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 .
Election/Restrictions
Claims 19-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/29/26
Applicants’ election without traverse of Group I claims 1-18 in the reply filed on 6/29/2026 is acknowledged.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/15/2023 has been considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2, 5 and 6 along with dependent claims 7-11 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 2, 5 and 6 along with dependent claims 7-11 recite “in an amount of form” the amounts which follow use units kg/m3 which a measure of density. Notably, claims 17-18 claim density and use the same units. These “amounts” are also set forth in the instant specification in units of density (should applicant attempt to alter these units in amended claims support for said correction must be found in the original filing). Since the applicant is claiming an amount using units not corresponding to same and the claims having been afforded the broadest reasonable interpretation in view of the specification, the metes and bounds of the “amounts” is indefinite (i.e. mass, volume, etc.)
Claim 4 recites aggregates are coarse aggregate fine aggregate or a combination thereof. As such, only one is required coarse or fine; however, the “amounts” (in incorrect units) appear to indicate no coarse aggregates are required and fine aggregates are required. Clarification of the ranges/amounts of coarse and fine aggregate is required.
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) 1-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Takagi (US 2007/0172408)
Regarding Claims 1-18
Takagi (US 2007/0172408) discloses amorphous carbon particles of petroleum coke (meeting the limitations of claim 1 for petcoke particles) having a mean particle size of 50-1 micron (Abstract) [0013] in a cement composition (meeting the limitations for a cementitious material of claim 1) in an amount of 10-70 wt. % of solids in the total composition [0021] (see reference claims 17-18) (overlapping the range of claims 1, 3 and claim 14) preferably 1- 10 microns mean particle size [0047]
The particle size of the carbon particles/coke has a mean particle size of 4.2 microns and particles of less than 0.75 microns, and more than 29 microns were not detected [0095] (overlapping the particle size of clam 1 and claim 14)
The composition comprises cement colorant filler and aggregate [0055] (meeting the limitations of claim 1 for aggregates) and various resins and rubbers and inorganic materials of cement metal and glass [0057] (meeting claim 7)
The composition comprises fine aggregate such as sand and coarse aggregate [0087] (meeting the limitation of claim 4 for coarse and fine aggregate)
The composition is prepared by blending he particle to the cement composition in the state of a powder, a paste can be formed by adding water to the powder. [0059] (meeting the limitations of claim 1 for water)
The composition may comprise an inorganic binder such as Portland cement, mixed cement Portland fly ash cement and blast furnace cement, [0086] (meeting claim 12)
The composition comprises a binder derived from various waste material [0086]
The composition comprises synthetic fibers polyethylene wax, silica, carbon black, colloidal silica, and hydrophobic silica (meeting claim 11). [0074]
The composition may comprise fumed silica, silica dust silica powder, limestone powder [0086] (meeting claim 8 and 11-12)
Claim 9 does not affirmatively require recycled plastic (i.e. wherein the composition further comprises) and claim 10 does not affirmatively require fibers (i.e. wherein the composition further comprises fibers…) but rather these claims limit same when required to the Markush group recited therein. Nonetheless, the reference teaches the composition comprises thermoplastics and resins such as polypropylene and polyethylene [0062] The composition comprises resins such as polycarbonate [0070] (meeting claim 9) The composition is added to polypropylene [0100 et seq] such as commercially available polypropylene SunAllomer PM911 A (meeting claims 7 and 10) and teaches the composition uses waste materials including municipal waste [0086] (rendering obvious to one of ordinary skill in the art at the time of filing the invention to try to use recycled plastic and other waste including electronic waste of claims 9 and 10)
The composition comprises additives such as foaming agents, fillers, etc. [0074] (meeting claim 7) The composition comprises water reducing agents [0087]
The petcoke: moisture 0.4% by weight, carbon content 86.3% by weight, hydrogen 0.21% by weight, oxygen 1.23% by weight, NH.sub.3 1.63% by weight, SO.sub.4 4.10% by weight about 33 % sulfur in the SO4) , V 1.25% by weight, Ni 0.58% by weight, Fe 0.56% by weight, Mg 0.06% by weight, Ca 0.25% by weight, Na 0.16% by weight, Al 0.24% by weight, and Si 0.69% [0093](overlapping claim 13) The petcoke possessing the elemental content is the instantly claimed petcoke and will therefore be expected to possess a density overlapping the claimed range of instant claim 15.
The reference teaches the composition comprising synthetic fibers [0074] The composition comprises resins such as polyethylene [0062 et seq] the composition may comprise resins such as polycarbonate [0070] (meeting claim 9 for a polycarbonate) rending obvious to one of ordinary skill in the art at the time of filing the invention to try to use fibers of polycarbonate and/or polyethylene as in instant claim 10.
Takagi (US 2007/0172408) discloses the limitations above set forth. Takagi discloses the composition may have a curing agent [0076]
[0053] Moreover, the amorphous carbon particles according to the present invention can be mixed with a matrix material which involves organic materials such as various resins and rubbers and inorganic materials such as cements and metals, for the purpose of giving electro conductivity, improving rigidity and mechanical strength improving size stability, improving thermal resistance, etc.
[0083] With respect to the carbon-carbon complex of the present invention, the mixing rate of the amorphous carbon particles of the present invention is not particularly limited. It is preferable, however, to be in the range of 10-70% by weight based on the weight of the complex, in view of the fact that the characteristics of obtained carbon-carbon complex, such as thermal stability; thermal shock resistance and low thermal expansion depending on high thermal conductivity; and toughness, strength and rigidity under high temperature usage; are properly enhanced.
Takagi teaches the composition may be cured and comprises the claimed compositional components of claim 1, as such it would be expected to possess the same or similar properties thereof including but not limited to density and compressive strength in range which meet and/or overlap the instantly claimed ranges (including but not limited claims 16-18). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir.1990) “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)
See MPEP 2144.05(I): "In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976)" 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)
Further regarding claims 2, 4, 5, and 6: The claimed ranges of the compositional components can be adjusted by one of ordinary skill in the art at the time of filing the invention thereby encompassing or overlapping the instantly claimed ranges in order to optimize thermal stability; thermal shock resistance and low thermal expansion depending on high thermal conductivity; and toughness, strength and rigidity under high temperature usage; are properly enhanced. 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)
Claim(s) 8 and 9 are alternatively rejected under 35 U.S.C. 103 as being unpatentable over Takagi (US 2007/0172408) further in view of Brien (US 2013/0150487)
Regarding Claims 8-9
Takagi discloses the limitations above set forth. The reference teaches the composition comprising synthetic fibers [0074] The composition comprises resins such as polyethylene [0062 et seq] the composition may comprise resins such as polycarbonate [0070] (meeting claim 9 for a polycarbonate) rending obvious to one of ordinary skill in the art at the time of filing the invention to try to use fibers of polycarbonate and/or polyethylene as in instant claim 10 as more fully above set forth.
Assuming arguendo the claims require recycled plastic and fibers of polypropylene polyethylene and combinations thereof and assuming arguendo these are not rendered obvious by Takagi:
Brien discloses a cementitious mixture comprising coal ash (Abstract) which includes various coke carbon types [0004-0005] treated to make it more suitable for use in cement materials [0010] the composition comprises fillers and aggregate where common fillers include carbon black, silica fume, fumed silica, blast furnace slag, ground recycled materials recycled electronic components, etc. [0027] the composition comprises fibers such as high density polyethylene fibers and polypropylene fibers as reinforcing materials [0028]
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add plastic from recycled sources of a high-density polyethylene to afford reinforcement as taught by Brien to the Cementous composition of Takagi.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO 892 accompanying this office action for prior art teaching pet coke in cement compositions such as (US 8617309) (US 20180156551)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAMELA HL WEISS whose telephone number is (571)270-7057. The examiner can normally be reached M-Thur 830 am-700 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Coris Fung can be reached at (571) 270-5713. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732
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