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 with traverse of claims 1–4 in the reply filed on 10 November 2025 is acknowledged. The traversal is on the ground(s) that (i) there is significant overlap in design, operation, and effect between Species I, II, and III (claims 1–4, 5–9, and 13, respectively), and (ii) that there is significant overlap in the pcf boundaries between Species I and II, and between Species I and III. Applicants presented no arguments to traverse the restriction of Species IV. This is not found persuasive for the following reasons:
Regarding (i), in the restriction requirement dated 08 September 2025, the Examiner identified the three aforementioned Species, as well as generic claims 10 and 14–16, and linking claims 11 and 12. Species I, II and III do not recite any design, operation, or effect that isn’t already covered by the generic/linking claims, and since the generic and linking claims are being examined alongside the elected species, the design, operation and effect of the invention is also being examined.
Regarding (ii), Species I, II and III differ in that they recite different embodiments of the generic invention, specifically differing in the density and compressive strengths. Species I recites a density of 55–95 pcf, while Species II recites a density of 15–55 pcf. These ranges have a single point of overlap, at 55 pcf, which is not a “significant overlap” as applicants argue. Similarly, Species III recites a density of 90–130 pcf, which overlaps with the upper end of Species I’s density. However, this is also not considered a “significant overlap”, as only 1/8 of the ranges overlap.
The requirement is still deemed proper and is therefore made FINAL.
Claims 5–9, 13 and 17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected Species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 10 November 2025.
Drawings
The Drawings filed 15 June 2023 are accepted.
Specification
The disclosure is objected to because of the following informalities:
Paragraph 0065 contains several bullet points, some of which contain bracketed text (see, e.g., “Improved Fire Resistance” bullet point, wherein the text reads, “…the system rates [as a] Class A…”; also see, e.g., “Improved Homogeneity” bullet point, wherein the text reads, “…by slicing a core of a poured sample in half [and-with] visual separation…”). The brackets should be removed and the bracketed text should be incorporated into the rest of the text; and,
Paragraphs 0084 and 0085 are example compositions expressed as Tables, but each cell of the tables has its own paragraph number. These paragraph numbers should be removed, as they aren’t referenced elsewhere in the disclosure and they conflict with already-stated paragraph numbers.
Appropriate correction is required.
Claim Objections
Claim 14 is objected to because of the following informalities:
Claim 14 recites, “…to achieve homogeneity of the mix of separation less than about 20%...”. This is grammatically broken, but the Examiner believes it is intended to be read as, “…to achieve homogeneity of the mix, such that separation is less than about 20%...”. The Examiner will use this interpretation for purposes of examination, but if this interpretation is incorrect, Applicants are respectfully requested to clarify their intended meaning.
Appropriate correction is required.
Claim Interpretation
Claims 2 and 3 recite specific gravity with units of g/cc. Specific gravity does not have units, because it is defined as a dimensionless ratio between a substance’s density and the density of water. By including units of g/cc, the recited values are densities, not specific gravities. However, because the density of water is typically taken to be 1 g/cc, the specific gravity is functionally synonymous with density, so there wouldn’t be an expected difference of the recited values whether they are expressed as densities or as specific gravities. The Examiner will herein treat “density” and “specific gravity” as synonymous wherever applicable.
Claims 4, 11 and 12 each recite the inclusion of “low density lightweight mineral based particles” or “low density lightweight polymer based particles”. While “low density” is defined within the claims for the overall mix, the claims do not define what “low density” means in terms of mineral- or polymer-based particles. The specification, at paragraph 0011, defines several low density minerals as having a specific gravity of 0.1–0.9 g/cc (approximately 6.24–56.16 pcf) or 1.8–2.4 g/cc (approximately 112.32–149.76 pcf). At paragraph 0014, low density polymers are defined as having a specific gravity of 0.001–1.25 g/cc (approximately 0.0624–78 pcf). For purposes of examination, the Examiner will use these definitions as applicable to the above-stated claims.
Claims 11 and 12 further recite the minimum compressive strength of a composition. Compressive strength builds over time as the composition cures, and so it is important to know if this compressive strength is measured at 1 day, 7 days, 14 days, or 28 days. From the Tables in the Specification (see paragraphs 0084 and 0085), the compressive strength is measured at 28 days. Since compressive strength only rises over time, any prior art that teaches the claimed strength at 28 days or sooner will be considered to anticipate or render obvious the claim (i.e., if a composition achieves a compressive strength of 2000 psi at 7 days, it will have a compressive strength of at least 2000 psi at 28 days).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1–4, 11, 12, and 14–16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, the claim recites “wherein the composition” (singular) “has compressive strengths” (plural) “and densities” (plural). This leads to indefiniteness because it implies that a single composition has multiple compressive strengths and densities, but Applicants emphasize a high degree of homogeneity of their compositions (see, e.g., claim 4 and paragraph 0065 of the specification). Further, Applicants define homogeneity as a visual difference between two halves of one sample, with no other information given as to how a visual difference might correspond to a difference in density or compressive strength. It is unclear if the multiple densities/compressive strengths refer to spatial variation within a single article, variation across multiple samples prepared from one composition, or distinct regions that are intentionally formulated to have different properties. However, it is noted that claim 1 still requires all densities and compressive strengths to fall within the claimed ranges, so for purposes of examination, any prior art that teaches a density or a compressive strength that aligns with the claimed values will be considered to meet these limitations, even if the prior art does not explicitly state that the composition has more than one density or compressive strength value.
Claims 2–4, being dependent on claim 1, inherit its deficiencies, and are rejected on the same grounds.
Regarding claims 11 and 12, the claims recite “wherein the mixture” (singular) “has compressive strengths” (plural) “and densities” (plural). Similarly to the above 112(b) rejection of claim 1, this leads to indefiniteness because it is unclear how one mixture can have multiple compressive strengths and densities, especially given the emphasis on homogeneity. The interpretation of claim 1 is herein applied to claims 11 and 12, wherein any prior art that teaches a density or a compressive strength that falls within the claimed ranges will be considered to meet the limitations of the claims.
Regarding claim 14, the claim recites “to achieve homogeneity of the mix of separation less than about 20%”. The wording of this limitation is addressed in the above Claim Interpretation section, but the meaning of the claim is still ambiguous because the recited 20% metric is not explained in sufficient detail. The Specification, at paragraph 0065, states that homogeneity is determined by slicing a poured core in half, and examining the visual separation of lightweight from the top and bottom of the sample. The Examiner’s understanding of this is that due to the presence of low-density particles in the composition, the lightweight components may “float” to the top of the composition before it sets. By slicing a poured core in half, some of the composition may appear to be visually enriched with lightweight aggregate. Thus, “separation less than 20%” would mean that less than 20% of the core appears visually distinct from the rest of the core. However, it is unclear if the 20% refers to height, volume fraction, area, mass, etc., and if it's merely a visual examination, it’s entirely subjective. The broadest reasonable interpretation of this limitation is that 80% or more of the sample should appear homogeneous, and so the Examiner will herein treat any prior art that teaches a homogeneous mixture as being fully homogeneous, unless explicitly stated otherwise.
Regarding claim 15, the claim recites “…wherein the chemistry and particles in the mix design accommodate initial set time…”. Firstly, the bounds of this claim are defined functionally by the results of the invention, not by the invention itself (see MPEP 2173.05(g)). While functional limitations are not inherently indefinite, they must provide a clear-cut indication of the scope of the subject matter which is being claimed. In the instant case, claim 15 is indefinite because neither claim 15 nor its parent claim 10 recite a composition. Essentially, the claim is stating that the chemistry and particles in the mix, whatever they are, accommodate an initial set time. A person of ordinary skill in the art reading the claim cannot determine whether a given cementitious mixture infringes by examining the composition, only by observing a result after the fact. Secondly, the verb “accommodate” does not have an established meaning in cement science. It is unclear if the chemistry and particles in the mix are causing an initial set time, or enabling, or are selected such that, or are compatible with, or do not prevent, etc., an initial set time. Each of these interpretations implies a different scope, and so the verb “accommodate” is unclear. Finally, the claim appears to be written such that the meaning is circular, i.e., “the mixture has an initial set time within one hour because the chemistry and particles are such that it sets within one hour”. There is no indication of how the chemistry and particles, whatever they are, are accommodating the initial set time. Claim 15 is therefore indefinite because the verbiage is ambiguous and the scope is unclear. For purposes of examination, the Examiner will interpret this claim as reciting “The gypsum or cementitious mixture of claim 10, wherein the initial set time is within one hour, or delayed up to 12 hours.”
Claim 16, being dependent on claim 15, inherits its deficiencies, and is rejected on the same grounds.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 3 and 15 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 3 recites the inclusion of an additional component in combination with a gypsum and/or cementitious mix. Claim 1, on which claim 3 depends, explicitly recites “gypsum or cementitious mix” (emphasis added). Claim 3, by reciting “and/or”, is necessarily broader than claim 1, because it requires claim 1 to contain both gypsum and cementitious mix, rather than one or the other. Accordingly, claim 3 fails to limit its parent claim.
Claim 15 recites an initial set time “within one hour”. Claim 10, on which claim 15 depends, recites a set time of “at least 60 minutes”, which means claim 15 is limiting the set time to a value that is already excluded by its parent claim. In Applicants’ specification, paragraph 0071 indicates that these are different embodiments, wherein in some embodiments, the mixture achieves initial set within 60 minutes, and in other embodiments, the mixture achieves initial set between 60 and 130 minutes. Thus, the specification reinforces the disagreement between claims 10 and 15, rather than resolving it. Accordingly, claim 15 fails to further limit its parent claim.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 3 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Cui et al. (US 2023/0090940 A1, hereinafter “Cui”, which corresponds to WO-2021178672-A2; the WO document properly antedates the instant application, but lacks paragraph numbers or line numbers, so the corresponding US publication is herein used as a readable surrogate for pinpoint citations).
Regarding claim 1, Cui teaches a composition comprising a low density, lightweight cementitious mix (see abstract) comprising low density lightweight mineral based particles (see Table 3A, Sample 0821A, which comprises expanded vermiculite [vermiculite is an iron-magnesium aluminum silicate mineral]; also see paragraph 0067 wherein the vermiculite is taught to have a density of 7 pcf, which falls within the range defined by applicants to be a low-density mineral [see the above Claim Interpretation section, wherein a range of 6.24–56.16 pcf is considered “low density”]). Cui further teaches the limitation wherein the composition has compressive strengths of greater than 2000 psi and densities within a range of about 55 pcf to about 95 pcf (see Table 5A, Sample 0821A, Ambient, wherein compressive strength is taught to be 15.4 MPa, which is approximately 2233.6 psi; also see Table 5B, Sample 0821A, Ambient, wherein density is taught to be 1310 kg/m3, which is approximately 81.74 pcf; also see paragraph 0050, wherein “specific gravity” and “density” are taught to be treated as synonymous, allowing for the conversion of specific gravity to density; also see the above 112(b) rejection of claim 1 regarding the recitation of plural “compressive strengths” and “densities”). Cui therefore anticipates all limitations of claim 1 with sample 0821A.
Regarding claim 3, Cui teaches the composition of claim 1, further comprising at least vermiculite from the recited Markush group (see Table 3A, Sample 0821A teaching the inclusion of expanded vermiculite), wherein the specific gravity is between 0.1–0.9 g/cc and the average particle size is between 20 and 300 µm (see paragraph 0067 which teaches the expanded vermiculite as having a density of 7 pcf [approximately 0.112 g/cc] and a size of 50 mesh [approximately 297 µm]), in combination with a cementitious mix (see Table 3A, wherein the vermiculite is present in combination with at least fly ash, which is a cementitious material).
Claim 10 is rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Pinto (US 2007/0125273 A1, hereinafter “Pinto”), or alternatively, as being anticipated by Zubrod (US 2018/0037504 A1, hereinafter “Zubrod”).
Regarding claim 10, Pinto teaches a cementitious mixture (see abstract) having a density of less than about 130 pcf (see paragraph 0029 teaching a density range of 70–115 pcf), and having a controlled working or set time of at least 60 minutes (see paragraph 0012 teaching the set time as being around 4 hours). This set time would enable the delivery of the system via a mixer truck, pump truck, bulk truck or ready mix truck; although Pinto does not explicitly teach the delivery of the composition via one of the named truck types, the claim explicitly requires the set time to enable the delivery, and does not actually require the act of delivery via truck, and so Pinto is considered to anticipate the claim.
Alternatively regarding claim 10, Zubrod teaches a cementitious mixture (see abstract) having a density of less than about 130 pcf (see paragraph 0052 teaching a density of 15–60 pcf), and having a controlled working or set time of at least 60 minutes (see paragraph 0083 teaching a 1-hour set time as sufficient, which also implies that anything less than 1 hour would be insufficient, while anything more than 1 hour would also be sufficient; accordingly, Zubrod effectively teaches a set time of at least 60 minutes, as claimed).
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:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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 2 is rejected under 35 U.S.C. 103 as being unpatentable over Cui. Evidentiary support of the physical properties of Sil-Cell perlite is provided in the form of Sil-Cell’s Technical Data Sheet (Sil-Cell, Silbrico, hereinafter “Sil-Cell”).
Regarding claim 2, Cui teaches the composition of claim 1 (see the above 102 rejection of claim 1), and further teaches the limitation wherein the composition further comprises a mineral-based perlite particle with a specific gravity of between 0.3–0.9 g/cc and an average particle size of 50–300 µm (see Table 5A, Sample 0901C, which contains “Sil-Cell”; see paragraphs 0101 and 0103 teaching Sil-Cell as small-particle perlite, and paragraph 0059 teaching the small-particle perlite as Sil-Cell 42; also see Sil-Cell, page 2, “Typical Specifications” teaching an average particle size of 45 µm and an effective particle density [which is functionally synonymous with specific gravity] of 0.216 g/cc; while neither of these properties fall within the claimed ranges, they are sufficiently close to render the claimed ranges obvious [see MPEP 2144.05(I) regarding the obviousness of close/approaching ranges], especially when there is no evidence of criticality in the specification). It is also noted that Sample 0901C satisfies the limitations of parent claim 1, in that Cui teaches a low density cementitious mix comprising low density lightweight mineral based particles (see Table 5A, Sample 0901C, which combines at least perlite and fly ash), wherein the composition has compressive strengths of greater than 2000 psi (see Table 5A teaching Sample 0901C as having a compressive strength of 29.0 MPa, or approximately 4206 psi), and a density within a range from about 55 pcf to about 95 pcf (see Table 5B teaching Sample 0901C as having a specific gravity of 1.10, which is approximately 68.64 pcf). Thus, Cui renders obvious all the limitations of claim 2.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Cui as applied to claim 1 above, and further in view of Carkner (US 6,290,769 B1, hereinafter “Carkner”).
Regarding claim 4, Cui teaches the composition of claim 1 (see the above 102 rejection of claim 1), further comprising one or more species from the claimed Markush group, including retarders and accelerators (see paragraph 0042), as well as mineral fibers (see paragraph 0066 teaching at least wollastonite fibers; also see paragraph 0088 teaching basalt fibers), in conjunction with low density lightweight mineral based particles and cementitious systems (see Table 3A, Sample 0821A, wherein wollastonite and basalt are present as mineral fibers, vermiculite is present as a low density lightweight mineral based particle [see the above rejection of claim 1], and fly ash is a cementitious system). Cui fails to explicitly teach the limitations wherein the mixture achieves homogeneity of the mix such that separation is less than about 20%, and wherein an initial set time is within a range of from about 60 minutes to about 130 minutes after being mixed with water. Specifically, Cui fails to discuss the homogeneity of the composition at all, and only teaches a cure time of at least 24 hours (see paragraph 0076), wherein a cure time is the time it takes for the composition to fully hydrate and solidify, while a set time is the time it takes for the sample to lose its workability, indicating that it can be moved and stacked.
Carkner teaches a lightweight concrete composition (see abstract; also see col. 12, ll. 20–30, wherein the density is taught to be between 60–80 pcf) comprising low density lightweight mineral based particles (see col. 14, Table 1, wherein the compositions comprise expanded vermiculite and perlite; also see col. 12, ll. 3–8 teaching the perlite as having a density of about 8–12 pcf [Applicants define “low density minerals” to have a density of from 6.24–56.16 pcf, so this is considered a low-density mineral]). Carkner also teaches the composition as having a significantly high degree of homogeneity (see col. 4, ll. 11–15; “significantly high degree of homogeneity” is considered to meet the limitations of claim 4, which measures homogeneity by a visual separation of less than about 20%; see the above 112(b) rejection of claim 4). Finally, Carkner teaches a set time of from one hour to four hours (see col. 12, ll. 48–49).
While Cui and Carkner teach different cementitious compositions, there is significant compositional overlap that would motivate a person of ordinary skill in the art to combine the two teachings. Both Cui and Carkner endeavor to produce a lightweight cementitious composition made with low-density aggregates such as expanded vermiculite and perlite, and both achieve a low-density composition (compare Cui’s 0821A, which has a density of 81.74 pcf [Table 5B], to Carkner’s Formula X, which achieves a similar density of 75.05 pcf [Table 1]). While Cui fails to explicitly teach homogeneity of their composition, a person of ordinary skill in the art would reasonably seek to produce a homogeneous composition because heterogeneous concrete would not have uniform properties; Carkner shows that a high degree of homogeneity is achievable even with low-density mineral aggregates, which motivates the combination of these references. Furthermore, while Cui fails to explicitly teach a set time, it is well-understood in the art that set retarders and accelerators can be used to control the set time, as discussed by Carkner (see Carkner, col. 12, ll. 40–58), wherein there is a clear benefit to optimizing the set time to suit the application. This means set time is a result-effective variable, and a person of ordinary skill in the art before the effective filing date of the claimed invention would understand to be obvious the importance of optimizing the set time. Because Carkner teaches a suitable set-time window while Cui is silent as to the set time, and because Cui and Carkner teach comparable compositions with comparable densities, a person of ordinary skill in the art would be sufficiently motivated to modify Cui by using set retarders or accelerators to control the set time to fall within the window taught by Carkner. This modification renders the limitations of claim 4 obvious, thus arriving at the claimed invention.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Pinto.
Regarding claim 11, Pinto teaches the cementitious mix of claim 10, further comprising a low density, lightweight cementitious mix comprising low density lightweight mineral-based particles (see paragraph 0006 teaching the inclusion of lightweight aggregate with a density of about 40–60 pcf [Applicants define low-density minerals as having a density of about 6.24–56.16 pcf; see MPEP 2144.05(I) regarding the obviousness of overlapping ranges]; also see paragraph 0029 teaching examples of acceptable aggregates, including at least Arkalite, which is a type of sodalite mineral). Pinto further teaches the limitation wherein the mixture has compressive strengths of greater than 2000 psi (see paragraph 0011 teaching the compressive strength as 2500–6200 psi), and densities within a range from about 55–95 pcf (see paragraph 0029 teaching the density as 70–115 pcf, and preferably 80 pcf; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Thus, Pinto teaches all the limitations of claim 11, rendering it obvious.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Zubrod.
Regarding claim 12, Zubrod teaches the cementitious mix of claim 10, further comprising an ultra low density lightweight cementitious mix comprising low density lightweight polymer based particles (see pg. 7, Table 1 teaching the inclusion of expanded polystyrene as a lightweight aggregate; although Zubrod does not explicitly teach the specific gravity of the polystyrene, paragraph 0063 teaches all aggregates as having a specific gravity of less than 1.0, preferably less than 0.6; Applicants define low-density polymers as having a specific gravity of 0.001–1.25, so Zubrod is considered to inherently meet this limitation by teaching an upper limit of 1.0). Zubrod further teaches the limitation wherein the mixture has compressive strengths of greater than 50 psi (see paragraph 0052 teaching the compressive strengths as between 200–3000 psi), and densities within a range from about 15–55 pcf (see paragraph 0052 teaching the density as between 15–60 pcf; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Thus, Zubrod teaches all the limitations of claim 12, rendering it obvious.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Pinto as applied to claim 10 above, and further in view of Carkner.
Regarding claim 14, Pinto teaches the cementitious mixture of claim 10, further comprising one or more components from the claimed Markush group (see paragraph 0039 teaching the inclusion of metakaolin, which functions as a thixotrope; see paragraph 0032 teaching the inclusion of lignin sulfonates, which function as retardants; see paragraph 0036 teaching the inclusion of calcium formate, which functions as an accelerator), in conjunction with low density lightweight mineral and/or polymer based particles (see paragraph 0030 teaching the inclusion of polycarboxylates, which are polymers; see paragraphs 0006 and 0029 teaching the inclusion of lightweight aggregates, which are further taught to be minerals), and cementitious systems (see paragraph 0044 teaching the various cements that can be used in the composition), to achieve homogeneity of the mix (see paragraph 0046 teaching the dry mixture as being “mixed well” with water; absent any evidence to the contrary, this is considered to suggest mixing until homogeneous; also see the 112(b) rejection of claim 14 regarding this limitation). Pinto fails to explicitly teach the limitation wherein an initial set time is within a range from about 60 minutes to about 130 minutes after being mixed with water (see paragraph 0037 teaching the final set time as preferably 3.5 hours, but not the initial set time). Pinto does, however, teach the use of high alumina cements to adjust the set time (see paragraph 0023).
Carkner teaches a calcium aluminate cement (synonymous with high alumina cement), which is formulated to achieve a set time of 1–4 hours (see col. 12, ll. 48–49). Because both Pinto and Carkner teach lightweight cementitious compositions with low-density mineral aggregates, and because Pinto explicitly teaches the use of high alumina cement to control set time, a person of ordinary skill in the art before the effective filing date of the claimed invention would be sufficiently motivated to modify Pinto according to Carkner, specifically by incorporating Carkner’s calcium aluminate cement to modify the set time to fall between 1–4 hours (60–240 minutes, versus the claimed range of 60–130 minutes; see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). This modification teaches all the limitations of claim 14, thus rendering it obvious.
Claims 15 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Pinto as applied to claim 10 above, and further in view of Perez-Pena (US 2013/0139728 A1, hereinafter “Perez-Pena”).
Regarding claim 15, Pinto teaches the cementitious mixture of claim 10, and further teaches the limitation wherein the chemistry and particles in the mix design accommodate an initial set time which is delayed up to 12 hours (see paragraph 0037 teaching the final set time as being about 3–5 hours; while the initial set time is not known, the wording of the claim, “up to 12 hours”, indicates that any initial set time can occur between t=0 hours and t=12 hours; if the final set occurs at 3–5 hours, the initial set time necessarily occurs before that, thus also falling within the claimed range).
Regarding the alternative limitation wherein the initial set time is within one hour, Perez-Pena teaches a rapid-setting lightweight cementitious composition (see abstract), wherein the final set time is taught to be 20 minutes at the most, and preferably 4–6 minutes (see Perez-Pena, paragraph 0024). As explained above, if the final set time is stated to fall within the claimed range, the initial set time necessarily does as well; as claimed, “within one hour” includes all set times from t=0 minutes to t=60 minutes, so if Perez-Pena teaches a final set time within one hour, the initial set time also occurs within one hour. Furthermore, because Pinto explicitly teaches the use of high alumina cements to adjust the set time (see Pinto, paragraph 0023), a person of ordinary skill in the art before the effective filing date of the claimed invention would be sufficiently motivated to modify Pinto according to Perez-Pena, who teaches the use of calcium aluminate cement (synonymous with high alumina cement; see Perez-Pena, paragraph 0020), and discusses the components required to achieve such a rapid set time (see Perez-Pena, paragraph 0022). By modifying Pinto according to Perez-Pena to achieve a final (and therefore initial) set time of within one hour, the limitations of claim 15 are met, and therefore the claim is rendered obvious.
Regarding claim 16, Pinto, as modified by Perez-Pena, teaches the cementitious mixture of claim 15, wherein the initial set of the mixture is accelerated (see Pinto, paragraph 0036 teaching the use of accelerators) or retarded (see Perez-Pena, paragraph 0085 teaching the use of retarders) through the use of supplemental chemicals or other activators for use on-site (the “on-site” limitation is presumed obvious; Pinto discusses the use of dispersing agents either in cement plants or on site [see paragraph 0030], so a person of ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that accelerators and retarders can be employed on-site as necessary). This modification of Pinto by Perez-Pena meets all the limitations of claim 16, thus rendering it obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ryan P Loughran whose telephone number is (571)272-2173. The examiner can normally be reached M, T, Th, F 6:30-4:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Orlando can be reached at (571)270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/R.P.L./Examiner, Art Unit 1731
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731