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
In response to the amendment received on 07/04/2025:
claims 2, 8 and 10 are currently pending; and
all prior art grounds of rejection are withdrawn in light of the amendments that incorporated the steps in lines 7-10 for the claimed preparation method; however, new grounds of rejection are presented based on the same references as set forth herein.
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 2, 8 and 10 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 2 line 16 recites “mineral slag, pozzolan, and fly ash”. The recitation is indefinite because “the boundaries of the protected subject matter are not clearly delineated and the scope is unclear… for example, a genus claim that could be interpreted in such a way that it is not clear which species are covered would be indefinite (e.g., because there is more than one reasonable interpretation of what species are included in the claim)” (see MPEP 2173.04). In this instance, it is not clear if the protected subject matter is the genus “pozzolan” or the species “mineral slag and fly ash”, as evidenced by Conservation (Mineral land classification of the long valley pozzolan deposits, Lassen County, California, 2001) at page 13, paragraph 5 evidencing the artificial pozzolan market is dominated by fly ash… ground blast furnace slag.
Examiner will treat the limitation as reciting “wherein the activatable mineral comprises… pozzolan”.
Examiner suggests amending the claim to either: i) remove the broader/genus limitations as desired; ii) amend the claim so as to incorporate the narrower/specie limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Claim 10 lines 3-4 recites “a porous water-absorbent material” twice, wherein the second porous water-absorbent material is indefinite because it is not clear if the first and the second “porous water-absorbent material” is the same or different.
Examiner will treat the recitation as the same “porous water-absorbent material” and suggests amending the claim to either i) replace the second “a” with “the”, such that the recitation reads “wherein the water storage material is a porous water-absorbent material, or a combination of the porous water-absorbent material…”, or ii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Claim 8 is rejected due to its dependency on claim 2.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 2, 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Xie et al. (Preliminary investigation of the hydration mechanism of MgO-SiO2-K2HPO4 cement, Construction and Building Materials, 2019) (“Xie” hereinafter) in view of Gao et al. (CN 112661481 A, with reference to the machine translation) (“Gao” hereinafter), and Chen et al. (CN 110590206 A, with reference to the machine translation) (“Chen” hereinafter); as evidenced by Vijan et al. (The influence of potassium phosphate and fly ash addition on the setting time and mechanical strengths of magnesium phosphate cements, Sci. Bull. Ser., 2020) (“Vijan” hereinafter), with respect to claim 2.
Regarding claim 2, Xie teaches a preparation method of a magnesium phosphate-alkali activated composite cementitious material (see Xie at Abstract teaching a novel high-strength Magnesium Silicon Potassium Phosphate Cement (MSPPC), see Xie at pages 2-3 right column sections 2 and 2.3 teaching materials and methods… preparation). Magnesium silicon potassium phosphate cement (MSPPC) is taken to meet the claimed magnesium phosphate-alkali activated composite cementitious material, by using raw materials as follows:
dead-burned magnesia (DBM) (see Xie at page 2, right column, section 2.1 teaching magnesium oxide (MgO)… the magnesium oxide… produced by calcining magnesite at 1500). Calcined magnesium oxide is taken to meet the claimed dead-burned magnesia as evidenced by Vijan (see Vijan at page 22, section 2, bullet 1 evidencing dead burnt magnesia… obtained by the calcination of magnesite at 1500 oC),
monohydrogen phosphate (see Xie at page 2, right column, section 2.1 teaching dipotassium hydrogen phosphate (K2HPO4·3H2O)… (DHP)),
silica fume (see Xie at page 2, right column, section 2.1 teaching silica fume), and
water (see Xie at page 2, right column, section 2.1 teaching tap water).
Xie does not explicitly teach that the raw materials further comprises the i) activatable mineral, wherein the activatable mineral comprises… pozzolan, ii) a water storage material, iii) 38-52 parts by weight of dead-burned magnesia (DBM), 8-20 parts by weight of a monohydrogen phosphate, 6-20 parts by weight of silica fume, 8-20 parts by weight of water, 6-28 parts by weight of an activatable mineral, and 0.2-9 parts by weight of a water storage material, and iv) wherein the preparation method comprises the steps of: mixing a part of the water with the water storage material, and then mixing a resulting mixture with the DBM, the monohydrogen phosphate, the silica fume, remaining water, and the activatable mineral into a mold, hardening, demolding, and air-curing a hardenite to prepare the magnesium phosphate-alkali activated composite cementitious material.
However, Xie teaches that MSPPC created by mixing dipotassium hydrogen phosphate (K2HPO4, DHP (P)), silica fume (SF), MgO and Water (W), without the use of a retarder… in MgO-SiO2-K2HPO4 system… the active silicon components in silica fume are fully involved in the acid-base reaction, improving the mechanical properties and compactness of microstructure of MSPPC… main hydration product struvite-K has good crystallization, compact accumulation, high density of cross-section structure and good structural integrity of MSPPC… expected secondary hydration products are magnesium silicate gel (e.g., MgSiO3) and amorphous silicon phosphate phases, contributing to the strength in MSPPC pastes (see Xie at Abstract).
With respect to i) and iii), like Xie, Gao teaches a cementitious composition comprising magnesium oxide, phosphate, silica fume and water (see Gao at [0007] teaches a fast-setting anchoring material, which includes… magnesium oxide… phosphate… mineral admixture… water, see Gao at [0013] teaching the mineral admixture includes one or more of silica fume, metakaolin and fly ash). Fly ash in the mineral admixture is taken to meet the claimed i) activatable mineral, wherein the activatable mineral comprises… pozzolan based on the specification at [0010] disclosing the activatable mineral includes any one of… fly ash.
Like Xie, Gao teaches struvite (see Gao at [0018] teaching the hydration product struvite is the main source of strength, aging resistance and fire resistance of the fast-setting inorganic anchoring material… the addition of the mineral admixture can achieve the purposes of adjusting the setting time, improving the density of the slurry, reducing costs, etc.).
Gao also teaches the following:
38-52 parts by weight of the DBM (see Gao at [0007] teaching by weight… 40 to 80 parts magnesium oxide (see MPEP 2144.05(I)), see Gao at [0009] teaching the magnesium includes over-burned magnesium oxide),
8-20 parts by weight of the water (see Gao at [0007] teaching by weight… 10 to 25 parts of water (see MPEP 2144.05(I)),
6-20 parts by weight of the silica fume, 6-28 parts by weight of the activatable mineral (or fly ash), see Gao at [0007] teaching by weight… 5 to 30 parts of mineral admixture, see Gao at [0041] teaching the mineral admixture is a mixture of fly ash and silica fume (mass ratio is 2:1)). One of ordinary skill in the art would appreciate that the amount of fly ash (or activatable mineral) is 3.3 to 20 parts by weight (from mass ratio of 2 in 5 to 30 parts mineral admixture), and the amount of silica fume is 1.7 to 10 parts by weight (from mass ratio of 1 in 5 to 30 parts mineral admixture) (see MPEP 2144.05(I)).
Xie also teaches P = K2HPO4; M = MgO (see Xie at page 2, right column, section 2.2, paragraphs 1-2). Xie further teaches mixture ID P-1… P/M (% by weight)… 1/2 (see Xie at page 3, left column, Table 2, row 1). If there is 38-52 parts by weight of the DBM as taught by Gao, then there is 19-26 (or 38-52 ÷ 2) parts by weight of a monohydrogen phosphate, which overlaps with the phosphate as taught by Gao (see Gao at [0007] teaching by weight… 15 to 40 parts of phosphate). 19-26 parts by weight of a monohydrogen phosphate as taught by Xie overlaps with the claimed 8-20 parts by weight of a monohydrogen phosphate (see MPEP 2144.05(I)).
Additionally, 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", and “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” (see MPEP § 2144.05.II.A).
As such, one of ordinary skill in the art would appreciate that Gao teaches that mineral admixture comprising silica fume and fly ash can adjust the setting time, improve the density of the cementitious slurry and reduce cost, and seek those advantages by adding fly ash in the magnesium phosphate-alkali activated composite cementitious material (MSPPC) comprising silica fume as taught by Xie.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to add fly ash as taught by Gao in the magnesium phosphate-alkali activated composite cementitious material (MSPPC) as taught by Xie so as to adjust the setting time, improve the density of the cementitious slurry and reduce cost, and to have selected amounts of the raw materials of the magnesium phosphate-alkali activated composite cementitious material (MSPPC) as taught by Xie from within the range taught by Gao because there is a reasonable expectation of success that the disclosed amounts would be suitable.
With respect to ii) and iii), like Xie, Chen teaches a cementitious composition comprising magnesium oxide, phosphate and water (see Chen at [0008] teaching the ordinary magnesium phosphate cement comprises dead-burned magnesium oxide, potassium dihydrogen phosphate… water, and the mass of the super absorbent resin, and see Chen at [0061] teaching the water in the resin will be released). The super absorbent resin is taken to meet the claimed ii) a water storage material based on specification at [0011]-[0012] disclosing the water storage material is at least one of… a water-absorbent resin… using internal water replenishment (adding a water storage material) because one of ordinary skill in the art would appreciate that the super absorbent resin contains water that would be capable of internal water replenishment.
Chen also teaches it is urgent to find a new curing method to cure MPC, so as to ensure that not only its setting time is met, but also its later strength is well developed, and at the same time, the volume instability of MPC during the hydration process can be improved (see Chen at [0005]), and the purpose of the present disclosure is to provide a method for internal curing of magnesium phosphate cement by adding super absorbent resin in view of the lack of curing means at the current stage (see Chen at [0007]). Chen further teaches during the curing process, the water in the resin will be released, allowing further hydration to occur, resulting in a faster development of the later compressive strength (see Chen at [0061]).
Chen teaches 0.2-9 parts by weight of the water storage material (see Chen at [0008] teaching the mass of the super absorbent resin is 0.3%-0.9% of the total mass), which is taken to meet the claimed range of 0.2-9 parts by weight (see MPEP 2144.05(I)) since in this instance, the units are comparable.
Additionally, 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", and “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” (see MPEP § 2144.05.II.A).
As such, one of ordinary skill in the art would appreciate that Chen teaches that adding super absorbent resin in the magnesium phosphate cement would allow for internal curing so as to ensure setting time is met, later strength is well developed, and improve volume instability during the hydration process, and seek those advantages by adding super absorbent resin in the magnesium phosphate-alkali activated composite cementitious material (MSPPC) as taught by Xie.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to add super absorbent resin as taught by Chen in the magnesium phosphate-alkali activated composite cementitious material (MSPPC) as taught by Xie so as to allow for internal curing, ensure setting time is met, later strength is well developed, and improve volume instability during the hydration process, and to have selected amounts of the raw materials of the magnesium phosphate-alkali activated composite cementitious material (MSPPC) as taught by Xie from within the range taught by Chen because there is a reasonable expectation of success that the disclosed amounts would be suitable.
With respect to iv), Xie teaches DHP was completely dissolved in the water before mixing the magnesium oxide and silica fume… after casting, the samples were cured at room temperature for 24 h and then demolded for conditioning… the conditioning regimes were: temperature at 20 +/- 2 oC and relative humidity less than 60% (see Xie at page 2 right column, section 2.3 to page 3, left column, paragraph 1). One of ordinary skill in the art would appreciate that the raw materials were mixed to form the MSPPC mixture, placed in the mold and hardened because there is a demolding step, and air cured because of the conditioning regimes, thus forming the composite cementitious material.
Chen teaches a method for internal curing of magnesium phosphate cement by adding super adsorbent resin comprises the following steps… (1) weight the following raw materials… dead-burned magnesium oxide… super absorbent resin and water… (2) poring the heavily burned magnesium oxide into a stirring pot… then adding super absorbent resin and stirring evenly… then adding water and stirring evenly… and finally stirring and mixing evenly to obtain magnesium phosphate cement slurry… (3) the magnesium phosphate cement of step (2) is rapidly poured and vibrated to make it dense, and cured in the air until the form is removed, and then continued to be naturally cured in the air (see Chen at [0013]-[0016]). One of ordinary skill in the art would appreciate that the super absorbent resin is mixed with the raw materials for the magnesium phosphate based cement.
MPEP states that the “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results” (see MPEP § 2144.04.IV.C). Additionally, MPEP states 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” (see MPEP § 2144.05.II.A).
It is within the ability of one skilled in the art, with the benefit of the teachings of Xie and Chen to choose the mixing sequence of the raw materials, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results, and it is the normal desire of scientists or artisans to improve upon what is already generally known. In this instance, the expected result is a magnesium phosphate based cement.
Regarding claim 8, Xie in view of Gao and Chen teaches the limitations as applied to claim 2, and Chen further teaches wherein the water storage material is a water-absorbent resin (see Chen at [0008] teaching super absorbent resin, see Chen at [0061] teaching the water in the resin will be released), which is taken to meet the claimed limitation based on specification at [0011]-[0012] disclosing the water storage material is at least one of… a water-absorbent resin… using internal water replenishment (adding a water storage material) because one of ordinary skill in the art would appreciate that the super absorbent resin contains water that would be capable of internal water replenishment.
Regarding claim 10, Xie in view of Gao and Chen teaches the limitations as applied to claim 2, and Chen further teaches wherein the water storage material is… a combination of the porous-water absorbent material and a water-absorbent resin (see Chen at [0008] teaching super absorbent resin, see Chen at [0061] teaching the water in the resin will be released). It is within the ability of one skilled in the art in the absence of new or unexpected results, with the benefit of Chen’s disclosure, to select a suitable combination of a porous-water absorbent material and a water-absorbent resin that is capable of internal water replenishment for the magnesium-based based cement.
Response to Arguments
Applicant's arguments filed 07/04/2025 have been fully considered but they are not persuasive.
Applicant discusses that Xie fails to teach (1) the amounts of raw materials, (2) the raw material further comprises a water storage material, (3) the step of first mixing a part of the water with the water storage material and then mixing a resulting mixture with remaining raw materials, or (4) a method for preparing a magnesium phosphate-alkali activated composite cementitious material with rapid hardening, early strength and high water resistance, and Gao i) does not require the coexistence of silica fume and fly ash, ii) silent on the any reaction that the mineral admixture participates, iii) the fly ash as taught by Gao does not participate in the reaction because Gao uses dihydric phosphate; as such, Xie nor Gao nor their combination teaches the reaction of fly ash activated by alkali or technical results therefrom… while the present application discloses the activation of a strong alkali and the replenishment of water by the water storage material permit the activatable mineral including fly ash to react and hydrate and is entirely different from Xie and Gao (see Applicant’s arguments at page 4 paragraph 1 to page 5 paragraph 2, page 6 paragraph 4).
Examiner acknowledges the arguments and respectfully notes that applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Furthermore, with respect to i) above, Gao teaches the mineral admixture is a mixture of fly ash and silica fume (mass ratio is 2:1) (see Gao at [0041]); thus, Gao teaches fly ash.
Additionally, the fact that the inventor has recognized another advantage (i.e., activation of a strong alkali and the replenishment of water by the water storage material permit the activatable mineral including fly ash to react and hydrate) which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicant discusses that Chen fails to teach first mixing the super absorbent resin with water before mixing with other raw materials, and the addition of a super adsorbent resin as taught by Chen prolongs the setting time… when combined with Xie that uses K2HPO4 to prolong the setting time without retarder, a person of ordinary skill in the art would have no idea how to shorten the setting time as in the claimed invention (see Applicant’s arguments at page 5, paragraph 3 to page 6, paragraph 3).
Examiner acknowledges the arguments and respectfully notes the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this instance, one of ordinary skill in the art would appreciate that an internal water replenishment is added to the magnesium phosphate based cement, and the order of mixing is obvious based on MPEP § 2144.04.IV.C. As such, the rejection is maintained.
Applicant discusses that none of the cited references teaches claim 10 limitations (see Applicant’s arguments at page 7, paragraph 1).
Examiner acknowledges the arguments and respectfully notes claim 10 is rejected based on Xie in view of Chen as outlined above. The rejection is maintained.
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.
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/M.G.U./Examiner, Art Unit 1731
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731