of bauxite may have a size from 0.841 to 3.36 mm (See Example 5), which constitutes an overlapping range of grain sizes with those claimed. Those of ordinary skill in the art would have found it obvious to provide any distribution having grain sizes within the range from 0.841 to 3.36 mm, including providing less than 25 ma% of grains having a size greater than 2 mm as claimed, when creating refractory bricks as is taught by Knauss and Lathe.
Regarding Claim 5: Lathe teaches that the content of Al2O3 in bauxite is greater than 83 ma%, which overlaps the claimed content range. Overlapping ranges have been held to present a prima facie case of obviousness over the prior art.
Regarding Claim 6-7: Knauss teaches that the magnesia grade may be about 92 ma% (See Column 1, Line 55). Those of ordinary skill in the art would have found it obvious to use magnesite components having magnesium purities within about 10% of 92 wt% (ma%) based upon the explicit teachings of Knauss (83-100wt% (ma%)). On this basis, Knauss teaches an overlapping range of magnesia purity with claims 1, 4 and 37. Those of ordinary skill in the art would have found it obvious to use magnesium having purities within this overlapping range to arrive at the invention as claimed. Alternatively it is noted that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Those of ordinary skill in the art would have expected the use of lower grades of magnesia to have the same effect of creating refractory bodies based upon the teachings of Knauss. Those of ordinary skill would have expected the creation of such bodies with any of the purities of Magnesia claimed, being less than 91.5% or less than 90% as claimed.
Regarding Claim 8: Knauss teaches the use of various components for the creation of the refractory bricks as set forth. Knauss shows in Example 1-7 that the final product contains from 0.58-2.99 wt% of CaO and 1.97-2.8 wt% of SiO2. Knauss is silent in terms of providing particular ratios of CaO to SiO2. However, those of ordinary skill in the art would have found it obvious to provide CaO and SiO2 individually in any of the amounts as set forth. Thus it would have been obvious to provide 2.99 wt% of CaO with 1.97 wt% SiO2, giving a ratio of about 1.5. Knauss thus teaches an overlapping range of these components. Overlapping ranges have been held to establish a prima facie case of obviousness over the prior art. Those of ordinary skill would have expected the ratio of these elements within the dry mixture to be equal to the ratio in the final product.
Regarding Claim 9: Knauss shows various magnesite products, Magnesite A, B, and C all having contents of MgO within the range discussed above (See Table 1 and 2). Those of ordinary skill in the art would have found it obvious to use any of the magnesite products in combination with one another in any amount, including from 5-28 ma% of any of the components. Those of ordinary skill in the art would have found it obvious to combine alternatives used for the same purpose in order to create a combination of those materials that would also be useful for the same purpose.
Regarding Claim 10: Knauss does not teach the incorporation of manganese oxides (See Table 1-2).
Regarding Claim 13-14: Lathe teaches that the magnesite and bauxite used in making dry masses for refractory bricks may be provided as crushed granular material (See Example 5). All of the inorganic components in both Knauss and Lathe are exclusively crushed granular materials.
Regarding Claim 15: Lathe teaches that the particle sizes as desired may be provided by crushing the raw materials (See Example 5). The process of crushing materials necessarily leads to the same grain size distributions as claimed. Those of ordinary skill in the art would expect such a distribution to be continuous in terms of a gaussian or normal distribution.
Regarding Claim 38: Knauss teaches that the magnesite, main component, may be included in an amount from 65-99 wt% (ma%; See Column 1, Lines 52-60). Knauss thus teaches an overlapping range of the main component. Overlapping ranges have been held to present a prima facie case of obviousness over the prior art. Those of ordinary skill in the art would have only selected from the overlapping portion of the range to arrive at the invention as claimed.
Regarding Claim 39: Knauss teaches that the bauxite, the granular elastifier component, may be included in an amount from 1-35% wt% (ma%; See Column 1, Lines 52-60). Knauss thus teaches an overlapping range of the elastifier component. Overlapping ranges have been held to present a prima facie case of obviousness over the prior art. Those of ordinary skill in the art would have only selected from the overlapping portion of the range to arrive at the invention as claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. An NPC document that is a machine translation of CN1039792 is attached hereto. The examples therein show the creation of magnesia alumina spinel refractory materials from raw mixtures containing 89 wt% pure magnesite and 75% purity bauxite.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW E HOBAN whose telephone number is (571)270-3585. The examiner can normally be reached M-F 9:30am-6:00pm.
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/Matthew E. Hoban/Primary Examiner, Art Unit 1734