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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/29/2025 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 27-31 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The new claims recite ranges of class C fly ash, ranges of metakaolin, ranges of a combination of class C fly ash and nepheline and ratios thereof, and also recites various M of the metal silicate activator in combination therewith. There does not appear to be support in the original filing for these species combined in these amounts and at these ratios and there does not appear to be support for such a combination with the recited M of metal silicate activator. The examiner has considered those sections of the disclosure and drawings identified by applicant. Greater specificity should be provided for each new claimed combination percent and ratio.
See MPEP 2163:
With respect to newly added or amended claims, applicant should show support in the original disclosure for the new or amended claims. See, e.g., Hyatt v. Dudas, 492 F.3d 1365, 1370, n.4, 83 USPQ2d 1373, 1376, n.4 (Fed. Cir. 2007)
See also Purdue Pharma L.P. v. Faulding Inc., 230 F.3d 1320, 1328, 56 USPQ2d 1481, 1487 (Fed. Cir. 2000) ("[T]he specification does not clearly disclose to the skilled artisan that the inventors... considered the... ratio to be part of their invention.... There is therefore no force to Purdue’s argument that the written description requirement was satisfied because the disclosure revealed a broad invention from which the [later-filed] claims carved out a patentable portion"). See also General Hosp. Corp. v. Sienna Biopharmaceuticals, Inc., 888 F.3d 1368, 1372, 126 USPQ2d 1556, 1560 (Fed. Cir. 2018)
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 INTERPRETATION AND INTRODUCTION:
Regarding ranges “about”:
The claims recite various ranges using the term “about” Giving the claims the broadest reasonable interpretation in view of the specification these ranges may vary up to 10 % at either end of the range. See instant specification at: [0028] The term "about" as used herein means greater or lesser than the value or range of values stated by 10 percent, but is not intended to designate any value or range of values to only this broader definition. Each value or range of values preceded by the term "about" is also intended to encompass the embodiment of the stated absolute value or range of values.
As below set forth the particle sizes and content of the various components are taught by the cited prior art in ranges which meet and/or overlap the instantly claimed ranges esp. where the claims recite multiple ranges and utilize the term “about”. 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)"
MPEP 2111 If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020)
Claims 17 (and the claims which depend therefrom) and the claims which depend therefrom are interpreted to be a product by process claim (i.e. a cementitious mortar composition formed by a process comprising contacting…). The product determines patentability MPEP 2113: "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted)
MPEP 2131 A genus does not always anticipate a claim to a species within the genus. However, when the species is clearly named, the species claim is anticipated no matter how many other species are additionally named. See Ex parte A, 17 USPQ2d 1716 (Bd. Pat. App. & Inter. 1990)(emphasis added by examiner) The prior art expressly recites the claimed species and as such anticipates those claims as more fully below set forth.
Many of the claimed components may be multifunctional. Of particular note is clay which may be a viscosity modifier or fulfill another function such as filler, fine aggregate or pozzolanic component (see below) as such where clay is taught it will meet each of those claimed limitations.
It is obvious to combine compositions/compounds which are used for the same purpose. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious).
Where ranges are taught that fall within or overlap the instantly claimed ranges, said claimed ranges are rendered obvious. 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)"
The claims recite: “are devoid of calcined lime or calcium sulfoaluminate” as such one may be present (i.e. giving the claims the broadest reasonable interpretation in view of the specification, the use of the word “or” indicates either but not necessarily both)
Any and all claim interpretations above set are expressly incorporated into each and every rejection below as though fully set forth therein.
Gong et al (US 2014/0264140)
Claim(s) 5-7, 10, 12-17, 19, 21-23 and 26 and new claims 27-28 and 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gong et al (US 2014/0264140)
Regarding Claims 5-7, 10, 12-17, 19, 21-23 and 26 and new claims 27-28 and 30:
Gong et al (US 2014/0264140) discloses a composite binder and geopolymer composition (Abstract) [0007]
Gong teaches the composition provides improved compressive strength [0009] Fig 4 and 5 [0034] the composition exhibits optimal rheological properties for stabilizing the structure [0049] improved water reduction for improved rheological properties for stable structure [0052] [0058-0059]
Fine Aggregate:
Fine aggregates of masonry sand 50-600 microns [0131] river sand (see claim 29) (meeting the limitation for fine aggregate of claims 5, 12 and 13 for natural sand overlapping the claimed particle size of claim 12)
Viscosity Modifier:
Metakaolin 0.5 to 50 microns [0132]
Activator solution
Alkaline activator of alkali metal silicate particular sodium silicate solution [0077] 38-55 wt.% alkali silicate solids in 45-62 wt.% water or in an alkali hydroxide solution [0077] This solution is commercially available sodium silicate solution 14 wt.% Na.sub.2O and 33 wt.% silicate in water [0135] (overlapping claim 5 for about 25-70 % and 35-50% (i.e. about 15-70% or 25-60 % given the claim interpretation above set forth) and claim 14 for about 35-50 % and 5-12 M hydroxide solution)
The composition comprises Blast furnace slag [0133] Silica fume in alkali hydroxide solution submicron [0134]
Further Regarding the alkali metal silicate of the new claims:
Commercially available water glass may be also used to prepare an alkaline activator solution by dissolving it in alkali hydroxide solution. In one embodiment, sodium silicate with a mass ratio of SiO2/Na2O (modulus) equal to about 2 to 3.2 may be used. In one embodiment, the sodium silicate solution may comprise about 38 to 55 wt. % alkali silicate solids and about 45 to 62 wt. % water. Alternatively, alkali silicate glass powders can be dissolved in an alkali hydroxide solution to prepare an alkaline activator. Examples of soluble alkali silicate glass commercially available are SS® sodium silicate and Kasolv® potassium silicate from PQ Corporation.[0077]
Commercially available sodium silicate solution (Ru™ sodium silicate solution, PQ Corp) was used to prepare an alkaline activator solution. The sodium silicate solution contained about 14 wt. % Na2O, 33 wt. % SiO2 and 53 wt. % water.[0135][0244]
[0255,0256,0266, 0267, 0277, 0289, etc.]
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(overlapping the ranges of M of hydroxide concentration of the claims 26-30)
Pozzolanic Composition:
Gelation enhancers such as metakaolin and pozzolanic aluminosilicate (See claim 3 reference and claim 4 reference) Fly ash [0136] volcanic ash (pumice) [0054] diatomaceous earth pozzolanic materials [0072] pozzolanic compounds include natural mineral sources [0039] (this includes natural materials)
Pozzolanic materials in ranges of 3 to 80 wt.% [0072] (overlapping the range of the claims such as claims 5 and 15)
The composition may include Class C fly ash. [0050-0055]
The composition comprises volcanic ash, ground pumice of micron or sub-micron sizes (i.e. volcanic pumice overlapping micron sizes)[0050]
No calcine lime or calcium sulfo aluminate is required.
FURTHER REGARDING NEW CLAIMS 27-28 AND CLAIM 30
The composition may comprise metakaolin in amounts such as 5-85 wt.% or 1-25 wt.% [0072] overlapping and within the instantly claimed range of clam 28
The composition may comprise as a hardening enhancer class C fly as in amounts such as 3-60 wt.% (see claims 2 and 5-6 of the reference) (overlapping claim 27 and claim 29-30 for Class C fly ash)
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(teaching overlapping M ranges)
The prior art teaches overlapping ranges of amount and particle sizes. 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)"
Gong et al (US 2014/0264140) further in view of : Graytee (WO 2020/056470A1) or in the alternative Urbanek (US 2005/0096207)
Claim(s) 29 and 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gong et al (US 2014/0264140) as applied to 5-7, 10, 12-17, 19, 21-23 and 26 and new claims 27-28 and 30 above further in view of : Graytee (WO 2020/056470A1) or in the alternative Urbanek (US 2005/0096207)
Regarding Claims 29 and 31:
Gong discloses the limitations above set forth.
Gong teaches the composition comprising highly reactive aluminosilicates of pozzolanic materials for example metakaolin [0025] and Class C fly ash [0030]
Gong discloses the composition comprising metakaolin in a range of 3-92 % (See claim 2 and claim 4 for gelation additive) and class F fly ash in a range of 3-60 wt.% wt.5 (See claim2 of reference) and hardening enhancers such as class C fly ash, pozzolanic aluminosilicate and combinations, etc. (See claim 5 reference) in a range of 5- 92 wt.5 (See clam 2 reference)
Given the range of these required components when additional components are added they will overlap the range of 20-40 wt. % (esp. when combined with fly ash)
Gong does not disclose the composition comprising nepheline syenite and Class C fly ash.
Graytee (WO 2020/056470A1) teaches a geopolymer composition (like Gong) which used an alkali activating agent (Abstract) The composition may be made from geopolymer and non-geopolymer components (P9 L30-35) The composition includes at least one aluminosilicate (Abstract) the composition includes fly ash, metakaolin, nepheline syenite (P5 L7-20) (P13 L15-33) the fly ash includes class C fly ash (P14 L3-10) and may act as a binding agent and/or fluxing agent etc. (P5 L18-21) the alkali activating agent include potassium hydroxide (P5 L (21-28)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add nepheline syenite as an aluminosilicate as taught by Graylee to the composition of Gong which contemplates a mixture of aluminosillicates and said nepheline syenite is suitable for geopolymer compositions.
"It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted)
Or in the alternative
Urbanek (US 2005/0096207) discloses a geopolymer composition comprising aluminosilicates such as pozzolan, fly ash C and calcined kaolin (i.e. metakaolin) pozzolan and nepheline syenite [0009]
It would have been obvious to add nepheline syenite to the composition of Gong as taught by Urbanek as it is a known aluminosilicate components for forming geopolymers similar to that of Gong.
"It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted)
Given the range of these required aluminosilicate, fly ash C and metakaolin of Gong, the nepheline syenite components when added will overlap the range of 20-40 wt. % and the ratios of the instant claims (esp. when combined with fly ash)
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)"
Dubey et al (US 2020/0231503) alternatively further in view of Gong et al (US 2014/0264140)
Claim(s) 5-7, 10, 12-17, 19 and 21-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dubey et al (US 2020/0231503) alternatively further in view of Gong et al (US 2014/0264140)
Dubey et al (US 2020/0231503) discloses
Regarding inert fine aggregate :
[0469] Fine aggregates can be added to the geopolymer compositions in the invention without affecting the properties to increase the yield of the material. An example of fine aggregate is Sand. Sand is defined as an inorganic rock material (i.e. natural sand and comprising silica as sand comprises silica) with an average particle size of less than about 4.75 mm (0.195 inches). The sand used in this invention preferably meet the standard specifications of the ASTM C33 standard. Preferably the sand has a mean particle size of 0.1 mm to about 3 mm. More preferably the sand has a mean particle size of 0.2 mm to about 2 mm. Most preferably the sand has a mean particle size about 0.3 to about 1 mm. Examples of preferable fine sand for use in this invention have a predominant size range of US sieve number #70-#30 (0.2-0.6 mm). The fine aggregate used in this invention meet the ASTM C33 standard performance.
Where the particle sizes overlap the instantly claimed ranges
[0470] Inorganic mineral fillers are dolomite, limestone, calcium carbonate, ground clay, shale, slate, mica and talc. Generally, they have a fine particle size with preferably average particle diameter of less than about 100 microns, preferably less than about 50 microns, and more preferably less than about 25 microns in the compositions of the invention. Smectite clays and palygorskite and their mixtures are not considered inorganic mineral fillers in this invention.
Where the particle sizes overlap the instantly claimed ranges
Further Regarding the limitation for Fine aggregate and silica containing particles:
Dubey et al (US 2020/0231503) teaches: The composition comprised the thermally activated alumino silicate material includes fly ash, blast furnace slag, thermally activated clay, shale, metakaolin, ground rock ground clay brick etc. the preferred thermally activated alumino silicate minerals include class C fly ash from coal fired power plants and also possess pozzolanic properties [0347] [0347] The average particle size of the thermally activated aluminosilicate is less than 100 microns less than 5o microns less than 25 microns less than 15 microns [0355]
The fly ash is on a 325 mesh sieve average particle size less than 50 microns less than 35 less than 25 less than 15 microns [0359]
Where the particle sizes overlap the instantly claimed ranges
[0357] Minerals often found in fly ash are quartz (SiO.sub.2), mullite (Al.sub.2Si.sub.2O.sub.13), gehlenite (Ca.sub.2Al.sub.2SiO.sub.7), hematite (Fe.sub.2O.sub.3), magnetite (Fe.sub.3O.sub.4), among others. In addition, aluminum silicate polymorphs minerals commonly found in rocks such as sillimanite, kyanite and andalusite all three represented by molecular formula of Al.sub.2SiO.sub.5 are also often found in fly ash.
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(meeting the limitation for fine aggregate silica sand and size/mesh size)
Where the particle sizes overlap the instantly claimed ranges
Regarding the Viscosity Modifier:
[0444] Preferred polymers for use as Organic Rheology Control Agents and thickeners in the geopolymer compositions of the invention are selected from the group consisting of polyacryl amides, alkali-swellable acrylic polymers, associative acrylic polymers, acrylic/acrylamide copolymers, hydrophobically modified alkali-swellable polymers, and highly water-swellable organic polymers.
[0445] For example, ACULYN 22 rheology modifier is an anionic hydrophobically modified alkali-soluble acrylic polymer emulsion (HASE) available from Dow Chemical. HASE polymers are synthesized from an acid/acrylate copolymer backbone and a monomer that connects the hydrophobic groups as side chains. The polymer is made through emulsion polymerization. ACULYN 22 is synthesized from acrylic acid, acrylate esters and a steareth-20 methacrylate ester.
[0481] The geopolymer cementitious compositions of the invention may also include inorganic rheology control agents belonging to the family of phyllosilicates. Examples of inorganic rheology control agents particularly useful in the geopolymer compositions of invention include palygorskite, sepiolite, smectites, kaolinites, and illite. Particularly useful smectite clays that may be used in the present invention include hectorite, saponite, and montmorillonite. Different varieties of bentonite clays both natural and chemically treated may also be used to control rheology of the compositions of the present invention. These additives also act as water retention agents and thereby minimize material segregation and bleeding. The inorganic rheology control agents may be added in the absence of or in combination with the organic rheology control agents.
Regarding Claim limitations for Viscosity Modifier of clay with mesh of 375-150 (40-105 microns):
[0470] Inorganic mineral fillers are dolomite, limestone, calcium carbonate, ground clay, shale, slate, mica and talc. Generally, they have a fine particle size with preferably average particle diameter of less than about 100 microns, preferably less than about 50 microns, and more preferably less than about 25 microns in the compositions of the invention. Smectite clays and palygorskite and their mixtures are not considered inorganic mineral fillers in this invention.
Where the particle sizes overlap the instantly claimed ranges
[0436] Bio-Polymers
[0437] Some of these biopolymers are also known as Thickeners or Viscosity Modifiers. Some also function as film forming polymers. Some, such as methyl cellulose also function as an emulsifier. Naturally occurring biopolymers comprise polysaccharide or amino acid building blocks, and are generally water-soluble. Common examples are starch, cellulose, alginate, egg yolk, agar, arrowroot, carrageenan, collagen, gelatin, guar gum, pectin and xanthan gum. Preferred Bio-polymers include cellulosic ethers and gum-based organic polymers.
[0438] Succinoglycans, diutan gum, guar gum, wellan gum, xanthan gums and cellulose ether based organic compounds, are bio-polymers that act as hydrocolloids and rheology control agents. Gum based polymers are selected from the group consisting of galactomannan gums, glucomannan gums, guar gum, locust bean gum, cara gum, hydroxyethyl guar, hydroxypropyl guar, cellulose, hydroxypropyl cellulose, hydroxymethyl cellulose, hydroxyethyl cellulose, and combinations thereof.
[0439] Examples of preferred cellulose based organic polymers useful for rheology control in the geopolymer compositions of the present invention include hydroxyethyl-cellulose (HEC), hydroxypropyl-cellulose (HPC), hydroxypropylmethyl-cellulose (HPMC), methyl-cellulose (MC), ethyl-cellulose (EC), methylethyl-cellulose (MEC), carboxymethyl-cellulose (CMC), carboxymethylethyl-cellulose (CMEC), and carboxymethylhydroxyethyl-cellulose (CMHEC).
Regarding Pozzolanic Material:
[0402] “Naturally-occurring and Non-thermally activated” Pozzolans
[0405] The above-discussed thermally activated aluminosilicate mineral additives have pozzolanic properties. However, in addition to the above-discussed fly ash, other pozzolans can also be included as optional silicate and aluminosilicate mineral additives in the compositions of the invention. ASTM C618 (2008) defines pozzolanic materials as “siliceous or siliceous and aluminous materials which in themselves possess little or no cementitious value, but will, in finely divided form and in the presence of moisture, chemically react with calcium hydroxide at ordinary temperatures to form compounds possessing cementitious properties.”
[0406] Various natural and man-made materials have been referred to as pozzolanic materials possessing pozzolanic properties. Some examples of pozzolanic materials include silica fume, pumice, perlite, diatomaceous earth, finely ground clay, finely ground shale, finely ground slate, finely ground glass, volcanic tuff, trass, and rice husk. All of these pozzolanic materials can be used either singly or in combined form as part of the cementitious reactive powder of the invention. (where all of the pozzolan materials may be natural material meeting claim 3 when used singly such as only volcanic tuff)
The Cementous reactive powder has 20 pbw of the pozzolan relative to 100 parts by weight fly ash [0403] The cementous reactive powder has 75 % fly ash [0016] [0045] cementitious reactive powder comprising: [0046] thermally activated aluminosilicate mineral in an amount of 100 parts by weight.
[0472] Lightweight fillers have a specific gravity of less than about 1.5, preferably less than about 1, more preferably less than about 0.75, and still more preferably less than about 0.5. If desired the specific gravity of lightweight fillers is less than about 0.3, more preferably less than about 0.2 and most preferably less than about 0.1. In contrast, inorganic mineral filler preferably has a specific gravity above about 2.0. Examples of useful lightweight fillers include pumice, vermiculite, expanded forms of clay, shale, slate and perlite, scoria, expanded slag, cinders, glass microspheres, synthetic ceramic microspheres, hollow ceramic microspheres, lightweight polystyrene beads, plastic hollow microspheres, expanded plastic beads, and the like. Expanded plastic beads and hollow plastic spheres when used in the composition of the invention are employed in very small quantity on a weight basis owing to their extremely low specific gravity.
Regarding the limitation for Large Aggregate:
(claim 2)
[0468] One or more fillers such as fine aggregate, coarse aggregate, inorganic mineral fillers, and lightweight fillers may be used as a component in compositions of the invention.
[0471] Coarse aggregates can be added to the geopolymer compositions without it affecting any of the properties to increase the yield of the material. Coarse aggregate is defined as an inorganic rock material with an average particle size at least 4.75 mm (0.195 inches), for example ¼″ to 1½ in.″ (0.64 to 3.81 cm). Aggregate with size larger than 1½″ (3.81 cm) may also be used in some applications for example concrete pavement.
Where the particle sizes overlap the instantly claimed ranges
Preferably coarse aggregate are made of minerals such as granite, basalt, quartz, (stone) riolite, andesite, tuff, pumice, limestone, dolomite, sandstone, marble, chert, flint, greywacke, slate, and/or gneiss. Coarse aggregate useful in the invention as listed in TABLE A-2 and D meets specifications set out in ASTM C33 (2011) and AASHTO M6/M80 (2008) standards. Gravel is a typical coarse aggregate.[0471]
Where the particle sizes overlap the instantly claimed ranges
Wherein the above ranges as to wt.% of claims overlap the instantly claimed ranges esp. where the term about is used in the claims (see above claim interpretation).
Generally, 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) 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
No calcined lime is required.
Regarding Alkali Metal Silicate Activator Solution:
[0284] In the compositions and methods, the chemical activator is added
(i.e. meeting the product by process limitation for contacted)
to the cementitious reactive powder mixture either in dry or liquid form comprising an alkali metal salt or base preferably selected from the group consisting of alkali metal salts of organic acids, alkali metal hydroxides, and alkali metal silicates. In subsequent steps, water is added
(Alkali metals include: lithium (Li), sodium (Na), potassium (K), rubidium (Rb), cesium (Cs), and francium (Fr) rendering obvious the sodium potassium, lithium and cesium of the claims)
[0409] In compositions of the invention, alkali metal salts and bases are useful as alkali metal chemical activators to activate the Reactive Powder Component A comprising thermally activated aluminosilicate mineral such as fly ash, aluminate cement, and calcium sulfate. The alkali metal activators of this invention can be added in liquid or solid form. The preferred alkali metal chemical activators of this invention are metal salts of organic acids. The more preferred alkali metal chemical activators of this invention are alkali metal salts of carboxylic acids. Alkali metal hydroxides and alkali metal silicates are some other examples of alkali metal chemical activator of this invention. Alternatively, alkali metal hydroxides and alkali metal silicates can also be used in combination with carboxylic acids such as citric acid to provide chemical activation of cementitious reactive powder blend comprising thermally activated aluminosilicate mineral, aluminate cement, and calcium sulfate.
[0021] alkali metal chemical activator in an amount of 1 to 6 weight % based upon the total weight of the cementitious reactive powder,
The alkali metal chemical activator may be in liquid or dry form and liquid may be added later [p0282]
The reference teaches the composition comprising water (See claim 1 of reference) water/Cementous reactive powder ratio 0.3 to 0.55 (See claim 1 of reference)
The reference teaches a composition which provides geopolymer compositions that are highly flowable, self-consolidating and with enhanced performance characteristics including extended setting time, tailorable rheology and improved compressive strength. [0002] and provides geopolymer compositions that are highly flowable, self-consolidating and with enhanced performance characteristics including extended setting time, slump retention, tailorable rheology and improved compressive strength and method for making these compositions. [0007]
While the reference does not expressly recite a range of alkali metal silicate relative to the total system components of 25-70 wt.% (which due to claim interpretation can be as low as 15 wt.%), one of ordinary skill in the art at the time of filing the invention could readily ascertain adding additional chemical reactor alkali silicate based upon the materials which make up the Cementous reactive powder in sodium hydroxide liquid and the correct amount of water in the compositional mix so as to impart improved flowability, and to better tailor the rheology and maximize strength etc. such that the range of the liquid with solid sodium silicate solution overlaps the instantly claimed range.
Generally, 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) 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Assuming arguendo the amount of sodium silicate solution and M is not obvious to one of ordinary skill in the art at the time of filing the invention as above set forth, in the alternative:
Gong et al (US 2014/0264140) discloses a composite binder and geopolymer composition (Abstract) [0007] similar to that of Dubey.
Gong teaches the composition provides improved compressive strength [0009] Fig 4 and 5 [0034] the composition exhibits optimal rheological properties for stabilizing the structure [0049] improved water reduction for improved rheological properties for stable structure [0052] [0058-0059]
Fine Aggregate:
Fine aggregates of masonry sand 50-600 microns [0131] river sand (see claim 29) (meeting the limitation for fine aggregate of claims 5, 12 and 13 for natural sand overlapping the claimed particle size of claim 12)
Viscosity Modifier:
Metakaolin 0.5 to 50 microns [0132]
Activator solution
Alkaline activator of alkali metal silicate particular sodium silicate solution [0077] 38-55 wt.% alkali silicate solids in 45-62 wt.% water or in an alkali hydroxide solution [0077] This solution is commercially available sodium silicate solution 14 wt.% Na.sub.2O and 33 wt.% silicate in water [0135] (overlapping claim 5 for about 25-70 % and 35-50% (i.e. about 15-70% or 25-60 % given the claim interpretation above set forth) and claim 14 for about 35-50 % and 5-12 M hydroxide solution)
The composition comprises Blast furnace slag [0133] Silica fume in alkali hydroxide solution submicron [0134]
Pozzolanic Composition:
Gelation enhancers such as metakaolin and pozzolanic aluminosilicate (See claim 3 reference and claim 4 reference) Fly ash [0136] volcanic ash (pumice) [0054] diatomaceous earth pozzolanic materials [0072]
Pozzolanic materials in ranges of 3 to 80 wt.% [0072] (overlapping the range of the claims such as claims 5 and 15)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to use the sodium silicate solution of Dubey in the amounts taught by Gong as they are suitable amounts for geopolymer compositions and will aid in tailoring the rheology as already contemplated by Dubey to provide improved compressive strength and stability.
Li (WO 2020/097516A1) further in view of Gong et al (US 2014/0264140)
Claim(s) 5-7, 10, 12-17, 19, 21-23 and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Li (WO 2020/097516A1) further in view of Gong et al (US 2014/0264140)
Regarding Claims 5-7, 10, 12-17, 19, 21-23 and 26
The composition may comprise fly ash, fine aggregate sodium silicate sodium hydroxide polymeric fiber and water as a geopolymer cement composition [0025] The composition comprises fine aggregate with particles passing on a 9 mm sieve and includes quartz sand [0096] in amounts such as 20-65 mass % [0096]
The composition comprises fine aggregate of 17-22 mass % (meeting the limitation for fine aggregate) fly ash greater or equal to 50 to 60 mass %, (meeting the limitation for pozzolanic material) water 7-12 mass %, polymeric fiber 0.7 to 1.5 %, sodium silicate 10-15 mass % (where the instant claims include 25 and 35 less the 10 % variable due to claim interpretation so 15-25 % - overlapping the instant claimed range) sodium hydroxide 2.5 to 3.5 mass % [0026] (meeting the limitation for solution and for base)
The composition comprise Portland cement [0037] the composition comprises pozzolans like fly ash and ground blast furnace slag [0094] in a range of 25-40 mass %,
The fine aggregate particle size is less than or equal to 2 mm (overlapping the claimed range of 75 microns to 4.75 mm) [0038] fine aggregate includes sand 15-60 mass % [0106] Quartz sand having a diameter of 75 micron [0113]
The composition comprises fly ash, silica flour, microsilica, attpulgite nano clay and HPMC [0041]
The composition comprises silica flour and microsilica [0041] (i.e. silica particles) [0042] teaches ranges of same.
The composition comprises hydroxypropyl methyl cellulose to manipulate viscosity in an amount of 0 to 1.5 mass % [0107] (meeting the limitation for a viscosity modifier)
The composition comprises nano clay [0018]
The composition may be used in additive manufacturing [0091] the composition may comprise a water reducing agent / plasticizer to create high fluidity and good flowability properties contributing to making it suitable for additive manufacturing. [0097]
No calcined lime or calcium sulfo aluminate is required.
The prior art teaches overlapping ranges of amount and particle sizes. 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)"
Li discloses the limitations above set forth. Li discloses ranges of sodium silicate and sodium hydroxide as above set forth which will overlap the claimed Molarity. Assuming arguendo the molarity is not expressly encompassed, the examiner notes Gong as below set forth teaches said Molarity. Li does not expressly disclose and pozzolanic material: classy C fly ash or metakaolin clay having mesh 375 to 150:
Gong et al (US 2014/0264140) discloses a composite binder and geopolymer composition (Abstract) [0007] similar to that of Dubey.
Gong teaches the composition provides improved compressive strength [0009] Fig 4 and 5 [0034] the composition exhibits optimal rheological properties for stabilizing the structure [0049] improved water reduction for improved rheological properties for stable structure [0052] [0058-0059]
Fine Aggregate:
Fine aggregates of masonry sand 50-600 microns [0131] river sand (see claim 29) (meeting the limitation for fine aggregate of claims 5, 12 and 13 for natural sand overlapping the claimed particle size of claim 12)
Viscosity Modifier:
Metakaolin 0.5 to 50 microns [0132] (meeting the limitations for clay and overlapping the claimed mesh and meeting the limitation for metakaolin pozzolanic material)
Activator solution
Alkaline activator of alkali metal silicate particular sodium silicate solution [0077] 38-55 wt.% alkali silicate solids in 45-62 wt.% water or in an alkali hydroxide solution [0077] This solution is commercially available sodium silicate solution 14 wt.% Na.sub.2O and 33 wt.% silicate in water [0135] (overlapping claim 5 for about 25-70 % and 35-50% (i.e. about 15-70% or 25-60 % given the claim interpretation above set forth) and claim 14 for about 35-50 % and 5-12 M hydroxide solution)
The composition comprises Blast furnace slag [0133] Silica fume in alkali hydroxide solution submicron [0134]
Pozzolanic Composition:
Gelation enhancers such as metakaolin and pozzolanic aluminosilicate (See claim 3 reference and claim 4 reference) Fly ash [0136] volcanic ash (pumice) [0054] (also a natural material) diatomaceous earth pozzolanic materials [0072] pozzolanic compounds include natural mineral sources [0039] (this includes natural materials)
Pozzolanic materials in ranges of 3 to 80 wt.% [0072] (overlapping the range of the claims such as claims 5 and 15)
The composition comprises volcanic ash, ground pumice of micron or sub-micron sizes (i.e. volcanic pumice overlapping micron sizes)[0050]
Gong et al (US 2014/0264140) discloses a composite binder and geopolymer composition (Abstract) [0007] similar to that of Dubey.
Gong teaches the composition provides improved compressive strength [0009] Fig 4 and 5 [0034] the composition exhibits optimal rheological properties for stabilizing the structure [0049] improved water reduction for improved rheological properties for stable structure [0052] [0058-0059]
Fine Aggregate:
Fine aggregates of masonry sand 50-600 microns [0131] river sand (see claim 29) (meeting the limitation for fine aggregate of claims 5, 12 and 13 for natural sand overlapping the claimed particle size of claim 12)
Viscosity Modifier:
Metakaolin 0.5 to 50 microns [0132]
Activator solution
Alkaline activator of alkali metal silicate particular sodium silicate solution [0077] 38-55 wt.% alkali silicate solids in 45-62 wt.% water or in an alkali hydroxide solution [0077] This solution is commercially available sodium silicate solution 14 wt.% Na.sub.2O and 33 wt.% silicate in water [0135] (overlapping claim 5 for about 25-70 % and 35-50% (i.e. about 15-70% or 25-60 % given the claim interpretation above set forth) and claim 14 for about 35-50 % and 5-12 M hydroxide solution)
The composition comprises Blast furnace slag [0133] Silica fume in alkali hydroxide solution submicron [0134]
The composition may include Class C fly ash. [0050-0055]
No calcined lime or calcium sulfo aluminate is required.
Both Li and Gong teach geopolymer compositions comprising the same compositional components.
The amount of sodium hydroxide and sodium silicate of Li encompasses a similar range to that of Gong as such it will overlap the claimed molarity Nonetheless, it would also have been obvious to one of ordinary skill in the art at the time of filing the invention to use the sodium silicate sodium hydroxide solution in the ranges and molarity as taught by Gong as it is suitable for geopolymer compositions.
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add metakaolin and class c fly ash materials of Gong in Li in the sizes set forth therein as Li already contemplates pozzolanic materials and clay and doing so will further impart improved properties as taught by Gong into the composition of Li.
"It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious)
The prior art teaches overlapping ranges of amount and particle sizes. 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)"
Response to Arguments
Applicant's arguments filed 12/29/2025 have been fully considered but they are not persuasive.
Amended grounds of rejection necessitated by amendment of the claims are above set forth. The prior art as above cited individually and in combination render obvious the amended claims and new claims by a preponderance of the evidence by teaching the claimed compositional components, species thereof in amounts and ranges which meet and/or overlap the instantly claimed ranges and ratios.
Applicant traverses the rejections asserting in part the amended and new claim limitations. This is not persuasive.
Regarding the amended limitations for pozzolanic materials of the claims (i.e. claims 5 and 17)
Dubey et al (US 2020/0231503) teaches: The composition comprised the thermally activated alumino silicate material includes fly ash, blast furnace slag, thermally activated clay, shale, metakaolin, ground rock ground clay brick etc. the preferred thermally activated alumino silicate minerals include class c fly ash from coal fired power plants and also possess pozzolanic properties [0347] [0347]
Gong et al (US 2014/0264140) teaches:
Gong et al (US 2014/0264140) teaches metakaolin [0132] as above set forth
And teaches Class C fly ash in the composition at [0051-0055]
Li (WO 2020/097516A1) further in view of Gong et al (US 2014/0264140as combined teach the composition of Li including class c fly ash and metakaolin.
Applicant traverses the rejections asserting the references teach away from and/or do not teach certain limitations. This is not persuasive.
Dubey teaches sufficient information to render obvious the amount of the alkali metal silicate as more fully above set forth. Notwithstanding same, a secondary reference is provided to further render obvious said range. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Regarding the limitation for Class C Fly ash, the references as above indicated expressly include Class C fly ash. “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968))
The negative limitation of the claims would permit calcined lime when there is no calcium sulfoaluminate. As such the prior art as above recited meets this limitation. Applicant argues the Li reference will “inherently possess calcined lime” This is not persuasive as there is no indication said reference will possess same. Further the examiner notes that calcined lime is not the same as calcined limestone (Portland cement may possess calcined limestone though not recited in the reference) also distinguishing the prior art from the instant claims.
The claims as presented do not recite limitations directed to properties beyond particle size in certain claims and dependent claims and in some claims ranges of materials by weight %/Molarity. Since the prior art recites and / or renders obvious the claim limitations as above set forth, a prima facie showing of obviousness has been established.
Conclusion
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/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732