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 claims 1–3, 5–9, and 11–20 in the reply filed on 03 March 2026 is acknowledged.
Claims 36–38 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03 March 2026.
Priority
The present application cites priority to two provisional applications: 63/163,294, filed 19 March 2021 (hereinafter “’294”, and 63/284,496, filed 30 November 2021 (hereinafter “’496”), as well as a PCT application (PCT/US22/21112) filed 21 March 2022.
Provisional ‘294 does not fully support the independent claims. It recites a mortar composition prepared using stillage water, but there is no mention of a hydrothermal carbonization process prior to use in the mortar mix. Therefore, the independent claims cannot claim benefit to the priority date of provisional ‘294. Provisional ‘496 supports claims 1, 2 and 5, and so these claims have an effective filing date of 30 November 2021. The PCT application supports all claims, so claims 3, 6–9, 11–13, and 15–20 have an effective filing date of 21 March 2022.
Claim Objections
Claim 15 is objected to because of the following informalities:
Claim 15’s preamble refers to “The concrete mix of claim 1”, but claim 1 recites a mortar mix, not a concrete mix. However, the Examiner believes this is a typographical error, wherein “The concrete mix of claim 1” is meant to read “The concrete mix of claim 11”. Because this is presumed to be a typographical error, it only amounts to an objection. However, if Applicants did intend for claim 15 to refer back to claim 1, claim 15 will instead be rejected under 35 U.S.C. 112(b) as lacking antecedent basis.
Appropriate correction is required.
Claim Interpretation
Claim 3 recites the limitation “wherein the stillage liquid is a filtered stillage liquid without solids” (emphasis added). To truly remove all solid matter from a liquid would require nanofiltration, and applicants make no mention of such techniques in their specification. The Examiner believes the broadest reasonable interpretation of this claim is for the filtered stillage liquid to be “visually free of any solids”. If Applicants feel this interpretation does not align with the scope of their invention, they are respectfully requested to clarify the methods by which they filtered solids out of the stillage liquid.
Claims 6–9 and 16–20 each recite values preceded by the word “about”. “About” is a term of approximation, which means the claimed values encompass slightly more than the stated ranges, but the specification fails to define the degree of approximation encompassed by “about”. For purposes of examination, the Examiner will herein interpret “about” as ±10% of the stated value, e.g., “about 23.6–24.8 weight percent cement” would actually cover a range of 21.24–27.28 wt.% (23.6 – 2.36 = 21.24; 24.8 + 2.48 = 27.28).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 11 of the present application are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 7 and 9 of copending Application No. 19/267,120 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1 and 11 of the present application would be anticipated by claims 1, 3, 7 and 9 of the reference application.
Claim 1 of the instant application recites a mortar mix comprising cement, sand, water, and a stillage liquid, wherein the stillage liquid has been subjected to a hydrothermal carbonization process prior to use in the mortar mix. The reference application claims a mortar mix comprising cement, sand, water, and a tequila stillage liquid (see claim 1 of the reference application), wherein the tequila stillage liquid has been subjected to a hydrothermal carbonization process (see claim 3 of the reference application).
Claim 11 of the instant application recites a concrete mix comprising cement, sand, aggregate, water, and a stillage liquid, wherein the stillage liquid has been subjected to a hydrothermal carbonization process prior to use in the concrete mix. The reference application claims a concrete mix comprising cement, sand, aggregate, water, and a tequila stillage liquid (see claim 7 of the reference application), wherein the tequila stillage liquid has been subjected to a hydrothermal carbonization process (see claim 9 of the reference application). Therefore, claims 1 and 11 do not recite subject matter that is patentably distinct from the subject matter of the co-pending reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 11–13 and 15–20 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.
Claim 11 recites the limitation "the mortar mix" in line 7. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, the Examiner will herein treat claim 11 as reciting “the concrete mix”, to align with the preamble of claim 11. Claims 12, 13 and 15–20, being dependent on claim 11, inherit its deficiencies, and are rejected on the same grounds.
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.
Claims 1–3 and 11–13 are rejected under 35 U.S.C. 103 as being unpatentable over Hoffman et al. (US 2005/0031719 A1, hereinafter “Hoffman”) and Fregolente et al. (J. Braz. Chem. Soc., 2020, 31(1), 40–50, hereinafter “Fregolente”).
Regarding claim 1, Hoffman teaches an admixture derived from still bottoms for use with cementitious products (see generally abstract), and further teaches a mortar mix comprising cement, sand, and water including test agent (wherein the test agent is beer still bottoms [BSB] residue, making it a stillage liquid) (see paragraph 0112 teaching a mortar composition with each of these components; see paragraph 0110 teaching the use of BSB filtrate as the test agent; also see paragraph 0027 describing the BSB filtrate as filtered stillage liquid). Hoffman fails to explicitly teach the limitation wherein the stillage liquid has been subjected to a hydrothermal carbonization process prior to use in the mortar mix.
Fregolente teaches the hydrothermal carbonization of vinasse (see generally abstract), which is compositionally similar to stillage liquid. Stillage liquid is the residual liquid left over after fermentation of grain-based sugars into ethanol, and vinasse is the residual liquid left over after fermentation of cane-based sugars into ethanol; while the components of the composition might differ slightly due to the different starting material and microbes, they are both produced in the fermentation of ethanol, and both would be expected to undergo the same thermochemical reactions in a hydrothermal carbonization process. Therefore, a person having ordinary skill in the art would have understood to be obvious that the BSB-based admixture taught by Hoffman can be modified to undergo hydrothermal carbonization as taught by Fregolente. The motivation to modify Hoffman according to Fregolente most closely aligns with KSR Rationale D, which states it is prima facie obvious to apply a known technique (Fregolente’s hydrothermal carbonization) to a known product ready for improvement (Hoffman’s BSB-based admixture) to yield predictable results (Fregolente’s vinasse and Hoffman’s BSB are compositionally similar and are expected to undergo the same types of reactions). Claim 1 is therefore rendered prima facie obvious.
Regarding claim 2, Hoffman, as modified by Fregolente, teaches the mortar mix according to claim 1, and further teaches the limitation wherein the stillage liquid is a processed stillage liquid (see Hoffman, paragraph 0013 teaching solid-liquid separation of BSB, which is a method of processing; also see Fregolente, pg. 41, col. 2, paragraph 1 teaching hydrothermal carbonization which is a method of processing, and is applicable to Hoffman’s BSB).
Regarding claim 3, Hoffman, as modified by Fregolente, further teaches the limitation wherein the stillage liquid is a filtered stillage liquid without solids (see Hoffman, paragraph 0026 teaching filtration of the stillage liquid to separate the liquid from the solid microorganism biomass).
Regarding claim 11, Hoffman teaches an admixture derived from still bottoms for use with cementitious products (see generally abstract), and further teaches a concrete mix comprising cement, sand, aggregate (stone) and water including test agent (wherein the test agent is BSB residue, making it a stillage liquid) (see paragraph 0123 teaching a concrete composition with each of these components; see paragraph 0110 teaching the use of BSB filtrate as the test agent; also see paragraph 0027 describing the BSB filtrate as filtered stillage liquid). Hoffman fails to explicitly teach the limitation wherein the stillage liquid has been subjected to a hydrothermal carbonization process prior to use in the mortar mix.
Fregolente teaches the hydrothermal carbonization of vinasse (see generally abstract), which is compositionally similar to stillage liquid. Stillage liquid is the residual liquid left over after fermentation of grain-based sugars into ethanol, and vinasse is the residual liquid left over after fermentation of cane-based sugars into ethanol; while the components of the composition might differ slightly due to the different starting material and microbes, they are both produced in the fermentation of ethanol, and both would be expected to undergo the same thermochemical reactions in a hydrothermal carbonization process. Therefore, a person having ordinary skill in the art would have understood to be obvious that the BSB-based admixture taught by Hoffman can be modified to undergo hydrothermal carbonization as taught by Fregolente. The motivation to modify Hoffman according to Fregolente most closely aligns with KSR Rationale D, which states it is prima facie obvious to apply a known technique (Fregolente’s hydrothermal carbonization) to a known product ready for improvement (Hoffman’s BSB-based admixture) to yield predictable results (Fregolente’s vinasse and Hoffman’s BSB are compositionally similar and are expected to undergo the same types of reactions). Claim 11 is therefore rendered prima facie obvious.
Regarding claim 12, Hoffman, as modified by Fregolente, teaches the mortar mix according to claim 11, and further teaches the limitation wherein the stillage liquid is a processed stillage liquid (see Hoffman, paragraph 0013 teaching solid-liquid separation of BSB, which is a method of processing; also see Fregolente, pg. 41, col. 2, paragraph 1 teaching hydrothermal carbonization which is a method of processing, and is applicable to Hoffman’s BSB).
Regarding claim 13, Hoffman, as modified by Fregolente, further teaches the limitation wherein the stillage liquid is a filtered stillage liquid without solids (see Hoffman, paragraph 0026 teaching filtration of the stillage liquid to separate the liquid from the solid microorganism biomass).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Hoffman and Fregolente as applied to claim 1 above, and further in view of Distillery Trail (“Distillers Have a Problem. What To Do with All That Spent Grain? Pls Help.”, Distillery Trail blog, 2021, hereinafter “Distillery Trail”).
Regarding claim 5, Hoffman, as modified by Fregolente, teaches the mortar mix of claim 1, but fails to explicitly teach the limitation wherein the stillage liquid is a bourbon stillage liquid. However, Distillery Trail teaches that there is a large supply of bourbon stillage and a low demand for it, and distillers are actively seeking proposals for how to repurpose their stillage (see pg. 2, section “How Big is this DSG Issue?”). Since Hoffman already teaches the use of stillage waste, a person having ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that the BSB taught by Hoffman can be substituted with bourbon stillage, since they are expected to be compositionally similar. The motivation to further modify Hoffman according to Distillery Trail most closely aligns with KSR Rationale F, which states that known work in one field of endeavor (Hoffman’s use of stillage waste as a cement admixture) may prompt variations of it (using bourbon stillage) based on market forces (Distillery Trail’s published request for ideas to reduce the surplus of bourbon stillage) if the variations are predictable to one of ordinary skill in the art (Hoffman already teaches the use of stillage liquid, so the use of bourbon stillage liquid would have a predictable outcome). Thus, claim 5 is rendered prima facie obvious.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Hoffman, Fregolente, and Distillery Trail as applied to claim 5 above, and further in view of Kim (KR 102148187 B1, hereinafter “Kim”) and Arunvivek et al. (IJCSEIERD, 2013, 3(5), 145–152, hereinafter “Arunvivek”).
Regarding claims 6 and 7, Hoffman, as modified by Fregolente and Distillery Trail, teaches the mortar mix of claim 5, but fails to explicitly teach the proportions of components as claimed in claim 6. Kim teaches a mortar composition (see paragraph 0002), and further teaches the limitation wherein the mortar mix comprises:
about 23.6–24.8 weight percent cement (Kim teaches 0.75–67.5 wt.% cement; see paragraph 0011 teaching 5–75 wt.% of a performance improving agent, which comprises 15–90 wt.% Portland cement; 5% of 15 is 0.75 wt.%, and 75% of 90 is 67.5 wt.%; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges);
about 65.0–68.3 weight percent sand (Kim teaches 4.5–89.1 wt.% sand; see paragraph 0011 teaching 5–90 wt.% of fine aggregate; also see paragraph 0056 teaching the fine aggregate as comprising 80–99 wt.% of siliceous sand; 5% of 80 is 4.5 wt.%, and 90% of 99 is 89.1 wt.%; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges);
about 6.6–9.1 weight percent water (Kim teaches 1–35 wt.% water; see paragraph 0011; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges).
Kim fails to explicitly teach the limitation wherein the mortar mix comprises about 0.3–2.3 weight percent stillage liquid. Arunvivek teaches the use of distillery stillage as an admixture in concrete, wherein stillage liquid is used in an amount of from 0–1.25 wt.% (see generally abstract; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Additionally, regarding claim 7, which claims a volume ratio of water to stillage liquid of between about 4 to 1 and about 19 to 1, Arunvivek teaches a water content of 8.3 wt.% (see pg. 146, Table 2, Mix M1, wherein 191.50 kg water out of 2299 kg total is 9.3 wt.%), with a stillage liquid amount ranging from 0.25–1.25. Water has a density of about 1 g/mL at room temperature, and stillage liquid, being mostly water, is expected to have a comparable density. Therefore, Arunvivek effectively teaches 8.3 mL of water for every 100 g of concrete, and from 0.25–1.25 mL of stillage liquid for every 100 g of concrete. This corresponds to a volume ratio of water-to-stillage of 6.6:1 to 33.2:1 (8.3 ÷ 1.25 = 6.6; 8.3 ÷ 0.25 = 33.2), which overlaps with the claimed ratio (see MPEP 2144.05(I) regarding the obviousness of overlapping ranges)
A person having ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that the mortar composition taught by Hoffman (see paragraph 0112) can be further modified to use the proportions taught by Kim, and the amount of stillage liquid taught by Arunvivek. The motivation to further modify Hoffman according to Kim most closely aligns with KSR Rationale B, which states it is prima facie obvious to simply substitute one known element (Hoffman’s mortar proportions) for another (Kim’s mortar proportions) to obtain predictable results (Kim’s mortar proportions are already known to produce mortar). The motivation to further modify Hoffman according to Arunvivek most closely aligns with KSR Rationale B, which states it is prima facie obvious to simply substitute one known element (Hoffman’s BSB residue in its prescribed proportions) for another (Arunvivek’s distillery stillage in its prescribed proportions) to obtain predictable results (both Hoffman and Arunvivek teach the use of still bottoms in cementitious mixtures, so the substitution of one stillage liquid for another would have a predictable outcome). Thus, claims 6 and 7 are rendered prima facie obvious.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Hoffman and Fregolente as applied to claim 1 above, and further in view of Kim and Arunvivek.
Regarding claims 8 and 9, Hoffman, as modified by Fregolente, fails to explicitly teach the proportions of components as claimed in claim 8. Kim teaches a mortar composition (see paragraph 0002), and further teaches the limitation wherein the mortar mix comprises:
about 23.6–24.8 weight percent cement (Kim teaches 0.75–67.5 wt.% cement; see paragraph 0011 teaching 5–75 wt.% of a performance improving agent, which comprises 15–90 wt.% Portland cement; 5% of 15 is 0.75 wt.%, and 75% of 90 is 67.5 wt.%; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges);
about 65.0–68.3 weight percent sand (Kim teaches 4.5–89.1 wt.% sand; see paragraph 0011 teaching 5–90 wt.% of fine aggregate; also see paragraph 0056 teaching the fine aggregate as comprising 80–99 wt.% of siliceous sand; 5% of 80 is 4.5 wt.%, and 90% of 99 is 89.1 wt.%; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges);
about 6.6–9.1 weight percent water (Kim teaches 1–35 wt.% water; see paragraph 0011; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges).
Kim fails to explicitly teach the limitation wherein the mortar mix comprises about 0.3–2.3 weight percent stillage liquid. Arunvivek teaches the use of distillery stillage as an admixture in concrete, wherein stillage liquid is used in an amount of from 0–1.25 wt.% (see generally abstract; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Additionally, regarding claim 9, which claims a volume ratio of water to stillage liquid of between about 4 to 1 and about 19 to 1, Arunvivek teaches a water content of 8.3 wt.% (see pg. 146, Table 2, Mix M1, wherein 191.50 kg water out of 2299 kg total is 9.3 wt.%), with a stillage liquid amount ranging from 0.25–1.25. Water has a density of about 1 g/mL at room temperature, and stillage liquid, being mostly water, is expected to have a comparable density. Therefore, Arunvivek effectively teaches 8.3 mL of water for every 100 g of concrete, and from 0.25–1.25 mL of stillage liquid for every 100 g of concrete. This corresponds to a volume ratio of water-to-stillage of 6.6:1 to 33.2:1 (8.3 ÷ 1.25 = 6.6; 8.3 ÷ 0.25 = 33.2), which overlaps with the claimed ratio (see MPEP 2144.05(I) regarding the obviousness of overlapping ranges).
A person having ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that the mortar composition taught by Hoffman (see paragraph 0112) can be further modified to use the proportions taught by Kim, and the amount of stillage liquid taught by Arunvivek. The motivation to further modify Hoffman according to Kim most closely aligns with KSR Rationale B, which states it is prima facie obvious to simply substitute one known element (Hoffman’s mortar proportions) for another (Kim’s mortar proportions) to obtain predictable results (Kim’s mortar proportions are already known to produce mortar). The motivation to further modify Hoffman according to Arunvivek most closely aligns with KSR Rationale B, which states it is prima facie obvious to simply substitute one known element (Hoffman’s BSB residue in its prescribed proportions) for another (Arunvivek’s distillery stillage in its prescribed proportions) to obtain predictable results (both Hoffman and Arunvivek teach the use of still bottoms in cementitious mixtures, so the substitution of one stillage liquid for another would have a predictable outcome). Thus, claims 8 and 9 are rendered prima facie obvious.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Hoffman and Fregolente as applied to claim 11 above, and further in view of Distillery Trail.
Regarding claim 15, Hoffman, as modified by Fregolente, teaches the concrete mix of claim 11, but fails to explicitly teach the limitation wherein the stillage liquid is a bourbon stillage liquid. However, Distillery Trail teaches that there is a large supply of bourbon stillage and a low demand for it, and distillers are actively seeking proposals for how to repurpose their stillage (see pg. 2, section “How Big is this DSG Issue?”). Since Hoffman already teaches the use of stillage waste, a person having ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that the BSB taught by Hoffman can be substituted with bourbon stillage, since they are expected to be compositionally similar. The motivation to further modify Hoffman according to Distillery Trail most closely aligns with KSR Rationale F, which states that known work in one field of endeavor (Hoffman’s use of stillage waste as a cement admixture) may prompt variations of it (using bourbon stillage) based on market forces (Distillery Trail’s published request for ideas to reduce the surplus of bourbon stillage) if the variations are predictable to one of ordinary skill in the art (Hoffman already teaches the use of stillage liquid, so the use of bourbon stillage liquid would have a predictable outcome). Thus, claim 15 is rendered prima facie obvious.
Claims 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Hoffman, Fregolente, and Distillery Trail as applied to claim 15 above, and further in view of Arunvivek.
Regarding claims 16 and 17, Hoffman, as modified by Fregolente and Distillery Trail, teaches the concrete mix of claim 15. Hoffman further teaches a concrete composition (see paragraph 0123) comprising:
about 13.84–19.02 weight percent cement (Hoffman teaches 10.0 kg cement out of 69.3 kg total, which is 14.4 wt.%);
about 32.57–37.05 weight percent sand (Hoffman teaches 24.3 kg sand out of 69.3 kg total, which is 35.1 wt.%);
about 39.28–44.38 weight percent aggregate (Hoffman teaches 29.5 kg coarse aggregate out of 69.3 kg total, which is 42.5 wt.%);
about 4.09–6.71 weight percent water (Hoffman teaches 5.5 kg water out of 69.3 kg total, which is 7.9 weight percent; this slightly exceeds the amount claimed, but Hoffman also indicates that this value can represent water alone, or water + BSB residue, so the actual amount of water used would be lower, depending on how much BSB residue is used).
Hoffman fails to explicitly teach the limitation wherein the concrete mix comprises about 0.34–2.41 weight percent stillage liquid. Arunvivek teaches the use of distillery stillage as an admixture in concrete, wherein stillage liquid is used in an amount of from 0–1.25 wt.% (see generally abstract; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Additionally, regarding claim 17, which claims a volume ratio of water to stillage liquid of between about 3.3 to 1 and about 15.9 to 1, Arunvivek teaches a water content of 8.3 wt.% (see pg. 146, Table 2, Mix M1, wherein 191.50 kg water out of 2299 kg total is 9.3 wt.%), with a stillage liquid amount ranging from 0.25–1.25. Water has a density of about 1 g/mL at room temperature, and stillage liquid, being mostly water, is expected to have a comparable density. Therefore, Arunvivek effectively teaches 8.3 mL of water for every 100 g of concrete, and from 0.25–1.25 mL of stillage liquid for every 100 g of concrete. This corresponds to a volume ratio of water-to-stillage of 6.6:1 to 33.2:1 (8.3 ÷ 1.25 = 6.6; 8.3 ÷ 0.25 = 33.2), which overlaps with the claimed ratio (see MPEP 2144.05(I) regarding the obviousness of overlapping ranges)
A person having ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that the concrete composition taught by Hoffman (see paragraph 0123) can be further modified to use the amount of stillage liquid taught by Arunvivek. The motivation to further modify Hoffman according to Arunvivek most closely aligns with KSR Rationale B, which states it is prima facie obvious to simply substitute one known element (Hoffman’s BSB residue in its prescribed proportions) for another (Arunvivek’s distillery stillage in its prescribed proportions) to obtain predictable results (both Hoffman and Arunvivek teach the use of still bottoms in cementitious mixtures, so the substitution of one stillage liquid for another would have a predictable outcome). Thus, claims 16 and 17 are rendered prima facie obvious.
Claims 18–20 are rejected under 35 U.S.C. 103 as being unpatentable over Hoffman and Fregolente as applied to claim 11 above, and further in view of Arunvivek and Kim.
Regarding claims 18 and 19, Hoffman, as modified by Fregolente, teaches the concrete mix of claim 11. Hoffman further teaches a concrete composition (see paragraph 0123) comprising:
about 13.84–19.02 weight percent cement (Hoffman teaches 10.0 kg cement out of 69.3 kg total, which is 14.4 wt.%);
about 32.57–37.05 weight percent sand (Hoffman teaches 24.3 kg sand out of 69.3 kg total, which is 35.1 wt.%);
about 39.28–44.38 weight percent aggregate (Hoffman teaches 29.5 kg coarse aggregate out of 69.3 kg total, which is 42.5 wt.%);
about 4.09–6.71 weight percent water (Hoffman teaches 5.5 kg water out of 69.3 kg total, which is 7.9 weight percent; this slightly exceeds the amount claimed, but Hoffman also indicates that this value can represent water alone, or water + BSB residue, so the actual amount of water used would be lower, depending on how much BSB residue is used).
Hoffman fails to explicitly teach the limitation wherein the concrete mix comprises about 0.34–2.41 weight percent stillage liquid. Arunvivek teaches the use of distillery stillage as an admixture in concrete, wherein stillage liquid is used in an amount of from 0–1.25 wt.% (see generally abstract; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Additionally, regarding claim 19, which claims a volume ratio of water to stillage liquid of between about 3.3 to 1 and about 15.9 to 1, Arunvivek teaches a water content of 8.3 wt.% (see pg. 146, Table 2, Mix M1, wherein 191.50 kg water out of 2299 kg total is 9.3 wt.%), with a stillage liquid amount ranging from 0.25–1.25. Water has a density of about 1 g/mL at room temperature, and stillage liquid, being mostly water, is expected to have a comparable density. Therefore, Arunvivek effectively teaches 8.3 mL of water for every 100 g of concrete, and from 0.25–1.25 mL of stillage liquid for every 100 g of concrete. This corresponds to a volume ratio of water-to-stillage of 6.6:1 to 33.2:1 (8.3 ÷ 1.25 = 6.6; 8.3 ÷ 0.25 = 33.2), which overlaps with the claimed ratio (see MPEP 2144.05(I) regarding the obviousness of overlapping ranges)
A person having ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that the concrete composition taught by Hoffman (see paragraph 0123) can be further modified to use the amount of stillage liquid taught by Arunvivek. The motivation to further modify Hoffman according to Arunvivek most closely aligns with KSR Rationale B, which states it is prima facie obvious to simply substitute one known element (Hoffman’s BSB residue in its prescribed proportions) for another (Arunvivek’s distillery stillage in its prescribed proportions) to obtain predictable results (both Hoffman and Arunvivek teach the use of still bottoms in cementitious mixtures, so the substitution of one stillage liquid for another would have a predictable outcome).
Regarding claim 20, Hoffman fails to explicitly teach the limitation wherein a volume ratio of water to stillage liquid is between about 3.3 to 1 and about 15.9 to 1. Arunvivek teaches the use of distillery stillage as an admixture in concrete, wherein stillage liquid is used in an amount of from 0–1.25 wt.% (see generally abstract). Arunvivek further teaches a water content of 8.3 wt.% (see pg. 146, Table 2, Mix M1, wherein 191.50 kg water out of 2299 kg total is 9.3 wt.%), with a stillage liquid amount ranging from 0.25–1.25. Water has a density of about 1 g/mL at room temperature, and stillage liquid, being mostly water, is expected to have a comparable density. Therefore, Arunvivek effectively teaches 8.3 mL of water for every 100 g of concrete, and from 0.25–1.25 mL of stillage liquid for every 100 g of concrete. This corresponds to a volume ratio of water-to-stillage of 6.6:1 to 33.2:1 (8.3 ÷ 1.25 = 6.6; 8.3 ÷ 0.25 = 33.2), which overlaps with the claimed ratio (see MPEP 2144.05(I) regarding the obviousness of overlapping ranges)
A person having ordinary skill in the art before the effective filing date of the claimed invention would have understood to be obvious that the concrete composition taught by Hoffman (see paragraph 0123) can be further modified to use the ratio of water-to-stillage taught by Arunvivek. The motivation to further modify Hoffman according to Arunvivek most closely aligns with KSR Rationale B, which states it is prima facie obvious to simply substitute one known element (Hoffman’s BSB residue in its prescribed proportions) for another (Arunvivek’s distillery stillage in its prescribed proportions) to obtain predictable results (both Hoffman and Arunvivek teach the use of still bottoms in cementitious mixtures, so the substitution of one stillage liquid for another would have a predictable outcome). Thus, claim 20 is rendered prima facie 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
Prosecution Insights