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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 14-21 in the reply filed on 9/12/2025 is acknowledged.
Claims 22 and 23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/12/2025.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 15 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 15 recites the limitation "the superabsorbers" in claim 14. There is insufficient antecedent basis for this limitation in the claim.
When corrected to “superabsorbent polymers” the phrase “one or more” must precede it since the component was introduced in claim 14 with the phrase “one or more” preceding it.
Claim 16 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 16 recites the limitation "the superabsorbers" in claim 14. There is insufficient antecedent basis for this limitation in the claim.
When corrected to “superabsorbent polymers” the phrase “one or more” must precede it since the component was introduced in claim 14 with the phrase “one or more” preceding it.
Claims 17-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Since the polymers based on ethylenically unsaturated monomer are introduced in claim 14 with the phrase “one or more” preceding it, any further recitation of the component in the claims must have the phrase “one or more” preceding it.
Claim 19 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 19, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Since the protective colloid is introduced in claim 14 with the phrase “one or more” preceding it, any further recitation of the component in the claims must have the phrase “one or more” preceding it.
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.
Claim(s) 14 and 17-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chiaverini et al. (2018/0230053) in view of Zapf et al. (2011/0104377).
Regarding claims 14 and 17-19: Chiaverini et al. teach a composition comprising 52 wt% of a superabsorbent polymer and 0.2% to 2 wt% of a polysaccharide viscosity modifier based upon dry weight [Table 5]. Chiaverini et al. teach that ethylene-vinyl acetate copolymer can be used interchangeably with a polysaccharide as the viscosity modifier [0088]. The composition does not comprise a mineral binder [Table 5].
The range of ethylene-vinyl acetate copolymer overlaps the claimed range.
The subject matter as a whole would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention, since it has been held that choosing the overlapping portion, of the range taught in the prior art and the range claimed by the applicant, has been held to be a prima facie case of obviousness, see In re Malagari, 182 USPQ 549, In re Geisler 43 USPQ2d 1365 (Fed. Cir. 1997); In re Woodruff, 16 USPQ2d 1934 (CCPA 1976) and MPEP 2144.05.
Chiaverini et al. fail to teach a protective colloid stabilized ethylene-vinyl acetate and the ethylene content of claim 18.
However, Zapf et al. teach protective colloid stabilized ethylene-vinyl acetate as an additive for building material composition [0001] that is free-flowing, has good anti-caking properties, prolonged storage time, and very good wettability and redispersibility [0017]. Zapf et al. teach a polyvinyl alcohol-stabilized ethylene-vinyl acetate with an ethylene content of 25 wt% [0088].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention use the polyvinyl alcohol-stabilized ethylene-vinyl acetate of Zapf et al. as the viscosity modifier in place of polysaccharide in Table 5 of Chiaverini et al. to provide a viscosity modifier that is free-flowing, has good anti-caking properties, prolonged storage time, and very good wettability and redispersibility.
Regarding claim 20: Chiaverini et al. teach an aqueous dispersion [Table 5].
Regarding claim 21: The composition of Chiaverini et al. is capable of functioning in the claimed capacity.
Claim(s) 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chiaverini et al. (2018/0230053) and Zapf et al. (2011/0104377) as applied to claim 14 above further in view of Eberwein et al. (2013/0098271).
Chiaverini et al. teach an anionic superabsorber [0095].
Chiaverini et al. fail to specify superabsorber.
However, Eberwein et al. teach an anionic superabsorber for hydraulic compositions based on 28 mol% 2-acrylamido-2-methylpropanesulfonic acid, 72 mol% acrylamide, and N,N’methylenebisacrylamide [0135-0136].
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 superabsorber of Eberwein et al. as the superplasticizer in Chiaverini et al. It is a simple substitution of one known element for another to obtain predictable results.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN USELDING whose telephone number is (571)270-5463. The examiner can normally be reached on M-F 8am to 6:30pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Del Sole can be reached on 571-272-1130. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN E USELDING/ Primary Examiner, Art Unit 1763