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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/6/2026 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 2 and 4-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zubrod et al. (2018/0037505) in view of Hun et al. (2019/0315658), Moeller et al. (2009/0221202), and Prat et al. (2002/0112650).
Regarding claims 1, 2, 4 and 7: Zubrod et al. teach a cured composite of a curable composition comprising 67.6 wt% of the aggregate quartzite and sand, 21.7 wt% blast furnace slag (100 wt% aluminosilicate source), 3.0 wt% sodium metasilicate (alkali activator), 0.08 wt% nylon micro fibers (alkali-resistant fibers), and less than 5.65 wt% water [Examples; Table 6]. Zubrod et al. teach the fibers are to reduce concrete cracking, and that a variety of types of fiber can be used [0039].
Zubrod et al. teach adding sodium hydroxide as a strengthening agent, and that the amount is optimized to produce a covalent bond, but to not produce excessive trapped air [0048, 0062; Claim 1]. It would have been obvious to optimize the amount of calcium hydroxide that is added to produce a covalent bond, and to not produce excessive trapped air. It is a result effective variable.
There is a combination of an alkali metal hydroxide (sodium hydroxide) and an alkali metal silicate (sodium metasilicate) present in the composition.
Zubrod et al. fail to teach polyvinyl alcohol fibers.
However, Hun et al. teach that polyvinyl alcohol fibers are used to reduce cracking in concrete, and can be used interchangeably with the fibers in Zubrod et al. [0035].
Moeller et al. teach that it is known in the art that polyvinyl alcohol fibers are used to reduce cracking in concrete, and can be used interchangeably with the fibers in Zubrod et al. [0002].
Prat et al. teach that polyvinyl alcohol fibers are used to reduce cracking in concrete, and can be used interchangeably with the fibers in Zubrod et al. [0071].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use polyvinyl alcohol fibers as taught by Hun et al., Moeller et al. and/or Prat et al. in place of the nylon fibers of Zubrod et al. to provide reinforcement and to reduce the cracking in the composition. It is a simple substitution of one known element for another to obtain predictable results.
Regarding claims 5 and 6: Since the composition and composite of Zubrod et al. is the same as claimed, it will possess the claimed fiber agglomeration degree and coefficient of variation. The courts have stated that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 15 USPQ2d 1655, (Fed. Cir. 1990). See also In re Best, 562 F.2d 1252, 195 USPQ 430, (CCPA 1977). "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." Further, if it is the applicant's position that this would not be the case, evidence would need to be provided to support the applicant's position.
Regarding claim 8: Zubrod et al. teach a combination of blast furnace slag and fly ash, wherein blast furnace slag is 43 wt% of the total aluminosilicate source [Examples; Table 1].
Regarding claim 9: The 3.0 wt% sodium metasilicate in Zubrod et al. is also a slag activator.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zubrod et al. (2018/0037505), Hun et al. (2019/0315658), Moeller et al. (2009/0221202), and Prat et al. (2002/0112650) as applied to claim 1 above further in view of Andersen et al. (5,453,310).
Zubrod et al. teach using 0 to 50 wt% of sand [Table 4].
Zubrod et al. fail to teach a calcium sulfate derivative.
However, Andersen et al. teach that gypsum (calcium sulfate derivative) can be used interchangeably with sand as an inorganic aggregate material (column 16, lines 5-10), and that gypsum is a particularly useful aggregate because it is readily available, extremely low cost, ease of working and formation, and because it also improves the binding if added in high enough amounts (column 16, lines 37-41).
It would have been obvious to one ordinary skill in the art before the effective filing date of the claimed invention to use the gypsum of Andersen et al. in place of the sand of Zubrod et al. as the aggregate because it is readily available, extremely low cost, has ease of working and formation, and because it also improves the binding if added in high enough amounts.
The amount taught 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.
Response to Arguments
Applicant's arguments filed 9/23/2025 have been fully considered but they are not persuasive.
The Applicant has made the argument that Zubrod fails to teach the claimed polyvinyl alcohol fibers. This has been remedied by the addition of Hun et al. (2019/0315658), Moeller et al. (2009/0221202), and Prat et al. (2002/0112650)
The Applicant has alleged superior bending strength and flexural toughness due to the polyvinyl alcohol fibers. This is not persuasive for the following reasons:
The claims are not commensurate in scope with the data provided.
The higher tensile strength is a property of the polyvinyl alcohol fibers [Instant Table 1], and therefore is expected to provided better bending strength and flexural toughness than a fiber with lower tensile strength.
Even with number 2 above, the difference in the results is better, close, and negligible for the nylon fiber composition properties. Example 7 uses nylon fibers, and Example 29 uses polyvinyl alcohol fibers. Example 7 has a LOP bending strength of 7.0, a MOR bending strength of 4.7 and a flexural toughness of 271 N/mm, whereas Example 29 has a LOP bending strength of 3.1, a MOR bending strength of 3.7 and a flexural toughness of 293 N/mm.
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
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