DETAILED ACTION
Applicant has amended the claims. Support for the new limitation is found in the original filing. No new matter is presented.
The remarks in conjunction with the amendments filed 6/25/2026 do not overcome the previously cited prior art for the reasons below set forth.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicants’ submission filed on 6/25/2026 has been entered.
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.
Claim(s) 7-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al (US 2016/0355436) alternatively as evidenced by Devenney et al (WO 2013/165600A1)
Regarding claims 7-20
Chen et al (US 2016/0355436) discloses a product of aragonite building material with a water repellant in a cement composition [0005] Reactive vaterite is in a solution containing water [0006] and is transformed to aragonite to set harden and form cement [0007]
The aragonite may be needle shaped [0042][0131] (i.e. acicular thereby necessarily interlocking of instant claim 18) (meeting claim 7).
Fig 2 shows transition from vaterite to aragonite [0012] vaterite is contacted with water to form aragonite [0018] the activation of vaterite may control the aragonite formation and crystal growth [0020] the vaterite composition comprises a water repellant [0029] (meeting claim 10 for water repellant)
The vaterite composition may also comprise amorphous calcium, calcite, hydraulic cement, supplementary cement material [0016] (meeting claim 11 for supplementary cement material for example)
[0042] Vaterite in the metastable carbonate may be present in monodisperse or agglomerated form, and may be in spherical, ellipsoidal, plate like shape, or hexagonal system. Vaterite typically has a hexagonal crystal structure and forms polycrystalline spherical particles upon growth.
The composition may comprise magnesium carbonate [0034] (meeting claims 9) and magnesium silicate [0106] (meeting claim 9)
The composition may comprise clinker of Portland cement [0108] (meeting claim 11) Portland cement clinker supplementary cement and combinations may be combined before combining the composition with an aqueous medium [0235]
In some embodiments, the composition provided herein is a particulate composition with an average particle size of 0.1-100 microns. The average particle size may be determined using any conventional particle size determination method, such as, but is not limited to, multi-detector laser scattering or sieving (i.e. <38 microns). In certain embodiments, unimodal or multimodal, e.g., bimodal or other, distributions are present. [0093] (meeting claim 8)
The product may comprise pores [0046] [0048] The product has reduced capillary forces in the pores and reduced water absorption in the pores of the aragonitic product [0045] (meeting claim 17 and overlapping or rendering obvious claim 20 for pore distribution esp. given the broadly claimed range thereof) The product may be coated with a water repellent to improve hydrophobicity [00047] (further overlapping claim 20
The composition is formed into aggregates [0015] (meeting claim 7)
The vaterite may be dried precipitate (i.e. particles) before mixing with water to form aragonite [0202] The vaterite is activated and combined with water and rinsed followed by dewatering to form a precipitate [0206]
The particles may be a collection of larger particles and smaller particles there may be one or two or three or four or five different sized particles [0207] (meeting claim 8)
The composition may be used in aggregates for concrete [0209]
A vaterite composition may be further activated by adding aragonite seed for admixtures and aggregate and supplementary cement compositions to produce a final composition which may be ground milled etc.to obtain a desired physical property and size [0210] (meeting claim 14)
The composition may be processed in a station for preparing building material such as cement to produce aggregates [0226] (meeting claims 1 and 7 rendering obvious to try by one of ordinary skill in the art at the time of filing the invention depositing layers of agglomerated material)
The composition may be cured [0007][0210] such as at high temperature 40-100 °C in high humidity such as 30-60 % humidity [0243][0252 0253] (meeting claim 15 overlapping claim 16 for temperature and/or humidity) The temperature including boiling point of water will evaporate the water as in instant claim 17)
The composition may be dried by air drying spray drying vacuum drying and oven drying at temperatures up to 120 °C drying may occur at 150-250° C [0206] (further meeting claim 17 for evaporation and meeting claim 13 for dry spraying) (spraying will inherently be intermittent or constant of claim 12)_
The bulk density is 75-80 lb/ft3 [0096] (overlapping the range of claim 20 )
The composition is formed into aggregates [0231]
The composition will be allowed to set and harden into a cement product [0232]
The composition will harden and the vaterite transforms to aragonite [0233]
The composition may form in a mold [0234] and the composition may be extruded pelleted or crushed [0235] (giving the claims the broadest reasonable interpretation in view of the specification pelletizing and extrusion meet the limitation for depositing layers of instant claim 7 – see instant specification at [0012][0015][0087][0109][0236-0238])
The composition will form an aggregate which may be refined [0236]
The processing of the product is done at suitable conditions such as temperature pressure including above atmospheric time for setting aqueous medium ratio etc. [0239] (overlapping claim 16)
Vaterite in the metastable carbonate may be present in monodisperse or agglomerated form, and may be in spherical, ellipsoidal, plate like shape, or hexagonal system. Vaterite typically has a hexagonal crystal structure and forms polycrystalline spherical particles upon growth. Calcite, if present, may be cubic, spindle, or crystals of hexagonal system. [0042] rending obvious to one of ordinary skill in the art at the time of filing the invention that the product of the method resulting in at least some product which possesses the hexagonal system (i.e. honeycomb) esp. where the vaterite which is treated is a hexagonal/honeycomb system.
The precursor form of vaterite comprises nanoclusters of vaterite and the precursor form of aragonite comprises sub-micron to nanoclusters of aragonite needles. Aragonite, if present in the composition, may be needle shaped, columnar, or crystals of the rhombic system. (i.e. aggregate) Calcite, if present, may be cubic, spindle, or crystals of hexagonal system. An intermediary phase that is less stable than calcite may be a phase that is between vaterite and calcite, a phase between precursor of vaterite and calcite, a phase between aragonite and calcite, and/or a phase between precursor of aragonite and calcite.[0042]
The cement combined with aggregate forming concrete with the vaterite etc. [0059] The composition mixed with aggregate and water to form concrete [0112]
The composition in the powder form or after setting and hardening will possess a bulk density of between 90 lb./f3-110 lb/ft or 75-80 lb/ft3 [0096] (within the range taught for the product of the instant application at [0004] as corelating to formation of interlocking acicular shaped aragonite [0008] and the spec which recognizes the honeycomb structure reduces bulk density instant spec. [0034] – the reference teaching the claimed bulk density corresponds to the claimed honeycomb structure)
The aragonite having been formed by the claimed process will necessarily possess the claimed properties and structural affect in ranges which meet and or overlap the instantly claimed ranges. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir.1990) “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)
See MPEP 2144.05(I): "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)"
The “product” as used herein includes any cementitious or non-cementitious structure formed from the compositions provided herein. The products include, but are not limited to, cementitious structures such as building material, formed building material etc. and non-cementitious structures include, but not limited to, paper paint etc. As described herein above, the products are formed from the vaterite compositions which after dissolution-reprecipitation (after combining with water) convert to aragonite and set and harden to form products. In one aspect, there is provided a structure or a building material or a product comprising the composition provided herein or the set and hardened form thereof. [0116]
Formed building materials include 50-95 %aragonite [0118][0119] the aggregate is made from the compositions herein [0123]
The vaterites is active by milling and curing to desired activation and particle size including aragonite seed. Refinement may include a variety of different protocols. In certain embodiments, the product is subjected to mechanical refinement, e.g., grinding, in order to obtain a product with desired physical properties, e.g., particle size, etc. The dried precipitate may be milled or ground to obtain a desired particle size. [0210] (i.e. aggregate) The compositions provided herein may be used to make cement products such as building materials or pre-cast or formed building materials, and/or aggregates [0231][0236] (i.e. aggregate of aragonite)
The examiner maintains that the hexagonal structure of the prior art meets the limitations for “honeycomb” and interlocking aggregate
Alternatively, as further evidenced by (WO 2013/165600) teaches that reactive vaterite will form clusters and the resulting form of aragonite made therefore which may be needle shaped will also cluster (i.e. agglomerate) [0032-0034] one of ordinary skill in the art at the time of filing the invention would expect at least some of the composition to agglomerate forming aggregates in Chen as taught by WO 2013/165600) WO: The vaterite or reactive vaterite may be monodisperse or agglomerated and may possess a hexagonal system vaterite typically has a hexagonal crystal structure [0033]
Further: While applicant does not expressly claim the curing conditions, but merely recites: “in a way”, the examiner notes: The curing conditions of the reference are similar to those of the instant application. The curing is at 60° C., 95% RH [0252] Curing at 50ºC-100ºC and 30% humidity or 60% humidity [0243] See reference at [0239] and pressure may be atmospheric [0249] Instant specification curing: pressure heat and/or humidity to transform the reactive vaterite cement in aggregates with interlocking acicular shape In some embodiments, the pressure during curing is between about 10-10,000 psi; heat is between about 20-150°C; and/or humidity is between about 40-100% relative humidity (RH). These ranges may vary depending on the constitution of the aggregate including its water content or the desired bulk density. [0091] As such the product of the reference is being cured in a way that one of ordinary skill in the art at the time of filing the invention would expect to encompass at least some of the instantly claimed honeycomb structure with a reasonable degree of success. The examiner notes that the prior art teaches all of the limitations of the claims. The reference also teaches curing conditions (while not expressly recited in the claims) which are similar to those of the instant specification. As such the examiner maintains the reference renders obvious to one of ordinary skill in the art at the time of filing the invention the limitations for “curing the aggregates to transform the reactive vaterite cement into interlocking acicular shaped aragonite to form aggregates, in a way that interlocking acicular shaped aragonite particle form a honeycomb structure thereby surrounding one or more voids.”
Response to Arguments
Applicant's arguments filed 1/26/2026 have been fully considered but they are not persuasive.
The examiner notes the claims are directed to a method and not to a product. The prior art teaches the claimed method steps utilizing the claimed materials to be worked upon using conditions which overlap eh instantly claimed conditions. As such a prima facie showing of obviousness has been established. Further since the prior art teaches the method with the claimed materials and conditions the product of the prior art would be expected to have the argued function and properties at very least in overlapping ranges.
Applicant argues the prior art does not teach vaterite aggregate blending cement with aggregate
Instant specification defines aggregate:
The term "aggregate" as used herein includes its art-accepted manner to include a material that finds use in concretes, mortars, and other materials, e.g., building materials, such as roadbeds, asphalts, and other structures and/or formed building materials, and/or is suitable for use in such structures and/or any other applications as described herein.
The above prior art as above cited teaches the vaterite and aragonite used in various building materials thereby meeting the instant definition thereof.
Vaterite in the metastable carbonate may be present in monodisperse or agglomerated form, and may be in spherical, ellipsoidal, platelike shape, or hexagonal system. Vaterite typically has a hexagonal crystal structure and forms polycrystalline spherical particles upon growth. Calcite, if present, may be cubic, spindle, or crystals of hexagonal system. [0042] rending obvious to one of ordinary skill in the art at the time of filing the invention that the product of the method resulting in at least some product which possesses the hexagonal system (i.e. honeycomb) esp. where the vaterite which is treated is a hexagonal/honeycomb system.
The composition in the powder form or after setting and hardening will possess a bulk density of between 90 lb./f3-110 lb/ft or 75-80 lb/ft3 [0096] (within the range taught for the product of the instant application at [0004] as corelating to formation of interlocking acicular shaped aragonite [0008] and the spec which recognizes the honeycomb structure reduces bulk density instant spec. [0034] – the reference teaching the claimed bulk density corresponds to the claimed honeycomb structure)
The aragonite having been formed by the claimed process will necessarily possess the claimed properties and structural affect in ranges which meet and or overlap the instantly claimed ranges. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir.1990) “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) See MPEP 2144.05(I): "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)"
Alternatively, as further evidenced by (WO 2013/165600) teaches that reactive vaterite will form clusters and the resulting form of aragonite made therefore which may be needle shaped will also cluster (i.e. agglomerate) [0032-0034] one of ordinary skill in the art at the time of filing the invention would expect at least some of the composition to agglomerate forming aggregates in Chen as taught by WO 2013/165600) The vaterite or reactive vaterite may be monodisperse or agglomerated and may possess a hexagonal system vaterite typically has a hexagonal crystal structure [0033]
While applicant does not expressly claim the curing conditions, but merely recites: “in a way”, the examiner notes: The curing conditions of the reference are similar to those of the instant application. The vaterite is cured at 60° C., 95% RH [0252] Curing at 50ºC-100ºC and 30% humidity or 60% humidity [0243] See reference at [0239] and pressure may be atmospheric [0249] Instant specification curing: pressure heat and/or humidity to transform the reactive vaterite cement in aggregates with interlocking acicular shape In some embodiments, the pressure during curing is between about 10-10,000 psi; heat is between about 20-150°C; and/or humidity is between about 40-100% relative humidity (RH). These ranges may vary depending on the constitution of the aggregate including its water content or the desired bulk density. [0091] As such the product of the reference is being cured in a way that one of ordinary skill in the art at the time of filing the invention would expect to encompass at least some of the instantly claimed honeycomb structure with a reasonable degree of success.
Applicants’ assertion that Chen uses the word aggregate to mean a blend of vaterite cement with aggregate is inaccurate. Chen defines aggregate:
As such, the term “aggregate” is used broadly to refer to a number of different types of both coarse and fine particulate material, including, but are not limited to, sand, gravel, crushed stone, slag, and recycled concrete. The amount and nature of the aggregate may vary widely. In some embodiments, the amount of aggregate may range from 25 to 80%, such as 40 to 70% and including 50 to 70% w/w of the total composition made up of both the composition and the aggregate. [0111]
See also the above citations to the reference referring to various materials as aggregate.
As above set forth the reference teaches cement with aggregate to produce concrete. For example: The cement combined with aggregate forming concrete with the vaterite etc. [0059] The composition mixed with aggregate and water to form concrete [0112]
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., porosity) 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).
The prior art teaches ball milling the vaterite into powder [0129] The porosity of the materials is recognized [0045] as well as voids (i.e. pores) as above cited. The reference teaches the claimed vaterite with water agglomerate aggregate and cured transforming to aragonite; as such it would be expected to possess the argued features properties and functionality of the argued porosity and structure. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir.1990) “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)
Applicant argues the product is lightweight (this is a relative term) which according to the instant specification relates to bulk density. Again the claimed invention relates to a method and not to a product. While the examiner will give the claims the broadest reasonable interpretation in view of the specification, the examiner will not read limitations from the specification into the claims. The examiner notes the reference teaches the bulk density in a range which overlaps the teachings of the instant specification.
“in a way that interlocking acicular shaped aragonite particle form a honeycomb structure thereby surrounding one or more voids” the examiner notes that the applicant does not recite what conditions “in a way” are required. The examiner notes that the prior art teaches all of the limitations of the claims. The reference also teaches curing conditions (while not expressly recited in the claims) which are similar to those of the instant specification. As such the examiner maintains the reference renders obvious to one of ordinary skill in the art at the time of filing the invention the limitations for “curing the aggregates to transform the reactive vaterite cement into interlocking acicular shaped aragonite to form aggregates, in a way that interlocking acicular shaped aragonite particle form a honeycomb structure thereby surrounding one or more voids.”
For the above reasons the remarks are not persuasive.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAMELA HL WEISS whose telephone number is (571)270-7057. The examiner can normally be reached M-Thur 830 am-700 pm.
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, Coris Fung can be reached at (571) 270-5713. 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.
/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732
Prosecution Insights