DETAILED ACTION
Claims 1, 3, 5, 9-11, 16-17 and 21 are amended.
Claims 4, 13, and 22 are cancelled.
Claim 23 is new.
Claims 1-3, 5-12, 14-21, and 23 are pending, with claims 16-20 and 23 being withdrawn.
Claims 1-3, 5-12, 14-15, and 21 are rejected.
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 .
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.
Claims 1-3, 5-8, 11, 12, 14-15 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Agapiou et al. (US 20180171204) (Agapiou) in view of Harrison et al. "Recycling of waste glass as aggregate in cement based materials" (Harrison).
Regarding claims 1, 6, 8, and 15, Agapiou teaches an extended-life calcium aluminophosphate (CAP) cement composition comprising calcium aluminate cement (i.e., only one type of cement, wherein the only one type of cement consists of a calcium aluminate cement), a polyphosphate, and water (Agapiou, Abstract and Title).
Agapiou further teaches the CAP cement composition having a thickening time being greater than 1 hour, and temperatures in a range of from about 50° F to about 500° F(Agapiou, [0039]), wherein the time duration and temperature overlap the claimed range.
While Agapiou does not explicitly teaches the thickening time at 9500 psi, as presently claimed, Agapiou acknowledges various variables to control and provide desirable thickening times (Agapiou, [0039]), and thus the claimed pressure is expected to be capable of adjusting by one of ordinary skill in the art at the time of the invention.
Agapiou further teaches the CAP cement composition having a density in the range of from about 4 pounds per gallon (“lb/gal”; ppg) to about 20 lb/gal (Agapiou, [0034]), which is the same as the claimed range.
While Agapiou further teaches additives that can be added to the CAP cement composition (Agapiou, [0025]), Agapiou does not explicitly teach an additive consisting of ground synthetic glass.
With respect to the difference, Harrison teaches recycling waste glass as aggregate, such as fine particles of glass (i.e., first supplementary cementitious material consisting of ground synthetic glass; recycled glass) in cement-based materials (Harrison, Title; Abstract).
Harrison further teaches the waste glass includes soda glass, borosilicate glass and lead glass (Harrison, page 2 - 2.1 “Physical and chemical characteristics of glass”), which is crushed (Harrison, page 2 - 2.2 “Processing crushed glass”) and is added to cements as an additive (Harrison, page 2, Section – first paragraph).
As Harrison expressly teaches, promising results were found when incorporating an appropriate amount of fine particles of glass in cement-based materials due to the favourable pozzolanic reaction which benefits the mechanical properties (Harrison, Abstract; page 2, 2.2 – Processing crush glass; FIG 4; page 3, 5th paragraph; page 5, right column). All samples containing waste glass were found to produce higher compressive strengths than the control samples (Harrison, page 3, left column first full paragraph).
Harrison further expressly teaches, the waste glass is used to form a cement blend affording pozzolanic properties reducing the amount of required cement thereby reducing emission in the construction industry and reducing the need for materials such as fly ash (Harrison, page 3, right column first paragraph). Harrison further teaches incorporating waste glass in cement-based materials has the potential for creating sustainability (Harrison, page 2, left column, fourth paragraph).
Agapiou and Harrison are analogous art as they are both drawn to cements.
In light of the motivation of adding waste glass in cement-base materials disclosed by Harrison as described above, it would therefore have been obvious to one of ordinary skill in the art to add the appropriate amount of the waste glass of Harrison as an additive (e.g., a mechanical property enhancing additive) to the CAP cement of Agapiou, in order to benefit mechanical properties of the product, including improving compressive strength of the product, to reduce the amount of required cement thereby reducing emission in the construction industry and reducing the need for materials such as fly ash and create sustainability, and thereby arrive at the claimed invention.
Given that the cement composition of Agapiou in view of Harrison are substantially identical to the present claimed cement composition in composition (i.e., water, calcium aluminate cement, with ground synthetic glass) and structure (e.g., thickening time of 4-15 hours at a temperature of 200 °F, density in the range of about 4 to 20 ppg), it is clear that a blended cement including the calcium aluminate cement and waste glass of Agapiou in view of Harrison would intrinsically have a water requirement at least 20% greater compared to a test blended cement consisting of the cement and fly ash as the first supplementary cementitious material.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Regarding claim 2, Agapiou further teaches the water comprises fresh water or salt water (Agapiou, [0014]).
Regarding claim 3, Agapiou further teaches the calcium aluminate cement being in an amount from about 10% to about 79% by weight of the CAP cement composition (Agapiou, [0011]).
Given Agapiou teaches the CAP cement composition comprises water and a blended cement as discussed above, and the water being in an amount in the range of from about 20% to about 89% by weight of the cement composition (Agapiou, [0014]), the amount of the blended cement, by weight of the CAP cement composition, is in the range of from about 11% (i.e., 100%-89%) to 80% (i.e., 100%-20%).
After conversion, the concentration of the calcium aluminate cement, by weight of the blended cement, is 1.1% (i.e., 10% × 11% =1.1%) to 63.2% (i.e., 79% × 80% =63.2%), which overlaps the claimed range.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
Regarding claims 7 and 21, Harrison further teaches using 10 to 30% by weight of the waste glass as cement replacement (Harrison, page 2, 2.2 – Processing crush glass; page 3, 5th paragraph), preferably 20 to 30% by weight (Harrison, FIG 4; Abstract; page 3, 5th paragraph; page 5, right column).
Regarding claim 11, Agapiou further teaches the extended-life CAP cement compositions being particularly used in subterranean well construction and operations (i.e., at a pressure of a well) having relatively high bottom hole static temperatures (i.e., at a bottomhole temperature) (Agapiou, [0002]; [0010]).
Regarding claim 12, Agapiou further teaches the CAP cement composition having a 24-hour compressive strength of from about 50 psi to about 5000 psi at any temperature (Agapiou, [0038]), which overlaps the claimed ranges.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
Regarding claim 14, Agapiou further teaches other additives (i.e., second supplementary cementitious material) can be cement kiln dust, lime kiln dust, or lime (Agapiou, [0025]).
Regarding claim 15, Agapiou further teaches the CAP composition being prepared for testing at high temperatures (500 °F) (Agapiou, [0069]). Given that the cement composition is tested at 500 °F, the cement composition would have a thermal stability at a temperature of 500 °F, which falls within the claimed range.
Alternatively, given that the CAP cement composition of Agapiou in view of Harrison is substantially identical to the present claimed cement composition in composition and structure, it is clear that the CAP cement composition of Agapiou in view of Harrison would intrinsically have a thermal stability at a temperature less than or equal to 1400 °C.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Regarding claim 5, as applied to claim 22, Agapiou teaches a phosphate being in the range from 1% to about 30% of the cement composition (Agapiou, [0012]), which overlaps the claimed range.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Agapiou in view of Harrison, and further in view of Tagnit-Hamou et al. (US 2016/0039716) (Tagnit-Hamou).
Regarding claims 9 and 10, Harrison further teaches using waste glass having particle size less than 4750 µm (i.e., less than 4.75 mm) (Harrison, page 5, Table 3; page 6, Table 4) such as 10m, 20m, 38m and 40m (Harrison, Abstract; p. 3 – 4th and 5th paragraphs).
Agapiou expressly teaches it was found particle size to be a critical variable that can have a significant impact on the mechanical properties of the hardened material (Harrison, page 4, left column; page 5, Fig. 3).
However, Agapiou in view of Harrison does not explicitly teach the cement having a particle size less than or equal to 0.8 millimeters.
With respect to the difference, Tagnit-Hamou teaches ultra-high performance concrete containing glass particles, e.g., waste glass particles (Tagnit-Hamou, Title and [0001]).
Tagnit-Hamou further teaches the particle sizes of HS or LH cement and glass powder being less than 100 µm (Tagnit-Hamou, page 6, Table 1), which falls within the claimed range.
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Table 1 (Tagnit-Hamou) with Examiner’s Annotation
As Tagnit-Hamou expressly teaches, selection of the size and proportion of particulate will improve workability of the mixture (Tagnit-Hamou, [0131]).
Tagnit-Hamou is an analogous art as it is drawn to cements.
In light of the motivation of selecting cement having a particle size less than 100 µm (i.e., 0.1 mm) disclosed by Tagnit-Hamou, as described above, it would therefore have been obvious to one of ordinary skill in the art to use the calcium aluminate cement having the particle size of Tagnit-Hamou, in order to improve workability of the mixture in Agapiou in view of Harrison, and thereby arrive at the claimed invention.
Response to Arguments
In response to the amended claims 1, 3, 5, 9, 10, 21, and cancelled claim 22, the previous claim objections and 35 U.S.C. 112(b) rejections are withdrawn. However, the amendment of claim 11 necessitates 35 U.S.C. 112(d) rejections as set forth above.
Applicants primarily argue:
“Agapiou does not teach a cement blend with a CAC or CAP cement and the ground synthetic glass as claimed. Moreover, Harrison does not teach a cement blend with a CAC or CAP cement and the ground synthetic glass as claimed. In an effort to cure this deficiency, the Office Action substitutes an additive of fly ash in Agapiou (when Agapiou is completely silent on an additive consisting of ground synthetic glass) for ground synthetic glass of Harrison. Accordingly, neither reference teaches nor suggests an identical cement composition as claimed that includes all of the essential claimed elements. However, it is not the case according to MPEP 2112 that either Agapiou or Harrison teach an identical cement blend as claimed without a water requirement explicitly disclosed; rather, because neither reference individually teaches or suggests an identical blended cement as claimed at all, the 103 rejection based on an identical cement blend is not valid and should be withdrawn.”
Remarks, pages 8-9
The Examiner respectfully traverses as follows:
One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).\
Applicant primarily argues that Agapiou does not expressly teach the claimed ground synthetic glass and Harrison does not teach a cement blend with a CAC or CAP cement. This argument merely agrees with the basis for the rejection under 35 U.S.C. 103(a), which admits that Agapiou or Harrison does not disclose the entire claimed invention. Rather, the rejections are relied on Agapiou in view of Harrison. See pages 4-12 above.
Agapiou in view of Harrison teaches the blended cement having a CAC or CAP cement and the ground synthetic glass. See pages 4-7 above.
Applicants further argue:
“There is no teaching or suggestion in either Agapiou nor Harrison regarding the essential claimed feature of wherein the blended cement has a water requirement at least 20% greater compared to a test blended cement consisting of the only one type of cement and fly ash as the first supplementary cementitious material.”
Remarks, page 10
The Examiner respectfully traverses as follows:
Agapiou discloses a cement composition having calcium aluminate cement and water, with a thickening time being greater than 1 hour and temperatures in a range of from about 50° F to about 500° F, and a density in the range of from about 4 pounds per gallon (“lb/gal”; ppg) to about 20 lb/gal (Agapiou, Abstract; [0034]; [0039]), and Harrison discloses using recycled glass aggregate (i.e., ground synthetic glass) in cement based materials (Harrison, Title and Abstract). The combination demonstrates that the cement composition of Agapiou in view of Harrison are substantially identical to the present claimed cement composition in composition (i.e., water, calcium aluminate cement, with ground synthetic glass) and structure (e.g., thickening time of 4-15 hours at a temperature of 200 °F, density in the range of about 4 to 20 ppg), and thus the cement composition of Agapiou in view of Harrison would intrinsically have a water requirement at least 20% greater compared to a test blended cement consisting of the cement and fly ash as the first supplementary cementitious material.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Applicants further argue:
“The only teaching regarding the amount of water required in Harrison clearly states "Afshinnia's and Rangaraju's [45], research shows using glass powder as a 20% replacement (by weight) for aggregate reduces the 28-day compressive strength by 15% when using traditional aggregate. This can be partially attributed to the fineness of the waste powder being 17 m, significantly decreasing the water to powder ratio." Harrison, p. 5, partial paragraph under Fig. 4 (emphasis added). Thus, the only mention anywhere in Harrison (who again does not teach CAC or CAP cement but Portland cement) for the amount of water needed is directly opposite of what is claimed.”
Remarks, pages 9-10
The Examiner respectfully traverses as follows:
Applicant argues that Harrion teaches away from the claimed subject matter by disclosing an opposite amount of water needed. However, the cited passage in Harrison is not Harrison’s own disclosure, but rather a discussion of results reported in another document (i.e., Afshinnia and Rangaraju). Accordingly, the statement does not constitute teaching away within Harrison itself.
Applicants further argue:
“As can be seen in Table 3, it was unexpectedly discovered that the water requirement for the ground synthetic glass and dry blend containing ground synthetic glass had a higher water requirement than the fly ash and the dry blend containing flv ash.”
Remarks, page 12
The Examiner respectfully traverses as follows:
While applicant point to Table 3 of the Specification to support the position, it is noted that the data is not persuasive for the following reasons.
Firstly, the data is not commensurate in scope with the scope of the presence claims. Specifically, the data only shows specific blends of cement (i.e., a blend of cement containing a calcium aluminophosphate cement) having specific water requirement (i.e., 32 for the blend of cement containing a calcium aluminophosphate cement and fly ash, and 54 for the blend of cement containing a calcium aluminophosphate cement and ground synthetic glass), while the present claims broadly encompass any blended cement comprising a calcium aluminate cement or a calcium aluminophosphate cement, and a supplementary cementitious material consisting of ground synthetic glass having a water requirement of at least 20% greater compared to a test blended cement consisting of a calcium aluminate cement or a calcium aluminophosphate cement, and a supplementary cementitious material consisting of fly ash.
Further, the data does not show having the blended cement with the upper and lower end of the claimed ranges of water requirement change.
As set forth in MPEP 716.02(d), whether unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support”. In other words, the showing of unexpected results must be reviewed to see if the results occurred over the entire claimed range, In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). Applicants have not provided data to show that the unexpected results do in fact occur over the entire claimed range of water requirement change.
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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/J.Z./Examiner, Art Unit 1732
/MICHAEL B CLEVELAND/Supervisory Patent Examiner, Art Unit 1712