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 without traverse of Group I, claims 1-6 in the reply filed on 12/16/2025 is acknowledged.
Claims 7-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups II-III, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 12/16/2025.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 62/739209 (“’209” hereinafter), fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
‘209 discloses a lightweight construction block comprising: an enclosed flexible container; a self-healing port disposed on the flexible container; and a cement mix comprising cement, sand, clay, cellulose, and fly ash made from rice hull disposed inside the flexible container, which appears to not support the claimed “a cellulose-based structural webbing mixture for spray-on applications, comprising sawdust thoroughly coated and impregnated with fine clay and mineral particulates, aggregate, cement, and water to be directly sprayed on building structures to create a monolithic fire-proof insulative structural-reinforcing cementitious webbing envelope around building structures” in independent claim 1 of the instant application. Applicant is encouraged to provide an explanation regarding how the disclosure in ‘209 application provide support for the instant claims outlined above.
The disclosure of the prior-filed application, Application No. 62/775384 (“’384” hereinafter), appears to provide adequate support (see ’384 at claim 1, claim 6 and specification at [0004]) for in independent claim 1 of the instant application. Examiner will use the filing date of 12/04/2018 as the effective filing date.
Claim Objections
Claim 5 is objected to because of the following informalities: claim 5 line 2 recites “mixture further comprises an additive is selected from…”, which appears to have a topographical error and should be “mixture further comprises an additive selected from…”. 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 2-6 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 2-6 line 1 recite “the cellulose-based monolithic structural webbing mixture of claim 1”. There is insufficient antecedent basis for “monolithic” in the claims.
Examiner will treat claims 2-6 as the “cellulose-based structural webbing mixture”.
Claims 2-3 line 3 recite “hydrated cellulose fibers”, which do not have insufficient antecedent basis.
Examiner will treat claims 2-6 as the “sawdust”.
Claims 4 and 5 recite “wherein the activated structural webbing mixture”. There is insufficient antecedent basis for “activated” in the claims.
Examiner will treat claims 2-6 as the “cellulose-based structural webbing mixture”.
Claim 5 lines 3-5 recites “graphene… carbon-based materials… recycled paper… sugars, lignin… almond flour, coconut flour, buckwheat flour, teff flour, quinoa flour, com flour, wheat flour, barley flour, rice flour, rye flour… sugars… nut shells, nut husks, com husks, grass clippings… alcohol, isopropyl alcohol”. 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 “carbon-based materials” or “graphene… recycled paper… sugars, lignin… almond flour, coconut flour, buckwheat flour, teff flour, quinoa flour, com flour, wheat flour, barley flour, rice flour, rye flour… sugars… nut shells, nut husks, com husks, grass clippings… alcohol, isopropyl alcohol”.
Examiner will treat the limitation as written.
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 Interpretation
Claim 1 recites “sawdust thoroughly coated and impregnated with fine clay…”. There is no definition given for “fine” in the specification. As such, the broadest reasonable interpretation is given to the term “fine”, which is “not coarse” as evidenced by Merriam-Webster (“Merriam” hereinafter) (see Merriam at page 1, 2a(2) evidencing not coarse).
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 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Willson (US 2,703,289) (“Willson” hereinafter); as evidenced by Britannica (Bentonite, 2017) (“Britannica” hereinafter) with respect to claim 1 only.
Regarding claim 1, Willson teaches a cellulose-based structural webbing mixture for spray-on applications (see Willson at C1 L15 teaching molded masses, see Willson at C3 L42-49 teaching moldable masses… are produced for building construction that are thermally insulative, fire-safe, rot and insect proof and weather resistant: masses that may be formed by hand or machine processes into boards, panels, blocks, bricks and tiles or, more directly, into walls, floors and roofs; that may be… sprayed). The moldable masses is taken to meet the claimed cellulose-based structural webbing mixture based on the structure as outlined below, comprising
sawdust thoroughly coated and impregnated with fine clay and mineral particulates (see Willson at C1 L15-18 teaching molded masses made from highly porous lightweight aggregate particles dispersed in a calcareous binder after the pores of the particles have been clogged with a clayey colloid, see Willson at C1 L74-80 teaching lightweight aggregate materials suitable for use in concrete have a highly vesicular character, each particle housing a number of thin-walled blebs, pockets, cells or minute voids… among materials of this type having a vegetable origin are… sawdust, see Willson at C3 L40-42 teaching by first clogging the pores of such aggregate materials as above named with one or more types of swellable ingredients, colloidal, and crystalloidal, see Willson at C2 L23-29 teaching no single ingredient cheaper or more effective for clogging the pores of the aggregate particles… than one selected from the group consisting of bleaching clay, kaolin, pyrophyllite, common plastic clay such as is generally locally available, colloidal clay, hydrous aluminum silicate and bentonite, see Willson at C2 L55-59 teaches clogging pores with inert colloidal material… mixing of the porous aggregate particles in the mix water). Clay is taken to meet the claimed fine clay because it is used in clogging the pores of the lightweight aggregates, which is taken that it is “fine” or it is “not coarse”. Bentonite is taken to meet the claimed mineral particulate since it is a type of smectite clay mineral (see Britannica at page 1 paragraph 2 evidencing bentonite consists chiefly of crystalline clay minerals belonging to the smectite group), and also used in in clogging the pores of the lightweight aggregates. Clogged lightweight aggregate or sawdust is taken to meet the claimed “sawdust thoroughly coated and impregnated” because the aggregate/sawdust is mixed with clay in water,
cement (see Willson at C2 L66-69 teaching a molded mass comprising porous aggregate… diffused in a binder almost wholly of Portland cement), and
water (see Willson at C4 L46-47 teaching batches of porous vegetable aggregate material were mixed in water),
to be directly sprayed on building structures to create a monolithic fire-proof insulative structural-reinforcing cementitious webbing envelope around building structures (see Willson at C3 L42-49 teaching moldable masses… are produced for building construction that are thermally insulative, fire-safe, rot and insect proof and weather resistant: masses that may be formed by hand or machine processes into boards, panels, blocks, bricks and tiles or, more directly, into walls, floors and roofs; that may be… sprayed). Alternatively, this recitation is alluding to the intended use of the mixture, which is a different statutory category from the claimed cellulose-based structure webbing mixture (or product/manufacture) (see MPEP § 2106.03.I), and does not add to the structure of the claimed mixture. As such, this recitation is not given patentable weight or this recitation is being treated as being taught by Willson because the mold masses mixture is capable of being sprayed on building structures to create a monolithic fire-proof insulative structural-reinforcing cementitious webbing envelope around building structures).
Willson preferably teaches that the lightweight aggregates are clogged with clay, and the embodiments do not additionally comprise aggregate (see Willson at C1 L15-18, C1 L74-80, C2 L23-29 and C3 L40-42). However, Willson further teaches that the building industry is a lightweight aggregates concrete of low cost that has a density approaching that of wood (see Willson at C1 L30-32)… concretes made from wood fiber, Portland cement, clay and other ingredients (see Willson at C1 L44-45). Willson also teaches concretes… using Portland cement… expanded slag, vermiculite, perlite and wood fiber (see Willson at C4 L83 to C5 L1-2), wherein are taken to meet the claimed aggregate.
Additionally, MPEP states that “the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination” (see MPEP § 2144.07). In this case, one of ordinary skill in the art would appreciate that expanded slag, vermiculite, perlite and wood fiber are suitable aggregates.
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 expanded slag, vermiculite, perlite or wood fiber as aggregates in the mold masses mixture as taught by Willson because the aggregates are suitable for its intended use.
Regarding claims 2-3, Willson teaches the limitations as applied to claim 1 above, and Willson further teaches wherein the sawdust is thoroughly coated and impregnated with fine clay and mineral particulates by injecting an emulsion of fine clay and mineral particulates into a pressurized chamber containing sawdust (claim 2), and wherein the sawdust is thoroughly coated and impregnated with fine clay and mineral particulates by forcing raw clay particulates into sawdust (claim 3) (see 112 rejection, see Willson at C1 L15-18 teaching molded masses made from highly porous lightweight aggregate particles dispersed in a calcareous binder after the pores of the particles have been clogged with a clayey colloid, see Willson at C1 L74-80 teaching lightweight aggregate materials suitable for use in concrete have a highly vesicular character, each particle housing a number of thin-walled blebs, pockets, cells or minute voids… among materials of this type having a vegetable origin are… sawdust, see Willson at C3 L40-42 teaching by first clogging the pores of such aggregate materials as above named with one or more types of swellable ingredients, colloidal, and crystalloidal, see Willson at C2 L23-29 teaching no single ingredient cheaper or more effective for clogging the pores of the aggregate particles… than one selected from the group consisting of bleaching clay, kaolin, pyrophyllite, common plastic clay such as is generally locally available, colloidal clay, hydrous aluminum silicate and bentonite). Clay is taken to meet the claimed fine clay because it is used in clogging the pores of the lightweight aggregates, which is taken that it is “fine” or it is “not coarse”. Bentonite is taken to meet the claimed mineral particulate since it is also used in in clogging the pores of the lightweight aggregates. Clogged lightweight aggregate or sawdust is taken to meet the claimed “sawdust thoroughly coated and impregnated” (claims 2 and 3),
The recitations “by injecting an emulsion of fine clay and mineral particulates into a pressurized chamber containing sawdust (claim 2), and by forcing raw clay particulates into sawdust (claim 3) (this recitation is being treated as product-by-process limitations because it is not seen to differ structurally from the applied prior art Willson in view of Kleeb (see MPEP 2113.I). In this instance, the structure imparted by the recitations is the claimed “sawdust thoroughly coated and impregnated”, which is reasonably met by Willson as outlined above).
Regarding claim 4, Willson teaches the limitations as applied to claim 1 above, and Willson further teaches wherein the cellulose-based structural webbing mixture further comprises cellulose fibers selected from the group consisting of… fiber (see 112 rejection, see Willson at C5 L1-2 teaches wood fiber).
Regarding claim 5, Willson teaches the limitations as applied to claim 1 above, and Willson further teaches wherein the cellulose-based structural webbing mixture further comprises cellulose fibers selected from the group consisting of… carbon-based materials (see 112 rejection, see Willson at C5 L1-2 teaches wood fiber), which is a carbon-based material.
Regarding claim 6, Willson teaches the limitations as applied to claim 1 above, and Willson further teaches wherein the sawdust comprises particulates of a certain size between microscopic to one inch (see 112 rejection, see Willson at C1 L79-80 teaching vegetable origin are… sawdust… milled wood waste… and finely divided plant fibers, see Willson at C4 L50-51 teaching waste wood fiber including pine shavings… milled to pass a 3/32” (or 0.1 inch) screen).
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).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have selected 0.1 inch as the sawdust sizes similar to pine shavings as taught by Willson because there is a reasonable expectation of success that the size disclosed would be suitable.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARITES A GUINO-O UZZLE whose telephone number is (571)272-1039. The examiner can normally be reached M-F 8am-4pm EST.
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/MARITES A GUINO-O UZZLE/Examiner, Art Unit 1731