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 07/23/2026.
Claims 1-4 and 7-20 are presently pending; claims 5-6 are canceled; claims 14-20 are withdrawn; claim 1 is amended; claims 1-4 and 7-13 are under examination.
The rejections of claims 1-4 and 7-13 under 35 U.S.C 112(a) and 35 U.S.C 112(b) are withdrawn in light of the amendments to the claims.
The 35 U.S.C. 103 rejection of claims 1-4 and 7-13 over BEDWELL in view of DUBEY is maintained.
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 1-4 and 7-13 are rejected under 35 U.S.C. 103 as being unpatentable over Bedwell, et al. (U.S. Pub. No. 2006/0280970-A1) (hereinafter, “BEDWELL”) in view of Dubey, et al. (U.S. Pat. No. 8,038,790-B1) (hereinafter, “DUBEY”).
Regarding claim 1, BEDWELL teaches a composition for cementitious gypsum underlayment (although “for cementitious gypsum underlayment” is merely a recitation of intended use which is not considered to limit the present claim, see BEDWELL at Abstract and paragraph [0051] teaching using the composition for underlayment) wherein the composition is a dry mixture (see BEDWELL at Abstract and paragraph [0018]) and comprises:
a) stucco (see BEDWELL at Abstract and paragraph [0018]);
b) perlite (see BEDWELL at paragraph [0046]);
c) 2-10 wt% Portland cement (see BEDWELL at paragraphs [0023]-[0024], teaching 1.7% to 50% by weight of hydraulic cements, e.g., Portland cement; e.g., BEDWELL includes example compositions comprising approximately 5 wt% hydraulic cement based on the dry mixture, such as approximately 5 wt% Type I cement in Table III-B);
d) a plasticizer comprising a polycarboxylate ether (PCE) dispersant in an amount overlapping with and thereby rendering obvious the claimed range of from about 0.1 wt% to about 1 wt% (see BEDWELL at Abstract, teaching 0.2 to 10% by weight of a polycarboxylate dispersant with polyether repeating unit, i.e., a polycarboxylate ether);
e) a stabilizer comprising one or more polysaccharide gums (see BEDWELL at paragraphs [0043]-[0044]); and
f) a defoamer (see BEDWELL at paragraph [0038]).
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)).
BEDWELL teaches a mixture of hydraulic cements in an amount of 1.7% to 50% by weight, e.g., 5% by weight (see BEDWELL at paragraphs [0023]-[0024] and Tables I and III), but fails to explicitly mention calcium aluminate cement and/or calcium sulfoaluminate cement; BEDWELL also fails to explicitly mention that the perlite is expanded perlite having particle sizes ranging from about 1 μm to about 150 μm and having an average particle size less than 45 μm in an amount ranging from about 0.5 wt% to about 15 wt%.
DUBEY teaches a gypsum-cement composition (see DUBEY at col. 1, lines 10-15) comprising a hydraulic cement which includes Portland cement and high alumina cement (i.e., calcium aluminate cement) or calcium sulfoaluminate cement (see DUBEY at col. 10, lines 19-36) and 7 to 15% by dry weight of expanded perlite coated with silane, siloxane and/or silicone, having a particle size of 1-150 microns, median particle diameter of 20-60 microns, and density of less than 0.5 g/cc, e.g., SIL-CELL 35-34 perlite, which has an average diameter of 40 μm as discussed in paragraph [00123] of Applicant’s specification (see DUBEY at Abstract, col. 3, lines 27-29, col. 13, lines 51-54, col. 14, lines 56-64 and Table 1A). DUBEY teaches that using this type of expanded perlite in this amount provides a composition having reduced moisture absorption, improved wet durability and enhanced stability while maintaining the same levels of mechanical performance properties (see DUBEY at col. 3, lines 14-26).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the composition of BEDWELL by including calcium sulfoaluminate cement as one of the hydraulic cements (which are included in a total amount of 1.7% to 50%, e.g., 5%, by weight, overlapping with and thereby rendering obvious the claimed range of 1-5 wt%; see BEDWELL at paragraphs [0023]-[0024] and Tables I and III), as taught by DUBEY (see DUBEY at col. 10, lines 19-36), and by simply substituting the unspecified type/amount of perlite with 7 to 15% by dry weight of the expanded coated perlite having a particle size of 1 to 150 μm and a median particle size of 20-60 microns, e.g., the perlite having an average particle size of 40 μm, taught by DUBEY (see DUBEY at Abstract, col. 3, lines 27-29, col. 13, lines 51-54, col. 14, lines 56-64, and Table 1A). One of ordinary skill in the art could have used calcium aluminate or calcium sulfoaluminate cement as one of the hydraulic cements with a reasonable expectation of success, yielding the predictable results of providing a hydraulic cement which will set and harden by chemical interaction with water (see DUBEY at col. 10, lines 27-36). Further, DUBEY teaches that calcium aluminate (i.e., high alumina) and calcium sulfoaluminate cements are known hydraulic cements in the art, and MPEP § 2144.07 states that “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”. One of ordinary skill in the art could also have substituted the unspecified perlite with 7 to 15% by dry weight of the expanded coated perlite with a reasonable expectation of success, yielding the predictable result of providing perlite suitable for use in a gypsum-cement composition, and would have been motivated to do so for the benefit of forming a composition having reduced moisture absorption, improved wet durability and enhanced stability while maintaining the same levels of mechanical performance properties (see DUBEY at col. 3, lines 14-26).
DUBEY fails to explicitly mention using calcium aluminate/calcium sulfoaluminate cement in an amount of 1-5 wt%. However, as discussed above, BEDWELL teaches using a total of 1.7 to 50% hydraulic cement, e.g., 5% (see BEDWELL at paragraphs [0023]-[0024] and Tables I and III), which overlaps with the ranges of claim 1. BEDWELL further teaches that the content of hydraulic components affects water required for hydration of the dry mixture (see BEDWELL at paragraph [0035]), and DUBEY teaches that the amount of high-alumina cement (i.e., calcium aluminate cement) used influences hydration characteristics of the binder, and that calcium sulfoaluminate cement has low alkalinity, i.e., changing the content will change the alkalinity of the binder (see DUBEY at col. 2, lines 37-40 and col. 11, lines 2-3). BEDWELL and DUBEY therefore explicitly teach that the amounts of Portland cement and calcium aluminate or calcium sulfoaluminate cement are result-effective variables which 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 to vary the amount of Portland cement and calcium aluminate or calcium sulfoaluminate cement, through routine experimentation and optimization, to achieve desired properties of the mixture such as hydration characteristics and alkalinity.
Regarding claim 2, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the expanded perlite is coated with a silicone, silane or siloxane coating (see DUBEY at col. 13, lines 51-54).
Regarding claim 3, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the expanded perlite is coated with a silicone, silane or siloxane coating (see DUBEY at col. 13, lines 51-54),
and has a relative density overlapping with and thereby rendering obvious the claimed range of from about 0.112 g/cm3 to about 0.350 g/cm3 (see DUBEY at Abstract, teaching a density of less than 0.5 g/ cm3).
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 4, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the expanded perlite is coated with an organometallic silane monomer coating or an organometallic silicone polymer coating (see DUBEY at col. 13, lines 30-35, teaching silicone, silane or siloxane coatings, e.g., polydimethylsiloxane, which is an organometallic silicone polymer).
Regarding claim 7, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the stabilizer comprises diutan gum (see BEDWELL at claim 5).
Regarding claim 8, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the polysaccharide gum includes one or more of the following: xanthan gum, welan gum and/or diutan gum (see BEDWELL at paragraphs [0043]-[0044] and claim 5).
Regarding claim 9, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the composition consists essentially of:
- stucco in an amount overlapping with and thereby rendering obvious the claimed range of 82-90 wt% (see BEDWELL at Abstract and paragraph [0018], teaching 88 to 95% by weight of stucco);
- 1-15 wt% expanded perlite (see DUBEY at Table 1A, teaching 7 to 15% by weight expanded perlite) having an average particle size overlapping with and thereby rendering obvious the claimed range of from about 30 to about 37 μm (see DUBEY at Abstract, col. 3, lines 27-29, and col. 13, lines 51-54, teaching a particle size of 1-150 microns and a median diameter of 20-60 microns) and having a relative density overlapping with and thereby rendering obvious the claimed range of from about 0.244 g/cm3 to about 0.350 g/cm3 (see DUBEY at Abstract, teaching a density of less than 0.5 g/cm3);
- Portland cement in an amount overlapping with and thereby rendering obvious the claimed range of 2-10 wt% (see BEDWELL at paragraphs [0023]-[0024] and Tables I and III, teaching 1.7% to 50%, e.g., 5%, by weight of a hydraulic cement, e.g., Portland cement; as discussed in the rejection of claim 1 above, the claimed amounts of Portland cement and calcium aluminate or calcium sulfoaluminate cement would be obvious to one of ordinary skill in the art as they are a matter of routine experimentation and optimization of result-effective variables; see MPEP § 2144.05 (II));
- calcium sulfoaluminate cement in an amount overlapping with and thereby rendering obvious the claimed range of 1-5 wt% (see BEDWELL at paragraphs [0023]-[0024] and Tables I and III; see DUBEY at col. 10, lines 19-36; as discussed in the rejection of claim 1 above, the claimed amounts of Portland cement and calcium aluminate or calcium sulfoaluminate cement would be obvious to one of ordinary skill in the art as they are a matter of routine experimentation and optimization of result-effective variables; see MPEP § 2144.05 (II))
- polycarboxylate ether (PCE) based dispersant in an amount overlapping with and thereby rendering obvious the claimed range of 0.1-1 wt% (see BEDWELL at Abstract, teaching 0.2 to 10% by weight of a polycarboxylate dispersant with polyether repeating unit, i.e., a polycarboxylate ether);
- polysaccharide gum in an amount overlapping with and thereby rendering obvious the claimed range of 0.01-0.1 wt% (see BEDWELL at paragraphs [0043]-[0044], teaching 0.0006 to 5% by weight polysaccharide gum); and
- 0.1-0.5 wt% defoamer (see BEDWELL at paragraph [0038], teaching 0.5% by weight defoamer).
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)).
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).
Regarding claim 10, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the composition further comprises at least one of the following: a set accelerator, a set retarding agent, or any combination thereof (see BEDWELL at paragraphs [0008] and [0040]-[0041], teaching accelerators and retarders).
Regarding claim 11, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the composition further comprises sand, and wherein the a ratio of sand to the other components of the composition by weight overlaps with and thereby renders obvious the claimed range from about 1:1 w/w to about 4:1 w/w (see BEDWELL at paragraph [0046], teaching including sand in an amount of up to 300 wt% of the aggregate-free (i.e., sand-free) components on a dry basis, i.e., a ratio as claimed of up to 3:1 w/w).
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 12, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the composition further comprises one or more of the following aggregates: sand, lime, rock, gravel, silica fume, clay, pumice, vermiculite, fly ash, slag, or any combination thereof (see BEDWELL at paragraphs [0023] and [0046]).
Regarding claim 13, as applied to claim 1 above, BEDWELL in view of DUBEY teaches a composition according to claim 1, wherein the composition further comprises hollow microspheres (see BEDWELL at paragraph [0046]). However, BEDWELL fails to explicitly mention that the hollow microspheres are hollow glass microspheres.
DUBEY teaches a gypsum-cement composition (see DUBEY at col. 1, lines 10-15) comprising hollow glass microspheres which are used with the coated expanded perlite (see DUBEY at col. 5, lines 55-57).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified the composition of BEDWELL in view of DUBEY by simply substituting the unspecified hollow microspheres with hollow glass microspheres as taught by DUBEY (see DUBEY at col. 5, lines 55-57). One of ordinary skill in the art could have made such a substitution with a reasonable expectation of success, yielding the predictable result of providing hollow microspheres which are suitable for use in a gypsum-cement composition comprising perlite. Further, DUBEY teaches that hollow glass microspheres are a known type of hollow microsphere in the art, and MPEP § 2144.07 states that “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”.
Response to Arguments
Applicant's arguments filed 07/23/2026 have been fully considered but they are not persuasive.
Applicant argues:
“The composition of claim 1 comprises a combination of two different cements: 1) Portland and 2) CAC/CSC… In view of the cited art not disclosing or suggesting the inventive combination, the claimed composition is a highly unexpected result” (see Remarks at pg. 7).
However, for at least the following reasons the Examiner finds these arguments unpersuasive:
In response to Applicant’s argument that “the claimed composition is a highly unexpected result”, the Examiner respectfully disagrees; it is not clear to what “result” Applicant is referring. Using two cements is not an “unexpected result”.
Therefore, for at least these reasons, the Examiner finds Applicant’s arguments unpersuasive.
Applicant argues:
“What is claimed is 1) a particular concentration for Portland cement; 2) a particular concentration for CAS/CSC; and 3) a weight ratio of Portland cement to CAS/CSC” (see Remarks at pg. 7).
“Because Bedwell does not disclose CAS/CSC, the range provided in Bedwell can be applied only to Portland cement” (see Remarks at pg. 7).
However, for at least the following reasons the Examiner finds these arguments unpersuasive:
In response to Applicant’s argument that the claimed composition includes a particular weight ratio of the cements in addition to the particular concentration for each, the Examiner respectfully disagrees. No separate “weight ratio” is claimed; the weight ratio would be any ratio from using any amount of each cement within the specified ranges, but there is no specific, separate weight ratio claimed in addition to the required concentrations.
In response to Applicant’s argument that the range provided in Bedwell can only be applied to Portland cement, the Examiner respectfully disagrees. As set forth in the rejection above, BEDWELL explicitly teaches using 1.7 to 50 wt% of hydraulic cements including Portland cement, e.g., 5 wt% cement. BEDWELL explicitly states that at least one modifier is present, i.e., more than one modifier can be used, and that hydraulic cements are modifiers, providing examples of some hydraulic cements, and states that the concentration of cement (not only Portland cement) is from about 1.7% to about 50% by weight (see BEDWELL at paragraphs [0023]-[0024]). BEDWELL nowhere states that this range must only be applied to Portland cement; it is the range taught for “cement” in general. Additionally, BEDWELL and DUBEY teach that the amounts of Portland cement and calcium aluminate or sulfoaluminate cement are result-effective variables which can be optimized by one of ordinary skill in the art (see BEDWELL at paragraph [0035]; see DUBEY at col. 2, lines 37-40 and col. 11, lines 2-3). 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)). MPEP § 2144.05 (II) 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). One of ordinary skill in the art could have achieved the claimed amounts of the two cements through routine experimentation and optimization.
Further, DUBEY explicitly teaches that the cementitious reactive powder used is typically composed of either pure Portland cement or a mixture of Portland cement and a suitable pozzolanic material, and further contains high alumina-cement added in small dosages to influence setting and hydration characteristics of the binder (see DUBEY at col. 2, lines 37-40). DUBEY explicitly teaches the combination of Portland cement and high-alumina cement (i.e. calcium aluminate cement), explicitly teaches that the high-alumina cement is “added in small dosages”, and provides explicit motivation to include high-alumina cement with the Portland cement in order to achieve desired setting and hydration characteristics.
Therefore, for at least these reasons, the Examiner finds Applicant’s arguments unpersuasive.
Applicant argues:
“In contrast to Bedwell, Dubey teaches to use 10-75 wt% of hydraulic cement in general. It is impossible to follow both teachings at once as the two references are in direct conflict with each other... the references are in conflict with each other and teach away from using the combination of the two different cement types at the ratios as claimed… Dubey teaches increasing amounts of cement in comparison to Bedwell. In view of this, it is highly unexpected that the presently claimed compositions have much lesser amounts of cement and also have two different cements in amounts as claimed” (see Remarks at pg. 8-9)
However, for at least the following reasons the Examiner finds these arguments unpersuasive:
In response to Applicant’s argument that the references teach away from using the claimed amount of each cement because Dubey teaches increasing the amount and the claimed composition has much lesser amounts of cement, the Examiner respectfully disagrees. As discussed above, BEDWELL teaches a total of 1.7 to 50 wt% of hydraulic cements, and as shown in Table 1 of DUBEY included in Applicant’s Remarks, DUBEY teaches a total of 10 to 75 wt% of hydraulic cement. These ranges overlap with each other, and with the claimed ranges, as the total amount of hydraulic cement in the claimed invention is 3 to 15 wt%. The references in no way “teach away” from using the claimed amounts. Additionally, as discussed above, DUBEY explicitly states that high alumina cement is added in small dosages. Further, as set forth in the rejection above, BEDWELL teaches a total amount of hydraulic cement including Portland cement, and DUBEY teaches a mixture of Portland cement and calcium aluminate or calcium sulfoaluminate cement, and it is the combination of the references which renders the claimed invention obvious. One of ordinary skill in the art could have simply substituted Portland cement for a mixture of Portland and calcium aluminate/sulfoaluminate cement, which is used in an amount of up to 50 wt%, e.g., 5 wt%, as taught by BEDWELL, and the claimed ranges of each cement is an obvious matter of routine experimentation and optimization of result-effective variables as discussed above.
Therefore, for at least these reasons, the Examiner finds Applicant’s arguments unpersuasive.
Applicant argues:
“Regarding claim 9, this claim further provides a particular combination with particular ranges of amounts as claimed, which as shown in the present specification, are critical for decreasing the drying time and expansion. This result is highly unexpected… it has been unexpectedly found that the claimed combination decreases significantly the drying time and increases the compressive strength of a stucco-cement composition comprising the expanded perlite, as well as reduces the expansion of drying underlayment… the present specification demonstrates the criticality and unexpected results for the particular combination of the two cements and the expanded perlite with the average particle diameter as claimed” (see Remarks at pg. 9-10).
However, for at least the following reasons the Examiner finds these arguments unpersuasive:
In response to Applicant’s argument that the claimed invention is nonobvious because the claimed composition including the claimed amounts of Portland and CAC and/or CAS cement provides unexpected results of decreased drying time and expansion and increased compressive strength, the Examiner respectfully disagrees.
The unexpected results alleged by Applicant are not commensurate in scope with the claimed composition. Allegations of unexpected results are discussed in MPEP 716.02. The results shown in Table 4 are for only the very specific slurry compositions comprising 1.14% to 3.45% of perlite having an average particle size of 32 to 40 microns, 1.5% of calcium sulfoaluminate cement, 2.5% to 3% of a cement which comprises 85.43% stucco, 8.88% Portland cement, 0.74% PCE plasticizer, 0.09% lignosulfonate plasticizer, 0.11% defoamer and 0.04% diutan gum stabilizer (with some of these compositions showing as little as 5% faster drying time than control compositions comprising no perlite, one of which also comprises 1.5% CSA), and are not commensurate in scope with the broad dry mix composition of claim 1 comprising any amount of stucco, 0.5 to 15% perlite with an average particle size of less than 45 microns, 2-10% Portland cement, 1-5% CAC and/or CSA cement, 0.1 to 1% PCE and/or 0.05 to 0.5% sodium lignosulfonate, polysaccharide gum stabilizer, and defoamer, or with the ranges of the composition of claim 9. Regarding Fig. 3, it is not clear what compositions these results are meant to represent; the only information regarding the compositions represented by Fig. 3 which could be located in the specification is in paragraph [00130], which simply states that they are expansion studies for “some compositions in Table 7” (many of which contain no CSA or CAC yet still exhibit improved drying time, or contain no perlite yet still exhibit improved drying time) which are compositions which “comprise perlite, and preferably Portland cement and perlite and more preferably Portland cement in combination with CAC cement and perlite”. It is not clear in what way these results are meant show criticality of the claimed ranges of Portland cement and calcium aluminate and/or calcium sulfoaluminate cement and unexpected results commensurate in scope with the claimed ranges. It is not clear from the data presented by Applicant in what way these results would be considered unexpected, the results are not commensurate in scope with the claimed invention, and no criticality of the claimed ranges appears to be displayed by these results.
Further, Applicant specifically asserts that Table 4 shows that including the claimed amounts of both Portland and CAC/CAS cement provides unexpected results of improved drying time and strength, and that it is specifically this combination that provides the unexpected results; however, in Table 7 of the present specification, there are several examples which use only Portland cement and no CSA cement and provide very similar or better results of improved compressive strength and faster drying time than the results in Table 4; Table 4 shows 5% to 20% improvement in drying time and compressive strength of 1885 to 2965 psi, and the examples using only Portland cement in Table 7 show 5% to 30% improvement in drying time and compressive strength of 2115 to 2615 psi. These results appear to show that using a combination of the two cements in the claimed amounts does not provide unexpected results.
Therefore, for at least these reasons, the Examiner finds Applicant’s arguments unpersuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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 mailing 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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