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 .
Applicant has amended the claims to include ranges not previously set forth in the independent claims. The amendments overcome the previous rejections under sections 102 and 112 and prior claim objections (except as below noted).
Support for the amendments is found in the original filing. No new matter is presented.
Amended objections and amended grounds of rejection are below set forth addressing the amended claims.
Election/Restrictions
Newly submitted claim 10 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: claim 10 is directed to an aluminum electrolysis cell cathode lining paste and not to a green carbon paste. Inventions are related as mutually exclusive species in an intermediate-final product relationship. Distinctness is proven for claims in this relationship if the intermediate product is useful to make other than the final product, and the species are patentably distinct (MPEP § 806.05(j)). In the instant case, the intermediate product is deemed to be useful as a battery coating, a binder in a non-electrolysis cell cathode and the inventions are deemed patentably distinct because there is nothing of record to show them to be obvious variants.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 10 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
The examiner will consider rejoinder when claim 1 from which claim 10 depends is in allowable form.
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, and 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hunan Zhenshen Carbon (CN 105347824A)
Regarding claims 1, and 3-4
Hunan Zhenshen Carbon (CN 105347824A) teaches a cold ramming paste for an arc furnace comprising 16-20 pbw binder and 10 pbw additive and 75-82 pbw of skeletal material (Abstract)
The composition comprises a paste comprising aggregate 75-82 pbw a binding agent 16-20 pbw (where 82 is sufficiently close to 84 as in the instant claims as to ender same obvious to one of ordinary skill in the art at the time of filing the invention absent evidence of criticality rendering claims 2-3 obvious) and an additive 5-10 pbw where the aggregate is crushed to below 12 mm (overlapping the range of claim 4) The aggregate includes electrically calcined anthracite at 1 mm to 10 mm (overlapping range of claim 4) (See claims)
Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) 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)"
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)(emphasis added by examiner)
Described binding agent is one or several the mixture in modified coal asphalt, coal tar, carbolineum, resin.
The object of this invention is to provide the special cold preparation method smashing paste of the overall brickwork of a kind of mineral hot furnace, the method production process is without the need to heating, energy consumption is low, efficiency is high, little to environmental influence, the cold paste product of smashing prepared can make operation firm by ramming at normal temperatures, and has the advantages such as density is high, intensity is high, anti-oxidant, wear-resistant after sintering. Hunan does not expressly disclose the resin to be epoxy or the binder to further comprise glucose and glycerol
Keulen et al WO 2015/076675 discloses a geopolymer binder composition comprising a matrix forming material comprising a mineral binder and optionally an adjuvant selected from aggregate, resin, combinations, a liquid and an optional alkaline re agent (P2 l3-12)
The mineral binder includes materials such as pozzolanic, hydraulic and non hydraulic including powder coal fly ash ground granulated blast furnace slag, calcinated clay, industrial slag, industrial incineration ash, cement, modified and/or green cement, natural minerals, waste minerals etc. and combinations (P5 L3-14)
The composition further comprises a resin (P5 L22-24)
The composition further comprises aggregates including coarse and fine aggregate which may have grain diameter of at least 4 mm or less than 4 mm respectively (P5 L28-P6l8)
The aggregate may have a size range of 0.2550 mm, 1- 2 mm 204 mm 4-8 mm etc. (P13 L8-14) See also reference claim 6 for particles less than 4 mm and greater than 4 mm.
The composition comprises resins such as epoxy resin (P6 L10-18)
The composition comprises additives such as sugars including glucose (P7 L18-22)and sugar derivatives such as glycerol (P7 L25-30) and combinations thereof.
The composition may be cured (P10 L20-30)
The composition is suitable for use in industrial and utility applications (P11 L15-20)
The geopolymer binder cures quickly and can replace conventional construction materials to provide an environmental and sustainable advantage (P1 L10-15)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add the binder of Keulen to the binder of Hunan as it is suitable for use in industrial and utility applications and functions as a geopolymer type binder and will impart additional environmental benefits to the composition and method of Hunan.
(Except as otherwise above set forth, the prior art does not teach the ranges of the instant claims and does not provide motivation to alter the teachings of the prior art to those of the instant claims).
Claim Objections
Claims 5-7 is/are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
(The prior art does not teach the ranges of the instant claims and does not provide motivation to alter the teachings of the prior art to those of the instant claims).
Allowable Subject Matter
Claim 12 is allowed.
The following is a statement of reasons for the indication of allowable subject matter: The prior art as set forth in the non-final office action mailed 3/4/2026 does not teach amounts and/or ranges which meet or render obvious the instantly claimed ranges nor do said prior art references teach ratios similar to and corresponding to the claimed ranges. The ranges of each of the compositional component in combination result in a composition with specific properties (for example compressive strength, electrical resistivity, porosity, etc.). There is no motivation to later the teachings of the prior art to encompass the instantly claimed invention. The prior art does not teach or fairly suggest the claimed invention.
Response to Arguments
Applicant's arguments filed 7/2/2026 have been fully considered but they are not persuasive.
Applicant attempts to distinguish the prior art from the instant claims asserting the prior art teaches additional additives. This is not persuasive. The claims are drafted as “comprising” MPEP 2111 thereby permitting the addition of other compositional components. The prior art teaches overlapping ranges of instant claim 1 etc. thereby rendering same obvious. The amount of additive of the prior art does not preclude the overlapping ranges of the required compositional components taught by the prior art as they relate to the instantly claimed ranges which by virtue of said ranges permits the addition of an additive for example of 4 % wt. No evidence of criticality of ranges has been presented. 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)(emphasis added by examiner)
For the above reasons the rejections are maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, 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
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