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 .
Response to Amendment
This office action is in response to the Amendment filed on 04/13/2026.
Claims 1-2, 5-8 and 10-25 are presently pending; claims 3-4 and 9 and are canceled; claims 19-25 are withdrawn; claims 1-2, 5-8, 11-19 and 21-22 are amended; claims 1-2, 5-8 and 10-18 are under examination.
The objections to claims 5, 7-8, 13 and 16-17 are withdrawn in light of the amendments to the claims; some of the objections to claim 12 are withdrawn, and others are maintained as set forth below.
New objections to claim 1 are present herein in light of the amendments to the claims.
The 35 U.S.C 112(b) rejections of claims 1-2, 6, 8 and 13-18 are withdrawn in light of the amendments to the claims; some of the 112(b) rejections of claims 5, 7-8 and 10-12 are withdrawn, and others are maintained as set forth below; the rejections of claims 3-4 and 9 are moot as these claims have been canceled.
The 35 U.S.C. 102 rejection of claims 1, 7-8 and 10-17 over KLAMKLANG and the 35 U.S.C. 103 rejection of claim 18 over KLAMKLANG are withdrawn in light of the amendments to the claims; the 35 U.S.C. 103 rejection of claims 2 and 5-6 over KLAMKLANG in view of GREEN are maintained; the rejections of claims 3-4 and 9 are moot as these claims have been canceled.
New grounds of rejection are present herein in light of the amendments to the claims.
Claim Objections
Claims 1 and 12 are objected to because of the following informalities:
In claim 1, “having predetermined” should read “having a predetermined” (see claim 1 at line 4).
In claim 1, “between about 2 wt.% to about 20 wt.%” should read “between about 2 wt.% and about 20 wt.%” (see claim 1 at lines 21-22).
In claims 1 and 12, “based on total weight” should read “based on the total weight” (see claim 1 at lines 6 and 22 and claim 12 at line 3).
Appropriate correction is required.
Claim Interpretation
For purposes of claim interpretation, “high temperature pigment” as recited in claim 1 (see claim 1 at line 18) is interpreted as meaning a pigment for use in applications and environments above 450 °F, as this would appear most in keeping with Applicant’s intent as discussed in paragraphs [0007] and [0010] of the present specification; this is merely a recitation of an intended use of the claimed product rather than being a limitation directed toward the product itself and is therefore not treated as limiting the claimed product. Any composition as claimed by the present claim would be expected to be able to perform the intended use of being used in high-temperature applications and environments.
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 1-2, 5-8 and 10-18 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 “selected from… zirconia-containing raw materials” (see claim 1 at lines 14-15); 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 1 recites “a particulate refractory base material having predetermined target particle size distribution… the Dpsf of the particulate high-ε refractory product is substantially the same as the Dpst of the particulate refractory base material” (see claim 1 at lines 4-5 and 33-35). The term “substantially the same” is a relative term which renders the claim indefinite. The term “substantially the same” 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” the same. 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 the same” in order for the entire particle size distribution for the product and base material to be considered “substantially the same”.
For purposes of examination, Examiner treated this limitation in claim 1 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 1 recites the limitation “the particle size distribution adjusting component is present in an amount sufficient to adjust the particle size distribution of components (a), (b) and (c) so as to reset the Dpsf” (see claim 1 at lines 29-31); the meaning of “an amount sufficient to adjust the particle size distribution… so as to reset the Dpsf” is not clear, as Dpsf as claimed is not a defined numerical values or range, 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 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. It is not clear what amount of the component would or would not be sufficient to reset an undefined final particle size distribution of an already formed product with a set particle size distribution, rendering the scope of the claim indefinite.
For purposes of examination, Examiner treated “Dpsf” and “Dpst” as just meaning particle size distribution. 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”.
Claim 10 recites the limitation “the refractory raw material filler” (see claim 10 at line 2). There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claim 10 depends, recites a “raw material filler material”, not a “raw material filler”.
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.
Claims 2, 6 and 13-18 are included herein as each depends from a claim which is indefinite for the reasons set forth above.
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.
Claims 1-2, 5-8 and 10-18 are rejected under 35 U.S.C. 103 as being unpatentable over Klamklang, et al. (U.S. Pub. No. 2017/0137686-A1) (hereinafter, “KLAMKLANG”) in view of Green, D.J., "Porous Ceramic Processing", Encyclopedia of Materials: Science and Technology, Elsevier, 2001, pp. 7758-7761 (hereinafter, “GREEN”).
KLAMKLANG teaches a particulate high-emissivity (high-ε) refractory product having a particle size distribution (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), the particulate high-ε refractory product comprising a mixture of the following components:
a particulate refractory base material having a particle size distribution, the particulate refractory base material comprising, based on total weight of the particulate high-ε refractory product, a mixture of:
(a1) 2 to 30 wt.% of at least one particulate binder material selected from the group consisting of calcium aluminate cements, hydratable alumina, phosphate-based binders, sodium silicate, colloidal silica and colloidal alumina (see KLAMKLANG at paragraphs [0031] and [0057], teaching binders such as sodium silicate or H3PO4 (phosphoric acid); see KLAMKLANG at paragraphs [0031], [0057] and [0083], teaching 2 to 30% by weight binder, e.g., 28%), and
(a2) 50 to 95 wt.% of at least one particulate refractory raw material filler material which is selected from the group consisting of alumina-silicates, alumina, 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 refractory fillers such as silicon dioxide (silica), aluminum oxide (alumina), and also teaching silicon carbide; see KLAMKLANG at paragraph [0076], teaching, by weight, 32% alumina, 18% SiC and 4% silica, i.e., a total of 54% filler material), and
a high-ε inorganic high temperature pigment homogeneously distributed throughout the refractory base material component (a) and selected from the group consisting of metal oxides and metal carbides, the high-ε pigment being present in an amount of between about 2 wt.% to about 20 wt.%, based on total weight of the particulate high-ε refractory product (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; see KLAMKLANG at paragraphs [0041] and [0076], teaching 3 to 8% by weight chromium oxide, e.g., 8% by weight) sufficient 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) and
alter the particle size distribution of the particulate high-ε refractory product (any particulate component of the mixture has an affect on the overall particle size distribution of the mixture), and
c. a particle size distribution adjusting component selected from the group consisting of brown fused alumina, white fused alumina and silicon carbide, wherein the particle size distribution adjusting component is present in an amount sufficient to adjust the particle size distribution of components (a), (b) and (c) (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).
KLAMKLANG teaches a particulate high-ε refractory product according 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). However, KLAMKLANG fails to explicitly teach that the refractory product has a particle size distribution which is substantially the same as the particle size distribution of the particulate refractory base material.
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 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 claim 2, as applied to claim 1 above, KLAMKLANG in view of GREEN teaches a particulate high-ε refractory product according to claim 1, wherein the particulate refractory base material further comprises (a3) 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).
Regarding claim 5, as applied to claim 1 above, KLAMKLANG in view of GREEN teaches a particulate high-ε refractory product according to claim 1, 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 (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).
Regarding claim 6, as applied to claim 1 above, KLAMKLANG in view of GREEN 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 the specific particle size 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 claim 7, as applied to claim 1 above, KLAMKLANG in view of GREEN 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 overlapping with and thereby rendering obvious the claimed range of 2 wt.% to about 10 wt.%, based on total weight of the particulate high-ε refractory product (see KLAMKLANG at paragraphs [0031], teaching 2 to 30% by weight binder). 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)).
Regarding claim 8, as applied to claim 1 above, KLAMKLANG in view of GREEN 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 overlapping with and thereby rendering obvious the claimed range of 75 wt.% to about 99 wt.%, based on total weight of the particulate high-ε refractory product (see KLAMKLANG at paragraph [0031]-[0034], teaching up to 60% by weight of fillers such as alumina and silica, up to 70% by weight of emissivity enhancers such as SiC and silica, and up to 20% matrix strength enhancers such as SiC; see also KLAMKLANG at [0041], teaching, by weight, 2 to 54% alumina, 6 to 18% SiC, and 4% silica, i.e., a total of up to 76% filler material). 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)).
Regarding claim 10, as applied to claim 1 above, KLAMKLANG in view of GREEN 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, as applied to claim 2 above, KLAMKLANG in view of GREEN teaches a particulate high-ε refractory product according to claim 2, 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, as applied to claim 2 above, KLAMKLANG in view of GREEN teaches a particulate high-ε refractory product according to claim 2, wherein the at least one refractory additive (a3) 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, as applied to claim 1 above, KLAMKLANG in view of GREEN 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, as applied to claim 13 above, KLAMKLANG in view of GREEN teaches a particulate high-ε refractory product according to claim 13, wherein the high-ε pigment is present in an amount of between about 3 wt.% and about 0 wt.%, as required by claim 15, between about 3 wt.% and about 8 wt.%, as required by claim 16, and between about 6 wt% and about 8 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).
Regarding claim 18, as applied to claim 16 above, KLAMKLANG in view of GREEN 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)).
Response to Arguments
Applicant's arguments filed 04/13/2026 have been fully considered but they are not persuasive.
Further, the Amendment filed by Applicant necessitated new grounds of rejection under 35 U.S.C. 112(b) for claims 1-2, 5-8 and 10-18 and under 35 U.S.C. 103 for claims 1, 7-8 and 10-18 over KLAMKLANG in view of GREEN as set forth above.
Applicant argues:
“the applied Klamklang reference discloses high-ε coating compositions that contain TiO2 that are intended to be applied to a substrate. There is therefore no suggestion at all in Klamklang with regard to adding a high-ε pigment to a particulate refractory base material so that when cured the entire depth of the resulting refractory structure (as opposed to merely a surface coating on a refractory substrate surface) has an emissivity (ε) of at least about 0.80” (see Remarks at pg. 12-13).
“there is no suggestion in either Klamklang or Green that the homogenous dispersion of high-ε pigment throughout the refractory base material (and hence homogenously dispersed throughout the depth of the resulting refractory structure when cured) in amounts sufficient to achieve an emissivity (ε) of at least 0.80 would alter the final particle size distribution (Dpsf) of the particulate high-E refractory product. It follows therefore that the neither of the applied references teach or suggest the addition of a particle size distribution adjusting component (c) as defined in amended claim 1… in accordance with the presently claimed invention, the flowability properties of the resulting particulate high-ε refractory product will be commensurate with the flowability properties of the particulate refractory base material to which the high-E pigment is added (i.e., since the particle size distribution adjusting component (c) as defined in amended claim 1 is added in amounts to "reset" the final Dpsf of the particulate high-ε refractory product” (see Remarks at pg. 13-14).
However, for at least the following reasons the Examiner finds these arguments unpersuasive:
In response to Applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., a cured structure with certain properties throughout a specific depth, flowability properties, etc.) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). It is noted that the claimed invention is drawn to a particulate refractory product, not to a castable refractory wet mix (e.g., as is claimed by withdrawn claim 19, not by the rejected claims) or to a cured article (e.g., as is claimed by withdrawn claim 20, not by the rejected claims). As set forth in the rejection above, the cited references disclose or render obvious the claimed limitations of the claimed particulate refractory product.
In response to Applicant’s argument that the claimed invention is novel and nonobvious because the cited references do not mention particle size distribution issues with forming a particulate product, the Examiner respectfully disagrees; the claimed invention is drawn to a particulate refractory product, not to a method of making a product (e.g., as is claimed by withdrawn claim 21, not by the rejected claims). Limitations regarding adding a component at a specific point in a process in order to change a property of the product being made are not relevant to and do not hold patentable weight the present product claim. The prior art only needs to disclose or render obvious the structural limitations of the claimed product, which has a single, set particle size distribution that is not being altered or changing as this is not a method claim, as discussed in the 112(b) rejections above. The claimed structural limitation of the product claim in question is a product comprising a mixture of components including a particle size distribution adjusting component selected from the group consisting of brown fused alumina, white fused alumina, and silicon carbide… such that the particle size distribution of the particulate high-ε refractory product is substantially the same as the particle size distribution of the particulate refractory base material component. As discussed in the rejection above, KLAMKLANG explicitly discloses silicon carbide and alumina (see KLAMKLANG at paragraphs [0032]-[0035], [0055] and [0125]) and teaches products 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]), and GREEN 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 (see GREEN at Section 4). 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). One of ordinary skill in the art would have found it obvious to vary, through routine experimentation and optimization, the particle size distribution of the refractory product of KLAMKLANG, including particle size distributions 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]).
Consequently, for at least these reasons the Examiner finds Applicant’s arguments unpersuasive.
Conclusion
Applicant’s amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 extension fee 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 date of this final action.
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/S.C.C./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731
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