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 .
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.
Claim(s) 1-9, 11 and 13-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mahoutian et al (US 2021/0170631 A1) in view of Thomas (US 2022/0194852 A1) with supporting evidence from NPL, International Concrete Abstracts Portal.
Regarding claim 1, Mahoutian et al discloses method of manufacturing a concrete product [abstract], comprising: mixing a binder, water, and an aggregate to produce a concrete mixture, [0106] before mixing being attributed to particles sized to pass through sieve openings of about 2.36 mm (Mahoutian et al discloses a mesh #10 is (2000 microns (2 mm)) which is close to 2.36 mm[0118, 0120]. The instant specification in [161] states the expression “about” provided in the context of any specific value or range of values implies variations of plus or minus 10% of the value provided. Therefore, the instant application’s specification is teaching a variance. MPEP 2144.05A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Further, MPEP 2144.05 also states In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 Where 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 (Mahoutian et al disclose various ranges for the sieve opening: Mesh #10, 50, 200, 400). It would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of a showing of criticality. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a sieve opening of 2.36 mm based on design needs of the final product).
Mahoutian also discloses imparting a form to the concrete mixture to provide a formed intermediate [0125]; conditioning the formed intermediate to obtain a conditioned intermediate [0128]; and curing the conditioned intermediate with a gas containing carbon dioxide to obtain the concrete product [0032, 0137].
Mahoutian discloses 90% of a weight of the aggregate [0120]. Further, analogous art, Thomas, also discloses using 90% of aggregate [0044] with a range of 1-40 mm [0029]. MPEP 2144.04 states overlapping ranges is a prima facie evidence of obviousness. Therefore it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included 90% of the aggregate before mixing through a sieve with a mesh of 2.36 mm based on the desired final product [0029].
As for the claim limitation, a major portion of the binder consisting of steel slag, one ordinary skill in the art would recognize this is conventionally used in concrete art. NPL, carbonation-activated steel slag discloses using steel slag since steel slag consumes zero natural resources, recycles industry wastes, sequesters carbon dioxide and can be made carbon negative (see abstract). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a major portion of the binder consisting of steel slag since steel slag consumes zero natural resources, recycles industry wastes, sequesters carbon dioxide and can be made carbon negative.
Regarding claim 2, Mahoutian et al discloses a mesh #10 is (2000 microns (2 cm)) which is close to 2.36 mm[0118] MPEP 2144.05A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. ]. The instant specification in [161] states the expression “about” provided in the context of any specific value or range of values implies variations of plus or minus 10% of the value provided. Therefore, the instant application’s specification is teaching a variance. Further, MPEP 2144.05 also states In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 Where 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 (Mahoutian et al disclose various ranges for the sieve opening: Mesh #10, 50, 200, 400). It would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of a showing of criticality. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a sieve opening of 2.36 mm based on design needs of the final product.
As for the claim limitation wherein the conditioning of the formed intermediate includes conditioning the formed intermediate for about 50% less time than if the composition of the formed intermediate were made with a reference aggregate different than the aggregate, Mahoutian’s composite structure is similar to the applicant’s structure and thus, has similar properties. Therefore, the claimed physical properties implicitly would have been achieved by the composite structure as claimed and rendered obvious (MPEP 2112.01(I,II)) since Mahoutian teaches conditioning of the formed intermediate [0128]. If it is the applicant’s position that this would not be the case: (1) evidence would need to be presented to support the applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching as to how to obtain the claimed properties with only the claimed ingredients, amounts, process steps, and process conditions. Where the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on “inherency” under 35 USC § 102, on prima facie obviousness” under 35 USC § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.” In re Best, 562 F2d 1252, 1255, 195 USPQ 430, 433-4 (CCPA 1977).
Regarding claim 4, Mahoutian et al does not explicitly disclose wherein 100% of the weight of the aggregate is attributed to the particles sized to pass through the sieve openings of about 2.36 mm. However, Mahoutian discloses the aggregate content may be as high as 90%, which is close to Mahoutian's range. The instant specification in [161] states the expression “about” provided in the context of any specific value or range of values implies variations of plus or minus 10% of the value provided. Therefore, the instant application’s specification is teaching a variance. MPEP 2144.05 states A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated wherein 100% of the weight of the aggregate is attributed to the particles sized to pass through the sieve openings of about 2.36 mm based on the design needs of the final product. "A person of ordinary skill has good reason to pursue the known option within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." KSR int'l Co. v. Teleflex Inc., 127 S.Ct. 1727,82 USPQ2d 1385 (2007).
Regarding claims 5-8, Mahoutian et al teaches “ Passing slags through sieves is an alternative option to obtain slag with a smaller grain size. Slags passed through mesh #10 (2000 microns), mesh #50 (297 microns), mesh #200 (74 microns), mesh #400 (37 microns) may be used as binder. Sieves may be utilized to screen slags either after or before grinding. Thus, one of, or combination of, grinding and screening methods may be executed in order to obtain slag with a proper particle size” [0118]. MPEP 2144.05 states In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 Where 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. It would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of a showing of criticality. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a sieve opening of 1.18 mm, 0.3 mm, 01.5 mm or 0.075 mm based on design needs of the final product.
Regarding claim 9, Mahoutian et al does not explicitly disclose the sieve openings have an area of about 5.57 mm2. However, Mahoutian et al discloses “in some embodiments, the slag may be pulverized and/or screened to a Blaine fineness of at least 150 m2/kg, and at least 200 m2/kg. In some embodiments, for using slag in slag-based concrete, fifty percent of slag may be smaller than 200 microns (D50=200), smaller than 150 microns (D50=150), smaller than 100 microns (D50=100), smaller than 50 microns (D50=50), smaller than 25 microns (D50=25), and in some embodiments smaller than 10 microns (D50=10). In some embodiments, the free lime content of the slag may be reduced with any standard known method in the prior art before it is incorporated into the mix. Therefore the sieve opening is a variable that can be modified, among others, by varying the area (including varying the diameter) of said sieve. For that reason, sieve opening, would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the sieve opening cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date would have optimized, by routine experimentation, the sieve opening in the apparatus of Mahoutian et al based on the final needs of the product (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 11, Mahoutian discloses comprising mixing the binder, the water, and the aggregate with the particles comprising one or more of sand, crushed stone, expanded shale, crushed glass [0120], crushed air-cooled granulated blast furnace slag [0116]. Further, Thomas discloses the aggregate comprising one or more of sand, crushed stone, expanded perlite, expanded shale, crushed glass, crushed air-cooled granulated blast furnace slag, recycled concrete, recycled brick, and stone rubble (RCA [abstract]).
Regarding claim 13, Mahoutian discloses wherein the binder is devoid of cement (Other by-products materials such as zinc, iron, copper and sludge may be also utilized as the binder [0116]).
Regarding claim 14, Mahoutian discloses wherein a binder content of the binder ranges from 8% to 50% by weight of the concrete mixture (Slag content may be no less than 5% of the weight of concrete, and in some embodiments no less than 20% of the weight of concrete [0119], which overlaps with applicant’s claimed range of 8-50%. MPEP 2144.05 states overlapping range is a prima facie evidence of obviousness).
Regarding claim 15, Mahoutian discloses wherein a water-to-binder ratio of the binder ranges from 0.15 to 0.5 [0122].
Regarding claim 16, Mahoutian discloses wherein the mixing of the composition includes mixing a chemical admixture with the binder, the aggregate, and the water to produce the composition [0121].
Regarding claim 17, Mahoutian discloses comprising conditioning the formed intermediate at a temperature ranging from 15°C to 28°C and with a relative humidity ranging from 20% to 60% (this falls under ambient temperature and humidity [0113]).
Regarding claim 18, wherein the conditioning of the formed intermediate includes conditioning the formed intermediate until from 20% to 80% by weight of the water is evaporated [0130].
Regarding claim 19, Mahoutian discloses the curing of the conditioned intermediate includes exposing the formed intermediate to the gas containing carbon dioxide at a pressure ranging from 0 psi to 120 psi [0141].
Regarding claim 20, Mahoutian comprising mixing the binder, the water, and the aggregate having a dry rodded density of from 1100 kg/m3 to 1850 kg/m3 [0117].
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mahoutian et al (US 2021/0170631 A1) in view of Thomas (US 2022/0194852 A1), as applied to claim 9, and further in view of CN104502245B.
Regarding claim 10, Mahoutian is silent to the sieve openings are square. However, it is conventionally well known to use sieves that are square. CN104503345B discloses the use of square sieves in order to ensure the sand is fineness (pg. 2 paragraph 2 under background technology). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated square sieves into the method taught by Mahoutian since (1) it is conventionally known and (2) to ensure fineness as shown by CN104503345. "A person of ordinary skill has good reason to pursue the known option within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." KSR int'l Co. v. Teleflex Inc., 127 S.Ct. 1727,82 USPQ2d 1385 (2007).
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thomas (US 2022/0194852 A1) in view of Mahoutian et al (US 2021/0170631 A1) with supporting evidence from NPL, International Concrete Abstracts Portal.
Regarding claim 21, Thomas teaches a method of manufacturing a concrete product (abstract), comprising: mixing a binder, water, and an aggregate to produce a concrete mixture [050] at least 90% of a weight of the aggregate [0044] before mixing being attributed to particles sized to pass through sieve openings of 2.36 mm [0029].
the aggregate comprising one or more of sand, crushed stone, expanded perlite, expanded shale, crushed glass, crushed air-cooled granulated blast furnace slag, recycled concrete, recycled brick, and stone rubble (RCA [abstract]).
Although Thomas does not explicitly disclose the binder comprising steel slag and imparting a form to the concrete mixture to provide a formed intermediate; conditioning the formed intermediate to obtain a conditioned intermediate; and curing the conditioned intermediate with a gas containing carbon dioxide to obtain the concrete product, one ordinary skill in the art would look to conventional art to determine the standards used to form concrete. Analogous concrete art, Mahoutian, discloses imparting a form to the concrete mixture to provide a formed intermediate [0125]; conditioning the formed intermediate to obtain a conditioned intermediate [0128]; and curing the conditioned intermediate with a gas containing carbon dioxide to obtain the concrete product [0032, 0137]. Mahoutian discloses the use of a steel slag binder [0116]. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated the steps of disclose imparting a form to the concrete mixture to provide a formed intermediate; conditioning the formed intermediate to obtain a conditioned intermediate; and curing the conditioned intermediate with a gas containing carbon dioxide to obtain the concrete product, as taught by Mahoutian, into the method taught by Thomas for the benefit of improving the construction process [0003] and because it is conventionally well known.
If applicant does not agree Mahoutian teaches a major portion of the binder consists of steel slag, one ordinary skill in the art would recognize a binder with steel slag is conventionally used in concrete art. NPL, carbonation-activated steel slag discloses using steel slag since steel slag consumes zero natural resources, recycles industry wastes, sequesters carbon dioxide and can be made carbon negative (see abstract). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a major portion of the binder consisting of steel slag since steel slag consumes zero natural resources, recycles industry wastes, sequesters carbon dioxide and can be made carbon negative.
Response to Arguments
Applicant’s arguments have been considered but are moot since NPL, carbonation-activated steel slag discloses using steel slag since steel slag consumes zero natural resources, recycles industry wastes, sequesters carbon dioxide and can be made carbon negative (see abstract). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a major portion of the binder consisting of steel slag since steel slag consumes zero natural resources, recycles industry wastes, sequesters carbon dioxide and can be made carbon negative.
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 FARAH N TAUFIQ whose telephone number is (571)272-6765. The examiner can normally be reached Monday-Friday: 8:00 am-4:30 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, Susan Leong can be reached at (571)270-1487. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/FARAH TAUFIQ/ Primary Examiner, Art Unit 1754