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 05/13/2026 and the Supplemental Amendment filed on 06/05/2026.
Claims 1 and 4-30 are presently pending; claims 2-3 are canceled; claims 14-16 and 30 are withdrawn; claims 1, 4, 7, 10, 12-13, 17, 25 and 27 are amended; claims 1, 4-13 and 17-29 are under examination.
The objections to claims 25 and 27 are withdrawn in light of the amendments to the claims.
The rejections of claims 4, 7, 10, 17 and 27 under 35 U.S.C 112(b) are withdrawn in light of the amendments to the claims.
The 35 U.S.C. 102 rejection of claims 1, 5-6 and 8 over SCOTT is withdrawn in light of the amendments to the claims; the 35 U.S.C. 102 rejection of claims 1, 8 and 11 over IVARRSON and the 35 U.S.C. 103 rejections of claims 9-13, 20-21 and 26 over SCOTT, claims 4, 7, 9-10, 12-13 and 17 over IVARRSON, claims 18-19 and 29 over SCOTT in view of ANDERSON , claims 22, 24-25 and 28 over SCOTT in view of CONNORS , claim 23 over SCOTT in view of FIRST, and claim 27 over SCOTT in view of PAULTER are maintained; the rejections of claims 2-3 are moot as these claims have been canceled.
New grounds of rejection are present herein in light of the amendments to the claims.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 05/13/2026 was filed after the mailing date of the non-final action on 05/08/2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 8 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ivarsson, et al. (U.S. Pat. No. 4,617,280-A) (hereinafter, “IVARSSON”).
Regarding claim 1, IVARSSON teaches a method of making a porous refractory composition (see IVARSSON generally at Abstract), comprising the steps of:
providing a synthetic, non-protein foaming agent (see IVARSSON at col. 2, lines 43-62, teaching surfactant foaming agents such as alkyl sulphates or sulphonates, i.e., synthetic non-protein foaming agents);
providing an aqueous colloidal silica binder (see IVARSSON at col. 2 lines 39-44 and col. 4, lines 59-62, teaching colloidal silica as the silica-generating material);
providing a solid refractory component exclusive of the colloidal silica binder (see IVARSSON at col. 2, lines 22-32, teaching a refractory matrix-forming material);
mixing the synthetic, non-protein foaming agent with the aqueous colloidal silica binder to yield a foamed colloidal silica binder exclusive of the solid refractory component (see IVARSSON at col. 2, lines 22-32 and col. 4, lines 17-35 and 59-62, teaching that the silica-generating material (colloidal silica) is foamed in an aqueous environment, and into this foam there is then admixed a refractory matrix-forming material); and
adding the foamed colloidal silica binder to the solid refractory component and mixing about 3% to about 50% by weight of the foamed colloidal silica binder with about 50% to about 97% by weight of the solid refractory component to form the porous refractory composition (see IVARSSON at col. 4, lines 17-35 and 59-62, teaching, by weight, 20 parts colloidal silica binder, 0.13 parts foam, 2 parts water, 1 part precipitating agent, mixed with 80 parts refractory material composition; i.e., 21% foamed colloidal silica binder and 78% solid refractory component)
The recitation in claim 1 of “for subsequent transporting to a destination followed by forming into a hardened refractory part or liner” is merely directed to an intended use of the composition rather than being directed toward the claimed method itself, and is therefore not treated as limiting the claimed method. Any composition as recited by claim 1 would be expected to be able to perform the intended use of being subsequently transported to a destination and being formed into a hardened refractory part or liner. Further, although not actually required to meet the limitations of the claimed method, see IVARRSON at col. 3, lines 5-52, explicitly teaching transporting the composition to a destination (mould) and forming into a hardened refractory part or liner.
Regarding claim 8, IVARSSON teaches a method according to claim 1, wherein step d) is performed by adding the synthetic non-protein foaming agent directly to the aqueous colloidal silica binder and mixing to form the foamed colloidal silica binder (see IVARSSON at col. 4, lines 3-11, explicitly stating that the foaming of the material can take place starting from a mixture of silica-generating material (colloidal silica) and matrix-forming material (refractory component), i.e., the foaming agent can added directly to the mixture containing the aqueous colloidal silica binder rather than being mixed with water first).
Regarding claim 11, IVARSSON teaches a method according to claim 1, wherein step d) is performed by adding the synthetic non-protein foaming agent to water to form foamed water and adding and mixing the foamed water to the aqueous colloidal silica binder to form the foamed colloidal silica binder (see IVARSSON at col. 2, lines 22-42 and col. 4, lines 26-28 and 59-61).
Claim Rejections - 35 USC § 103
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.
Claims 1, 5-6, 8-13, 20-21 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Scott (U.S. Pub. No. 2011/0114279-A1) (hereinafter, “SCOTT”), with evidence from Stepan, “BIO-TERGE® AS-40” (hereinafter, “BIO-TERGE”) as to the rejection of claims 1 and 6, with evidence from Stepan, “CEDEPHOS FA-600” (hereinafter, “CEDEPHOS”) as to the rejection of claim 1, and with evidence from IMC, “Nalco® Engineered Shell Programs” (hereinafter, “IMC”) as to the rejection of claims 5-6.
Regarding claim 1, SCOTT teaches a method of making a porous refractory composition (see SCOTT generally at Abstract), comprising the steps of:
providing a synthetic, non-protein foaming agent (see SCOTT at paragraphs [0023] and [0043], teaching synthetic non-protein foaming agents such as sodium alkylbenzene sulfonate or sodium olefin sulfonate);
providing an aqueous colloidal silica binder (see SCOTT at paragraphs [0023] and [0025]);
providing a solid refractory component exclusive of the colloidal silica binder (see SCOTT at Abstract and paragraph [0017]);
mixing the synthetic, non-protein foaming agent with the aqueous colloidal silica binder to yield a foamed colloidal silica binder (see SCOTT at paragraphs [0023], [0025] and [0043]); and
adding the foamed colloidal silica binder to the solid refractory component and mixing about 3% to about 50% by weight of the foamed colloidal silica binder with about 50% to about 97% by weight of the solid refractory component to form the porous refractory composition (see SCOTT at paragraphs [0027]-[0043] and Fig. 1, teaching mixing 2500 g fused silica (refractory component), 45.4 g thickener, 22.7 g fiber, 150 g water, 1362 g aqueous colloidal silica, 25 mL of Bio-Terge AS-40 foaming agent (which has a density of 1.06 g/mL, as evidenced by BIO-TERGE; see BIO-TERGE at pg. 1; i.e., 26.5 g of foaming agent), and 25 mL of Cedephos FA600 stabilizer (which has a density of 1.11 g/mL, as evidenced by CEDEPHOS; see CEDEPHOS at pg. 1; i.e., 27.75 g of stabilizer); i.e., the foamed colloidal silica binder (aqueous colloidal silica and foaming agent) is approximately 34% by weight, and the solid refractory component is approximately 60% by weight).
SCOTT does not explicitly teach that the foamed colloidal silica binder is exclusive of the solid refractory component before being mixed with the solid refractory component; however, this different mixing order is obvious over SCOTT. MPEP § 2144.04(IV)(C) states that selection of any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
The recitation in claim 1 of “for subsequent transporting to a destination followed by forming into a hardened refractory part or liner” is merely directed to an intended use of the composition rather than being directed toward the claimed method itself, and is therefore not treated as limiting the claimed method. Any composition as recited by claim 1 would be expected to be able to perform the intended use of being subsequently transported to a destination and being formed into a hardened refractory part or liner. Further, although not actually required to meet the limitations of the claimed method, see SCOTT at Example 22, paragraph [0047], explicitly teaching pouring (i.e., transporting) the composition to a destination (mold) and forming into a hardened refractory part or liner.
Regarding claim 5, SCOTT teaches a method according to claim 1, wherein the aqueous colloidal silica binder comprises about 20% to about 70% by weight colloidal silica particles and about 30% to about 80% by weight water (see SCOTT at paragraph [0043], teaching Nalco 1130 aqueous colloidal silica, which comprises 30% silica (i.e., 70% water), as evidenced by IMC; see IMC at pg. 1).
Regarding claim 6, SCOTT teaches a method according to claim 1, wherein the synthetic non-protein foaming agent is mixed with the aqueous colloidal silica binder in a weight ratio to the water of about 1:25 to about 1:1500 (see SCOTT at paragraphs [0027]-[0040] and Fig. 1, teaching mixing 25 mL foaming agent (26.5 g; see BIO-TERGE at pg. 1) with 1362 g of colloidal silica which is 70% water (see IMC at pg. 1) (i.e., about 953 g of water), which is a ratio as claimed of about 1:36).
Regarding claim 8, SCOTT teaches a method according to claim 1, wherein step d) is performed by adding the synthetic non-protein foaming agent directly to the aqueous colloidal silica binder and mixing to form the foamed colloidal silica binder (see SCOTT at paragraphs [0023] and [0028]-[0040]; the foaming agent is added to the aqueous colloidal silica in the mixture).
Regarding claims 9-11, SCOTT teaches a method according to claim 1. SCOTT does not explicitly teach that step d) is performed by adding and mixing the synthetic non-protein foaming agent to a first quantity of the aqueous colloidal silica binder to form a precursor foamed colloidal silica binder and combining and mixing the precursor foamed colloidal silica binder with a second quantity of the aqueous colloidal silica binder to form the foamed colloidal silica binder, as recited by claim 9; wherein step e) is performed by adding the precursor foamed colloidal silica binder and the second quantity of the aqueous colloidal silica binder are added separately to the solid refractory component and mixed mixing them together with the solid refractory component, as recited by claim 10; or that step d) is performed by adding the synthetic non-protein foaming agent to water to form foamed water and adding and mixing the foamed water to the aqueous colloidal silica binder to form the foamed colloidal silica binder, as recited by claim 11. However, these different mixing orders are obvious over SCOTT. MPEP § 2144.04(IV)(C) states that selection of any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
Regarding claims 12-13, SCOTT teaches a method according to claim 1. SCOTT does not explicitly mention that the porous refractory composition has a total porosity of about 25% to about 75% by volume, as recited by claim 12, or about 40% to about 65% by volume, as recited by claim 13.
However, SCOTT teaches that the entrained air decreases the density of the dried insulating portion, and that radiant heat loss of the mold may be controlled through adjustment of the size and quantity of the voids included in the insulating portion formed with the bubbled slurry (see SCOTT at paragraph [0020]). SCOTT therefore explicitly teaches that the porosity is a result-effective variable which may be optimized by one of ordinary skill in the art in order to obtain the desired density and radiant heat loss. 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).
Additionally, SCOTT teaches a porous refractory composition as claimed by claim 1, therefore the porous refractory composition of SCOTT would be expected to have the same or overlapping properties as the claimed composition, including porosity. 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. The USPTO does not possess the laboratory facilities to test the properties of the referenced product. However, in light of the reference's disclosure as discussed herein, it appears the claimed invention and that of SCOTT have the same or very similar properties. Thus, the burden shifts to Applicant to demonstrate otherwise.
Regarding claim 20, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises: calcine grog, mullite, and alumina (see SCOTT at paragraphs [0005] and [0017]).
SCOTT does not explicitly teach that the calcine grog is about 20% to about 40%, the mullite is about 25% to about 45%, and the alumina is about 20% to about 40%; however, SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). SCOTT therefore explicitly teaches that the contents of each type of refractory material are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourages carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the types and amounts of refractory materials in the refractory material mixture, including the claimed amounts of calcine grog, mullite and alumina, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]).
Regarding claim 21, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises: calcine grog and one or more of kyanite, fused silica, tabular alumina, zircon flour (i.e., zirconium silicate), mullite, and silicon carbide (see SCOTT at paragraphs [0005] and [0017]).
SCOTT does not explicitly teach that the calcine grog is about 55% to about 94% and the combined weight of kyanite, fused silica, tabular alumina, zircon flour, mullite, and/or silicon carbide is about 5% to about 35%; however, SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). SCOTT therefore explicitly teaches that the contents of each type of refractory material are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourages carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the types and amounts of refractory materials in the refractory material mixture, including the claimed amounts of calcine grog and one or more of kyanite, fused silica, tabular alumina, zircon flour, mullite and silicon carbide, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]).
Regarding claim 26, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises: fused silica, and zero to about 30% by weight silicon carbide (see SCOTT at paragraphs [0005] and [0017]; silicon carbide can be included or not included in the refractory materials mixture, i.e., it can be 0% by weight).
SCOTT does not explicitly teach that the fused silica is about 55% to about 97%; however, SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). SCOTT therefore explicitly teaches that the contents of each type of refractory material are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourages carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the types and amounts of refractory materials in the refractory material mixture, including the claimed amount of fused silica, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]).
Claims 4, 7, 9-10, 12-13 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over IVARSSON.
Regarding claims 4, 7 and 17, IVARSSON teaches a method according to claim 1. IVARSSON does not explicitly teach that the foamed colloidal silica binder has a total porosity of about 50% to about 95% by volume, as recited by claims 4 and 7; a total pore volume of about 0.75 to about 15.0 cm3/g, as recited by claims 4, 7 and 17; or a half-life of at least about 1 hour, as recited by claim 4.
However, IVARSSON teaches a method according to claim 1 and a foamed colloidal silica binder as claimed by claim 1, therefore the foamed colloidal silica binder in the method of IVARSSON would be expected to have the same or overlapping properties as the foamed colloidal silica binder in the claimed method, including porosity, total pore volume and half-life. 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. The USPTO does not possess the laboratory facilities to test the properties of the referenced product. However, in light of the reference's disclosure as discussed herein, it appears the claimed invention and that of IVARSSON have the same or very similar properties. Thus, the burden shifts to Applicant to demonstrate otherwise.
Regarding claims 9-10, IVARSSON teaches a method according to claim 1. IVARSSON does not explicitly teach that step d) is performed by adding and mixing the synthetic non-protein foaming agent to a first quantity of the aqueous colloidal silica binder to form a precursor foamed colloidal silica binder and combining and mixing the precursor foamed colloidal silica binder with a second quantity of the aqueous colloidal silica binder to form the foamed colloidal silica binder, as recited by claim 9; wherein step e) is performed by adding the precursor foamed colloidal silica binder and the second quantity of the aqueous colloidal silica binder are added separately to the solid refractory component and mixed mixing them together with the solid refractory component, as recited by claim 10. However, these different mixing orders are obvious over IVARSSON. MPEP § 2144.04(IV)(C) states that selection of any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
Regarding claims 12-13, IVARSSON teaches a method according to claim 1. IVARSSON does not explicitly mention that the porous refractory composition has a total porosity of about 25% to about 75% by volume, as recited by claim 12, or about 40% to about 65% by volume, as recited by claim 13.
However, IVARSSON teaches that porosity affects heat insulation properties and that the quantity of added foam can be adjusted to vary the volume weight and porosity of the element formed from the composition as desired, and that lower volume weight and porosity results in significant advantages in the manual handling of the elements (see IVARSSON at col. 1, lines 32-35, col. 3, lines 43-54, col. 4, lines 51-56 and col. 5, lines 1-3). IVARSSON therefore explicitly teaches that the porosity is a result-effective variable which may be optimized by one of ordinary skill in the art in order to obtain the desired insulation properties and advantages in manual handling. 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).
Additionally, IVARSSON teaches a porous refractory composition as claimed by claim 1, therefore the porous refractory composition of IVARSSON would be expected to have the same or overlapping properties as the claimed composition, including porosity. 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. The USPTO does not possess the laboratory facilities to test the properties of the referenced product. However, in light of the reference's disclosure as discussed herein, it appears the claimed invention and that of IVARSSON have the same or very similar properties. Thus, the burden shifts to Applicant to demonstrate otherwise.
Claims 18-19 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over SCOTT in view of Anderson, et al. (U.S. Pub. No. 2018/0265411-A1) (hereinafter, “ANDERSON”).
Regarding claims 18-19, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises: mullite, fused silica, and calcined clay (see SCOTT at paragraphs [0005] and [0017]).
However, SCOTT fails to explicitly teach that based on the weight of the solid refractory component, the mullite is about 5% to about 25%, the fused silica is about 3% to about 20%, and the calcined clay is about 50% to about 92%, and fails to explicitly mention that the calcined clay is chamotte, as recited by claim 18; wherein the chamotte comprises about 35% to about 65% by weight of a first chamotte component having screen mesh particle sizes ranging from 2380 to 6730 microns, about 10% to about 35% by weight of a second chamotte component having screen mesh particle sizes ranging from 841 to less than 2380 microns, and about 15% to about 45% by weight of a third chamotte component having screen mesh particle sizes less than 841 microns.
ANDERSON teaches a method of making a refractory composition comprising an aqueous colloidal silica binder and a solid refractory component which comprises, by weight of the composition, 50-90% chamotte, 5-25% mullite, 3-20% fused silica, e.g., a composition wherein the solid refractory component in the composition comprises 60.9% chamotte, 13.3% mullite, 10.3% fused silica, 1.8% calcined alumina, and 2.2% microsilica, which is about 71% chamotte, about 15% mullite, and about 12% fused silica, based on the weight of the refractory component (see ANDERSON at Abstract and paragraphs [0005]-[0008] and [0048]); wherein the chamotte comprises about 35% to about 65% by weight of a first chamotte component having screen mesh particle sizes ranging from 2380 to 6730 microns, about 10% to about 35% by weight of a second chamotte component having screen mesh particle sizes ranging from 841 to less than 2380 microns, and about 15% to about 45% by weight of a third chamotte component having screen mesh particle sizes less than 841 microns (see ANDERSON at paragraphs [0010]-[0013]).
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 modified the method of SCOTT by using chamotte as the calcined clay, and using a refractory component comprising about 71% chamotte, about 15% mullite, and about 12% fused silica, wherein the chamotte comprises about 35% to about 65% by weight of a first chamotte component having screen mesh particle sizes ranging from 2380 to 6730 microns, about 10% to about 35% by weight of a second chamotte component having screen mesh particle sizes ranging from 841 to less than 2380 microns, and about 15% to about 45% by weight of a third chamotte component having screen mesh particle sizes less than 841 microns, as taught by ANDERSON (see ANDERSON at paragraphs [0010]-[0013] and [0048]). One of ordinary skill in the art could have selected chamotte as the calcined clay with a reasonable expectation of success, yielding the predictable result of providing a refractory calcined clay, and could have used the refractory component mixture disclosed by ANDERSON with a reasonable expectation of success, yielding the predictable result of providing a solid refractory component which can be mixed with an aqueous colloidal silica binder and dried/hardened to form a refractory article (see ANDERSON at Abstract; see SCOTT at paragraphs [0003]-[0005] and [0017]); further, one of ordinary skill in the art would have been motivated to use this refractory mixture for the benefit of making a refractory article having excellent high-temperature resistance and creep resistance, as taught by ANDERSON (see ANDERSON at Abstract). Additionally, as evidenced by ANDERSON, the claimed mixture is a known refractory component 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)”.
Regarding claim 29, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises quartz and silica (see SCOTT at paragraphs [0005] and [0017]).
SCOTT fails to explicitly teach that based on the weight of the solid refractory component, the quartz is about 80% to about 99% and the silica is about 1% to about 15%, and fails to explicitly mention that silica is fumed silica and/or microsilica.
However, SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). SCOTT therefore explicitly teaches that the contents of each type of refractory material are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourages carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the types and amounts of refractory materials in the refractory material mixture, including the claimed amounts of quartz and silica, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]).
ANDERSON teaches a method of making a refractory composition comprising an aqueous colloidal silica binder and a solid refractory component which comprises, by weight of the composition, about 0.5 to about 4% microsilica, e.g., a composition wherein the solid refractory component in the composition comprises 60.9% chamotte, 13.3% mullite, 10.3% fused silica, 1.8% calcined alumina, and 2.2% microsilica, which is about 3% microsilica based on the weight of the refractory component (see ANDERSON at Abstract and paragraphs [0029] and [0048]). ANDERSON teaches that using the microsilica improves the initial flow characteristics of the refractory composition (see ANDERSON at paragraph [0029]).
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 modified the method of SCOTT by including microsilica in the refractory component, e.g., in an amount of about 3% by weight, as taught by ANDERSON (see ANDERSON at Abstract and paragraphs [0029] and [0048]). One of ordinary skill in the art could have used the microsilica with a reasonable expectation of success, yielding the predictable result of providing a refractory silica and forming a solid refractory component which can be mixed with an aqueous colloidal silica binder and dried/hardened to form a refractory article (see ANDERSON at Abstract; see SCOTT at paragraphs [0003]-[0005] and [0017]); further, one of ordinary skill in the art would have been motivated to include the microsilica for the benefit of improving the initial flow characteristics of the refractory composition as taught by ANDERSON (see ANDERSON at paragraph [0029]). Additionally, as evidenced by ANDERSON, microsilica is a known refractory component 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 22, 24-25 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over SCOTT in view of Connors, et al. (U.S. Pub. No. 2002/0175453-A1) (hereinafter, “CONNORS”).
Regarding claim 22, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises alumina (see SCOTT at paragraphs [0005] and [0017]).
However, SCOTT fails to explicitly teach that the solid refractory component includes about 14% to about 80% by weight bauxite and an alumina amount of about 15% to about 80% by weight.
CONNORS teaches a refractory composition comprising a solid refractory component and colloidal silica (see CONNORS at Abstract), wherein the refractory component comprises alumina and bauxite (see CONNORS at paragraphs [0022]-[0023]). CONNORS teaches that alumina provides high temperature strength, and that titania present in bauxite improves resistance of the refractory to off-gases (see CONNORS at paragraph [0022]).
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 modified the method of SCOTT by including bauxite in the refractory component as taught by CONNORS (see CONNORS at paragraphs [0022]-[0023]). One of ordinary skill in the art would have been motivated to make this modification for the benefit of improving resistance of the refractory to off-gases as taught by CONNORS (see CONNORS at paragraph [0022]). Additionally, as evidenced by CONNORS, bauxite is a known refractory component 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)”.
SCOTT and CONNORS do not explicitly teach the claimed amounts of alumina and bauxite; however, CONNORS teaches that alumina provides high temperature strength, and that titania present in bauxite improves resistance of the refractory to off-gases (see CONNORS at paragraph [0022]), and SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). Both CONNORS and SCOTT therefore explicitly teach that the contents of each type of refractory material, specifically alumina and bauxite, are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourage carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the amounts of alumina and bauxite in the refractory material mixture, including the claimed amounts of alumina and bauxite, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]) and in order to achieve the desired high temperature strength and resistance to off-gases as taught by CONNORS (see CONNORS at paragraph [0022]).
Regarding claim 24, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises alumina and tabular alumina (see SCOTT at paragraphs [0005] and [0017]).
However, SCOTT fails to explicitly teach that the solid refractory component includes about 2% to about 10% by weight reactive alumina and/or about 3% to about 15% by weight calcined alumina and a tabular alumina amount of about 20% to about 95% by weight.
CONNORS teaches a refractory composition comprising a solid refractory component and colloidal silica (see CONNORS at Abstract), wherein the refractory component comprises tabular alumina and reactive alumina and/or calcined alumina (see CONNORS at paragraphs [0022]-[0023]). CONNORS teaches that alumina provides high temperature strength (see CONNORS at paragraph [0022]).
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 modified the method of SCOTT by including reactive alumina and/or calcined alumina in the refractory component as taught by CONNORS (see CONNORS at paragraphs [0022]-[0023]). One of ordinary skill in the art could have used reactive and/or calcined alumina with a reasonable expectation of success, yielding the predictable result of providing an alumina refractory component which provides high temperature strength and forming a solid refractory component which can be mixed with an aqueous colloidal silica binder and dried/hardened to form a refractory article (see CONNORS at Abstract and paragraphs [0022]-[0023]; see SCOTT at paragraphs [0003]-[0005] and [0017]). Additionally, as evidenced by CONNORS, reactive alumina and calcined alumina are known refractory components 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)”.
SCOTT and CONNORS do not explicitly teach the claimed amounts of tabular alumina and reactive and/or calcined alumina; however, CONNORS teaches that alumina provides high temperature strength (see CONNORS at paragraph [0022]), and SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). Both CONNORS and SCOTT therefore explicitly teach that the contents of each type of refractory material, specifically aluminas, are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourage carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the amounts of tabular alumina and reactive and/or calcined alumina in the refractory material mixture, including the claimed amounts of tabular alumina and reactive and/or calcined alumina, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]) and in order to achieve the desired high temperature strength as taught by CONNORS (see CONNORS at paragraph [0022]).
Regarding claim 25, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises: zirconia and alumina (see SCOTT at paragraphs [0005] and [0017]).
However, SCOTT fails to explicitly teach that the solid refractory component includes, by weight, about 55% to about 92% of the zirconia and about 2% to about 10% by weight of the alumina, and fails to explicitly mention that the alumina is reactive alumina and/or calcined alumina.
CONNORS teaches a refractory composition comprising a solid refractory component and colloidal silica (see CONNORS at Abstract), wherein the refractory component comprises reactive alumina and/or calcined alumina (see CONNORS at paragraphs [0022]-[0023]). CONNORS teaches that alumina provides high temperature strength (see CONNORS at paragraph [0022]).
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 modified the method of SCOTT by including reactive alumina and/or calcined alumina in the refractory component as taught by CONNORS (see CONNORS at paragraphs [0022]-[0023]). One of ordinary skill in the art could have used reactive and/or calcined alumina with a reasonable expectation of success, yielding the predictable result of providing an alumina refractory component which provides high temperature strength and forming a solid refractory component which can be mixed with an aqueous colloidal silica binder and dried/hardened to form a refractory article (see CONNORS at Abstract and paragraphs [0022]-[0023]; see SCOTT at paragraphs [0003]-[0005] and [0017]). Additionally, as evidenced by CONNORS, reactive alumina and calcined alumina are known refractory components 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)”.
SCOTT and CONNORS do not explicitly teach the claimed amounts of zirconia and reactive and/or calcined alumina; however, CONNORS teaches that alumina provides high temperature strength (see CONNORS at paragraph [0022]), and SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). Both CONNORS and SCOTT therefore explicitly teach that the contents of each type of refractory material are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourage carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the amounts of zirconia and reactive and/or calcined alumina in the refractory material mixture, including the claimed amounts of zirconia and reactive and/or calcined alumina, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]) and in order to achieve the desired high temperature strength as taught by CONNORS (see CONNORS at paragraph [0022]).
Regarding claim 28, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises: fused alumina, alumina and silicon carbide (see SCOTT at paragraphs [0005] and [0017]).
However, SCOTT fails to explicitly teach that the solid refractory component includes, by weight, about 55% to about 85% of the fused alumina, about 1.5% to about 10% of the alumina and about 5% to about 25% by weight of the silicon carbide, and fails to explicitly mention that the fused alumina is brown fused alumina and that the alumina includes reactive alumina.
CONNORS teaches a refractory composition comprising a solid refractory component and colloidal silica (see CONNORS at Abstract), wherein the refractory component comprises brown fused alumina and reactive alumina (see CONNORS at paragraphs [0022]-[0023]). CONNORS teaches that alumina provides high temperature strength, and that titania present in brown fused alumina improves resistance of the refractory to off-gases (see CONNORS at paragraph [0022]).
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 modified the method of SCOTT by using brown fused alumina as the fused alumina and reactive alumina in the refractory component as taught by CONNORS (see CONNORS at paragraphs [0022]-[0023]). One of ordinary skill in the art could have used brown fused alumina and reactive alumina with a reasonable expectation of success, yielding the predictable result of providing an alumina refractory component which provides high temperature strength and forming a solid refractory component which can be mixed with an aqueous colloidal silica binder and dried/hardened to form a refractory article (see CONNORS at Abstract and paragraphs [0022]-[0023]; see SCOTT at paragraphs [0003]-[0005] and [0017]); further, one of ordinary skill would have been motivated to use brown fused alumina for the benefit of improving resistance of the refractory to off-gases as taught by CONNORS (see CONNORS at paragraph [0022]). Additionally, as evidenced by CONNORS, brown fused alumina and reactive alumina are known refractory components 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)”.
SCOTT and CONNORS do not explicitly teach the claimed amounts of brown fused alumina and reactive alumina; however, CONNORS teaches that alumina provides high temperature strength, and that titania present in brown fused alumina improves resistance of the refractory to off-gases (see CONNORS at paragraph [0022]), and SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). Both CONNORS and SCOTT therefore explicitly teach that the contents of each type of refractory material, specifically brown fused alumina and reactive alumina, are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourage carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the amounts of brown fused alumina and reactive alumina in the refractory material mixture, including the claimed amounts of brown fused alumina and reactive alumina, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]) and in order to achieve the desired high temperature strength and resistance to off-gases as taught by CONNORS (see CONNORS at paragraph [0022]).
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over SCOTT in view of First, et al. (GB-2359549-A) (hereinafter, “FIRST”).
Regarding claim 23, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises: calcined clay, kyanite and/or mullite, and alumina (see SCOTT at paragraphs [0005] and [0017]).
However, SCOTT fails to explicitly teach that the solid refractory component includes, by weight, about 55% to about 80% of the calcined clay, about 5% to about 38% of the kyanite and/or mullite, and about 4% to about 15% of the alumina, and fails to explicitly mention that the calcined clay is calcined flint clay and the alumina is calcined alumina.
FIRST teaches a refractory composition comprising a solid refractory component and colloidal silica (see FIRST at pg. 3, lines 13-14 and 29-30), wherein the refractory component comprises about 10 to 40 weight percent of fines including 0 to 30% calcined alumina and the remainder being graded aggregate such as calcined flint clays, e.g., a refractory component comprising 60% calcined flint clay and 5% calcined alumina (see FIRST at pg. 4, lines 1-5 and pg. 5, Table 1).
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 modified the method of SCOTT by selecting calcined flint clay as the calcined clay and including it in the refractory component in an amount of about 60-90%, e.g., 60%, and selecting calcined alumina as the alumina and including it in the refractory component in an amount of up to 30%, e.g., 5% as taught by FIRST (see FIRST at pg. 4, lines 1-5 and pg. 5, Table 1). One of ordinary skill in the art could have used calcined flint clay and calcined alumina with a reasonable expectation of success, yielding the predictable result of providing calcined clay and alumina refractory components and forming a solid refractory component which can be mixed with a colloidal silica binder and dried/hardened to form a refractory article (see FIRST at Abstract and pg. 3, line 29 - pg. 4, line 5; see SCOTT at paragraphs [0003]-[0005] and [0017]). Additionally, as evidenced by FIRST, calcined flint clay and calcined alumina are known refractory components 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)”.
SCOTT and FIRST do not explicitly teach the claimed amount of kyanite and/or mullite; however, SCOTT teaches that the composition of the slurry should be carefully controlled, teaches using mixtures of multiple refractory materials, and teaches that the makeup of the refractory materials affects attributes such as thermal conductivity; e.g., including silica may decrease the thermal conductivity of the refractory materials (see SCOTT at paragraphs [0005] and [0017]). SCOTT therefore explicitly teaches that the contents of each type of refractory material are result-effective variables which may be optimized by one of ordinary skill in the art, and explicitly encourages carefully controlling the composition. 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 be obvious to one of ordinary skill in the art to vary, through routine experimentation and optimization, the amounts of kyanite and/or mullite (and calcined flint clay and calcined alumina) in the refractory material mixture, including the claimed amount of kyanite and/or mullite, in order to obtain the desired composition and attributes, e.g., thermal conductivity, as taught by SCOTT (see SCOTT at paragraphs [0005] and [0017]).
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over SCOTT in view of Paulter, et al. (U.S. Pub. No. 2018/0086670-A1) (hereinafter, “PAULTER”).
Regarding claim 27, SCOTT teaches a method according to claim 1, wherein the solid refractory component comprises fused silica (see SCOTT at paragraphs [0005] and [0017]).
However, SCOTT fails to explicitly teach that the solid refractory component includes, by weight, about 50% to about 90% crushed glass, and about 15% to about 40% by weight of the fused silica.
PAULTER teaches a refractory composition comprising a solid refractory component and aqueous colloidal silica (see PAULTER at paragraphs [0006]-[0007] and [0009]) which comprises about 50% to about 95% by weight of pulverized glass particles and about 3% to about 40% by weight of additional SiO2 and Al2O3 present in various forms, e.g., fused silica (i.e., based on the weight of the solid refractory components, about 56% to about 97% glass particles and about 3% to about 44% fused silica) (see PAULTER at paragraphs [0007], [0013] and [0016]). PAULTER teaches that these solid ingredients are non-hazardous and chemically inert and can form a relatively inexpensive, environmentally friendly composition (see PAULTER at paragraphs [0010]-[0011]).
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 modified the method of SCOTT by using about 3% to about 44% by weight of the fused silica and about 56% to about 97% by weight of pulverized glass particles as the refractory component, as taught by PAULTER (see PAULTER at paragraphs [0007], [0013] and [0016]). One of ordinary skill in the art could have used this mixture of fused silica and pulverized glass with a reasonable expectation of success, yielding the predictable result of providing a solid refractory component which can be mixed with a colloidal silica binder and dried/hardened to form a refractory article (see PAULTER at paragraphs [0007] and [0024]; see SCOTT at paragraphs [0003]-[0005] and [0017]). Further, one of ordinary skill in the art would be motivated to use crushed glass and fused silica for the benefit of providing non-hazardous and chemically inert materials which can form a relatively inexpensive, environmentally friendly composition as taught by PAULTER (see PAULTER at paragraphs [0010]-[0011]). Additionally, as evidenced by PAULTER, the use of pulverized (i.e., crushed) glass in refractory compositions is known 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)”.
The ranges of about 56% to about 97% glass particles and about 3% to about 44% fused silica (see PAULTER at paragraph [0007]) overlap with and thereby render obvious the claimed ranges. 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)).
Response to Arguments
Applicant's arguments filed 05/13/2026 and 06/05/2026 have been fully considered but they are not persuasive.
Further, the Amendment filed by Applicant necessitated new grounds of rejection under 35 U.S.C. 103 for claims 1, 5-6 and 8 over SCOTT as set forth above.
Applicant argues:
“Scott fails to disclose a method of making a porous refractory “casting” composition for “transporting followed by forming into a hardened refractory part or liner”… No refractory composition, or casting step, is involved” (see 05/13/2026 Remarks at pg. 9).
““Ivarrson discloses colloidal silica only as one possible source of silica (among others), wherein the silica is immediately precipitated after foaming using a precipitating agent… No part of Ivarrson discloses forming a “foamed colloidal silica binder” as claimed… there is no step of “making a porous refractory casting composition for transporting followed by forming”… Ivarrson discloses initiating precipitation of silica before the foamed mixture is poured into a mold for forming” (see 05/13/2026 Remarks at pg. 10-11).
“Scott discloses… adding a foaming agent directly to an investment casting slurry which contains solid refractory ingredients… There is no disclosure or suggestion of a step of forming a foamed colloidal silica binder exclusive of the solid refractory ingredients” (see 06/05/2026 Remarks at pg. 10).
“Ivarsson… uses colloidal silica only as one alternative source of silica particles. There is no disclosure of forming a foamed colloidal silica binder exclusive of a solid refractory ingredient, followed by adding a foamed colloidal silica binder to a solid refractory component… a silica-generating material… is foamed, and then adding a further solid refractory component… to the foamed mixture…. the order of mixing is opposite of Applicant’s claim 1, which requires the foamed colloidal silica binder be added to the solid refractory component” (see 06/05/2026 Remarks at pg. 10-11).
However, for at least the following reasons the Examiner finds these arguments unpersuasive:
In response to Applicant’s argument that the present invention is novel and nonobvious because SCOTT and IVARRSON fail to disclose making a casting composition for transporting followed by forming into a hardened refractory part or liner, the Examiner respectfully disagrees. As discussed in the rejections above, this limitation in amended claim 1 is merely a recitation of an intended use of the composition and does not limit the claimed method of making a composition; no actual method step of transporting, casting or forming into a hardened part or liner is recited by the claim, only an intended use of the composition that is formed by the method, which does not hold patentable weight in the present claims (see MPEP 2111.02(II)). Any composition as recited by claim 1 would be expected to be able to perform the intended use of being transported to a destination and hardened into a refractory part or liner. Additionally, contrary to the assertions in Applicant’s arguments, and although not required to meet the limitations of the present claim, SCOTT explicitly teaches pouring the slurry into a mold and allowing it to harden, i.e., transporting it to a destination and casting (see SCOTT at Example 22, paragraph [0047]). IVARRSON also explicitly discloses that the composition is a casting composition which is transferred to a mould before the precipitation of the silica, solidification taking place in the mold, to form a refractory part or liner (see IVARRSON at col. 3, lines 5-52).
In response to Applicant’s argument that IVARRSON does not disclose the claimed method because it mentions multiple sources of silica, silica is immediately precipitated, and it discloses adding a refractory component to the foamed colloidal silica rather than adding foamed colloidal silica to the refractory component, the Examiner respectfully disagrees. IVARRSON mentions only two options for the silica-generating material, one of which is colloidal silica, and provides examples using each one, including colloidal silica (see IVARRSON at Examples 1 and 4); mentioning another option in no way negates the explicit teaching of colloidal silica. Contrary to Applicant’s assertion that the silica is precipitated “immediately”, IVARRSON explicitly states that the precipitation takes a few hours, and that irrespective of the temperature at which the silica is precipitated, the foam maintains its volume until binding has occurred (see IVARRSON at col. 3, lines 12-14, col. 4, lines 36-41 and 59-62). IVARRSON explicitly discloses that the silica-generating material (colloidal silica) is foamed in an aqueous environment to form a fine-blistered foam (exclusive of the refractory material) and then, subsequently, this foamed colloidal silica is mixed with the refractory material (see IVARRSON at col. 2, lines 24-32 and 42-44, col. 3, lines 18-25 and col. 4, lines 21-32 and 59-62); i.e., IVARRSON explicitly discloses the claimed method steps. The claims do not exclude any additional, unrecited ingredients or steps. Additionally, adding the foamed colloidal silica to the refractory component is the same thing as adding the refractory component to the foamed colloidal silica; adding a first component to a second component is exactly the same as adding a second component to a first component. When two components are mixed, they are each added to the other. As discussed above, IVARRSON explicitly teaches all steps of the method as claimed.
In response to Applicant’s argument that the present invention is novel and nonobvious over SCOTT because SCOTT discloses adding the foaming agent to the slurry including the refractory component rather than separately mixing the foaming agent with the aqueous colloidal silica then subsequently mixing it with the solid refractory component, the Examiner respectfully disagrees. As discussed in the rejection above, MPEP § 2144.04(IV)(C) states that selection of any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
Consequently, for at least these reasons the Examiner finds Applicant’s arguments unpersuasive.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CATHERINE CASE whose telephone number is (703)756-5406. The examiner can normally be reached M-Th 7:00 am - 5:00 pm EST.
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/S.C.C./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731
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