DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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 Claim Amendment filed 06/13/2023
2. New claims 6-8 were added which are supported by the original language of claim 5.
Thus, no new matter is present at this time.
Claim Objections
3. Claims 2-4 are objected to because of the following informalities:
As to Claims 2 and 3: The applicants are advised to replace the claimed “polyethylene terephthalate” with “polyethylene terephthalate (PET)”.
As to Claim 4: The applicants are advised to replace the claimed phrase “wherein there is finish oil between 0.02%-3% maximum on PET microfibers” with the new phrase “wherein the polymer fiber is a PET microfiber and there is finish oil between 0.02%-3% maximum on the PET microfiber” as supported by paragraphs [0022] and [0026] of applicants’ published application, i.e., US PG PUB 2024/0051870.
Appropriate corrections are 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.
4. Claims 2-4 and 6-8 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.
As to Claim 2: It recites, among other things, “(cellulosic, glass, basalt)”. It is not clear from the claim or the present specification whether the polymer fiber is limited to natural fibers or the particular types of fibers, namely cellulosic, glass, and basalt, surrounded by parenthesis.
As to Claim 4: It recites, among other things, “0.02%-3% maximum”. However, there is no basis for these percentages, and thus, it is not clear whether the percentages are referring to “% by volume” as recited in the other claims or something else since the specification merely repeats what is already in the claim without further explanation (see page 5, lines 14-15 of the present specification). Clarification in the next response by applicants will be helpful to better ascertaining the scope of these claims.
It is further noted that since claims 3 and 6-8 are either directly or ultimately dependent on claims 2 and 4, they are rejected along with claims 2 and 4 because they incorporate all the limitations of claims 2 and 4 including those that are indefinite for the reasons provided above.
Accordingly, the scope of these claims is deemed indefinite.
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.
5. Claim 2 is 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.
To the extent claim 2 requires glass and basalt fibers, they fail to further limit the scope of claim 1 which recites “polymer fiber” since glass and basalt fibers are inorganic fibers, not a polymer fiber.
Applicants 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 § 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.
6. Claims 1-3 and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over EP 3 842 400 (hereinafter referred to as “EP ‘400”) in view of DE SEQUEIRA SERRA NUNES (US 2013/0139731).
The claims are drawn to a product specifically, a mortar mixture for use in pool plasters and recite the ingredients including water, dry mix comprising white cement/grey cement and sand/aggregate, and polymer fiber.
Although the claim makes reference to using the mortar mixture for pool plasters, the present specification does not indicate that the functional language “for use in pool plasters” further limit the claimed ingredients.
As to Claims 1-3 and 5-7: EP ‘400 discloses a mixture obtained from admixing a dry mortar and fibers with water (Paragraphs [0001], [0009], and [0011]), corresponding to the claimed mortar mixture, wherein the dry mortar (corresponding to the claimed dry mix) of the mixture comprises at least one cementitious binder and at least one aggregate, preferably a mixture of sand and fine aggregate (corresponding to the claimed sand/aggregate), in a dry state (Paragraphs [0010]-[0011] and [0049]). EP ‘400 further discloses that its fibers can be natural fibers and fibers based on polyethylene terephthalate (PET) (Paragraphs [0050] and [0051]), corresponding to the polymer fibers recited in present claims 1-3. Moreover, EP ‘400 discloses that these polymer fibers may be used in amount of 0.01-2 wt.% (i.e., encompassed by the claimed amount of polymer fibers, i.e., 0.01-3% by volume) for the purposes of improving the slip resistance, to increase the flexibility and to achieve a creamy consistency of building materials (Paragraph [0082]).
While EP ‘400 broadly discloses adding at least one cementitious binder comprises or consists of any cement, such as Portland cement, to the dry mortar (dry mix) of the mixture for building materials (Paragraphs [0011] and [0027]-[0039]), it does not specify its cement as including white cement/grey cement as required by the claims of the present application.
Nevertheless, DE SEQUEIRA SERRA NUNES discloses the use of grey and white Portland cements as cementitious binders for the purposes of obtaining fast-developing strengths and dependent on the desired colors of building materials (Paragraphs [0022] and see also abstract).
Given the above teachings, it would have been obvious to one of ordinary skill in the art employ the white cement/grey Portland cements taught by DE SEQUEIRAQ SERRA NUNES as the cements of the cementitious binders in the mortar mixture of EP ‘400, with a reasonable expectation of successfully obtaining fast-developing strengths and desired colors of building materials.
Additionally, EP ‘400 discloses using the above mortar mixture for building materials (Paragraph [0011]), which broadly includes the claimed pool plasters. In any event, since EP ‘400 and DE SEQUERIA SERRA NUNES collectively suggest preparing identical or substantially identical mixture as claimed, the mixture suggested by EP ‘400 and DE SEQUERIA SERRA NUNES would also be capable of being used for pool plasters. See MPEP section 2113.01 “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.” See also MPEP 2145, II (“The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious”). Moreover, there is nothing on this record to distinguish the claimed mortar mixture from the mortar mixture described by EP ‘400 and DE SEQUERIA SERRA NUNES,
7. On this record, it is noted that there are no prior art rejections of present claim 4 and its dependent claim 8 at this time. Furthermore, the prior art made of record, namely Chakravarti et al. (US 4,381,640), and not relied upon is considered pertinent to applicants’ disclosure. Specifically, Chakravarti et al. only disclose the use of finish oil on polyethylene terephthalate filaments (yarn) in an amount of 0.15-0.25 percent in a process for the production of reinforced rubber articles (Col. 1, lines 5-20 and Col. 5, lines 30-36). However, Chakravarti et al. do not specify the filaments as PET microfibers used in a mortar mixture comprising water and dry mix comprising white cement/grey cement and sand/aggregate as required by the claims.
Correspondence
8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to HANNAH J PAK whose telephone number is (571)270-5456. The examiner can normally be reached 8-5 PM; M-F.
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/HANNAH J PAK/Primary Examiner, Art Unit 1764