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 Amendment
2. The Applicants submitted a response on 8/27/2026 to the office action mailed on 5/29/2026. The status of the claims is as follows.
Claim Rejections - 35 USC § 103
3. Claims 16-28 are rejected under 35 U.S.C. 103 as being unpatentable over (US 2004/0225093 A1) to Tomita et al. (hereinafter Tomita) in view of the teachings of (US 2020/0231499 A1) to Hesse et al. (hereinafter Hesse).
The above noted rejection is hereby maintained.
Response to Arguments
4. Applicant's arguments filed 8/27/2026 have been fully considered but they are not persuasive. Applicants argue that Tomita does not disclose a magnesium chloride “solving” any of the properties via a nozzle. The claim is directed toward a composition and NOT a method of use and must be merely capable of being used via a nozzle, which the Applicants have provided no evidence that the identical composition would not be capable of being used with a nozzle. Tomita, the primary reference, discloses at paragraph [0166] that a High-early-strength agents or accelerators of a magnesium chloride accelerator may be used. One skilled in the art would find it obvious to use a magnesium chloride to provide high early compressive strength, which is clearly taught. It has been held that the mere fact that a reference suggest a multitude of possible combinations does not in and of itself make any one of these combinations less obvious, citing Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804 (Fed. Cir. 1989). Here the compound is used for the same purpose with only a few alternatives and therefore obvious. Applicants argue that the claims produce unexpected results and that the claims are not anticipated by the references, but the claims are a composition and not a method and therefore the arguments are not persuasive. The Office provided obviousness rejections and therefore arguments regarding anticipation are not relevant.
Conclusion
5. THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
6. 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.
7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY D WASHVILLE whose telephone number is (571)270-3262. The examiner can normally be reached M-F 9-5.
8. 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.
9. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Randy Gulakowski can be reached at 571-272-1302. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
10. 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.
/JEFFREY D WASHVILLE/Primary Examiner, Art Unit 1766
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