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
The Amendment filed September 16, 2025 has been entered.
Claims 1-20 are pending in the application.
Specifically, claims 1-15 were amended. Written descriptive support for these amendments can be found in the original language recited in claims 1-15 and page 3, lines 16-20 of the specification as originally filed.
New claims 16-20 were added. Written descriptive support for these new claims can be found in the original language recited in claims 1, 3, and 6-11 and page 10, lines 1-3 of the specification as originally filed.
Since this amendment is presented for the first time in prosecution of this present application, it necessitates new ground(s) of rejection(s) as shown below. Accordingly, this action is properly made FINAL.
Moreover, upon further consideration, the objection to the specification set forth in the previous Office action mailed June 16, 2025, is no longer applicable and thus, withdrawn.
Claim Rejections - 35 USC § 112
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.
Claim 17 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. Claim 17, as it is written, is dependent on itself, which makes Claim 17 improperly dependent. 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. For the purposes of examination, Claim 17 will be interpreted to be dependent on Claim 16. It is suggested that the claim language clarify which claim Claim 17 is dependent upon.
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.
Claims 1-2, 5-10, and 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Qin et al. (CN 111662059A; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Qin”) in view of Modes et al. (EP 2762545A1; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Modes”).
Qin teaches a waterproof grouting mortar for road cracks comprising component A and component B [Abstract; Claim 1], corresponding to the claimed kit of parts suitable to form a waterproofing membrane, wherein it consists of a first component A and a second component B of Claim 1, and a porous construction material treated in a process for waterproofing of Claim 14.
Qin further teaches:
Component B [Examples 1-3; ¶0046-0057; Claim 1], corresponding to component A of Claims 1 and 10, comprising:
sulphoaluminate cement [Examples 1-3; ¶0046-0057; Claims 1, 6], corresponding to the hydraulic binder of Claims 1 and 10, and thereby reading on the aluminate cement of Claim 2;
2 kg waste rubber particles [Examples 1-3; ¶0046-0057; Claim 1], which is equivalent to 4 wt. % of the total amount of component B1, corresponding to 1-5 mass parts of a synthetic polymer of Claims 1 and 10, which is equivalent to 0.9-7 wt. % of the total amount of component A;
28 kg sand [Examples 1-3; ¶0046-0057; Claim 1], which is equivalent to 49 wt. % of the total amount of component B2, corresponding to 20-50 mass parts of aggregates of Claims 1 and 10, which is equivalent to 24-52 wt. % of the total amount of component A;
Component A [Examples 1-3; ¶0046-0057; Claim 1], corresponding to component B of Claims 1 and 10, comprising:
80-95% of emulsified asphalt and 4.5-18% of a water-based polymer modifier [Examples 1-3; ¶0046-0057; Claim 1], corresponding an aqueous emulsion of bitumen of Claims 1 and 10, and 100 mass parts of an aqueous emulsion of bitumen of Claim 9, which is equivalent to 100% of aqueous emulsion of bitumen;
Desulfurized gypsum3 [¶0020], corresponding to the thickener of Claim 7;
adding Component A to a stirring device and mixing with Component B [¶0026], corresponding to mixing the first component A and the second component B of Claim 10; and
application of the waterproof grouting mortar in repairing cracks in asphalt concrete pavement [¶0029], corresponding to applying the mixture thus obtained to a porous construction material of Claim 10.
Regarding Claims 1, 5-6, 8, and 10, however, Qin is silent to 45-60 mass parts of a hydraulic binder, the aqueous emulsion of bitumen being anionic of Claim 5, the amount 10-70 w % of aqueous emulsion of bitumen of Claim 6, and wherein the component B additionally comprises a synthetic polymer of Claim 8.
Nevertheless, Modes teaches building and roof waterproofing material [Abstract; Example 1] comprising:
27 mass % of Portland cement [Example 1; ¶ 0021];
13 mass % high-alumina cement [Example 1; ¶ 0021];
18 mass % hard coal fly ash [Example 1; ¶ 0021];
Which is equivalent to total of 58 mass % of hydraulic binder, which is encompassed by 45-60 mass parts of a binder, which is equivalent to 45-75 mass %, of Claim 1.
Modes further teaches:
50 mass % anionic bitumen emulsion [Example 1; ¶0021], corresponding to the anionic bitumen emulsion of Claim 5, and is encompassed by 10-70 w % of aqueous bitumen emulsion of Claim 6; and
polymer dispersion Lipren B (Synthomer) [¶0021], corresponding to the additional synthetic polymer of component B of Claim 8.
Modes also teaches said waterproofing material hardens within 24 hours to form a flexible, pressure resistant seal that is free from shrinkage and can be used like a thick bitumen coating in the foundation area of buildings or like a mineral sealing slurry in the base area of buildings and for sealing containers, as well as for sealing in the roof area [¶0017].
Qin and Modes are considered to be analogous art as the claimed invention, as all are in the same field of waterproofing materials for construction.
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the amount of hydraulic binder, anionic emulsion of bitumen and synthetic polymer of Modes with the waterproofing mortar of Qin, thereby arriving at the claimed invention.
Regarding Claims 12 and 15, Qin further teaches a fluidizer can increase the fluidity of component B and also has a viscosity-reducing effect on component A, and increasing the viscosity makes it difficult to flow and pour [¶0034, 0063].
However, Qin is silent to the self-levelling properties of the waterproofing material of Claims 12 and 15.
Nevertheless, it would be obvious to one of ordinary skill that Qin recognizes the importance of the viscosity of the waterproofing mortar and teaches the addition of fluidizer to decrease the viscosity of said waterproofing mortar. Furthermore, Qin teaches the same waterproofing material as required by the instant claim as set forth in the rejection above. The addition of fluidizer would further decrease the viscosity of said waterproofing material, making it easier to flow and self-level. Therefore, the waterproofing material of Qin would expectedly result in the same self-leveling properties as required by the instant claims. Case law has held that claiming of a new use, new function or unknown property which is expectedly present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). The courts have stated that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 15 USPQ2d 1655, (Fed. Cir. 1990). See also In re Best, 562 F.2d 1252, 195 USPQ 430, (CCPA 1977). "Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established." Further, if it is the applicant's position that this would not be the case, evidence would need to be provided to support the applicant's position. In the alternative that the above disclosure is insufficient to anticipate the above listed claims, it would have nonetheless been obvious to the skilled artisan to produce the claimed waterproofing material, as the reference teaches each of the claimed ingredients (hydraulic binder, polymer, aggregates and aqueous emulsion of bitumen) for the same utility (waterproofing) and for the same purpose (to obtain a waterproofing material for construction).
Regarding Claim 13, Qin is silent to wherein the mix ratio of component A to component B is such that the weight ratio of the aqueous bitumen emulsion (comp B) to the hydraulic binder is between 0.01:1 and 2:1.
However, Qin teaches a weight ratio of component A to component B is 1:0.5-1.2 and component B comprises 19-36 wt. % of a rapid curing agent such as a binder [Claim 1].
Nevertheless, it would be obvious to one of ordinary skill that the amount of hydraulic binder would be 139-632%4, which corresponds to the claimed range of 0.01:1 and 2:1, which is equivalent to 50-10,000%. Furthermore, the amount of the hydraulic binder can be optimized to reach the desired binding material properties via a routine optimization. The case law has held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Thus, it would have been obvious to one having ordinary skill in the art at the time of the invention was made to adjust the amount of hydraulic binder for the intended application via a routine optimization, thereby obtaining the present invention.
Claims 3-4 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Qin et al. (CN 111662059A; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Qin”) in view of Modes et al. (EP 2762545A1; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Modes”) as applied to Claims 1-2, 5-10, and 12-15 above and in further view of Braker et al. (US 20210238844 A1; hereafter as “Braker”).
Qin and Modes collectively teach the hydraulic binder, polymer, aggregates and aqueous emulsion of bitumen of Claim 1 as set forth above and incorporated herein by reference.
Qin teaches 24 kg sulphoaluminate cement [Examples 1-2; ¶0046-0057; Claim 1], which is equivalent to 43 wt. % of the total amount of component B5, which is encompassed by 20-50 mass parts of aluminate cement of Claims 3 and 11, which is equivalent to 17-63 wt. % of the total amount of component A6. Qin also teaches 80-95% of emulsified asphalt and 4.5-18% of a water-based polymer modifier [Examples 1-3; ¶0046-0057; Claim 1], corresponding 100 mass parts of an aqueous emulsion of bitumen of Claim 11, which is equivalent to 100% aqueous emulsion of bitumen.
However, Qin is silent to 20 - 50 mass parts of Portland Cement of Claims 3 and 11, 10-50 mass parts of calcium sulfate of Claims 3 and 11, and wherein the source of calcium sulfate is alpha-calcium sulfate hemihydrate of Claim 4.
Modes teaches building and roof waterproofing material [Abstract; Example 1]. Modes further teaches said material comprises 27 mass % of Portland cement [Example 1; ¶0021], which is encompassed by to 20 - 50 mass parts of Portland Cement of Claims 3 and 11, which is equivalent to 17-63 wt. % of the total amount of component A7. Modes also teaches the material hardens within 24 hours to form a flexible, pressure resistant seal that is free from shrinkage and can be used like a thick bitumen coating in the foundation area of buildings or like a mineral sealing slurry in the base area of buildings and for sealing containers, as well as for sealing in the roof area [¶0017].
Braker teaches a sealing element for concrete [Abstract], comprising 10-40 wt. % hydraulic binders, such as calcium sulfate α-hemihydrate gypsum [¶0093-0094, 0126], corresponding to 10-50 mass parts of a source of calcium sulfate of Claim 3 and 11, which is equivalent to 9-55 wt. %8 of the total amount of component A, and wherein the source of calcium sulfate is alpha-calcium sulfate hemihydrate of Claim 4. Braker further teaches said sealing element results in a product that enables faster installing of sealing elements [¶0011].
Qin, Modes and Braker are considered to be analogous art as the claimed invention, as all are in the same field of waterproofing materials for construction.
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the Portland cement of Modes and calcium sulfate of Braker with the waterproofing mortar of Qin, thereby arriving at the claimed invention.
Claims 16 are rejected under 35 U.S.C. 103 as being unpatentable over Qin et al. (CN 111662059A; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Qin”) in view of Modes et al. (EP 2762545A1; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Modes”) as applied to Claims 1-2, 5-10, and 12-15 above and in further view of Frenkenberger et al. (WO 1999/048835; cited in the IDS submitted on 06/28/2024; English translation incorporated herein; hereafter as “Frenkenberger”).
Qin and Modes teach the hydraulic binder, polymer, aggregates and aqueous emulsion of bitumen of Claim 1 as set forth above and incorporated herein by reference.
Qin further teaches 1 kg of gypsum9 [Example 3; ¶ 0056], which is equivalent to 1.8 wt. % gypsum10, and thus, encompassed by 1-10 mass parts of a thickener of Claim 16, which is equivalent to 0.1-3.8 wt. % of the total amount of component B.
However, Qin and Modes is silent to 100 mass parts of an aqueous emulsion of bitumen and 150-900 mass parts of water of Claim 16.
Nevertheless, Frenkenberger teaches mortar systems [Abstract] comprising:
bitumen emulsion mixed with water in a ratio of 1:2 to 1:4 parts by weight [Page 4, ¶ 8-9] which is equivalent to 100 mass parts bitumen and 200-400 mass parts water, which corresponds to 100 mass parts of bitumen and is encompassed by 150-900 parts of water of Claim 16.
Frenkenberger further teaches said mortar system is suited for the production of self-leveling flowing screeds due to their excellent frost/de-icing salt resistance [Page 4, ¶ 13].
Qin, Modes and Frenkenberger are considered to be analogous art as the claimed invention, as all are in the same field of mortar systems.
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the amounts of bitumen emulsion and water of Frenkenberger with the waterproofing mortar of Qin and Modes, thereby arriving at the claimed invention.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Qin et al. (CN 111662059A; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Qin”) in view of Modes et al. (EP 2762545A1; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Modes”) and in further view of Braker et al. (US 20210238844 A1; hereafter as “Braker”) and Frenkenberger et al. (WO 1999/048835; cited in the IDS submitted on 06/28/2024; English translation incorporated herein; hereafter as “Frenkenberger”).
Qin and Modes teach the hydraulic binder, polymer, aggregates and aqueous emulsion of bitumen of Claims 1 and 10 as set forth above and incorporated herein by reference.
Qin teaches:
24 kg sulphoaluminate cement [Examples 1-2; ¶0046-0054; Claim 1], which is equivalent to 43 wt. % of the total amount of component B11, and is thereby encompassed by 30-40 mass parts of aluminate cement, which is equivalent to 27-47 wt. % of the total amount of component A12, of Claim 18; and which is encompassed by 20-50 mass parts of aluminate cement, which is equivalent to 17-63 wt. % of the total amount of component A13, of Claim 19;
2 kg waste rubber particles [Examples 1-2; ¶0046-0054; Claim 1], which is equivalent to 4 wt. % of the total amount of component B14, which is encompassed by 0.5-15 mass parts of a synthetic polymer, which is equivalent to 0.5-17 wt. % of the total amount of component A, of Claim 18;
24 kg sand [Examples 1-2; ¶0046-0054; Claim 1], which is equivalent to 43 wt. % of the total amount of component B15, which encompasses 30-50 mass parts of aggregates, which is equivalent to 30-53 wt. % of the total amount of component A, of Claim 18;
80-95% of emulsified asphalt and 4.5-18% of a water-based polymer modifier [Examples 1-2; ¶0046-0054; Claim 1], corresponding 100 mass parts of an aqueous emulsion of bitumen of Claims 18-19, which is equivalent to 100% aqueous emulsion of bitumen.
1 kg of gypsum16 [¶ 0056], which is equivalent to 1.8 wt. % gypsum17, which is encompassed by 1-10 mass parts of a thickener of Claims 18-19, which is equivalent to 0.1-3.8 wt. % of the total amount of component B.
However, Qin is silent to 45-55 mass parts of a hydraulic binder of Claim 18, 30-40 mass parts of Portland Cement of Claim 18, 20 - 50 mass parts of Portland Cement of Claim 19, 15-40 mass parts of calcium sulfate of Claim 18, 10-50 mass parts of calcium sulfate of Claim 19, an anionic aqueous emulsion of bitumen having a content of bitumen between 10-70 wt. % of Claim 18, and 150-900 mass parts of water of Claim 18-19.
Regarding hydraulic binder, Portland cement and an anionic aqueous emulsion of bitumen, Modes teaches building and roof waterproofing material [Abstract; Example 1] comprising:
27 mass % Portland cement [Example 1; ¶ 0021], which is encompassed by 30-40 mass parts of Portland Cement, which is equivalent to 27-47%, of Claim 18, and is encompassed by 20-50 mass parts of Portland Cement, which is equivalent to 17-63 wt. % of the total amount of component A18 of Claim 19;
13 mass % high-alumina cement [Example 1; ¶ 0021]; and
18 mass % hard coal fly ash [Example 1; ¶ 0021];
which totals 58 mass % of hydraulic binder, which is encompassed by 45-55 mass parts (which is equivalent to 41-65 mass %) of a hydraulic binder of Claims 18-19;
50 mass % anionic bitumen emulsion [Example 1; ¶0021], corresponding to the anionic bitumen emulsion of Claim 18, and is encompassed by 10-70 wt. % of aqueous bitumen emulsion of Claim 18; and
Modes also teaches said waterproofing material hardens within 24 hours to form a flexible, pressure resistant seal that is free from shrinkage and can be used like a thick bitumen coating in the foundation area of buildings or like a mineral sealing slurry in the base area of buildings and for sealing containers, as well as for sealing in the roof area [¶0017].
Regarding calcium sulfate, Braker teaches a sealing element for concrete [Abstract], comprising: 10-40 wt. % hydraulic binders, such as calcium sulfate α-hemihydrate gypsum [¶0093-0094, 0126], which is encompassed by 15-40 mass parts of a source of calcium sulfate of Claim 18, which is equivalent to 16-40 wt. %19 of the total amount of component A, and 10-50 mass parts of a source of calcium sulfate of Claim 19, which is equivalent to 9-55 wt. %20 of the total amount of component A.
Braker further teaches said sealing element results in a product that enables faster installing of sealing elements [¶0011].
Regarding water of Claim 18-19, Frenkenberger teaches mortar systems [Abstract] comprising bitumen emulsion mixed with water in a ratio of 1:2 to 1:4 parts by weight [Page 4, ¶ 8-9] which is equivalent to 100 mass parts bitumen and 200-400 mass parts water, which is encompassed by 150-900 parts of water of Claims 18-19.
Frenkenberger further teaches said mortar system is suited for the production of self-leveling flowing screeds due to their excellent frost/de-icing salt resistance [Page 4, ¶ 13].
Qin, Modes, Braker and Frenkenberger are considered to be analogous art as the claimed invention, as all are in the same field durable construction materials.
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the hydraulic binder, Portland cement and an anionic aqueous emulsion of bitumen of Modes, calcium sulfate of Braker, and amounts of bitumen emulsion and water of Frenkenberger with the waterproofing mortar of Qin and Modes, thereby arriving at the claimed invention.
Claims 17 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Qin et al. (CN 111662059A; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Qin”) in view of Modes et al. (EP 2762545A1; cited in the IDS submitted on 06/28/2024; English machine translation incorporated herewith; hereafter as “Modes”) as applied to Claims 1-2, 5-10, and 12-15 above and in further view of Braker et al. (US 20210238844 A1; hereafter as “Braker”), Frenkenberger et al. (WO 1999/048835; cited in the IDS submitted on 06/28/2024; English translation incorporated herein; hereafter as “Frenkenberger”) and Chun et al. (KR100424218B1; English translation incorporated herein; hereafter as “Chun”).
Qin, Modes, Braker, and Frenkenberger teach the hydraulic binder, polymer, aggregates and aqueous emulsion of bitumen of Claims 16 and 19 as set forth above and incorporated herein by reference.
However, Qin Modes, Braker, and Frenkenberger are silent to a modified urea as a thickener.
Nevertheless, Chun teaches a resin finishing material having excellent water resistance and that comprises modified urea as a preferred thixotropic agent [Abstract; ¶ 29], corresponding wherein the thickener comprises modified urea of Claims 17 and 20. Chun further teaches thixotropic agents, such as modified urea, provide appropriate flowability, thereby preventing sagging of the resin mortar and facilitating finishing work [¶ 24].
Qin, Modes, Braker, Frenkenberger, and Chun are considered to be analogous art as the claimed invention, as all are in the same field of durable waterproofing constructure materials comprising polymers and binders.
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the modified urea additive of Chun with the waterproofing mortar of Qin, Modes, Braker, and Frenkenberger thereby arriving at the claimed invention.
Response to Applicants’ Arguments in their Remarks filed 09/16/2025
Applicant argues (1) on page 8 of their Remarks that the Qin reference discloses an upper limit of 36 wt. % of fast curing agent in component B and example 2 cited in the Office Action, the component B comprises 43 wt. % of sulfoaluminate cement. However, the exemplary embodiments provided in the examples need not correspond with the embodiments disclosed in the claims in order to anticipate or render obvious the presently claimed invention. Furthermore, attention is directed to the disclosure, as set forth above, wherein Qin is not relied upon to teach the amount of hydraulic binder, Modes is. More specifically, Qin teaches the synthetic polymer [Examples 1-3; ¶0046-0057; Claim 1], aggregates [Examples 1-3; ¶0046-0057; Claim 1], and an aqueous emulsion of bitumen [Examples 1-3; ¶0046-0057; Claim 1], and wherein Modes teaches 58 mass % of hydraulic binder [Example 1; ¶ 0021] which is encompassed by 45-60 mass parts of a binder. Thus, applicant’s argument is not persuasive. Applicant argues (2) on page 8 of their Remarks that it is not possible that the 36 wt. % of fast curing agent in component B according to claim 1 of Qin relates to the entire waterproof grouting mortar composition, because in this case it would not be possible that the same composition contained 80-95 wt. % of cationic emulsified asphalt as is also required by claim 1 of Qin. However, claim 1 of Qin teaches the waterproof grouting mortar comprises component A and component B, each of which comprises its own substances in percentage by weight. Qin teaches the substances of A and B, each individually, wherein the sum of each of their weight percentages should each equal 100 wt. %. In other words, the weights percentages of the substances in A are all normalized to the sum of the of all the substance weights in A; whereas the weights percentages of the substances in B are all normalized to the sum of the of all the substance weights in B. This is particularly evident where the claim 1 language discloses component A comprises “weight percentages of substances…asphalt…polymer modifier… and the balance of rock asphalt powder” (emphasis added). Said “balance of rock asphalt powder” implies that should the weight percentages of asphalt and polymer modifier fall short of 100 weight percent, that the remaining weight percent necessary to amount to 100 weight percent would be added in rock asphalt powder. Similarly, component B comprises “substances in percentage by weight: …rapid curing agent,… fine aggregates, …waste rubber particles,…fluidizing agent and the balance of water” (emphasis added). In the case of component B, the remaining weight percentage necessary to amount to 100 weight percent would be added in water. Going back to applicant’s argument, the amount of fast curing agent is normalized to the total weight of component B, and the amount of cationic emulsified asphalt is normalized to the total weight of component A. Thus, it is wholly possible that the weight percentages of fast curing agent and cationic emulsified asphalt add up to more than 100 weight percent. Thus, applicant’s argument is not persuasive.
Applicant argues (3) on page 8 of their Remarks that Qin does not disclose a composition as presently claimed comprising a minimum of 45 mass parts of hydraulic binder. However, attention is directed to the disclosure, as set forth above, wherein Qin teaches the synthetic polymer, aggregates, and an aqueous emulsion of bitumen, and wherein Modes teaches hydraulic binder. Thus, applicant’s argument is not persuasive.
Applicant argues (4) on Page 8 of their Remarks that example E-3 of the present invention, in comparison to examples EC-3 and EC-4, demonstrates that the combined use of a synthetic polymer and a hydraulic binder at the claimed amounts is suitable to achieve the required flowability. However, Examples E-1, E-2, and E-3 in the instant Specification all contain the same amounts of calcium aluminate cement (20 g), alpha-calcium sulfate (12.4 g), Portland cement (20 g), sand (31.6 g), calcium carbonate (13.3 g), synthetic polymer (2 g) and additives (0.7 g). The provided examples simply show that a single embodiment containing 97 mass parts of hydraulic binder and 2 mass parts of synthetic polymer achieves the required flowability. A single embodiment cannot show that the broadly claimed ranges of 45-60 mass parts of hydraulic binder and 1-5 mass parts of at least one synthetic polymer confer unexpected results. It is suggested that experimental data be provided that demonstrate embodiments containing components at their respective upper and lower claimed limits confer the claimed flowability. Thus, applicant’s argument is not persuasive.
Applicants argue (5) on Pages 9-10 of their Remarks that since the amended independent claims 1 and 10 were not disclosed or rendered obvious by the cited Qin reference, dependent claims 2, 7, 9 and 14 cannot be disclosed or suggested by the Qin reference; dependent claims 5, 6, and 8 cannot be disclosed or suggested by the Qin reference in view of Modes; and dependent claims 3, 4, and 11 cannot be disclosed or suggested by the Qin reference in view of Modes and Bräker, either. However, attention is directed to the disclosure above, wherein Qin and Modes teach the elements of Claims 1 and 10. Specifically, Qin teaches the synthetic polymer [Examples 1-3; ¶0046-0057; Claim 1], aggregates [Examples 1-3; ¶0046-0057; Claim 1], and an aqueous emulsion of bitumen [Examples 1-3; ¶0046-0057; Claim 1], and wherein Modes teaches the hydraulic binder and its claimed amount [Example 1; ¶ 0021]. Furthermore, while Modes and Braker do not disclose all the features of the claimed invention, they are utilized as teaching references and therefore, it is not necessary for these secondary and tertiary references to contain all the features of the presently claimed invention. Rather, these references teach certain concepts, (i.e., Modes teaches hydraulic binder, synthetic polymer and aqueous emulsion of bitumen, and Bräker teaches calcium sulfate) and in combination with the other references discloses the presently claimed invention. It follows that this argument is not convincing at this time. Thus, applicant’s argument is not persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DORIS LING whose telephone number is (571)270-3961. The examiner can normally be reached Monday-Friday, 8:30am-5:00pm.
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/DORIS LING/Examiner, Art Unit 1764
/HANNAH J PAK/Primary Examiner, Art Unit 1764
1 % waste rubber particles = amount waste rubber particles /total mass = 2kg / (24+24+2+6+0.2)kg = 4 wt. %
2 % sand = amount sand/total mass = 24kg / (24+24+2+6+0.2)kg = 43 wt. %
3 According to Briquette Solution (NPL), desulfurized gypsum is a retarder that acts as a cement thickener.
4 minimum ratio = minimum component B/maximum binder = 0.5/0.36 = 139%; maximum ratio = maximum component B/minimum binder = 1.2/0.19 = 632%
5 % sulphoaluminate cement = amount sulphoaluminate cement/total mass = 24kg / (24+24+2+6+0.2)kg = 43 wt. %
6 % sulphoaluminate cement = amount sulphoaluminate cement /total mass; 20/(20+50+50) = 17 wt. %; 50/(50+20+10) = 63 wt. %
7 % Portland cement = amount Portland cement/total mass; 20/(20+50+50) = 17 wt. %; 50/(50+20+10) = 63wt. %
8 % calcium sulfate = amount calcium sulfate /total mass; 10/(10+50+50) = 9 wt. %; 50/(50+20+20) = 55 wt. %
9 According to Briquette Solution (NPL), desulfurized gypsum is a retarder that acts as a cement thickener.
10 % gypsum = amount gypsum/total mass = 1 kg / (20+1+28+2+6+0.16)kg = 1.8 wt. %
11 % sulphoaluminate cement = amount sulphoaluminate cement/total mass = 24kg / (24+24+2+6+0.2)kg = 43 wt. %
12 % sulphoaluminate cement = amount sulphoaluminate cement /total mass; 20/(20+50+50) = 17 wt. %; 50/(50+20+10) = 63 wt. %
13 % sulphoaluminate cement = amount sulphoaluminate cement /total mass; 20/(20+50+50) = 17 wt. %; 50/(50+20+10) = 63 wt. %
14 % waste rubber particles = amount waste rubber particles /total mass = 2kg / (24+24+2+6+0.2)kg = 4 wt. %
15 % sand = amount sand/total mass = 24kg / (24+24+2+6+0.2)kg = 43 wt. %
16 According to Briquette Solution (NPL), desulfurized gypsum is a retarder that acts as a cement thickener.
17 % gypsum = amount gypsum/total mass = 1 kg / (20+1+28+2+6+0.16)kg = 1.8 wt. %
18 % Portland cement = amount Portland cement/total mass; 20/(20+50+50) = 17 wt. %; 50/(50+20+10) = 63wt. %
19 % calcium sulfate = amount calcium sulfate /total mass; 10/(10+50+50) = 9 wt. %; 50/(50+20+20) = 55 wt. %
20 % calcium sulfate = amount calcium sulfate /total mass; 10/(10+50+50) = 9 wt. %; 50/(50+20+20) = 55 wt. %