DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
This office action is in response to the Amendment filed on 05/07/2026.
Claims 1-20 are presently pending; claims 13-20 are withdrawn; claims 8-9 are amended; claims 1-12 are under examination
The objection to the drawings is withdrawn in light of the amendments to the specification.
The objections to claims 8-9 are withdrawn in light of the amendments to the claims.
The rejection of claims 1-12 under 35 U.S.C 112(b) is withdrawn in light of the amendments to the specification.
The 35 U.S.C. 102 rejection of claims 1-12 over AZIZ and the 35 U.S.C. 103 rejections of claims 1-4 and 8-12 over KHAN and claims 5-7 over KHAN in view of MAHDI are withdrawn in light of the Declarations under 37 C.F.R. 1.130 filed 03/04/2026. In view of these Declarations, the Examiner recognizes that both AZIZ and KHAN are disqualified as prior art due to the 102(b)(1)(A) exception.
New grounds of rejection are present herein in light of the Declarations under 37 C.F.R 1.130.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-4 and 8-12 are rejected under 35 U.S.C. 103 as being unpatentable over Ng, et al. (U.S. Pub. No. 2020/0062646-A1) (hereinafter, “NG”) in view of Salami, et al. (U.S. Pub. No. 2021/0371341-A1) (hereinafter, “SALAMI”) and Salem, et al., “Utilization of the UAE date palm leaf biochar in carbon dioxide capture and sequestration processes”, Journal of Environmental Management, published online 30 August 2021 (hereinafter, “SALEM”).
Regarding claim 1, NG teaches a cement composition (see NG at generally at paragraphs [0039]-[0055] and Table 2), comprising:
a cementitious material in an amount of 10 to 40 wt. % based on a total weight of the cement composition (see NG at Table 2, providing an example of a composition comprising 10,000 g cement, 26,950 g sand, 4000 g water, 550 g biochar, and 56 g superplasticizer, i.e., 24 wt.% cement, 65 wt.% sand, 1.3 wt.% biochar, and 0.13 wt.% superplasticizer);
a biochar in an amount of 0.25 to 1.5 wt. % based on a total weight of the cementitious material (see NG at paragraphs [0032] and [0047] and Table 2, teaching 1.3 wt.% biochar);
a fine aggregate (FA) in an amount of 20 to 85 wt. % based on the total weight of the cement composition (see NG at Table 2, teaching 65 wt.% sand);
a coarse aggregate (CA) (see NG at paragraphs [0031], [0033]-[0034] and [0045], teaching that the aggregate may be sand, gravel/crushed stone, or a mixture thereof, and that both sand and gravel are used for concrete);
a plasticizer in an amount of 0.001 to 2 wt. % based on the total weight of the cement composition (see NG at Table 2, teaching 0.13 wt.% superplasticizer);
wherein the biochar has a particle size in a range of 0.1 to 20 micrometers (µm) (see NG at paragraphs [0093], [0097], [0101] and Fig. 12, teaching a biochar particle size of 5 to 20 µm, and teaching that a finer biochar enhances filling properties).
However, NG does not explicitly teach that (i) the coarse aggregate is in an amount of 0.01 to 60 wt.% based on the total weight of the cement composition, or (ii) the biochar is a date palm biochar which is at least one of a date palm leaves biochar (BioCl) and a date palm seeds biochar (BioCs).
In regard to (i) above, SALAMI teaches a concrete composition comprising cement, palm ash, fine aggregate, such as sand, and coarse aggregate, such as gravel or crushed stone (see SALAMI at Abstract and paragraphs [0079] and [0084]), wherein the coarse aggregate has a specific gravity of 2.4 to 2.6 and a particle size of 2 to 20 mm and is added in an amount of 12 wt.% to 33 wt.% (see SALAMI at paragraphs [0022], [0080]-[0081] and [0083]). SALAMI teaches that this is a typical type and amount of coarse aggregate for use in concrete and will influence the concrete’s freshly mixed and hardened properties (see SALAMI at paragraphs [0078]-[0081] and [0083]).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the composition of NG by using a coarse aggregate with a specific gravity of 2.4 to 2.6 and a particle size of 2 to 20 mm in an amount of 12 wt.% to 33 wt.% as taught by SALAMI (see SALAMI at paragraphs [0022], [0080]-[0081] and [0083]). One of ordinary skill in the art could have used this type and amount of aggregate with a reasonable expectation of success, yielding the predictable result of providing a typical aggregate suitable to form a usable concrete which will influence the concrete’s freshly mixed and hardened properties.
In regard to (ii) above, NG explicitly teaches that the biochar may be prepared from any biomass material and that economic benefits may be gained from the utilization of agricultural or horticultural wastes as the biochar feedstock (see NG at paragraphs [0047], [0114] and [0145]-[0146]), but does not explicitly mention date palm. The disclosure of SALEM aims to evaluate the use of palm date leaf biochar as a climate change solution through CO2 capture and sequestration (see SALEM at Abstract). SALEM teaches that date palm waste is an abundantly available agricultural waste that is discarded in massive amounts, that date palm waste biochar may provide an economically and environmentally important tool for minimizing date palm waste, that date palm leaves can be successfully used as feedstock for biochar preparation via slow pyrolysis, e.g., at a temperature of 450 to 550 °C for a duration of 2 hours, and that date palm leaf biochar has superior CO2 adsorption efficiency (see SALEM at Abstract, §1 and §2.1, pg. 2, and §Conclusions, pg. 7).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified the cement composition of NG by simply substituting the unspecified agricultural/horticultural biomass waste used as the biochar precursor with date palm leaf waste as taught by SALEM (see SALEM at Abstract). One of ordinary skill in the art could have made such a substitution with a reasonable expectation of success, yielding the predictable result of providing a biomass waste material which can be successfully used to form a porous biochar capable of sequestering carbon and reducing greenhouse gas emissions (see SALEM at Abstract and §1, pg. 2; see NG at paragraphs [0032] and [0145]-[0146]). Further, one of ordinary skill in the art would have been motivated to use date palm seeds for the benefit of providing an economical and highly abundant source material for the biochar while mitigating the waste generated by this typically discarded material (see SALEM at Abstract, §1 and §2.1, pg. 2, and §Conclusions, pg. 7; see NG at paragraphs [0145]-[0146]).
Regarding claim 2, as applied to claim 1 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 1, wherein the date palm biochar is in the form of BioCl particles (see SALEM at Abstract.
SALEM does not explicitly mention that the BioCl particles are in the form of flake particles and circular particles having a rough surface morphology. However, NG in view of SALAMI and SALEM teaches a composition which is identical or substantially identical to the claimed composition and is made by an identical or substantially identical process, therefore the composition of NG in view of SALAMI and SALEM would be expected to have the same or overlapping properties including particle shape and surface morphology of the biochar. The biochar of NG in view of SALAMI and SALEM is made using date palm leaf waste, which is identical to the material used in the present invention, and NG teaches forming the biochar via slow pyrolysis at 500 °C for 1.25 hours with a heating rate of 10 °C/min, and SALEM teaches preparing the biochar via slow pyrolysis at 500 °C for 2 hours which is identical or substantially identical to the process used in the present invention (see NG at paragraph [0066]; see SALEM at Abstract, §1 and §2.1, pg. 2; see Example 2 of Applicant’s specification). MPEP § 2112.01 (I) states that 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 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "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). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). 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.
Regarding claim 3, as applied to claim 2 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 2.
NG in view of SALAMI and SALEM does not explicitly mention that the BioCl particles have an average particle size of 1 to 12 µm. However, NG teaches a biochar particle size of 5 to 20 µm, and teaches that a finer biochar enhances filling properties (see NG at paragraphs [0093], [0097], [0101] and Fig. 12). NG therefore explicitly teaches that the particle size of the biochar is a result-effective variable that may be optimized by one of ordinary skill in the art. MPEP states that “[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 (CCPA 1955)), and that "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages." (Peterson, 315 F.3d at 1330, 65 USPQ2d at 138). See MPEP § 2144.05 (II). Therefore, it would have been obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the particle size of the biochar, including particle sizes within the claimed range of 1 to 15 µm, in order to achieve desired filling properties. The range of 5 to 20 µm also encompasses the claimed range; As set forth in MPEP § 2144.05, 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)).
Additionally, NG in view of SALAMI and SALEM teaches a composition which is identical or substantially identical to the claimed composition and is made by an identical or substantially identical process, therefore the composition of NG in view of SALAMI and SALEM would be expected to have the same or overlapping properties including particle size of the biochar. The biochar of NG in view of SALAMI and SALEM is made using date palm leaf waste, which is identical to the material used in the present invention, and NG teaches forming the biochar via slow pyrolysis at 500 °C for 1.25 hours with a heating rate of 10 °C/min, and SALEM teaches preparing the biochar via slow pyrolysis at 500 °C for 2 hours which is identical or substantially identical to the process used in the present invention (see NG at paragraph [0066]; see SALEM at Abstract, §1 and §2.1, pg. 2; see Example 2 of Applicant’s specification). MPEP § 2112.01 (I) states that 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 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "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). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). 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.
Regarding claim 4, as applied to claim 2 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 2.
SALEM does not explicitly mention that the BioCl particles have an ash content of 20 to 30 wt. % as determined by ASTM D1506. However, NG in view of SALAMI and SALEM teaches a composition which is identical or substantially identical to the claimed composition and is made by an identical or substantially identical process, therefore the composition of NG in view of SALAMI and SALEM would be expected to have the same or overlapping properties including ash content of the biochar particles. The biochar of NG in view of SALAMI and SALEM is made using date palm leaf waste, which is identical to the material used in the present invention, and NG teaches forming the biochar via slow pyrolysis at 500 °C for 1.25 hours with a heating rate of 10 °C/min, and SALEM teaches preparing the biochar via slow pyrolysis at 500 °C for 2 hours which is identical or substantially identical to the process used in the present invention (see NG at paragraph [0066]; see SALEM at Abstract, §1 and §2.1, pg. 2; see Example 2 of Applicant’s specification). MPEP § 2112.01 (I) states that 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 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "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). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the
Regarding claim 8, as applied to claim 1 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 1, wherein the cementitious material comprises at least one selected from the group consisting of Portland cement, pozzolan cement, gypsum cement, aluminous cement, silica cement, and alkaline cement (see NG at paragraph [0064], teaching ordinary Portland cement).
Regarding claim 9, as applied to claim 1 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 1, wherein the cementitious material is type I ordinary Portland cement (OPC), and wherein the OPC has a standard specification of ASTM C150 (see NG at paragraph [0064], teaching ordinary Portland cement).
Regarding claim 10, as applied to claim 1 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 1, wherein the fine aggregate has a specific gravity of 2.2 to 2.8 and a standard specification of ASTM C128 (see NG at paragraph [0064], teaching sand with a specific gravity of 2.55 and maximum particle size of 2.75 mm).
Regarding claim 11, as applied to claim 1 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 1, wherein the coarse aggregate has a specific gravity of 2.2 to 2.8 (see SALAMI at paragraph [0022], teaching a specific gravity of 2.4 to 2.6), and a maximum particle size of at most 20 mm (see SALAMI at paragraph [0081], teaching a maximum particle size of 20 mm).
Regarding claim 12, as applied to claim 1 above, NG in view of SALAMI and SALEM teaches a cement composition according to claim 1. NG does not explicitly mention that the plasticizer comprises at least one selected from the group consisting of a lignosulfonate plasticizer, a polycarboxylate ether plasticizer, a melamine plasticizer, and a naphthalene plasticizer.
However, these are known plasticizers in the art. For example, SALAMI teaches a cement composition comprising a superplasticizer such as polycarboxylate ether (see SALAMI at paragraph [0100]).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the composition of NG by selecting, e.g., polycarboxylate ether as the superplasticizer as taught by SALAMI (see SALAMI at paragraph [0100]). As evidenced by SALAMI, polycarboxylate ether is a known superplasticizer in the art, and MPEP § 2144.07 states that “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”.
Claims 1 and 5-12 are rejected under 35 U.S.C. 103 as being unpatentable NG in view of SALAMI and Mahdi, et al. “Date Palm (Phoenix dactylifera L.) Seed Characterization for Biochar Preparation", Conference: The 6th International Conference on Engineering, Project, and Production Management, pp. 130-138, September 2015 (hereinafter, “MAHDI”).
Regarding claim 1, NG teaches a cement composition (see NG at generally at paragraphs [0039]-[0055] and Table 2), comprising:
a cementitious material in an amount of 10 to 40 wt. % based on a total weight of the cement composition (see NG at Table 2, providing an example of a composition comprising 10,000 g cement, 26,950 g sand, 4000 g water, 550 g biochar, and 56 g superplasticizer, i.e., 24 wt.% cement, 65 wt.% sand, 1.3 wt.% biochar, and 0.13 wt.% superplasticizer);
a biochar in an amount of 0.25 to 1.5 wt. % based on a total weight of the cementitious material (see NG at Table 2, teaching 1.3 wt.% biochar);
a fine aggregate (FA) in an amount of 20 to 85 wt. % based on the total weight of the cement composition (see NG at Table 2, teaching 65 wt.% sand);
a coarse aggregate (CA) (see NG at paragraphs [0031], [0033]-[0034] and [0045], teaching that the aggregate may be sand, gravel/crushed stone, or a mixture thereof, and that both sand and gravel are used for concrete);
a plasticizer in an amount of 0.001 to 2 wt. % based on the total weight of the cement composition (see NG at Table 2, teaching 0.13 wt.% superplasticizer);
wherein the biochar has a particle size in a range of 0.1 to 20 micrometers (µm) (see NG at paragraphs [0093], [0097], [0101] and Fig. 12, teaching a biochar particle size of 5 to 20 µm, and teaching that a finer biochar enhances filling properties).
However, NG does not explicitly teach that (i) the coarse aggregate is in an amount of 0.01 to 60 wt.% based on the total weight of the cement composition, or (ii) the biochar is a date palm biochar which is at least one of a date palm leaves biochar (BioCl) and a date palm seeds biochar (BioCs).
In regard to (i) above, SALAMI teaches a concrete composition comprising cement, palm ash, fine aggregate, such as sand, and coarse aggregate, such as gravel or crushed stone (see SALAMI at Abstract and paragraphs [0079] and [0084]), wherein the coarse aggregate has a specific gravity of 2.4 to 2.6 and a particle size of 2 to 20 mm and is added in an amount of 12 wt.% to 33 wt.% (see SALAMI at paragraphs [0022], [0080]-[0081] and [0083]). SALAMI teaches that this is a typical type and amount of coarse aggregate for use in concrete and will influence the concrete’s freshly mixed and hardened properties (see SALAMI at paragraphs [0078]-[0081] and [0083]).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the composition of NG by using a coarse aggregate with a specific gravity of 2.4 to 2.6 and a particle size of 2 to 20 mm in an amount of 12 wt.% to 33 wt.% as taught by SALAMI (see SALAMI at paragraphs [0022], [0080]-[0081] and [0083]). One of ordinary skill in the art could have used this type and amount of aggregate with a reasonable expectation of success, yielding the predictable result of providing a typical aggregate suitable to form a usable concrete which will influence the concrete’s freshly mixed and hardened properties.
In regard to (ii) above, NG explicitly teaches that the biochar may be prepared from any biomass material and that economic benefits may be gained from the utilization of agricultural or horticultural wastes as the biochar feedstock (see NG at paragraphs [0047], [0114] and [0145]-[0146]), but does not explicitly mention date palm. The disclosure of MAHDI aims to evaluate the suitability of palm date seed as a precursor for preparation of biochar in order to reduce waste and provide an economical biochar material which can be used to promote climate change mitigation through carbon sequestration (see MAHDI at Abstract and §Introduction, pg. 130-131). MAHDI teaches that date seed is an abundantly available agricultural waste that is usually discarded as unwanted material which can be successfully used as feedstock for biochar preparation via slow pyrolysis, e.g., at a temperature of 450 to 550 °C for a duration of 2 hours (see MAHDI at Abstract, §Introduction, pg. 130-131, and §Conclusions, pg. 136).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified the cement composition of NG by simply substituting the unspecified agricultural/horticultural biomass waste used as the biochar precursor with date palm seeds as taught by MAHDI (see MAHDI at §Conclusions, pg. 136). One of ordinary skill in the art could have made such a substitution with a reasonable expectation of success, yielding the predictable result of providing a biomass waste material which can be successfully used to form a porous biochar capable of sequestering carbon and reducing greenhouse gas emissions (see MAHDI at Abstract and §Introduction, pg. 130-131 and §Conclusions, pg. 136; see NG at paragraphs [0032] and [0145]-[0146]). Further, one of ordinary skill in the art would have been motivated to use date palm seeds for the benefit of providing an economical and highly abundant source material for the biochar while mitigating the waste generated by this typically discarded material (see MAHDI at Abstract and §Introduction, pg. 130-131; see NG at paragraphs [0145]-[0146]).
Regarding claim 5, as applied to claim 1 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 1.
MAHDI does not explicitly mention that the BioCs particles are plate-like particles having a smooth surface morphology. However, NG in view of SALAMI and MAHDI teaches a composition which is identical or substantially identical to the claimed composition and is made by an identical or substantially identical process, therefore the composition of NG in view of SALAMI and MAHDI would be expected to have the same or overlapping properties including particle shape and surface morphology of the biochar. The biochar of NG in view of SALAMI and MAHDI is made using date palm seed waste, which is identical to the material used in the present invention, and NG teaches forming the biochar via slow pyrolysis at 500 °C for 1.25 hours with a heating rate of 10 °C/min, and MAHDI teaches preparing the biochar via slow pyrolysis at 500 °C for 2 hours which is identical or substantially identical to the process used in the present invention (see NG at paragraph [0066]; see MAHDI at Abstract; see Example 2 of Applicant’s specification). MPEP § 2112.01 (I) states that 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 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "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). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). 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.
Regarding claim 6, as applied to claim 5 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 5.
NG in view of SALAMI and MAHDI does not explicitly mention that the BioCs particles have an average particle size of 1 to 15 µm. However, NG teaches a biochar particle size of 5 to 20 µm, and teaches that a finer biochar enhances filling properties (see NG at paragraphs [0093], [0097], [0101] and Fig. 12). NG therefore explicitly teaches that the particle size of the biochar is a result-effective variable that may be optimized by one of ordinary skill in the art. MPEP states that “[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 (CCPA 1955)), and that "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages." (Peterson, 315 F.3d at 1330, 65 USPQ2d at 138). See MPEP § 2144.05 (II). Therefore, it would have been obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the particle size of the biochar, including particle sizes within the claimed range of 1 to 15 µm, in order to achieve desired filling properties. The range of 5 to 20 µm also encompasses the claimed range; As set forth in MPEP § 2144.05, 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)).
Additionally, NG in view of SALAMI and MAHDI teaches a composition which is identical or substantially identical to the claimed composition and is made by an identical or substantially identical process, therefore the composition of NG in view of SALAMI and MAHDI would be expected to have the same or overlapping properties including particle size of the biochar. The biochar of NG in view of SALAMI and MAHDI is made using date palm seed waste, which is identical to the material used in the present invention, and NG teaches forming the biochar via slow pyrolysis at 500 °C for 1.25 hours with a heating rate of 10 °C/min, and MAHDI teaches preparing the biochar via slow pyrolysis at 500 °C for 2 hours which is identical or substantially identical to the process used in the present invention (see NG at paragraph [0066]; see MAHDI at Abstract; see Example 2 of Applicant’s specification). MPEP § 2112.01 (I) states that 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 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "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). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). 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.
Regarding claim 7, as applied to claim 5 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 5.
MAHDI does not explicitly mention that the BioCs particles have an ash content of 15 to 25 wt. % as determined by ASTM D1506. However, NG in view of SALAMI and MAHDI teaches a composition which is identical or substantially identical to the claimed composition and is made by an identical or substantially identical process, therefore the composition of NG in view of SALAMI and MAHDI would be expected to have the same or overlapping properties including ash content of the biochar particles. The biochar of NG in view of SALAMI and MAHDI is made using date palm seed waste, which is identical to the material used in the present invention, and NG teaches forming the biochar via slow pyrolysis at 500 °C for 1.25 hours with a heating rate of 10 °C/min, and MAHDI teaches preparing the biochar via slow pyrolysis at 500 °C for 2 hours which is identical or substantially identical to the process used in the present invention (see NG at paragraph [0066]; see MAHDI at Abstract; see Example 2 of Applicant’s specification).MPEP § 2112.01 (I) states that 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 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "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). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). 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.
Regarding claim 8, as applied to claim 1 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 1, wherein the cementitious material comprises at least one selected from the group consisting of Portland cement, pozzolan cement, gypsum cement, aluminous cement, silica cement, and alkaline cement (see NG at paragraph [0064], teaching ordinary Portland cement).
Regarding claim 9, as applied to claim 1 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 1, wherein the cementitious material is type I ordinary Portland cement (OPC), and wherein the OPC has a standard specification of ASTM C150 (see NG at paragraph [0064], teaching ordinary Portland cement).
Regarding claim 10, as applied to claim 1 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 1, wherein the fine aggregate has a specific gravity of 2.2 to 2.8 and a standard specification of ASTM C128 (see NG at paragraph [0064], teaching sand with a specific gravity of 2.55 and maximum particle size of 2.75 mm).
Regarding claim 11, as applied to claim 1 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 1, wherein the coarse aggregate has a specific gravity of 2.2 to 2.8 (see SALAMI at paragraph [0022], teaching a specific gravity of 2.4 to 2.6), and a maximum particle size of at most 20 mm (see SALAMI at paragraph [0081], teaching a maximum particle size of 20 mm).
Regarding claim 12, as applied to claim 1 above, NG in view of SALAMI and MAHDI teaches a cement composition according to claim 1. NG does not explicitly mention that the plasticizer comprises at least one selected from the group consisting of a lignosulfonate plasticizer, a polycarboxylate ether plasticizer, a melamine plasticizer, and a naphthalene plasticizer.
However, these are known plasticizers in the art. For example, SALAMI teaches a cement composition comprising a superplasticizer such as polycarboxylate ether (see SALAMI at paragraph [0100]).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the composition of NG by selecting, e.g., polycarboxylate ether as the superplasticizer as taught by SALAMI (see SALAMI at paragraph [0100]). As evidenced by SALAMI, polycarboxylate ether is a known superplasticizer in the art, and MPEP § 2144.07 states that “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”.
Conclusion
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/S.C.C./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731
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