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 of Group I, claims 1-18, in the reply filed on 08/15/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 19-25 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/15/2025.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Claim Objections
Claims 5, 7-8, 12-13 and 16-17 are objected to because of the following informalities:
Claims 5, 7-8 and 12 appear to contain a grammatical error; it appears that “based on total weight” should read “based on the total weight” (see claims 5 and 12 each at line 3, claim 7 at lines 3-4, and claim 8 at line 4).
In claim 12, there should be a period at the end of the claim (see claim 12 at line 4).
Claim 13 contains a grammatical error; “between about 0.80 to about 0.95” should read “between about 0.80 and about 0.95” (see claim 13 at lines 3-4).
Claim 14 contains a grammatical error; “between about 0.90 to about 0.93” should read “between about 0.90 and about 0.93” (see claim 14 at lines 3-4).
Claim 16 contains a grammatical error; “between about 2 wt.% to about 20 wt.%” should read “between about 2 wt.% and about 20 wt.%” (see claim 16 at lines 2-3).
Claim 17 contains a grammatical error; “between about 3 wt.% to about 10 wt.%” should read “between about 3 wt.% and about 10 wt.%” (see claim 17 at lines 2-3).
Claim 18 contains a grammatical error; “between about 4 wt.% to about 6 wt.%” should read “between about 4 wt.% and about 6 wt.%” (see claim 18 at lines 2-3).
Appropriate correction is required.
Claim Interpretation
For purposes of claim interpretation, “particle size distribution adjusting component” as recited in claims 3-5 (see claim 3 at lines 2-3 and claims 4-5 each at line 2) is interpreted as meaning any particulate material of any particle size, which will adjust the particle size distribution of the product.
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.
Claims 1-18 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.
Claim 1 recites the limitation “high-ε properties… of at least 0.80” (see claim 1 at lines 7-9). It is not clear what properties are or are not included in the limitation of “high-ε properties”, rendering the scope of the claim indefinite. Further, the term “high-ε” is a relative term which renders the claim indefinite. The term “high-ε” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
For purposes of examination, Examiner treated “high-ε properties of at least 0.80” as meaning emissivity of at least 0.80, as this would appear most in keeping with Applicant’s intent as discussed in the specification at paragraph [0028]. Clarification is requested.
Claims 1-18 recite the limitation "high-emissivity (high-ε) refractory product" (see claims 1-4, 6, 9-11 and 13-14 each at line 1, claims 5, 7-8, 12 and 16-18 each at lines 1 and 4, and claim 15 at lines 1 and 3). The term “high-emissivity” is a relative term which renders the claim indefinite. The term “high-emissivity” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what amount of emissivity would be required for the product to be considered a “high” emissivity product.
For purposes of examination, Examiner treated high-emissivity product as meaning a product having an emissivity of at least 0.80, as this would appear most in keeping with Applicant’s intent as discussed in the specification at paragraph [0028]. Clarification is requested.
Claims 1 and 13-18 recite the limitation “high-ε pigment” (see claim 1 at line 7 and claims 13-18 each at line 2). The term “high-ε” is a relative term which renders the claim indefinite. The term “high-ε pigment” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what amount of emissivity would be required for a pigment to be considered a “high” emissivity pigment as claimed. Clarification is requested.
Claims 1 and 8 recite the limitation “refractory raw material filler material” (see claim 1 at line 5 and claim 8 at line 2). From this language, it is not clear if this limitation is meant to refer to a single material, or to two separate materials, i.e., a refractory raw material filler, or a refractory raw material and a filler material, rendering the scope of the claim indefinite.
Further, claims 9-10 recite the limitation “the refractory raw material filler” (see claims 9-10 each at line 2). There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claims 9 and 10 depend, recite a “raw material filler material”, not a “raw material filler”.
For purposes of examination, Examiner treated “refractory raw material filler material” as recited in claims 1 and 8 as meaning a single “refractory raw material filler”, rather than as meaning multiple materials; claim 1 reciting “refractory raw material filler” rather than “refractory raw material filler material” would also provide proper antecedent bases for “the refractory raw material filler” recited in claims 9-10. Clarification is requested.
Claim 2 recites the limitation “wherein the refractory product has a final particle size distribution which is substantially equal to a predetermined target particle size distribution of the particulate refractory base material”. The term “substantially equal” is a relative term which renders the claim indefinite. The term “substantially equal” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear how close to equal the values must be to be considered “substantially” equal. Further, the meaning of “a predetermined target particle size distribution” is also unclear, as an undefined “predetermined target” distribution could be any distribution, and it is not clear whether a “predetermined target” distribution is the same as the actual distribution of the base material. Further, it is not clear what or how many particle size data points are being compared, so it cannot be ascertained how many values or what type of values would need to be “substantially equal” in order for the entire particle size distribution for the product and base material to be considered “substantially equal”.
For purposes of examination, Examiner treated this limitation in claim 2 as meaning that more than one particle size distribution value of the base material and more than one particle size distribution value of the product (e.g., D10, D50, D90, percentage of particles within any mesh size range, etc.) are within +/- 10% of each other. Clarification is requested.
Claim 3 recites the limitation “an amount of a particle size distribution adjusting component sufficient to adjust the particle size distribution to achieve the Dpsf” (see claim 3 at lines 2-4); the meaning of “an amount sufficient to adjust the particle size distribution to achieve the Dpsf” is not clear, as Dpsf as claimed is not defined numerical values or ranges, and as it is not clear how a product comprising a mixture as claimed would have a separate particle size distribution and final particle size distribution. The product of claim 1 and claim 2 comprising the claimed mixture is a complete product having a given particle size distribution; it is not a method of making a product comprising making a product having a first particle size distribution and then adjusting the particle size distribution to a different, final particle size distribution. The product of claim 3 comprising the claimed mixture and further comprising a particle size distribution adjusting component is also a complete product having a given particle size distribution, and does not have multiple particle size distributions. It is not clear what amount of the component would or would not be sufficient to achieve an undefined final particle size distribution of an already formed product with a given particle size distribution, rendering the scope of the claim indefinite.
For purposes of examination, Examiner treated claim 3 as though it recites the product according to claim 2, wherein the product further comprises an amount of a particle size distribution adjusting component. Clarification is requested.
Claims 5, 7-8 and 12 recite the limitation “the particulate high-ε refractory material product” (see claims 5 and 7 each at line 4, claim 8 at lines 4-5 and claim 12 at lines 3-4). There is insufficient antecedent basis for this limitation in the claim. It is noted that claim 1, from which these claims depend, recites “a particulate high-ε refractory product”, not a “particulate high-ε refractory material product” (see claim 1 at line 1).
Claim 6 recites the limitation “wherein each of the Dpst and the Dpsf of the refractory product has a distribution of particle sizes of:
4 mesh < 2%
10 mesh = 23% +/- 5%;
20 mesh = 42% +/- 5%;
100 mesh = 58% +/- 5%;
200 mesh = 64% +/- 5%;
-325 mesh = 32% +/- 5%” (see claim 6 at lines 2-9).
However, the notation used renders the meaning of the particle sizes unclear, as “-325” is specified with a negative sign, meaning a particle size smaller than 325 mesh, but the other values do not include a positive or negative sign; the present specification specifically uses notation of +/- for mesh sizes, e.g., +40 mesh, +100 mesh, etc. (see paragraph [0031]), but does not use + signs in the present claim or in paragraph [0013], and this difference in notation would seem to indicate that a mesh size of, e.g., “+100” has a different meaning than a mesh size of “100”, rendering the meaning of the notation of the present claim, which uses negative signs but not positive signs, unclear.
For purposes of examination, Examiner treated the particle sizes of 4 mesh, 10 mesh, 20 mesh, 100 mesh, and 200 mesh as meaning particles larger than 4 mesh opening size, larger than 10 mesh opening size, etc. (i.e., +4 mesh, +10 mesh, etc.), and treated a particle size of -325 mesh as meaning particles smaller than 325 mesh opening size. Clarification is requested.
Claim 9 recites the limitation “selected from… zirconia-containing raw materials” (see claim 9 at lines 3-4); however, paragraph [0021] of the present specification includes zircon flour and milled zircon (i.e., zirconium silicate) as exemplary “zirconia-containing” raw materials, and these materials do not contain zirconia. Therefore, the meaning of “zirconia-containing” as claimed is unclear, as the present specification indicates that the “zirconia-containing” materials of the invention do not need to contain zirconia, rendering the metes and bounds of the claim indefinite.
For purposes of examination, Examiner treated “zirconia-containing” as meaning actually containing zirconia. Clarification is requested.
Claim 11 recites the limitation “coagulants including set time accelerants and set time retardants” (see claim 11 at lines 3-4); from this language, it is not clear if this limitation is meant to include other, unrecited coagulants, in addition to set time accelerants or set time retardants, or whether it means the coagulants must be either set time accelerants or set time retardants, and other, unrecited coagulants are excluded, rendering the metes and bounds of the claim unclear.
For purposes of examination, Examiner treated this limitation in claim 11 as meaning that the additive is selected from the group consisting of dispersants, coagulants, set time accelerants, set time retardants, flocculants, etc. (i.e., the claim is interpreted as including other, unrecited coagulants, rather than as meaning the coagulant must be an accelerant or retardant). Clarification is requested.
Claims 11-12 recite the limitation “The particulate high-ε refractory product according to claim 1, wherein the at least one refractory additive is…” (see claims 11-12 each at lines 1-2); however, the at least one refractory additive is not required by claim 1, from which claims 11-12 depend. The at least one refractory additive is optional in claim 1, and claims 11-12 do not state that the product comprises the at least one refractory additive. It is not clear whether these claims are meant to require the at least one refractory additive, or whether any product meeting the limitations of claim 1 but not comprising the at least one refractory additive would meet the limitations of claims 11-12 (i.e., whether the additive is still optional, but if included, must meet the limitations recited by claims 11-12).
For purposes of examination, Examiner treated claims 11-12 as reciting the product of claim 1, wherein the particulate refractory base material comprises the at least one refractory additive, and wherein the at least one refractory additive meets the limitations recited by claims 11-12, respectively. Clarification is requested.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 7-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Klamklang, et al. (U.S. Pub. No. 2017/0137686-A1) (hereinafter, “KLAMKLANG”).
Regarding claim 1, KLAMKLANG teaches a particulate high-emissivity (high-ε) refractory product (see KLAMKLANG generally at paragraphs [0002], [0005], [0011] and [0070], teaching particulate thermal emissivity coatings having high- ε, i.e., a high-ε refractory product), comprising a mixture of:
a particulate refractory base material which includes at least one particulate binder material (see KLAMKLANG at paragraphs [0031] and [0057], teaching binders such as sodium silicate or H3PO4 (phosphoric acid), which are exemplary particulate binder materials of the present invention as discussed in paragraph [0015] of the present specification), at least one particulate refractory raw material filler (see KLAMKLANG at paragraphs [0032]-[0033] and [0076], teaching refractory fillers such as silicon dioxide (silica), aluminum oxide (alumina), and also teaching silicon carbide, which is a refractory filler of the present invention; see present claim 9), and optionally at least one refractory additive (see KLAMKLANG at paragraph [0042], teaching that colorants can be added; see KLAMKLANG at paragraphs [0033], [0070] and [0076], teaching TiO2, which is a refractory white colorant; colorants are a refractory additive of the present invention, see present claim 11); and
a high-ε pigment (see KLAMKLANG at paragraphs [0033], [0070] and [0076], teaching, e.g., chromium oxide, which is a preferred high-ε pigment of the present invention as discussed in paragraph [0026] of the present specification) in an amount to impart an emissivity to the refractory product when cured of at least 0.8 (see KLAMKLANG at paragraphs [0011], [0068], [0070], [0076], [0083] and Table 1, teaching that the cured product has emissivity up to 0.99, e.g., 0.97).
Regarding claim 7, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the particulate binder material is present in the refractory base material in an amount of 2 wt.% to about 30 wt.%, based on total weight of the particulate high-ε refractory product (see KLAMKLANG at paragraphs [0031], [0057] and [0.83], teaching 2 to 30% by weight binder, e.g., 28%).
Regarding claim 8, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the refractory raw material filler material is present in the refractory base material in an amount of 50 wt.% to about 99 wt.%, based on total weight of the particulate high-ε refractory product (see KLAMKLANG at paragraph [0076], teaching, by weight, 32% alumina, 18% SiC and 4% silica, i.e., a total of 54% filler material).
Regarding claim 9, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the refractory raw material filler includes at least one particulate refractory selected from the group consisting of alumina-silicates, aluminas, silicon carbides, zirconia-containing raw materials, magnesium-aluminum spinels, silica fume, calcined flint, fused silicas and silica sands (see KLAMKLANG at paragraphs [0032]-[0033] and [0076], teaching alumina, silica and silicon carbide).
Regarding claim 10, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the refractory raw material filler has an average particle size of below 3 mesh (see KLAMKLANG at paragraphs [0055] and [0070], teaching an average particle size for the fillers/ceramic precursors/emissivity enhancers (including alumina, silica and SiC) of, e.g., approximately 65-mesh, 200-mesh or 325-mesh or less, all of which are below 3 mesh).
Regarding claim 11, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the particulate refractory base material comprises the at least one refractory additive, and wherein the at least one refractory additive is selected from the group consisting of dispersants, coagulants including set time accelerants and set time retardants, flocculants, deflocculants, plasticizers, colorants, foaming agents, water-retaining agents, anti-settling agents and preservatives (see KLAMKLANG at paragraph [0042], teaching that colorants can be added; see KLAMKLANG at paragraphs [0033], [0070] and [0076], teaching TiO2, which is a refractory white colorant).
Regarding claim 12, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the particulate refractory base material comprises the at least one refractory additive, and wherein the at least one refractory additive is present in an amount of up to about 15 wt.%, based on total weight of the particulate high-ε refractory material product (see KLAMKLANG at paragraph [0076], teaching 10% by weight TiO2).
Regarding claims 13-14, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the high-ε pigment is present in an amount sufficient to impart an emissivity to the product when cured of between about 0.80 to about 0.95, as required by claim 13, and between about 0.90 and about 0.93, as required by claim 14 (see KLAMKLANG at paragraphs [0011], [0068], [0070], [0073]-[0083] and Table 1, teaching that the cured product has a high emissivity, e.g., 0.88, 0.89 (which are considered “about” 0.90) or 0.93).
Regarding claims 15-17, KLAMKLANG teaches a particulate high-ε refractory product according to claim 13, wherein the high-ε pigment is present in an amount up to about 20 wt.%, as required by claim 15, between about 2 wt.% and about 20 wt.%, as required by claim 16, and between about 3 wt% and about 10 wt%, as required by claim 17, based on the total weight of the particulate high-ε refractory product (see KLAMKLANG at paragraphs [0041] and [0076], teaching 3 to 8% by weight chromium oxide, e.g., 8% by weight).
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.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over KLAMKLANG.
Regarding claim 18, KLAMKLANG teaches a particulate high-ε refractory product according to claim 16, wherein the high-ε pigment is present in an amount overlapping with and thereby rendering obvious the claimed range of between about 4 wt.% and about 6 wt.%, based on the total weight of the particulate high-ε refractory product (see KLAMKLANG at paragraph [0041], teaching 3 to 8% or 4.2 to 11.1% by weight of chromium oxide). As set forth in MPEP § 2144.05, in the case where the claimed ranges “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 2-6 are rejected under 35 U.S.C. 103 as being unpatentable over KLAMKLANG in view of Green, D.J., "Porous Ceramic Processing", Encyclopedia of Materials: Science and Technology, Elsevier, 2001, pp. 7758-7761 (hereinafter, “GREEN”).
Regarding claims 2 and 6, KLAMKLANG teaches a particulate high-ε refractory product according to claim 1, wherein the average particle size of the product is substantially equal to the average particle size of the particulate refractory base material (see KLAMKLANG at paragraphs [0031], [0055] and [0070], teaching that the binder can comprise as low as 2% by weight of the composition, and that the other components can all have the same average particle size).
KLAMKLANG fails to explicitly teach that the refractory product has a particle size distribution which is substantially equal to a particle size distribution of the particulate refractory base material, as required by claim 2, or that the particle size distribution is the specific distribution recited by claim 6.
However, it is known in the art of refractory products that the particle size distribution affects the properties of the refractory product. For example, GREEN teaches that the level of porosity in ceramic materials can be controlled by controlling the particle size distribution, and that the amount of coarse, intermediate, and fine-sized particles are carefully controlled as this defines the green density and the amount of shrinkage during firing, which affects the bonding process and strength development of the refractory product (see GREEN at Section 4).
GREEN therefore explicitly teaches that size distribution of the particles is a result-effective variable that may be optimized by one of ordinary skill in the art. MPEP states that “[W]here 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 (CCPA 1955)), and that "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages." (Peterson, 315 F.3d at 1330, 65 USPQ2d at 138). See MPEP § 2144.05 (II).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to vary, through routine experimentation and optimization, the particle size distribution of the refractory product of KLAMKLANG, including particle size distributions as recited by present claim 6 wherein the sizes of the base material particles and overall product particles have substantially equal distribution, in order to achieve the desired level of porosity, green density, shrinkage, bonding and strength development of the refractory product as taught by GREEN (see GREEN at Section 4), and to mitigate cracking, delamination and reduced mechanical strength which results from shrinkage as taught by KLAMKLANG (see KLAMKLANG at paragraph [0037]).
Regarding claims 3-5, as applied to claim 2 above, KLAMKLANG in view of GREEN teaches a particulate high-ε refractory product according to claim 2, wherein the product further comprises an amount of a particle size distribution adjusting component, as required by claim 3; wherein the particle size distribution adjusting component is at least one inorganic metal oxide selected from the group consisting of brown fused alumina, white fused alumina and silicon carbide, as required by claim 4; and wherein the particle size distribution adjusting component is present in an amount of up to about 20 wt% based on the total weight of the particulate high-ε refractory material product, as required by claim 5 (see KLAMKLANG at paragraphs [0032]-[0035], [0055] and [0125], teaching several kinds of particles which have a size and would therefore adjust the particle size distribution of the product if included, e.g., 18% by weight of silicon carbide).
Conclusion
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/S.C.C./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731