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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/27/2025 and 4/9/2025 have been considered by the examiner.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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(s) 1-2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Flores et al (ES 2718130A1)
Regarding Independent Claim 1:
Flores et al (ES 2718130A1) discloses additives for plasters including a poly carboxylic acid and colloidal silicon dioxide as a dry powder added to dry gypsum at 0.6 gram to 2 grams per 1000 grams of dry gypsum (0.06 % to 0.2 %)(overlapping the range of setting control additive comprising poly carboxylic acid of claim 1)(Abstract)
The poly carboxylic acid is in the form of a powder (P9 L4 approx.)
Mixing water is reduced so gypsum water ratio of 0.28 i.e. 280 grams water per 1000 grams calcium sulfate (P4 first par) or 280-320 water per kilogram plaster IP4 second par) (i.e. 32 % water 320/1000 *100)(meeting the limitations for calcium sulfate and water of claim 1)
Mixing water is reduced so gypsum water ratio of 0.28 i.e. 280 grams water per 1000 grams calcium sulfate (P4 first par) or 280-320 water per kilogram plaster IP4 second par) (i.e. 32 % water 320/1000 *100)
The silica dioxide particles may be sieve grade below 2.5 mm (P 5 last 2 lines) (overlapping the range of claim 3 for at least one granule material particle of 0.2 to 1 mm thickness)
The composition improves properties of gypsum and plaster used in construction and may be formulated for manufacture of pre-fabricated and hollow bricks. The composition may be pre mixed to avoid dosing errors and many include additives to confer even higher mechanical properties such as marble dust, all kins of fibers including polymeric, foaming and aerating and insulating materials such as polystyrene and polyurethane (P3 send par)
The composition of the mixture in the dry phase to obtain a greater inertia and plasticity of said mixture, it can be added to a silica sand or an equivalent mineral, resulting in a kneading percentage that can range from 0% - 50% silica sand over the proportion of plaster. It is therefore convenient to clarify that the addition of silica sand to the gypsum and additive mixture is carried out in the dry phase and according to that relationship, and its objective is to improve the performance of the mixture, as detailed below.
The additive improves the characteristics of calcium sulfate such as setting time control, improvement of plasticity and fluidity, mechanical resistance, shore C hardness, absorption of water and durability and other benefits (P2 translation second to last par)
The composition helps solve the problem of mortars by improving mechanical resistance and improve durability in the face of friction (P3 first par) The product has high mechanical resistance, high surface hardness and mechanical compression (P5 translation last 10 lines approx.) The composition provides fire resistance surface hardness and mechanical flexural compression, (P4 last 10 lines)
The prior art teaches the composition requires less water (as is the case in the instant application – see instant specification at P4 last par)is used for forming bricks (as in the instant application P1 L4-9) possess high mechanical resistance, hardness and durability (as does the composition of the instant application see instant specification at P 7 last par and P8 L9-14 and Tables 1-2). While the prior art does not recite values of absolute density or surface density, since it teaches the claimed compositional components (i.e. calcium sulfate, water and poly carboxylic acid) in amounts which overlap the claimed ranges used for the same purpose as the instant application and possessing other improved properties similar to that of the instant application, it will necessarily overlap the ranges of the claimed properties.
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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir.1990) “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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)
See MPEP 2144.05(I): "In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976)"
Regarding Dependent Claim 2:
Flores discloses the limitations above set forth. Flores discloses the additive obtained also has the advantage of being inert with respect to the materials usually used in modified plasters, so that it is possible to include in the mixture in addition to the aforementioned fibers, aggregates of all types of granulometries, carbonates, marble powders, polyurethane, polystyrene, perlite, arlite, etc. .: and even elements for recycling, such as greenhouse plastics, ground pieces of tires, shells, rice, straw, sawdust, cellulose, etc., without the possibility of causing a reaction unexpected that degraded the quality of the final product. The versatility offered by the described additive, therefore, causes it to be configured as a novel element that solves important problems associated with this type of product, also providing an easy application and the use for its manufacture of economic components and easily acquired in the market. (P8 last par)
The composition may be pre mixed to avoid dosing errors and many include additives to confer even higher mechanical properties such as marble dust, all kinds of fibers including polymeric, foaming and aerating and insulating materials such as polystyrene and polyurethane (P3 send par)
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Flores et al (ES 2718130A1) as applied to claims 1-2 above alternatively further in view of: Klein (US 6565645)
Regarding Claims 5:
Flores discloses the limitations above set forth. Flores discloses the composition may be pre mixed to avoid dosing errors and many include additives to confer even higher mechanical properties such as marble dust, all kinds of fibers including polymeric, foaming and aerating and insulating materials such as polystyrene and polyurethane (P3 send par)
The additive obtained also has the advantage of being inert with respect to the materials usually used in modified plasters, so that it is possible to include in the mixture in addition to the aforementioned fibers, aggregates of all types of granulometries, carbonates, marble powders, polyurethane, polystyrene, perlite, arlite, etc. .: and even elements for recycling, such as greenhouse plastics, ground pieces of tires, shells, rice, straw, sawdust, cellulose, etc., without the possibility of causing a reaction unexpected that degraded the quality of the final product. The versatility offered by the described additive, therefore, causes it to be configured as a novel element that solves important problems associated with this type of product, also providing an easy application and the use for its manufacture of economic components and easily acquired in the market. (P8 last par)
The examiner notes that while the “ratio” is claimed, the actual amounts of the mortar preparation and amount of marble are not recited making it possible for a wide range of additional compositional components (MPEP 2111 where the composition is claimed as comprising) and making the actual amount of the mortar composition and actual amount of marble vary materially. The examiner maintains that the marble dust and marble powder being an additive will be in a minor amount (i.e. one of ordinary skill in the art at the time of filing the invention knows that an additive is used in amounts of less than 50%) and therefore will overlap the claimed ratio. Further, [g]enerally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Assuming arguendo the ratio of the mortar:marble is not obvious:
Klein (US 6565645) discloses a hydraulic composition with improved water absorption properties similar to that of Flores. The composition of Klein comprising calcium sulfate and an auxiliary material (Abstract) The composition is for use in producing shaped bodies and building compositions, plasters, etc. (C1 L1-10)
Klein teaches customary fillers may be added such as sand, carbonates including marble and recycled materials including cork and ground cork as well as rubber, rubber scrap etc. (C13L35-55) (the examiner maintains the reference teaches both cork and ground cork as such the particle/granular thickness will be obvious to one of ordinary skill in the art at the time of filing the invention so as to overlap the claimed range of 0.1 to 1 mm)
Fillers are used in amounts such as 10-65 wt.% (C13 L50-55)(thereby overlapping the claimed ratio for mortar preparation : granular material of 4:6 and 3:1 of claims 4-5)
Additional additives customarily used also include carboxylic acids in amounts such as 0.01 to 1 wt.% (C13 L65-C14L28)
The composition is used in gypsum products (c16 L103) and for forming shaped bodies, plasters etc. (C16 L25-38)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add the marble in the ranges (corresponding to overlapping claimed ratios) to the composition of Flores as taught by Klein as customary fillers such as marble are known to be used in amounts of 10-65 wt.%. in compositions formed with calcium sulfate and carboxylic acids to form shaped bodies.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Flores et al (ES 2718130A1) as applied to claims 1-2 and 5 above alternatively further in view of: Klein (US 6565645) and alternatively further in view of Wang et al (US 2011/0154764)
Regarding Dependent Claim 4:
Flores discloses the limitations above set forth. Flores discloses the additive obtained also has the advantage of being inert with respect to the materials usually used in modified plasters, so that it is possible to include in the mixture in addition to the aforementioned fibers, aggregates of all types of granulometries, (rendering obvious the claimed granule and particle sizes as overlapping ranges) carbonates, marble powders, polyurethane, polystyrene, perlite, arlite, etc. .: and even elements for recycling, such as greenhouse plastics, ground pieces of tires, shells, rice, straw, sawdust, cellulose, etc., without the possibility of causing a reaction unexpected that degraded the quality of the final product. The versatility offered by the described additive, therefore, causes it to be configured as a novel element that solves important problems associated with this type of product, also providing an easy application and the use for its manufacture of economic components and easily acquired in the market. (P8 last par)
The composition may be pre mixed to avoid dosing errors and many include additives to confer even higher mechanical properties such as marble dust, all kinds of fibers including polymeric, foaming and aerating and insulating materials such as polystyrene and polyurethane (P3 send par)
Klein (US 6565645) discloses a hydraulic composition with improved water absorption properties comprising calcium sulfate and an auxiliary material (Abstract) The composition is for use in producing shaped bodies and building compositions, plasters, etc. (C1 L1-10)
Customary fillers may be added such as sand, carbonates including marble and recycled materials including cork and ground cork as well as rubber, rubber scrap etc. (C13L35-55) (the examiner maintains the reference teaches both cork and ground cork as such the particle/granular thickness will be obvious to one of ordinary skill in the art at the time of filing the invention so as to overlap the claimed range of 0.1 to 1 mm)
Fillers are used in amounts such as 10-65 wt.% (C13 L50-55)(thereby overlapping the claimed ratio for mortar preparation : granular material of 4:6 and 3:1 of claims 4-5)
Additional additives customarily used also include carboxylic acids in amounts such as 0.01 to 1 wt.% (C13 L65-C14L28)
The composition is sued in gypsum products (c16 L103) and for forming shaped bodies, plasters etc. (C16 L25-38)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add cork in the ranges (corresponding to overlapping claimed ratios) to the composition of Flores as taught by Klein as customary fillers such as cork are known to be used in amounts of 10-65 wt.%. in compositions formed with calcium sulfate and carboxylic acids to form shaped bodies.
Assuming arguendo the particle size of the cork is not obviously overlapping the claimed range and the amount of the cork is not rendered obvious:
Modified Flores teaches the limitations above set forth but does not expressly recite a particle size of cork or ground cork or the amount thereof:
Wang et al (US 2011/0154764) teaches a composite structure composition including mortar composition which includes a powder, cellulose ether and one or more viscosity modifying agents and one or more hydraulic binders and one or more aggregates (Abstract) [0079] which has low water absorption high bond strength and provides thermal insulation [0002]
The mortar composition may comprise additives such as early strength agent, water repellant agent natural wood cellulose etc. [0085]
The redispersal powder includes ethylene vinyl acetate [0099][0100] in amounts such as 1- 20 wt. % [0101] The composition comprises gypsum as the hydraulic binder [0119]
The aggregate in dry mixing mortar composition include coarse aggerate and fine filler where coarse aggregate is particle size maximum up to 8 mm and fine filler is less than 1.1 mm and the fine filler includes calcium carbonate powders [0123] (i.e. marble) The aggregate is 20-80 wt. % [0124] (overlapping the claimed ratio of mortar to filler/aggregate/cork of 4:6)
It would have been obvious to use a aggregate and fillers such as cork in sizes taught by Wang as the size of Flores and in the wt.% ranges thereof as they are suitable ranges of amount and size of fillers and aggregates used in mortar compositions.
The examiner notes that while the “ratio” is claimed, the actual amounts of the mortar preparation and amount of cork are not recited making it possible for a wide range of additional compositional components (MPEP 2111 where the composition is claimed as comprising) and making the actual amount of the mortar composition and actual amount of cork vary materially. The examiner maintains that the cork being an additive will be in a minor amount (i.e. one of ordinary skill in the art at the time of filing the invention knows that an additive is used in amounts of less than 50%) and therefore will overlap the claimed ratio. Further, [g]enerally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Flores et al (ES 2718130A1) as applied to claims 1-2 and 5 above further in view of Luan Qin Zhang (CN 108002793A)
Regarding Dependent Claim 3:
Flores teaches the limitations above set forth. Flores discloses the additive obtained also has the advantage of being inert with respect to the materials usually used in modified plasters, so that it is possible to include in the mixture in addition to the aforementioned fibers, aggregates of all types of granulometries, carbonates, marble powders, polyurethane, polystyrene, perlite, arlite, etc. .: and even elements for recycling, such as greenhouse plastics, ground pieces of tires, shells, rice, straw, sawdust, cellulose, etc., without the possibility of causing a reaction unexpected that degraded the quality of the final product. The versatility offered by the described additive, therefore, causes it to be configured as a novel element that solves important problems associated with this type of product, also providing an easy application and the use for its manufacture of economic components and easily acquired in the market. (P8 last par)
The composition may be pre mixed to avoid dosing errors and many include additives to confer even higher mechanical properties such as marble dust, all kinds of fibers including polymeric, foaming and aerating and insulating materials such as polystyrene and polyurethane (P3 send par)
Flores while teaching the addition of various polymeric components, does not expressly teach poly vinyl ethyl acetate, the particle size thereof or the amount of same.
Luan Qin Zhang (CN 108002793A) like Flores discloses a mortar composition. Luan discloses the composition comprising 20-60 % aggregate, 30-70 % gelled material, 03 to 3 % fiber and 1-8 % additive and provides good heat insulation is green environmentally friendly with recycling and affords fire proofing performance (Abstract)
The composition includes silica oxide materials (P3 2nd par) The composition further comprises gelling material of heavy calcium carbonate (i.e. marble is also calcium carbonate) (P3 4th par from bottom) in amount of 20-40 % (P3 3 par from bottom)
The composition comprises additives such as rubber powder, thickening agent, water retention agent moisture repellent plasticizer water reducer thixotropic etc. (P4 3 par) rubber in amount of 05-10 wt.% of the additive. (P4 4th par)
The composition has good hardening, heat insulation density and compressive qualities (P4 third par from bottom)
The composition may include aggregate in ranges of 20-60 % and possess density not more than 1500 kg/m3 (P4 2nd to last par)
The composition may comprise aggregate such as sand in amounts of 90-0.1 weight (P9 2nd to last par)
The composition may comprise gel material such as sand, gypsum, heavy calcium etc. in ranges of 20-50 wt. % (P9 last par)
The heavy calcium carbonate includes ground marble in amounts such as 15% having mesh or 30-50, 50-70, (P10 first par)(i.e. 1 to 0.2 mm)
The composition may comprise 10 wt.% to 0,3 wt.% o an additive such as a rubber powder as a crack resistant fiber, including a vinyl acetate/ethylene vinyl acetate polymer at a size of not more than 150 or not more than 50 (overlapping the claimed range (P10 last par) and bulk density of 100-800 kg/m3 (P10 last par)
It would have been obvious to add ethyl vinyl acetate of the particle size and in effective amounts to the composition of Flores as taught by Ling in order to impart improved crack resistance to the composition of Flores.
The examiner notes that while the “ratio” is claimed, the actual amounts of the mortar preparation and amount of EVA (ethyl vinyl acetate) are not recited making it possible for a wide range of additional compositional components (MPEP 2111 where the composition is claimed as comprising) and making the actual amount of the mortar composition and actual amount of EVA vary materially. The examiner maintains that the EVA being an additive will be in a minor amount (i.e. one of ordinary skill in the art at the time of filing the invention knows that an additive is used in amounts of less than 50%) and therefore will overlap the claimed ratio. Further, [g]enerally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAMELA HL WEISS whose telephone number is (571)270-7057. The examiner can normally be reached M-Thur 830 am-700 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Coris Fung can be reached at (571) 270-5713. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732