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 .
Claim Rejections - 35 USC § 102
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.
Claim(s) 1, 2, 4-6, 8 and 9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bu (CN 109180098A).
Regarding claim 1: Bu teaches a cementitious composition comprising 25 kg Portland cement [0017], 24.5 kg slag (supplementary cementing material), 2 kg of polyurethane powder, and 46 kg of vitrified microspheres [0029] (the claimed aggregate). Assuming a bulk density of 125 kg/m3 for the vitrified microspheres and a bulk density of 320 kg/m3 for the polyurethane powder, Bu teaches a volume ratio of 1.67% [0029]. The value of 1.67 vol%, when converted to the claimed significant digits, is 2 vol%. See Viskase Corp. v. Am. Nat’l Can Co., 261 F.3d 1316, 1320–21 (Fed. Cir. 2001) where the district court interpreted 0.91 to include the values between 0.905 and 0.914, based on the reasoning that numbers in that range would be rounded to 0.91.
Regarding claim 2: Since claim 2 covers all five types of cement, the Portland cement of Bu will inherently be one of the claimed cement types.
Regarding claims 4-6: Bu teaches 25 kg Portland cement [0017] and 24.5 kg slag [0029], which meets the claimed weight ratio of claim 6.
Regarding claim 8: Bu teaches a particle size of 1-3 mm [0019].
Regarding claim 9: For this claim the 46 kg of vitrified microspheres [0029] is being considered the claimed aggregate. Bu teaches the claimed ratio [0029].
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 4-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dombrowski et al. (2014/0275307).
Regarding claim 1: Dombrowski et al. teach a cementitious composition comprising 28 wt% of Portland Cement Type 1 (claimed composite hydraulic binder; CEM I), powdered polyurethane, and quartz sand (claimed aggregate) [Examples; Tables]. Dombrowski et al. teach 40 to 70 parts by weight of quartz sand and 0.1 to 6 wt% of the additive comopsion [0052], which is the powdered polyurethane in the example of Dombrowski et al.
The ranges provide an overlapping range to the claimed volume percentage range. When the powdered polyurethane is between 0.18 wt% and 1.73 wt% (using the same bulk density for the components as presented in the instant specification), the volume percentage is between 2 and 10 vol%, throughout the range of 40 to 70 parts by weight of quartz sand. 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.
Regarding claim 2: Dombrowski et al. teach Portland Cement Type 1 (equivalent to CEM I) and calcium carbonate (claimed supplementary cementing material) [0044; Examples; Table 1]. Calcium carbonate is considered an equivalent to limestone in claim 4.
Regarding claims 4 and 5: Dombrowski et al. teach slag cement as one of the inorganic binders along with Portland cement [0048, 0051]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a mixture of Portland cement and slag. It is obvious to combine separately taught prior art ingredients which perform the same function; it is logical that they would produce the same effect and supplement each other. In re Crockett 126 USPQ 186. See MPEP 2144.06.
Regarding claim 6: Dombrowski et al. teach 28.00 wt% Portland cement and 8.00 wt% calcium carbonate (supplementary material) [Table 1], which is a weight ratio of 28:8 or 7:2.
Regarding claim 7: Dombrowski et al. teach calcium sulfate hemihydrate or alumina cement as one of the inorganic binders along with Portland cement [0048, 0051]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a mixture of Portland cement and calcium sulfate hemihydrate or a mixture of calcium sulfate hemihydrate and alumina cement. It is obvious to combine separately taught prior art ingredients which perform the same function; it is logical that they would produce the same effect and supplement each other. In re Crockett 126 USPQ 186. See MPEP 2144.06.
Regarding claim 8: Dombrowski et al. teach the claimed particle size [Examples; Table 2].
Regarding claim 9: Dombrowski et al. teach the claimed percentage of powdered urethane to quartz sand [Table 1; Examples].
Regarding claim 10: Dombrowski et al. teach a porcessable cementitious composition obtained by making the composition described above in claim 1 with water, with the claimed water/powder weight ratio [Examples; Tables 3 and 6].
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dombrowski et al. (2014/0275307) as applied to claim 1 above further in view of Buhler et al. (2011/0039984).
Dombrowski et al. fail to specify the claimed Portland cement type.
However, Buhler et al. teach that CEM II, III, IV and VI can be used interchangeably with type I in construction compositions [0041].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use CEM II, III, IV V or VI as the Portland cement in Dombrowski et al. It is a simple substitution of one known element for another to obtain predictable results.
Response to Arguments
Applicant's arguments filed 6/22/2026 have been fully considered but they are not persuasive.
The applicant has made the argument that the example of Dombrowski fails to teach the claimed volume ratio. This is not persuasive because Dombrowski teaches ranges in the broader disclosure that overlap the claimed volume ratio. 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.
The applicant has alleged that the volume ratio of Bu is less than 2 vol%. Assuming a bulk density of 125 kg/m3 for the vitrified microspheres and a bulk density of 320 kg/m3 for the polyurethane powder, Bu teaches a volume ratio of 1.67% [0029]. The value of 1.67 vol%, when converted to the claimed significant digits, is 2 vol%. See Viskase Corp. v. Am. Nat’l Can Co., 261 F.3d 1316, 1320–21 (Fed. Cir. 2001) where the district court interpreted 0.91 to include the values between 0.905 and 0.914, based on the reasoning that numbers in that range would be rounded to 0.91.
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 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.
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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