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 1-16, in the reply filed on 08/06/2025 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)).
Claim 17 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 08/06/2025.
Drawings
The drawings are objected to because of the following informality: in Fig. 12, the x-axis is not defined. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 6-8 and 14 are objected to because of the following informalities:
Claim 6 appears to contain a grammatical error; it appears that “equals a total fiber” should read, e.g., “equals a total fiber content” or “equals a total amount of fiber”, etc. (see claim 6 at line 3). Claims 6-8 also recite “the total fiber” (see claim 6 at line 4 and claims 7-8 each at line 1), and it appears that these recitations should also refer to the total amount of fiber, total fiber content, etc.
Claim 6 appears to contain a typo; “0.1 %” should read “0.1%” (see claim 6 at line 4).
Claim 14 contains a punctuation error; “retarders accelerators” should read “retarders, accelerators” (see claim 14 at line 4).
Appropriate correction is required.
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 1-16 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.
Claims 1-5 recite the limitation of a "ratio" (see claim 1 at lines 7-8 and claims 2-5 each at lines 1-2), but the claims do not specify if this is a ratio based on weight or volume, rendering the metes and bounds of the claim unclear.
For purposes of examination, Examiner treated the ratios of claims 1-5 as being volumetric ratios. Clarification is requested.
Claim 5 recites the limitation “wherein the ratio is between 1:1” (see claim 5 at lines 1-2). The meaning of this limitation is not clear, as 1:1 is a single value, not a range of values, so the language of “between 1:1” does not make sense and renders the scope of the claim indefinite.
For purposes of examination, Examiner treated claim 5 is meaning that the ratio is 1:1. Clarification is requested.
Claim 6 recites the limitation “wherein the addition of the first amount of polymeric fiber and the second amount of recycled polymer fiber equals a total fiber in the cementitious mixture” (see claim 6 at lines 2-3); this language of “addition of” the fibers appears to be reciting a method step, while the present claim is a product claim. The meaning of this limitation is unclear as claim 1, from which claim 6 depends, is directed to a cementitious mixture which already comprises the polymeric material fibers; a limitation regarding addition of components to a composition which already includes those components renders the scope indefinite, and it is not clear if this limitation is meant to indicate that the cementitious mixture comprises additional fibers which are separate from the fibers already present in the mixture of claim 1.
For purposes of examination, Examiner treated claim 6 as though it recites the cementitious mixture of claim 1 wherein the first amount of fiber and second amount of fiber comprise the total amount of fiber in the mixture, and wherein the total amount of fiber is between 0.1% and 4% by volume of the mixture. Clarification is requested.
The term “high performance” in claim 9 (see claim 9 at line 3) is a relative term which renders the claim indefinite. The term “high performance” 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 performance criteria must be met to be considered a “high performance” cement as claimed, so it cannot be determined what cements do or do not meet the limitation of a “high performance cement”. Clarification is requested.
Claim 11 recites the limitation “The cementitious mixture according to claim 10, wherein the repurposed tire fiber is one or more of polyvinyl alcohol (PVA), polyethylene-terephthalate (PET), polypropylene and polyester” (see claim 11 at lines 1-3). Claim 11 depends from claim 10, which does not require that the cementitious mixture comprises repurposed tire fiber; repurposed tire fiber is one of several options, and claim 11 does not state that the cementitious mixture comprises the repurposed tire fiber. It is not clear if repurposed tire fiber is actually required by claim 11, or if any fiber of claim 10 other than repurposed tire fiber would also meet the limitations of claim 11, rendering the scope of the claim unclear.
For purposes of examination, Examiner treated claim 11 as meaning the cementitious mixture according to claim 10, wherein the mixture comprises the repurposed tire fiber, and wherein the repurposed tire fiber is one or more of PVA, PET and polyester. Clarification is requested.
Claims 7-8, 10 and 12-16 are included herein as each depends from a claim which is indefinite for reasons set forth above.
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 1-5 and 9-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Onuaguluchi, et al., “Value-added reuse of scrap tire polymeric fibers in cement-based structural applications”, Journal of Cleaner Production, vol. 231, pg. 543-555, 22 May 2019 (hereinafter, “ONUAGULUCHI”).
Regarding claim 1, ONUAGULUCHI teaches a cementitious mixture (see ONUAGULUCHI generally at Section 2.1) comprising:
a cementitious material (see ONUAGULUCHI at Section 2.1, teaching ordinary Portland cement (OPC));
aggregate (see ONUAGULUCHI at Section 2.1);
water (see ONUAGULUCHI at Section 2.2.1);
a first amount of polymeric material fiber (see ONUAGULUCHI at Abstract and Section 2.1, teaching polypropylene fibers (PP)); and
a second amount of recycled polymeric fiber (see ONUAGULUCHI at Abstract and Section 2.1, teaching scrap tire polymeric fibers (STF));
wherein the first amount and the second amount are defined by a ratio, the ratio between 1:7 and 7:1 (i.e., 0.14 to 7) (see ONUAGULUCHI at Table 1, teaching a hybrid combination of 0 0.2 to 0.5 vol.% PP fibers and 0.35 vol.% STF fibers, i.e., a ratio as claimed of 0.2:0.35 to 0.5:0.35, or 0.57 to 1.43).
Regarding claims 2-5, ONUAGULUCHI teaches a cementitious mixture according to claim 1, wherein the ratio is between 1:4 and 4:1 (i.e., 0.25 to 4) as required by claim 2, between 1:3 and 3:1 (i.e., 0.33 to 3) as required by claim 3, between 1:2 and 2:1 (i.e., 0.5 to 2) as required by claim 4, and wherein the ratio is 1:1, as required by claim 5 (see ONUAGULUCHI at Table 1, teaching a hybrid combination of 0.2 to 0.5 vol.% PP fibers and 0.35 vol.% STF fibers, i.e., a ratio as claimed of 0.2:0.35 to 0.5:0.35, or 0.57 to 1.43, and teaching a volumetric ratio of PP:STF fibers of 0.35:0.35, or 1:1).
Regarding claim 9, ONUAGULUCHI teaches a cementitious mixture according to claim 1, wherein the cementitious material is ordinary Portland cement (OPC) (see ONUAGULUCHI at Section 2.1).
Regarding claims 10-11, ONUAGULUCHI teaches a cementitious mixture according to claim 1, wherein the recycled polymeric fiber is repurposed tire fiber, which is polyester (see ONUAGULUCHI at Section 2.1, teaching that the STF fibers are polyester fibers).
Regarding claim 12, ONUAGULUCHI teaches a cementitious mixture according to claim 1, wherein the polymeric material fiber is polypropylene (see ONUAGULUCHI at Abstract and Section 2.1).
Regarding claim 13, ONUAGULUCHI teaches a cementitious mixture according to claim 1, wherein the aggregate is one or more of a fine aggregate, sand, and a coarse aggregate, (see ONUAGULUCHI at section 2.1).
Regarding claim 14, ONUAGULUCHI teaches a cementitious mixture according to claim 1, wherein the cementitious mixture further includes one or more additives, wherein the one or more additives are selected from superplasticizer, water reducer and air entrainment (see ONUAGULUCHI at Section 2.2.1 and Table 2).
Regarding claims 15-16, ONUAGULUCHI teaches a cementitious mixture according to claim 1. The limitations of “wherein the cementitious mixture is used for one or more of repair of structures, seismic retrofit, retaining structures, reinforced concrete structures, bridge decks, precast products, blast resistant structures and impact resistant structures” recited by claim 15 and “wherein the cementitious mixture is one or more of cast, 3D-printed and sprayed” recited by claim 16 are merely directed toward intended uses of the cementitious mixture, rather than being directed toward the cementitious mixture itself, and therefore do not limit the present product claim. The claimed invention is not directed toward a method of using a cementitious mixture. As ONUAGULUCHI teaches a cementitious mixture as claimed by claim 1, the cementitious mixture of ONUAGULUCHI would be expected to be able to perform the recited intended uses.
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.
Claims 1-8, 10, 12-13 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Nazar, et al. (WO-2016134350-A1) (hereinafter, “NAZAR”).
Regarding claim 1, NAZAR teaches a cementitious mixture (see NAZAR generally at Abstract), comprising:
a cementitious material (see NAZAR at Abstract and paragraph [0018]);
aggregate (see NAZAR at paragraphs [0013]-[0014] and [0018]);
water (see NAZAR at paragraph [0003]);
a first amount of polymeric material fiber (see NAZAR at paragraphs [0010], [0028], teaching a plurality of non-elastomeric reinforcement fibers, e.g., polypropylene or polyester); and
a second amount of recycled polymeric fiber (see NAZAR at paragraphs [0009]-[0010], [0020], [0023], [0025], [0044]-[0045], teaching recycled elastomeric polymer fibers, which are mixed or blended with the non-elastomeric fibers).
NAZAR does not explicitly teach that the first amount and second amount are defined by a ratio, the ratio between 1:7 and 7:1.
However, NAZAR teaches that the elastomeric fibers can serve as a carrier/buffer material for the non-elastomeric fibers, and that the reinforcement fibers (i.e., elastomeric and non-elastomeric fibers) can be added in varying amounts, as the amounts added affect the properties of the reinforced asphalt concrete; the amounts added are such that desired properties of the reinforced asphalt are achieved upon placement (see NAZAR at paragraphs [0005] and [0012]).
NAZAR therefore explicitly teaches that the content of the non-elastomeric fiber and the content of the elastomeric fiber, i.e., the ratio of the first amount of non-elastomeric fiber to the second amount of elastomeric fiber, is a result-effective variable that may be optimized by one of ordinary skill in the art, and explicitly states that the amounts should be varied in order to achieve desired properties (i.e., optimized). 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 ratio of the first amount of non-elastomeric fiber to the second amount of elastomeric fiber, including ratios within the claimed range, in order to determine suitable ratios such that the elastomeric fibers can effectively act as a buffer/carrier for the non-elastomeric fibers, and in order to achieve the desired properties of the asphalt cement concrete upon field placement as taught by NAZAR (see NAZAR at paragraphs [0005] and [0012]).
Regarding claims 2-5, as applied to claim 1 above, NAZAR teaches a cementitious mixture according to claim 1. NAZAR does not explicitly teach that the ratio is between 1:4 and 4:1 (as required by claim 2, between 1:3 and 3:1 as required by claim 3, between 1:2 and 2:1 as required by claim 4, or is 1:1, as required by claim 5.
However, as set forth in the rejection of claim 1 above, 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 ratio of the first amount of non-elastomeric fiber to the second amount of elastomeric fiber, including ratios within the recited ranges, in order to determine suitable ratios such that the elastomeric fibers can effectively act as a buffer/carrier for the non-elastomeric fibers, and in order to achieve the desired properties of the asphalt cement concrete upon field placement as taught by NAZAR (see NAZAR at paragraphs [0005] and [0012]).
Regarding claims 6-8, as applied to claim 1 above, NAZAR teaches a cementitious mixture according to claim 1, wherein the first amount of fiber and second amount of fiber comprise the total amount of fiber in the mixture, and wherein the total amount of fiber overlaps with and thereby renders obvious the claimed ranges of between 0.1% and 4%, as required by claim 6, between 1% and 3%, as required by claim 7, and 2%, as required by claim 8, by volume of the mixture (see NAZAR at paragraph [0040], teaching a total amount of reinforcing fibers of up to 5% by volume of the cement mixture). 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, NAZAR teaches a cementitious mixture according to claim 1, wherein the recycled polymeric fiber is recycled polyester (see NAZAR at paragraphs [0020] and [0025]).
Regarding claim 12, as applied to claim 1 above, NAZAR teaches a cementitious mixture according to claim 1, wherein the polymeric material fiber is one or more of polypropylene or polyester (see NAZAR at paragraphs [0010] and [0028]).
Regarding claim 13, as applied to claim 1 above, NAZAR teaches a cementitious mixture according to claim 1, wherein the aggregate is one or more of a fine aggregate, sand, and a coarse aggregate, (see NAZAR at paragraph [0018]).
Regarding claims 15-16, as applied to claim 1 above, NAZAR teaches a cementitious mixture according to claim 1. The limitations of “wherein the cementitious mixture is used for one or more of repair of structures, seismic retrofit, retaining structures, reinforced concrete structures, bridge decks, precast products, blast resistant structures and impact resistant structures” recited by claim 15 and “wherein the cementitious mixture is one or more of cast, 3D-printed and sprayed” recited by claim 16 are merely directed toward intended uses of the cementitious mixture, rather than being directed toward the cementitious mixture itself, and therefore do not limit the present product claim. The claimed invention is not directed toward a method of using a cementitious mixture. As NAZAR teaches a cementitious mixture as claimed by claim 1, the cementitious mixture of NAZAR would be expected to be able to perform the recited intended uses.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CATHERINE CASE whose telephone number is (703)756-5406. The examiner can normally be reached M-Th 7:00 am - 5:00 pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Orlando can be reached on (571) 270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/S.C.C./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731