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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/7/2023 has been considered by the examiner.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 30 of the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim is directed to a use and not to a method and does not recited use steps. The claimed recitation of a use, without setting forth any steps involved in the process, results in an improper definition of a process, i.e., results in a claim which is not a proper process claim under 35 U.S.C. 101. See for example Ex parte Dunki, 153 USPQ 678 (Bd..App. 1967) and Clinical Products, Ltd. v.Brenner, 255 F. Supp. 131, 149 USPQ 475 (D.D.C. 1966). This claim has been interpreted as an intended use of the claimed composition.
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.
Claim 30 is 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.
Claim 30 recites “use of” since there are no method steps recited this claim is indefinite. It is unclear what method/process applicant is intending to encompass. A claim is indefinite where it merely recites a use without any active, positive steps delimiting how this use is actually practiced. This claim being given the broadest reasonable interpretation in view of the specification ash ben interpreted as an “intended use” of the recited composition.
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) 19-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arnout et al (WO 202002569A1) published February 6, 2020 (more than one year prior to the effective filing date of the instant application which is 6/2/2021) (“primary reference”) further in view of Brabston et al (US 5,366,547)
Regarding Claims 19-30
Arnout et al (WO 202002569A1) published February 6, 2020 (more than one year prior to the effective filing date of the instant application which is 6/2/2021)
Arnout discloses a binder for mortar or concrete comprising 40-95 wt.% of an iron comprising slag or glass which comprises Fe as Fe2O3 of more than 30 wt.% and from 1-40 wt.5 of a calcium comprising additive having more than 30 wt.% Ca expressed as Ca oxide and 0.5 to 20 wt.% of an alkali (Abstract)
The composition is an iron rich binder that is durable sustainable and safe to use (P4 L30-35)
The composition may be used as a main component along with Ordinary Portland cement and/or other C rich resources mineral residue sulfate source alkali and additive as minor components. The binder has low shrinkage good strength low leaching of metals high chemical resistance high freeze thaw resistance and good behavior in fire and are sustainable and they are made of by product such as recycled materials have low cost and all ingredients are commercially available (P4 L1-10)
The iron rich component meets the limitations of claim 19 for an iron containing silicate precursor (See P7):
PNG
media_image1.png
574
1366
media_image1.png
Greyscale
(meeting the limitation for an iron containing silicate pre cursor of claim 19 and having an overlapping the range of claim 1 for Fe2O3 of at least 20 wt.% and at most 80 wt. %)
(meeting the limitation for an alkali containing activator of claim 19)
(meeting the limitation for an iron containing silicate pre cursor)
meeting the limitation for at most 30 wt.% Al2O3)
(overlapping claim 23 for 30-80 wt.% Fe2Oe)
(overlapping claim 25 SiO2)
(meeting the limitation for at most 30 wt.% Al2O3)
(meeting claim 22 for at most 30 wt.% CaO)
(meeting metallurgical slag of claim 19)
PNG
media_image2.png
476
1384
media_image2.png
Greyscale
(further meeting the limitation for an iron containing silicate pre cursor of claim 1 and having an overlapping the range of claim 19 for Fe2O3 of at least 20 wt.% and at most 80 wt. %)
(meeting the limitation for an alkali containing activator of claim 19)
(meeting the limitation for an iron containing silicate pre cursor)
(meeting the limitation for at most 30 wt.% Al2O3)
(overlapping claim 23 for 30-80 wt.% Fe2Oe)
The slag includes nickel, copper, lead, slags (P22 L1-5) (meeting the limitation of claim 19 for copper metallurgical slag etc.)
The iron rich mixture is 30 % ( 5, 10, 20, 30 ….) amorphous (C L5-10) (meeting claim 19 for at least 30 wt.% amorphous iron containing silicate precursor)
The alkali includes Li Na or K salt silicate, carbonate, aluminate, sulfate, sulfide nitrate hydroxide (P8 L25-30) (meeting claim 19)
The composition may comprise one or more of Portland cement, CaO, Calcium hydroxide, calcium carbonate (P8 L14-30)
(meeting claims 27 for hydraulic component 3)
The composition further comprises one or more additives of p to 1 , 2, 3, 4, or 5 wt. % such as superplasticizer of a polycarboxylate ether, melamine polymer, etc. (P9 l4-11) (meeting claim 28)
The composition further comprises one or more additives of up to 5, 10, 15, 20 25 or 30 wt.% of ground granulated blast furnace slag, fly ash, cement kiln, dust silica fume etc. (P9 L10-15) (meeting claims 26 in overlapping ranges)
Further comprising water sand gravel and aggregate (P9 L14-20)(meeting claim 29)
The composition is used in a mortar or concrete (P ( L22-30)(meeting claim 30)
The alkali includes Li Na or K salt silicate, carbonate, aluminate, sulfate, sulfide nitrate hydroxide (P8 L25-30) (meeting claim 20 where the alkali containing activator and iron complexing agent roe different chemical compounds))
50 % or more by mass is the iron rich metallurgical slag (overlapping claim 24 for iron containing silicate precursor 30-99.8 wt.5) (P13 L20-25) and meeting claim 19 for metallurgical slag)
PNG
media_image3.png
638
1366
media_image3.png
Greyscale
(meeting claims 19 and 21-23)
PNG
media_image4.png
388
314
media_image4.png
Greyscale
PNG
media_image5.png
640
1124
media_image5.png
Greyscale
PNG
media_image6.png
518
762
media_image6.png
Greyscale
PNG
media_image7.png
274
712
media_image7.png
Greyscale
PNG
media_image8.png
390
758
media_image8.png
Greyscale
The above examples are within the range of claim 24 components a and b
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)"
While the reference does not teach the pH as set forth in instant claim 21, it does teach the claimed composition in ranges which meet and/or overlap the instantly claimed ranges esp. where the alkali additive is that of the instant claims and is used in ranges which meet those of the instant claims thereby favoring an alkaline/basic pH such as that of instant claim 21. As such the pH would be expected to meet and/or overlap that recited in instant claim 21. 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)
In the alternative, since he primary reference teaches alkali activators in binders a used to affect pH and impart improved performance (P 3 L10-15) As such one of ordinary skill in the art at the time of filing the invention would be able to adjust the pH with the alkali activator such as to an alkaline / basic pH to impart improved performance thereby rendering obvious to one of ordinary skill in the art at the time of filing the invention a pH of 9.5 or greater. 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)
The reference does not expressly teach an iron complexing agent of a salt having a functional group selected from phosphate and phosphonate in a arrange of 0.001 to 5 wt.% of instant claims 19 and 24.
Brabston et al (US 5,366,547) like Arnout teaches a binder with an alkali activator and an amorphous alumino silicate pre cursor. Brabston teaches an alkali activated silicate based cement or binder which is modified by a phosphate additive to retard the set time and allows a longer set time (Abstract) The silicate is an alumino silicate (C1 L50-55)
The alumino silicate is largely amorphous (See claim 1 Brabston)
The composition may be mixed with aggregate and filler to form a binder etc. (C1 L53-60)
The binder includes the alkali activated silicate an alkali activator and an amount of metaphosphate or polyphosphate retarder in solution with the alkali activator (C1 L62-68)
The alkali activator is in an amount of 6 pbw based on 100 pbw of dry reactive material (2 L10-15) and may be varied to produce a specific setting time for a given mixture at a given temperature for example 5 pbw based on 100 pw of the sodium metaphosphate mixed with solution contain 6 pbw sodium hydroxide(C2 L23-32)
The phosphate added to the alkali in amount of less than 1 pbw to greater than 10 pbw based on the base material of alkali activated silicate (C2 l15-20)(overlapping the range of claim 24 for 0.001 to 5 wt.%) the metaphosphate retarder may include sodium metaphosphate potassium metaphosphate. The nature of the regarding effect relates to the ability of the metaphosphate to bind to calcium and other reactive ions produced during the alkali attach on the silicate material in the retarder will have a similar effect on various forms (C4 L5-28) (meeting the limitation for an iron complexing agent of a salt of aa phosphate or phosphonate of claim 19)(based on the amount of alkali in the original claims of 0.1 to 20 the 1 pbw to 10 pbw of the meta phosphate would overlap and encompass the instantly claimed range. Also based on the amount of the requirement components in the primary reference this additive would again overlap the instantly claimed ranges)
The alkali activator includes sodium hydroxide (C2 L62-68) and may include halide carbonate sulfate as sources of alkali (C3 l2-7) (meeting claim 1 for an alkali containing activator b)
The alumino silicate base material includes amorphous silicates such as slag and amorphous alumino silicate such as fired clay. A wide variety of materials can be used as the source of silica and alumina such as slag, fly ash and ground rock (C2 L32-45)
The composition may include any filler compatible with silicate based binders as are well known in the art in amounts of 400 pbw based on 100 pbw of the silicate (C3 L25-30)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add the meta phosphate salt of Brabston in the amounts therein to Arnout in order to improve and extend retarding time of the composition of Arnout.
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 binder/compositions comprising the claimed compositional components in full or in part For Example:
Kaja, Yu (WO 2020/188070) (published 9/24/2020 with no common inventors and no common assignee)(instant effective filing date 6/2/2021)
Kaja discloses a slag based building product comprising: A slag mixture having 35-60% CaO 10-17 % SiO.sub.2, 15-35 % Sum Iron oxides, 1-5 % Al.sub.2O.sub.3, 1-13 % MgO 0-4 % P.sub.2O.sub5 by mass where the sum of iron oxides is about 30 % Fe.sub.2 O.sub.3 (P 3 L23-30) overlapping the ranges of claim 19 a)
A chelating agent of a poly carboxylic acid salt (P3 L33-37) in an amount of 0.1 to 9.7 5 mass (P6 L5-30)
The mixture may be added to sand gravel limestone to result in mortar or concrete like mixture (P4 L25-33)
Beraldo et al (US 2015/0232385) discloses alkali activated aluminosilicate binder with superior freeze thaw stability. (Abstract)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAMELA HL WEISS whose telephone number is (571)270-7057. The examiner can normally be reached M-Thur 830 am-700 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Coris Fung can be reached at (571) 270-5713. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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.
/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732